Mr. Speaker, since we adjourned last night, the hon. the Minister of Justice has thought it reasonable to suggest an additional amendment to this Bill. It has now been placed on the Order Paper, and the number of amendments to this Bill now totals 14. I commented on this matter yesterday, because during the course of his speech the hon. the Minister said that he had extended an invitation to the Justice groups on both sides of the House to call upon the department or himself, to discuss the Bill and to make suggestions regarding amendments to the Bill. He felt that members could also use this opportunity to raise objections to certain portions of the Bill. He went on to say—

Surely, if anything at all makes it absolutely clear how necessary it is for a Bill of this nature to be referred to a Select Committee, then these amendments of which notice has been given do exactly that. No one on this side of the House is surprised at these amendments. In fact, we are surprised that there are not many more amendments. The hon. the Minister has had this Bill in his hands for a considerable time. He has had the report of the commission at his disposal, as well as the draft Bill which was advertised for the public to see and to comment upon. He actually introduced the Bill on the 20th March and then delayed the Second Reading in order to give this side of the House the opportunity of studying it. As he stated, it is a long and involved Bill. But despite that, the amendments which the hon. the Minister found worth while enough to place on the Order Paper, were printed only on the day of the Second Reading of this Bill. That is rather a surprising feature. I have no doubt that what occurred was that the members of the Justice group on the Government side of the House, having been given this opportunity, rushed in and made every effort to amend sections of this Bill which they do not like. There are many sections of the Bill which we do not like and which the practising barristers and attorneys and many others do not like. This is the type of Bill which could certainly have been referred to a Select Committee. But the hon. the Minister said that since an hon. judge of the appellate division had formed the commission, the one-man commission, which presented the report and the Bill, he did not feel that a report of a commission of that nature warranted the appointment of a Select Committee consisting of members of Parliament. As was said yesterday, who then must deal with legislation if it is not to be members of Parliament?

You are dealing with it now.

Of course. In whose hands is the whole question of the protection of the citizen? In whose hands is the interest of the citizen?

Your hands.

Both the protection of society and the protection of the citizen as an accused are important factors and for that reason I believe, as do my colleagues on this side of the House, that if we are to deal with a complicated and involved Bill of this nature—and the Minister has agreed that this House must deal with such legislation—then we should do so by means of a Select Committee. I can think of many cases far less important than this which have received the attention of a Select Committee. This measure certainly warrants the appointment of such a Select Committee. Therefore I think our case has been very well made.

I want to go further and say that there is no question that in the minds of the Government members there is a certain amount of confusion with regard to what was intended in this Bill. The confusion arises from the fact that the Minister has gone to the trouble to give us excerpts from the views of legal luminaries in other parts of the world, and that it appears that we are possibly leaning over backwards in order to protect an accused. Therefore he says many people who possibly are guilty are escaping the penalty of the law; and so, possibly, we are not affording the fullest protection to society. Because of this problem, confusion has arisen regarding the views of Mr. Justice Hiemstra and the views of the commission itself. Even the commission itself is a little doubtful as to the value and the effect of what has been incorporated in this Bill, particularly in regard to the information which will have to be laid before a superior court and the procedure which will take the place of preparatory examinations. I shall shortly quote to the hon. the Minister examples of this type of confusion.

It is a well-known fact in our country, as it is in any other well-ordered society, that reform has constantly been taking place. Many of our legal luminaries over the years have made contributions in one form or another to the reform and the revision of our existing laws. Perhaps very few aspects of our law have had as much attention as our Criminal Procedure and Evidence Acts have had. Furthermore, the whole tenor of South African society has been complicated by many other features which are not common to other countries. These are dealt with in an entirely different manner. As a result of these features we have found that our courts are completely choked with matters which, in the normal course of events, would not have arisen through the avenue of our Criminal Procedure and Evidence Acts.

I want to say that I fully agree with those members who have paid tribute to those who have made contributions towards the reform of our Criminal Procedure and Evidence Acts. I think that Mr. Justice Hiemstra should be commended for having taken the trouble to make a contribution in this regard. Although we do not necessarily have to agree with that, it seems to have found, subconsciously, a great deal of favour, as the one solution to the problem of ensuring that guilty people do not escape the noose of the law. That is where the confusion arises, that is to say, in presenting a form of procedure which will ensure that the full information and facts are brought to the notice of the judge or magistrate, instead of following a procedure which we have accepted over the years and which, as the hon. the Minister himself says, has proved its worth for over a century. We have had a century of success with this system in this country, but the Minister has now adopted a system which is in fact and in practice the inquisitorial system; there is no doubt about that. Let me just give the hon. the Minister one excerpt from the commission’s report on this subject, where it says—

This is with regard to the form of questioning that takes place.

On which page is that?

This is on page 9. The commissioner goes on to say—

Then he goes on to say—

He goes on to say—

To which paragraph are you referring?

I am referring to paragraph 1.30 on page 9 of the report. There, Sir, we have an immediate example of the concern which the commission itself had in this regard. This shows that the commission itself is somewhat doubtful as to whether this particular suggestion will work.

In terms of clause 112, where a man has pleaded guilty, the magistrate is compelled to place all the elements of the crime before him to ensure that he knows what the elements are and that he is prepared to plead guilty to each one of those elements. Then, in terms of clause 119, where the man pleads not guilty, the accused has to give the basis of his defence. Here the Bill goes even further and says—

Sir, how is this to be extracted from any accused unless it is done by some form of consecutive interrogation? Sir, this is the whole basis of Mr. Justice Hiemstra’s viewpoint; it is an inquisitorial form of eliciting the attitude of the accused and what his purpose is in defending the case and why he pleads not guilty. You are in fact taking away from him, in a sense, every right that he has to hear of what he has been accused. Sir, I think the hon. the Minister will agree with me that it is a basic principle of our law that every citizen is entitled to live according to laws enacted by Parliament for the protection of society. Furthermore, he is entitled to know of what contravention of the law he is accused and, thirdly, he is entitled to a fair trial. The term “fair trial” has a wide connotation. It is all very well for the hon. the Minister to think perhaps that I am being trite, but I am not; this is a very involved matter. Our present system is one which has been established over centuries, and I as a legal practitioner myself feel very proud indeed of this system. Sir, let me give the hon. the Minister another point of view to show the inadequacy of many other provisions of this Bill. Mr. Justice Hiemstra was of the opinion, as far as the inquisitorial system is concerned, that the accused should not be represented by any legal adviser when he is examined in the first instance. He thereafter changed his viewpoint on this matter. He left the commission in complete confusion in regard to this matter. The commission would not accept that point of view. The commission felt that it could not accept the point of view that no legal adviser be involved when any person appeared before a magistrate, no matter how the system was to be changed. But in the minds of the hon. the Minister or his advisers there must have been some form of doubt or confusion because one of these important amendments proposed to clause 105(3), says—

It then goes on further and at the end of that subsection, proposes the right to ask for an adjournment in order that he may consult his legal adviser. Now one would have thought, on examining the Bill generally, that section 73, despite the fact that it talks about an accused “who is arrested” being able to have a legal adviser, meant otherwise than that everyone would naturally be entitled to have a legal adviser. But that was not so as far as the Government was concerned. On reconsideration over the last three weeks, through advisers of his own Justice group, he obviously was convinced that there was a gap here; and the reason why he was so convinced was because members had been concentrating on the suggestion of Mr. Justice Hiemstra on the subject of the inquisitorial system and were afraid that if you did not allow legal representation at the very first appearance, then it may not be seen that Justice was properly done and the accused may not be placed in the position where he could look after himself.

Now let me come to another couple of aspects of this matter which have been worrying me. The hon. member for Kroonstad said that the proceedings actually would be similar to civil proceedings, namely that the accused would be brought to a court, the prosecutor would put the charge to him and the magistrate would ask him whether he pleads guilty or not guilty to the charge. If he pleads guilty to a charge which calls for a penalty larger than a fine of R50 or which might include a whipping then he might have to be sent to a regional court for sentence. On the other hand, if he pleads not guilty, a number of factors would have to be placed before him. That would be similar to civil proceedings. But the hon. member discounted something which I will deal with in a moment, which the Association of Law Societies suggested when they said that if you want this type of thing to take place, why do you not have a pre-trial conference similar to the civil proceedings of today. Surely that would be a simple matter, Sir. If a man were accused and he had his legal adviser and the Attorney-General or the prosecutor wanted to deal with his plea of not guilty in order to shorten proceedings there could be a round-table conference, a pre-trial conference …

The justice would not be seen to be done.

Certain charges would be put and some would be denied and some would be conceded and so you would help to shorten proceedings. There are many ways of doing these things, ways which are well known to practising members of the fraternity. In addition he goes much further. He is not even satisfied with that. On clause 119, the one which we are opposing and which we believe incorporates the inquisitorial system despite the belief that the hon. the Minister has that it does not do so, the hon. member for Kroonstad suggested that this was purely experimental. He says this is only an experiment and these things can be changed. Sir, can you believe that in this day and age, when we are dealing with the entire fundamental structure of law and order in this country, we should take the one person on whom everything is centred, the accused, and present him with a new experiment, after a hundred years of tradition of trial by Judges and magistrates, some of the greatest legal luminaries who have graced the Bench in any country. Should we now try an experiment which can place the accused completely in jeopardy by one individual? That is the point of view of the hon. member for Kroonstad. He says: “Dit is ’n eksperiment.”

Mr. Speaker, may I ask the hon. member a question? Does the hon. member want to continue with the existing system for the next 100 years?

No, I never suggested that. That is the very reason why we talk of a Select Committee. Furthermore, that is the very reason why the hon. member for Pinelands went further and said to the hon. the Minister that we were perfectly prepared to withdraw this amendment, if the hon. the Minister would withdraw the Bill and send it to the South African Law Commission which has just been established by statute during this very session. That is the very body to which it should go. Why did the English commission spend years and years on changes of the Criminal Code in Great Britain? The hon. the Minister feels that the finding of the English commission is the best justification for what he is doing. In Great Britain that change was not done overnight, it was not done by flashing a Bill through Parliament and it was not done by means of a one-man commission. I say this with the greatest respect to the commissioner himself, for whom I have the same high regard that I have for the entire Bench of our country. I say that it is not fair to refer something which has been in existence for many years, something which has proved itself, to one man instead of referring it to the Law Commission.

Let me deal with another aspect of what the hon. the Minister suggested is one of the main pillars of his attitude. I refer to the shortage of manpower. I can tell the hon. the Minister that if he would take the pains and the time to reconstitute the entire administration of the magistrates’ courts in this country by producing more modern methods of recording, by ensuring that there is more additional trained staff and by ensuring that petty matters are obviated, matters which are the result, as I said earlier, of the extraordinary society in South Africa, he would find that the administration of justice would be very much easier than at present. That is a very important factor. I want to challenge the hon. the Minister, furthermore, from my own experience, that if every accused in this country who comes before the courts on a breach of the law which involves a fine of more than R50 and on account of which the magistrate may wish to or may be obliged to refer him to a regional count, would have to go through the procedure enunciated in clause 119 for a plea of “not guilty” or in clause 112 for a plea of “guilty”, he would clog the courts even more. I can point out to him one division in the magistrate’s court of Johannesburg where there are nearly 50 remands every morning. Strictly speaking, according to the Bill, when a man first appears in the court, a charge has to be put to him. In hundreds of these cases where an accused appears for the first time, the accused often finds that a charge is not being laid because there has not been time to frame it. What is the hon. the Minister going to do with those cases? Will the hon. the Minister be satisfied with the position that those cases are going to be adjourned and adjourned and adjourned again whereby the system which is already bad is aggravated? This is not because the law is bad; this is not because the Code is bad; this is bad because administration is lacking.

I am not being critical of the hon. the Minister in that he does not know his business, but what I want to point to him is that he must take into account and weigh up the society in which we live. He must take into account and weigh up why these courts are being filled by some hundreds of thousands of cases which normally we shall not find in any other form of society, but because of our peculiarity we have them. I do not say that the hon. the Minister must change it overnight, but he must take steps to meet this type of situation. If you want to live in a certain way, then you must take steps to meet the problems that arise from living in that way. If we do that, we can then bring about changes which are important for speeding up the administration of justice. However, to expect any legislature to take a Bill of this nature, some of the clauses of which you have to spend hours on in order to absorb their significance and the consequential factors that flow from them, and to deal with it in the manner in which we are dealing with it here as a normal form of legislation, is utterly unwarranted and is in fact, if I may be permitted with the utmost courtesy to the hon. the Minister, somewhat high-handed. [Interjections.] This is something which could be made a shining example of the value of this new Law Commission which has been set up.

There is one other factor I would like to deal with. The hon. member for Kroonstad had the impertinence, if I may say so, to suggest to me that it is possible that the Association of Law Societies had changed their attitude towards the Bill and that we on this side of the House are not as up to date as that side with what is taking place in this country. The Association of Law Societies still protests against clause 119 and clause 112. They had two or three small changes accepted by the hon. the Minister but that did not remove the main tenor of their objection. That is what the hon. member virtually led us to believe, namely that there was a change in the tenor of their objection. I can read it to him from his Hansard if he is doubtful about it. He made that absolutely clear to me when he said:

I want to tell the hon. the Minister, and that will be my final point, that he, who has sat on it for nearly two years has found it fit to introduce 14 amendments to the Bill on the day of the Second Reading. The General Bar Council has a considerable number of comments to make and a considerable number of amendments to suggest and so has the Association of Law Societies. I could read some of them just to give the House an idea of the type of amendment which is suggested. There is, for instance, no provision that when a man appears before a magistrate he should be advised that he is entitled to legal representation. There is no provision in this Bill whereby the magistrate should ask the accused whether he has a lawyer representing him or whether he needs legal advice. Let me give some examples. They say:

Furthermore they say:

They go on to say:

Then they say:

This forms part of the record again. Then they say that there is no obligation on the magistrate to advise the accused that there is a right to have legal representation and that there is no provision for the magistrate to explain to the accused the elements of the offences with which he is charged, nor possible alternative verdicts to certain charges, nor what presumptions operate in respect of the charges in question. Does this not elucidate the manifold avenues into which the mind must move in dealing with a person who is confronted with a charge, who is called upon to face a charge and who is asked immediately whether he rests four square on the foundation of certain elements which constitute and form the basis of the crime? He has no legal adviser to tell him so. Where is the unfortunate citizen to find himself, with all the desire on the part of this side of the House and the other side of the House to ensure that in these days of a somewhat more violent society we should not lean backwards to protect the criminal but rather try to ensure that the society is protected. The accused is entitled to the maintenance of the system of a fair trial without having anything disadvantageous to him to plead his cause.

This debate has now been in progress for a number of hours, and I think that one would be justified in drawing certain conclusions at this stage. In the first place, it is clear that there are certain points of agreement between the Opposition and this side of the House, although those points of agreement are very few and far between. In the first place, both sides of the House do of course feel that a sound system of criminal procedure and evidence is very necessary in this country. In the second place, both sides do of course feel that this whole matter should not have been in the political arena. It is therefore a pity that political capital was made out of this entire Bill in advance by certain statements and Press reports through which it was implied that the Government was interfering with the freedom of the individual. There are certain aspects of this Bill of which the Opposition would be well advised to take cognizance and of which they would be well advised to make a mental note. Quite a number of pleas have been received and a great deal of evidence has been given, particularly on the part of lawyers, such as judges, magistrates, advocates and attorneys. These are, of course representations which one must take very duly into account and for which one should also be very grateful. One should also remember, particularly every lawyer in this House, that an attorney or an advocate remains at all times an officer of the court and that he must always regard himself as such. He must try to make the proceedings of the court go smoothly, to see that justice is done and, in particular, he must help those people who do not have the necessary knowledge of the law.

Sir, in looking at a few general facts, we all keep in mind that the science of law is a living science, a science which changes with the times. Changes and developments occur, just as we have experienced industrial development and several other scientific developments through the centuries. It stands to reason that the science of law had to adapt itself to them. But what is of particular importance to us in these times and in this country, are the changes which have come about in the increase in population and in the pace at which we live. These are facts which we must take very duly into account. For that reason it does not necessarily follow that a system which has functioned very effectively for the past 100 years, should still be functioning as effectively today. One must bear in mind that changes must occur. If, for example, it is found that an inquisitorial system or an adaptation of it, or an amalgamation of it, may to a certain extent function better in our country today, why should we not give attention to it? Why should we not be able to consider a possible revision of the old accusatorial system, because it may perhaps have become necessary for us to give attention to this? However, we must also be continually on our guard against generalization, such as claiming that the foundation of our system of law is affected by this Bill. We should also guard against saying that now it will perhaps be easier for innocent people to be found guilty, or perhaps unjustly convicted. Every lawyer in this House knows this important book on the law of criminal procedure, namely the one by Gardiner and Lansdown, and I would just like to read a quotation from this book on page 1: “Law, if it is to fulfil its true purpose, must be a moving and living force and its efficacy must be judged by its adaptability to the needs of the public society in which it is operative. With the advance of their civilization, new situations not contemplated by the law-giver of a century ago arise.” We must take this very duly into account, and that it why I say that we should also adapt our system of law to changed circumstances. After all, in the past decade or two already changes have occurred in our criminal procedure and evidence. I do not want to mention all the changes, but would just like to point out two important changes. In the first place, regional courts have developed in the past decade or two. Those regional courts have come about as the very result of the increase in our population, the shortage of manpower, the pace at which we live and for various other reasons. These things did bring about a basic change in our Criminal Procedure Act. Hon. members will remember that we abolished the jury system not so long ago. At that time it was said: “You are interfering with the essence of our Criminal Procedure Act.” In the same way more changes will come about in course of time; we must be prepared for that. We all know that nowadays there is much speculation on whether capital punishment should be abolished or not. Perhaps this will still be discussed in the House at one time or another. Therefore we must, to begin with, be ready for change in our system of law.

Let us look at the objects of the Bill before us. We all know the fairness and the justice of a criminal procedure law. We all know why there must be a law. Briefly, it is there for the protection of the community, for the individual and for the offender himself against serious, harmful and dangerous conduct. The law must also guarantee justice, and it must avoid any unfairness and injustice, not only to the alleged offender but also to the State and the community. This is why there must be an Act. When we look at this particular Act which is before the House today, one asks oneself what the reasons are for its being introduced. After studying the Bill and the documents which go with it. I have personally found that there are various reasons why this new Criminal Procedure Bill should be before us today. In the first place, it seeks to revise the country’s system of criminal procedure and to bring it up to date. This goes without saying and is in itself one of the reasons for this Bill. In the second place, it is envisaged that provision be made, with the necessary adjustments, to guarantee the highest standard of fairness and justice for both the community and the individual. In the third place—and this is very important—the Bill seeks to streamline the court procedure through the means we have at our disposal. In the fourth place, this Bill seeks to reduce the pressure on our courts, as the hon. the Minister in fact pointed out. Hon. members must realize that up to now we, a mere handful of Whites in this country, have the whole system of law in this country. There are very few Whites who have legal training and there are masses of non-Whites, about 15 million, whose cases must also be dealt with in our courts by the Whites. This is one of the reasons why the Minister said we had a shortage of manpower. For the hon. member for Jeppes to say that we must review our administration, does not go down so well. The Government is attempting to review the administration in every department in the country and make it as streamlined as possible, but we are faced with the problem of a shortage of manpower, among other things because of the composition of our population in this country, Therefore we must also have regard to these important reasons why this Bill is necessary.

Perhaps the most important objective of this Bill is the truth to ascertain in an effective manner so that an innocent person may not be found guilty and a guilty person may not go free. By way of this Bill this Government owes that to the country and its people. That changes to existing practices and in respect of certain principles have come about as a result of this Bill, we do not deny; that is generally admitted. But for the hon. Opposition to say that these changes are so basic as to have drastically interfered with our system of law, simply cannot be accepted as the truth. The crucial question is simply whether this will either benefit or prejudice the community and the individual. This is what we must decide and what we as lawyers must specifically discuss in this House today. Simply to say that this whole Bill implies a risk, that a risk is involved in a change of procedure, is no argument. Changes may just as well be benificial as detrimental. As various speakers on this side of the House and the hon. the Minister have pointed out, the changes which are being effected are changes which have been sensed over a period. Those changes have been gone into thoroughly and have been studied throughly. The argument that we are entering a new field of which we have no experience, is, with all respect, no argument. We dare not flinch from that argument. The composition of our population is a complex one which in its kind, is unique in the whole world. For that very reason we must break a new ground in good time so as not to be caught off-side at a later stage. It will not be long before our courts will no longer be able to cope with the population increase and the problems associated with it.

I shall now deal with specific clauses in this Bill. I just want to dwell briefly on clause 19, which was discussed by more or less all the previous speakers. This is probably one of the most important clauses in the Bill. One cannot deny it. One notices that immediately, but it probably is also the clause about which the greatest number of misrepresentations have been made and which has stirred up the greater number of emotions. This has been done mainly by the Opposition. What is actually the error on the side of the Opposition? The biggest mistake which the Opposition has made in respect of this important clause is to say that a full-scale inquisitorial system will now be introduced into our criminal law. But what is a full-scale inquisition really? Here one immediately thinks of Russia with the Communist system of purges which take place from time to time. There they have a full-scale inquisition, where people were interrogated from morning to night under certain circumstances for which one is ashamed. That is a real inquisition. But, after all, no such thing exists in this Bill. What is the real purpose of the clause? There are various types of minor crimes and offences—and, please note, there is a difference between offences and crimes —which can be solved very easily and effectively by this new system which is about to be introduced. I would like to draw the attention of the House to the increase in criminal cases in this country. In our magistrates’ offices alone there were 1 232 815 criminal cases in 1967. In 1971, i.e. five years later, there were 1 481 972 criminal cases. This means that over a period of five years there was an increase of a quarter million. Through the proposed new system the pressure on our courts will immediately be eased. A shorter procedure will immediately be put into operation, a procedure in terms of it will take less time to find a person guilty or not guilty. It will enable the magistrates to dispose of cases in a much shorter space of time.

Then I just want to draw the attention of hon. members briefly to a report of the Department of Prisons. Amongst other things the following appeared in the 1963-’66 report—

In the report for 1971-’72 it is very clearly indicated that the figures showed an upward trend. The same is said there, but the figures increased by about 100 000. This gives one an idea of the increase in the criminal cases in our magistrates’ courts, and why this shortened, streamlined procedure is necessary. It is necessary so that the truth may immediately be ascertained, so that innocent people need not be kept in gaol for a long period. This is one of the main reasons why we want this legislation. Any accused still has the opportunity, particularly in the case of more serious crimes—but also, of course, with regard to lesser crimes—to have his case tried by simply saying that he will say nothing in the court when those questions are put to him. The magistrate may, what is more, only put questions in respect of the legal facts mentioned in the charge before him. He may not go beyond the document before him; he must limit himself to that document before him. On that basis he determines certain legal facts. He does not go into the charge before him in any detail; he does not go into the substantial arguments and facts before him. He only acts according to what is stated in the charge sheet before him. After all, a judicial officer always has a positive duty to ascertain the truth. And one must never lose sight of the fact that he is trained to do that kind of work. In other words, he is a trained man whose object it is in the first place to see that justice is done in the country.

What the Opposition also overlooks very often—and it seems to me that they do not take it into account to any great extent— is that any accused is at all times entitled to a legal representative who may assist and advise him, just as is the case today. There is no reason whatsoever why, as was said by the hon. member, this legislation should be unfamiliar to many people, and particularly to the Black people. After all, such a person will have a legal representative whom he may consult. He may consult his legal representative at any time, and he may then recommend what should be said when these questions are put to the accused.

Sir, I want to deal very briefly with the hon. member for Durban North. The hon. member made certain statements which I want to touch upon. In the first place, he said that the hon. the Minister had given no motivation for this Bill. Mr. Speaker, if what was said by the hon. the Minister and by every speaker on this side thus far, is not a motivation for this Bill, then I do not know what constitutes a motivation for this Bill.

Why is this so necessary and so urgent?

Sir, I am glad the hon. member says that it is so urgent …

I am asking why it is so urgent.

I would very much like to give the hon. member a reply to that; I am coming to it shortly. Sir, the hon. member’s whole speech was really based on emotion and prejudice. It seems to me as if he did not want to view this Bill objectively, as any good lawyer should. He spoke of “radical changes”. Sir, there are no “radioal changes”. There is change; we concede that, but these are not radical changes.

What are they then?

They are consequential changes. They are changes, as the hon. member would have heard if he had been here at the start, which have become necessary with the evolution of time, with our population increase and with the pace at which we live.

The hon. member also asked why the Government had not reacted immediately to the proposals of Mr. Justice Hiemstra. Sir, surely this shows that the Government did not act precipitately, but the hon. member is now asking why the Government was so hasty. Surely this shows that the Government did not act precipitately in regard to this Bill. These comments by Mr. Justice Hiemstra were made a good number of years ago. The hon. the Minister aptly referred to the history of this Bill. He referred to the steps through which this measure had passed up to the stage when a commission of inquiry was appointed and up to the stage when this measure came before the House yesterday. A long time has elapsed since those comments were made by Mr. Justice Hiemstra. The hon. member now asks, “Why do we have this undue haste in regard to this Bill?” In the first place, he asked why there had been no immediate reaction to the comments made by Mr. Justice Hiemstra a few years ago, and now he is asking why such precipitate action is being taken as far as this Bill is concerned. Sir, surely this is very clearly a case of a contradictio in terminis, because on the one hand he asks why such precipitate action was taken and on the other he asks why there was such a long delay.

The hon. member for Durban North also dwelt for a very long time on the question why the Bill was not being referred to a Select Committee. Sir, this Act, the Criminal Procedure Act, is after all an old Act; after all, this is not a new principle which is now being introduced into this country. This is an old Act to which certain changes are now being effected. The commission of inquiry was quite justified in investigating an old existing Act and recommending the necessary adjustments, after representations had been heard from all quarters, from all lawyers. This is by no means a new idea which is being introduced into our society. Sir, there are many examples of one-man commissions appointed in the past. Why hit out specifically at this commission of Mr. Justice Botha? After all, there have been many one-man commissions. I just want to mention a few examples. The Bureau for State Security was established as a result of the recommendation of a one-man commission. Mr. Justice Snyman sat as a one-man commission. As far as trade is concerned, one thinks of the Reynders Commission, which was a one-man commission, and one thinks of the Agliotti Commission of Inquiry, another one-man commission. Why hit out specifically at Mr. Justice Botha and ask that the Bill be referred to a Select Committee?

Did those commissions deal with legislation?

Sir, I cannot follow the hon. member’s argument in this respect.

That is obvious.

His arguments are very unsound. He talks about “obvious”; I am now going to deal with the “obviousness” of his arguments. He says that this Bill will be misinterpreted when use is made of the services of an interpreter. But has the hon. member not forgotten that interpreters have all these years been used in our courts in cases in which Bantu or perhaps foreigners were involved? Why should this measure ostensibly be misinterpreted now, all of a sudden, when the services of an interpreter are required?

But the circumstances are different.

The hon. member says, in the second place: “It will not be understood by the general public, especially the Black people.” Sir, how have the “Black people” and the “general public” understood our Criminal Procedure Act all these years? They understood it through their legal representatives; they understood it through the presiding officer, the magistrate or the judge, who explained their rights to them. Why then should the Black people all of a sudden not understand this Act? Sir, it is “obvious” that the hon. member for Durban North did not understand this Bill, and this is so because he did not want to understand it, because he is prejudiced as far as this whole Bill is concerned.

There was evidence.

Sir, then I would just like to refer briefly to preparatory examinations. Speakers opposite admit that a case can be made out for the abolition of preparatory examinations. They maintain, however, that this Bill does not do so in a satisfactory manner. Sir, they are being absolutely negative as far as this matter is concerned. They have suggested no alternative. We are still asking them what they suggest in regard to the abolition of preparatory examinations. After all, Sir, preparatory examinations are not being abolished completely. The Attorney-General may at any stage still recommend that a preparatory examination be held first.

No, that is not correct.

After all, preparatory examinations on the present pattern are tremendously expensive and time consuming; they are tremendously expensive for the defence and a tremendous amount of time is lost in that way. Then we have the protracted period of uncertainty and the delay which that involves. Surely preparatory examinations under the present system are in effect one-sided, because the State has to reveal its whole case in advance, and the accused actually gets the benefit of that.

What you have just said, is incorrect.

Sir, I would also like to deal just briefly with the hon. member for Pinelands. The hon. member for Pinelands says magistrates will have a very difficult task. He says their task “will involve a great study of the facts of the case”. But. Sir, surely this is not what this Bill says. There will only be questions on legal elements, not on factual elements. Sir, a magistrate is after all a paid official who is there to do a job. Whether his job is changed by the Act or not, he stays in his office or in the court to do his full day’s job. As I have already said, the magistrate is also limited to the charge-sheet before him; he may not depart from it.

Sir, I see that time is flying. I would, in addition, just like to deal briefly with what was said by the hon. member for Florida. Sir, if ever there was an example of prejudice and ignorance concerning this whole measure, then it came from the hon. member for Florida. He said: “This thing”—he calls the Bill a “thing”—“has been brewing for three years.” He directly contradicts the hon. member for Durban North, because on the one hand that hon. member asks why such precepitate action is being taken, and on the other hand the question is asked why there has been such a long delay concerning this Bill. The hon. member for Florida also asked that the Bill be referred to a Select Committee. Just as was done by the hon. member for Jeppes, he referred mainly to the amendments on the Order Paper. Sir, surely it is nothing new for amendments to appear on the Order Paper simultaneously with or prior to the Second Reading of a Bill. That is by no means a new thing in this House. It has often happened in the past, and it will often happen in the future. We should not labour under any illusions in this connection. As far as this particular Bill is concerned, this is not the last amendment which will come before this House. More amendments will still be proposed, just as further amendments were proposed in the case of other measures. Sir, even Bills which had been drafted by a Select Committee and which subsequently came before this House, with which hon. members opposite were satisfied, were amended here on numerous occasions.

And U.P. policy is often amended.

Yes, the hon. member here in front of me reminds me that the policy of the Opposition has already undergone several amendments, but let us not even talk about that. Sir, it is no new principle for amendments to be effected to a Bill. When one looks at the amendments on the Order Paper and at the Bill, which contains 350 clauses, it astonishes one that proportionately so few amendments are being effected. We can say that this is a feather in the cap of the hon. the Minister and his department. Sir, the hon. member for Florida rose here with bravado and said that our Criminal Procedure Act had been taken over from Roman-Dutch law. Surely it is clear that the hon. member is wrong there, Sir. After all, our Criminal Procedure Act derives from English law. I do not know at what university that hon. member obtained his degree, but I would advise him to go and ask for a refund of his school fees.

If you cannot read the Bill, you are not going to do much better.

Sir, he also made great play of the rights of the accused being interfered with by this Bill. For example, he said the rights of the individual were being taken away by clause 7(2)(c). This clause provides that a certificate of private prosecution shall lapse within six weeks should the private prosecutor not continue with his prosecution. But here rights are in fact being given to the person who is prosecuted, and the rights of the prosecutor are not being taken away. This has been included for the very purpose of protecting the accused, of protecting his rights against extortion, against threats. No rights are therefore being taken away; this is a right which is being added. If one should want to quote an example, one could think of one of the former hon. members of this House, Dr. De Wet, who for a number of years had to live under a threat of prosecution, but it never came to anything. That is why this provision has become necessary. [Time expired.]

Whose fault was that?

The hon. member for Potgietersrus will forgive me if I do not argue his case across the floor of the House.

He had no case.

I approach this Bill as a layman as far as legal procedures are concerned, and if I have to give an opinion of what has taken place in the House since yesterday, may I say that I am not terribly impressed by the arguments set out by the hon. members opposite as to why this Bill should not have gone to a Select Committee. My opinions of course will be proved correct in a year or so when we see a multiplicity of amendments coming to this House following upon the passing of this Bill. But my object in coming into this debate is not to show that I know much about legal matters; it is rather because I do happen to know something about sick people. This Bill has one section, Chapter 13, which deals particularly with a very important section of sick people. I want to discuss particularly three clauses in this Bill.

Now, this chanter deals with special circumstances which may occur when a person who is accused of a crime appears to be mentally ill. Chapter 13, as I have said, deals with such cases. Mental illness and mental defects are not defined in this Bill, but in the Mental Health Act which has recently been passed by this House mental illness is defined and includes mental defects. Now I would like to read to the hon. the Minister the definition of mental illness—

I would like the hon. the Minister to remember that it includes psychopathic disorder because we will come to that later in this debate. Mental illness therefore can include a congenital mental disease, a mental disease acquired through some inflammation or growth or accident, and it also includes all stages of mental disease. Here again I want the hon. the Minister to take note of the fact that it includes all stages of mental disease. It can include manias which may lead to terrible crimes, the schizophrenics, paranoiacs or the simple phobias. All these things are included in mental illness. Some disease are chronic and incurable, some are acute and some are very acute and become chronic. Some are of short duration and some last longer. I want to stop for a moment to deal, with the acute mental diseases or disturbances. I think this is one of the conditions where lawyers are hard-put to decide whether or not a crime has been done, when an individual is suffering from a mental disturbance. Later we will see the precautions that the Minister intends taking in dealing with those people who appear to be mentally ill. However, one wonders how one can prove a mental illness which has taken place at the time of the crime but which at an examination later, shows no existing signs. These are problems which the hon. the Minister will have to meet. These are problems which will tax the psychiatrists who have to give decisions in such cases. The hon. the Minister knows how difficult it is for one to make up one’s mind, for one doctor to make up his mind whether or not the person at the time or subsequently has been mentally deranged. I emphasize “one doctor”, because that is something with which we will have to deal in this Bill as well. I would leave the acute phase there.

I mentioned these facts to demonstrate how vast the field of mental illness is and how careful one has to be in making a diagnosis and how positive one has to be in making the correct diagnosis. The proceedings in court and the final decisions which the magistrates or judges will have to make will rest, not on the magistrates or the judges so much, but on the findings of the medical practitioner, his examinations and reports. For that reason I say that the provisions which are made in this Bill should provide for the report of a psychiatrist to be made under the best conditions and with every help that is available.

It is then, as I have said, the psychiatrist who really determines whether the accused is fit to stand trial. He can save the man from the death sentence, but he can also be responsible for sending a man to a mental hospital for the rest of his life. That man, who goes to the hospital for the rest of his life, could possibly be kept in a security section of a mental hospital for the rest of his life and this is done on the report of the psychiatrist in cases where the death sentence is not imposed and where the man may not be responsible for a violent crime but may yet be suffering from a mental disease.

These cases are examined periodically.

Yes, and we are coming to that.

This prisoner who then becomes a patient in the mental hospital stays there as a State Prsident’s patient, at the State President’s pleasure. This means that precautions have to be taken during his stay in the mental hospital to see if this person is still suffering from a mental disease or to see if he is able to be discharged from the hospital. I am saying all this because I want to point out to the hon. the Minister what I call certain déficiences in the clause which I shall discuss. The procedures to be taken concerning examination of the accused are set out in clause 79. [Interjections.] I want to repeat that in clause 79 the procedures that are to be taken concerning the examination of the accused are set out. I find that they are divided in two categories. In the first category you will find the procedure where the death penalty is or could be involved. Secondly, reference is made to those cases where no death penalty can be involved. Where the death penalty is involved, we see that the accused must be examined by the superintendent of a mental hospital or by a psychiatrist appointed by the medical superintendent concerned; and at the request of the court a psychiatrist who is not in Government service. If the accused wishes, he can be examined as well by a psychiatrist appointed by-himself. Therefore the least number of psychiatrists that can examine the person who is charged with an offence for which the death penalty is possible, is two. Where it combs to those cases where the death penalty is not involved, this Bill says that only one psychiatrist shall be responsible for determining whether or not the accused is mentally deranged or not. He is the medical superintendent of the mental hospital or one of his psychiatrists. I think that this discrimination is totally unwarranted because the man who faces a charge where the death penalty is not involved, may be facing a charge where near death is concerned. He may have assaulted a person criminally with the result that the person who was assaulted was near dead, or crippled for life in one form or another, mentally or physically. Yet the hon. the Minister does not make provision for this person to be examined by more than one psychiatrist. I do not know why and I cannot see why the hon. the Minister has not done it. The hon. the Minister must know that this person is only examined by one psychiatrist, and if the psychiatrist says that this person is insane, that he could not be held responsible for his actions, that he did not know what he did, that he did not recognize that he had committed a crime and that he was unable to understand the proceedings in court, he can be sent to a mental hospital for the rest of his life. This person can be given a life sentence, not in prison, but in some place similar to a prison. Perhaps the hon. the Minister when he replies will tell the House why he has made this distinction. In view of the fact that the hon. the Minister has put so many amendments on the Order Paper we would like him to review this provision again to see whether or not I am right. If he does not put such an amendment on the Order Paper we certainly will.

I want to stop here for a moment and say to the hon. the Minister that in my opinion the severity of the disease and the severity of the offence must be taken into consideration. However, it is a peculiar consideration that the Minister has entertained. He says that if the charge is a serious charge, one for which the death penalty could be imposed, he is going to have two or more psychiatrists, but if a serious charge does not involve the death penalty, he is satisfied with only one psychiatrist. The result of the psychiatrist’s findings leads to further complications, because the accused has to be committed to a mental hospital. I wish to refer hon. members to what the position is according to the Mental Health Act which we have passed earlier this session. I will give the Minister the reference to the Act. It is clause 9(1) of the Mental Health Act, where it is stated that a magistrate shall call to his assistance “two medical practitioners”. Even there it makes provision for two people to be called in to give their opinions as to the subject’s mental state. The hon. the Minister moreover knows as well as I do that every time one wants to certify a person, you have to have two opinions. Why is there only one here then?

I want to leave that for a moment and come to another point which I think must receive the attention of the Minister. I will go through this as quickly as I can because I see my allotted time is running short. I want the Minister to look at the clause dealing with whipping. In the wording of clause 299(4) there is something that perturbs me. Subsection (4) states the following: “If a registered medical practitioner certifies in writing that the person concerned is not in a fit state to receive the whipping or any part thereof, the person appointed by the court to execute the sentence shall forthwith submit the certificate to the court …”. The subsection starts off peculiarly and I do not think it is the intention to start this clause “if a registered medical practitioner …”. We have a person who is going to receive a whipping and instead of saying that that person “shall” be medically examined and if the examiner finds that the person is not fit to withstand the whipping, this and this shall take place. But here it says: “If a registered medical practitioner …”. It does not make it compulsory; it is not obligatory for a medical practitioner to do this. Surely that is not the intention of the hon. the Minister. Surely the intention of the Minister is to have the person examined and then to decide. I would urge him …

It is purely a matter of poor draftsmanship.

Of course it is bad draftsmanship and this is one of the reasons that we say that this Bill has been hurried and that as a result these things have been overlooked. A Select Committee would not have passed a clause like that …

It has been through the law advisers and also the department.

Why should I as a layman, then, who knows very little about what goes on in court, be able to pick this up at first glance? And then the hon. the Minister tells the House that this Bill has been through this channel and that channel, and still we find clauses like this. I want to say that I cannot accept this. I also want the hon. the Minister to look at clause 300(2), where it is stated: “A whipping shall not be imposed by any court if it is proved that the existence of some psychoneurotic or psychopathic condition contributed towards the commission of the offence.” What I want to know is how this person is ordered to receive a whipping if one already knows that he has a psycho-neurotic or psychopathic disturbance? How does this person go through a court case during its various stages, and still appear before the whipper. At what stage then is it decided whether or not that person is suffering from a psycho-neurotic or psychopathic condition? Is this also a mistake in drafting? These things are important. A man’s life can be ruined through a whipping because it is one of the most degrading aspects of punishment. Yet we allow this person to go through all the stages of a trial and suddenly at the last minute, just before the whip is taken out of the brine, it is discovered that he might suffer from a psycho-neurotic or psychopathic condition. I ask the hon. the Minister in all seriousness to look at this clause again to see whether or not we cannot have this altered to make sure that a person suffering from a psycho-neurotic or psychopathic disease never comes before a whipper. It must not reach that stage. These are the aspects which I as a layman put before this House. I hope they will receive the attention which I think they deserve. I hope too that the legal advisers of the hon. the Minister will see to it whether or not these matters can be altered because I know that the hon. the Minister knows that I am right. I ask that these things be done as soon as possible. Once again I want to say that what I have said today proves that this Bill of necessity should have gone to a Select Committee.

Mr. Speaker, in my opinion the hon. member who has just sat down began debating in the spirit in which we should like to debate this Bill. He is the first member so far who has indicated certain shortcomings which he believes to exist. He is the first member on that side of the House who has referred to amendments he will move. I shall try to indicate in the course of my speech that this is in fact the purpose of debates in this House, and particularly in regard to this Bill.

There are a few points made by the hon. member for Rosettenville in regard to the person who is standing trial and who is believed to be mentally deficient in respect of which I do want to ask him whether he does not realize that clause 79 implies that in the case where the accused is charged with an offence for which the sentence of death may be imposed, that person will be examined by a panel of psychiatrists. As I read this particular clause, it does provide that there must be a panel that must see to it that that person will be examined.

Just one doctor.

Yes. In a case where the accused is charged with an offence for which the sentence of death may not be imposed, the accused will be examined by one man only.

That is what I said. In that case it will be only one doctor.

Yes, but your objection is to the fact that it is not a panel.

There should be at least two of them.

But you believe that the second part of the clause is correct?

I just want to reply briefly to the hon. member for Jeppes.

†If I understood him correctly, he suggested that this Bill should have been dealt with in a manner similar to the manner in which certain suggestions were dealt with in Great Britain. He suggested that we should have referred this Bill, or at least certain proposals that are incorporated in this Bill, to the Law Revision Committee. He also mentioned inter alia a very able committee in Britain which had made certain recommendations. I think he recommended a similar approach in this instance. Now, Mr. Sneaker, did I understand him correctly on that point?

I said that it should go to our South African Law Commission.

But the hon. member held as an example the situation in Britain.

The Minister gave it in his speech.

I shall read the hon. member’s Hansard, but I am under the impression that he indicated to us that Britain acted in a way that is worth following as an example.

How could you possibly confuse the Minister’s speech with any other speech?

Be it as it may. I shall read the hon. member’s Hansard. Can I now refer him to the recommendations in Britain? Clause 1 substantially abolishes the so-called right of silence that if the accused relies for his defence on some facts which he failed to mention when questioned or charged the court or jury may not infer that his evidence on the matter is untrue. Mr. Speaker, furthermore, clause 5 of their recommendations reads as follows:

The point I wish to make is that in Britain they go much further than we propose to do.

And so what? What has that got to do with us?

The hon. member for Jeppes suggested that we should follow the example of Great Britain.

I did not.

It took this body of men a long time to produce their recommendations. I believe that the United Party are planning to inflict upon this hon. House twelve speakers …

Sir, on a point of order, does the hon. gentleman suggest that an hon. member speaking in this House is an infliction upon this House?

Will the hon. member repeat what he has said?

I said I believe rumour has it that the hon. Opposition are planning to inflict upon this House twelve speakers.

The hon. member must withdraw the word “inflict” and use some other word.

Mr. Speaker, in that case I would say that they are threatening this House with cheaper by the dozen.

The hon. member must withdraw the word “inflict”. The hon. member may substitute another word, but it is not for me to say what the word should be.

I withdraw the word, Mr. Speaker, and say that they impose on this hon. House twelve speakers; I suggest that it is a case of “cheaper by the dozen”.

Proposes to honour the House with twelve speakers.

After having listened to the member for Florida, I suggest that it will be a case of “he who thinketh by the inch and speaketh by the yard will be kickethed by the foot”.

At the outset I wish to deal with the amendment of the hon. member for Durban North in terms of which he proposes to refer this Bill to a Select Committee. He advanced certain arguments in support of that proposal. He said that it would give Parliament an opportunity to hear the views of eminent bodies such as a Bar Council and also the Side Bar. I immediately concede that where legal reform is concerned we should have the benefit of all learned views, especially those of the people in actual practice. I also suggest that we should have the views of learned teachers of law in this country. If I understood the report of the Botha Commission correctly, then all these gentlemen had an opportunity, and in fact availed themselves of the opportunity, of submitting representations.

On what?

The second complaint …

Mr. Speaker, would the hon member answer a question?

I shall deal with that, definitely.

You will deal with it? I shall remember that.

Mr. Speaker, the second complaint is that the hon. the Minister gave no satisfactory motivation for the Bill which is now before the House. The Minister said that he found that the scales are weighed in favour of the accused. But that was not sufficient for the hon. member for Durban North. The hon. member for Durban North, as well as the hon. members for Pinelands and Florida, indicated that our criminal procedure is due for reform. But no lion, member on that side has thus far indicated in what respect they consider reform to be necessary.

Yes we have.

The only member who has so far indicated that he will put forward any amendment is the hon. member for Rosettenville Mr. Speaker, the hon. member for Durban North, knowing that his amendment to refer this Bill to a select committee will be defeated, failed to indicate in his speech what reforms he has in mind. And then, finally, the hon. member for Durban North wants a select committee because, he says, the Minister failed to make clear to him the difference between an accusatorial system and an inquisitorial system.

He did not say that at all.

Mr. Speaker, I gathered that from a number of speeches; I gathered it also from certain suggestions thus far; and I also gathered it from a certain report in The Sunday Tribune. I therefore think it is absolutely necessary, for the information of this House, to point out what the differences are between these two systems. First of all I should like to refer hon. members to Esmein’s book entitled History of Continental Criminal Procedure. On page 8 he mentions various points in connection with the inquisitorial system, and states—

1. (1) The detection and prosecution of the culprit are no longer left to the initiative of private parties. …
2. (2) An interesting phenomenon of the social and political evolution appears first in the function of the judge.

Mr. Speaker, he mentions other interesting points in relation to this system, and then summarizes the situation as follows—

The author then points out that many countries have adopted a mixed system. He says—

1. (1) The judges of guilt have no initiative in the proceeding; they cannot take cognizance themselves, of their own accord. It is, therefore, necessary that an accusation be brought, but this right of accusing is committed to special functionaries who thus act as public prosecutors and to whom the parties should, on principle, be merely auxiliaries.

Mr. Speaker, I am going into detail because it is absolutely necessary for the purposes of this debate, I submit—

1. (2) The judgment is rendered by magisstrates and jurors. The method and conditions of the share of both of these in the administration of criminal justice vary, however, in different countries.

A third property of this mixed system is …

The rule says that you must not read your speech, but you may quote from a book.

Are you Mr. Speaker now?

It goes on to say—

This refers to the mixed procedure—

In other words, this author holds that the preparatory examination has a double characteristic—

That is to say, the inquisitorial system—

The last property of this system is this—

What are you quoting from?

I have already mentioned it. This work is to be found in the Library of this House.

What is the name of it? Don’t keep it a secret.

Sir, after having thoroughly examined the various codes in Europe, the author goes on to say—

Sir, what it says here is that an inquiry into the evidential value of the testimony of the accused and witnesses rests with the judge. It furthermore says—

Sir, for this very occasion provision is made in clause 73 of this Bill. Provision is made for the accused to be duly assisted. With regard to this evolution in Europe, we also read the following—

And then it proceeds to analyse the various systems. In conclusion, on this aspect, I want to make the following point.

But they have legal aid in England, for all those things you mentioned.

We are also moving in the direction of legal aid in this country. With the assistance that we are rendering to certain offenders as far as Bantu administration laws are concerned, we are moving in that direction.

But we won’t have it in the Bill if it becomes law.

Mr. Speaker, we shall deal with that on another occasion.

Why not deal with it now?

Sir, the point I am making is that hon. members opposite should admit that what we are doing in this country now has already been done in Europe.

So what!

I have just motivated why and how it has been done in Europe. The previous speaker on this side of the House indicated why it was so costly. Those hon. members opposite must answer these arguments.

Which arguments?

The hon. member for Durban North should, I think, be interested to know why we maintain that the scales of justice are unduly balanced in favour of the accused. I think that if he looks at the situation where an accused could be found guilty on evidence aliunde, and he examines a number of such cases in which such accused people escape conviction due to lack of such evidence, because so many witnesses refuse to go to court, refuse to be summoned or to have an interest in any court proceedings, he must admit that by providing now that a person could be convicted on a mere admission of guilt without evidence aliunde …

Where are the statistics?

… we are at least granting the opportunity for a quick solution of these cases.

Where can I find out that there are so many people like that?

Does the hon. member admit that the principle is correct?

May I ask the hon. member a question?

Sir, the hon. member has had an hour to make his speech. But I think I have made my point. If we look at the scales of justice we discover that in favour of the prosecution you have the advantage of access to all witnesses using the machinery financed by the State to uncover the accused and other evidential material. In favour of the accused is the presumption that he is innocent until his guilt is proved. Those two situations balance, but what other advantages are there in favour of the prosecution? I have thought of several other minor advantages, certain presumptions, the shifting of the burden of proof onto the accused in a number of instances, but the accused has otherwise the following major advantages in most cases. He cannot be convicted unless, as I have pointed out, there is evidence aliunde. At the preparatory examination he need not testify. The prosecution has to show its hand. The prosecution has to hand him a copy of the proceedings. Thirdly, he can be present in a court case, listening to the evidence produced against him by the State and afterwards he can dovetail his own evidence into the evidence produced against him. He can employ every conceivable strategy to avoid a conviction but, and this is important, he could defeat the ends of justice by submitting evidence to avoid the very ends of justice. I have pointed out the many advantages in favour of the accused. What this Bill aims at is to balance these things. Now, the fourth reason for the amendment of the hon. member for Durban North is the manner in which this Bill, as he put it, was thrown at the public.

*I do not want to go into the whole history of the Botha Commission again, but I do think that for the sake of the substance of the allegations made here by the hon. member for Durban North against the hon. the Minister, it is necessary for us to investigate this statement of his that this Bill was flung at the public. The background was explained by the hon. the Minister, how it came about that the Botha Commission began to investigate within its terms of reference. Now the position is that when the Botha Commission was announced in June, 1970, the terms of reference of that commission were set out not only in a statement by the hon. the Minister, but also in a notice in the Government Gazette in terms of which that commission was appointed by the State President. If I may have the attention of the hon. member for Durban North, those terms of reference of the commission were very far-reaching indeed.

I must tell you, Sir, that if I were a member of the Opposition and I had to advance these arguments here today, and I compare it with my reaction when I first read those terms of reference, and I interpret their attitude, they should have been prepared at once for everything that could result from this Botha Commission and they should have followed it step by step. And they did in fact do so, up to a point. The hon. member for Durban North was interested in the Bill up to a point. On 30th March, 1971, he asked a question in this House. He asked whether the commission appointed to investigate criminal procedure and evidence had reported; if so, when the report would be laid upon the Table; if not, when it was expected that the commission would report. Sir, I read it in full so that you may see that that hon. member was anxious to know when the report would be published. The hon. the Minister replied to that and said—

The point is that the hon. member was interested and was prepared for the publication of this report. Then the Botha report was published and then, in the middle, or at the beginning of December, 1971, the hon. the Minister of Justice made a statement in which he briefly indicated that he had received the report and that it had been translated and tabled; and the Minister said—and once again I want to deal with this in full for the purposes of the record, so that those hon. members may withdraw what they said here—that the report of the commission had been submitted and that “a Bill incorporating the recommendations of the commission had been drafted in consultation with the chairman of the commission”. Remember, Sir, the hon. the Minister said that a Bill had been drafted, and we must assume at once that it was drafted on the instructions of the hon. the Minister and his department. He said that it would be published in the Government Gazette on 10th December, and that the report of the commission would be available from the Government Printer on the same date. A number of provisions resulting from the recommendations of the commission of inquiry, and so forth, had been incorporated in the Bill, the hon. the Minister said, and anyone who wanted to comment on the Bill or to make representations in regard to it had to do so before a certain date. Then this Bill was published in the Government Gazette

I hope the hon. member for Durban North is not going to leave now, because I am dealing with certain allegations made by him in his speech. He suggested that he had thought it was merely a draft Bill; that he had not wanted to comment. He had been asked to comment and he had had the opportunity of doing so, but he had not considered it necessary because it was merely a draft. He created the impression that it had been a matter of no importance, although he was informed of it in advance. He created the impression that this Bill had been drafted by Judge of Appeal Botha. He later asked why we should take cognizance of one Judge’s Bill. That is not a fact. The fact is that it was a Bill drafted by this Government by means of its Department of Justice. People were then invited once again to give evidence. The hon. member does not deny this; I take it that he will accept it. He can read it in his own Hansard.

The point is that this hon. member had sufficient opportunity then to make representations to the hon. the Minister or the Secretary for Justice, to whom he should have submitted amendments or whatever he wanted to propose. He did not consider it necessary, however.

The Both Commission did exactly what a Select Committee would have done and the hon. member should have known this. A Select Committee would also have heard evidence. The Bill which was subsequently published was a very clear indication that it would be used as a basis for legislation. However, the hon. member disregarded it. He has been disregarding it since December, 1971, and he has taken no notice of it. He thought it was a draft. Now the hon. member comes along with the allegation, however, that the Bill was flung at the public. What is more, a large number of people bad the opportunity to give evidence and my information is that they did in fact do so. That hon. member, who had the opportunity to study this Bill thoroughly and to discuss it, did not do so. We charge him with not doing his normal work as shadow Minister. We charge him with not availing himself of the opportunity which everyone throughout the country had to acquaint themselves thoroughly with the contents of this Bill. Consequently we cannot accept those allegations from the other side of the House that this Bill was flung at the public; we reject them. They are substantially disproved by the facts of the matter. That hon. member had the same opportunity that hon. members on this side of the House had to discuss the Bill with the department and the hon. the Minister, even at this stage. This side of the House did in fact do so and the result, as the hon. the Minister said, is to be found on the Order Paper, in the form of amendments which will be moved by this side of the House. [Time expired.]

Mr. Speaker, the hon. member for Bloemfontein West has continued a line of reasoning which struck me very forcibly yesterday when listening to the hon. the Minister and to other Government speakers. That is that they are particularly perturbed about the scales, as the hon. member for Bloemfontein West put it, being weighted in favour of the accused, and that they placed great emphasis on the importance of ensuring that no guilty man should go unpunished. I was equally struck by the fact that all of them have completely ignored the old and long-honoured legal maxim: It is better that one guilty man go unpunished …

That is not a legal maxim.

It is a legal maxim: … than that an innocent man should suffer. To me this, of course, is of overriding importance. The hon. member for Bloemfontein West and other Government speakers have denied that the new proposals introduce an inquisitorial system as is used on the Continent.

You will have to deny my authorities as well.

It seems to me, on the other hand, that most of the official Opposition speakers appear to think that the new system will introduce some form of inquisitorial system. Well, I am a layman and I can only go by what I am told and by what learned men tell me. It appears, in my judgment, that what we are going to get is indeed going to be some sort of distorted hybrid of the old accusatorial system and the new inquisitorial system, and without the adequate safeguards of either. That is how this thing appears to me.

Both the hon. the Minister, in introducing this Bill, and the hon. member for Bloemfontein West this afternoon, have made much play about the recommendations of the Criminal Law Revision Committee of Great Britain which I think appeared in June last year and that that committee proposed sweeping changes, both in the rules of evidence in criminal trials and in Police pre-trials when questioning suspects. They told us that this is what is happening in England. Of course, what they did not tell us was that the Bar Council of England and Wales had voiced the strongest possible objections to those far-reaching and sweeping changes. They have also not told us that, in fact, the British Government and the hon. the Minister’s counterpart in Britain have not yet adopted the recommendations of the Law Revision Committee and, indeed, it is highly doubtful, I would imagine, whether the British Government and the hon. the Minister’s counterpart in England—the Lord Chancellor, I believe it would be—are likely to treat their Bar Council in the same cavalier fashion as the hon. the Minister and this Government have treated the Bar Council of South Africa. This, of course, they have omitted to point out.

I want to say at once that I am, as everybody knows, not a lawyer: but I am a concerned layman. I shall therefore have to leave the legal intricacies of criminal procedure to the legal luminaries in this House, although, may I add at once, my past experience of these gentlemen does not actually inspire confidence in their infallibility or necessarily in their judgment. Nevertheless, they are the legal experts in this House and I must leave the details to them.

I am very concerned with the whole question of civil rights and how this Bill will affect the rights of the individual. I am particularly concerned with how this Bill affects the rights of accused people in our courts of law. That is of course the cardinal principle with which I am concerned. Like the members of the justice groups of the official Opposition and of the Government party, I have been fortunate enough to be provided with a very comprehensive memorandum which was issued by the General Bar Council of South Africa. I studied this very carefully and I want to add that I have taken counsel’s advice as well as far as this Bill is concerned. What I would like to say is that I have been considerably influenced by both the contents of the memorandum and the expert advice which I have been able to obtain. The memorandum has been used to a quite considerable extent in this House and I do not propose to repeat the arguments which have already been drawn from it. However, I must say that on going through the memorandum one is struck most forcibly by the fact that over and over again the Bar Council emphasizes that the Bill undermines the foundation upon which our criminal law is based and that the accused person standing trial is therefore adversely affected by this.

Which is not true.

I can only go on what the Bar Council says and it seems to me that they are a body of experts, that they have great experience in the courts of law and their opinion must be at least as good, if not better than, that of the hon. member for Kroonstad. Over and over again …

[Inaudible].

Certainly their opinion is better than that of the hon. member for Pretoria Central who chips in at this stage. Over and over again one comes across phrases like, and I quote: “grave injustices can take place”, “necessary safeguards have been dispensed with”, “this provision is open to abuse”, “this provision is a fundamental departure (in this case) from the rule of hearsay”, “artificial obstacles to a person’s being released should not be created”, “the accused’s rights are to be abolished”, “an accused should not be hampered by artificial and unnecessary rules from presenting a properly prepared defence”, “the proposed procedure is one-sided and will lead to miscarriages of justice”, “the procedure prescribed might very often be applied in an unsatisfactory way”, “the adequacy of a summary of facts as a substitute for testimony given at a preparatory examination is open to grave doubt”, “this proviso is inherently subversive of the essential safeguards against the improper eliciting of confessions”, “it will encourage improper practices”, etc., ad infinitum. When one goes through this report, one finds the strongest possible criticism of the proposals which we are examining in this Bill today. Even more important perhaps I might say, running like a thread throughout this memorandum, is the warning that great difficulties will be encountered in the future when dealing with accused persons who are illiterate and ignorant and who are unrepresented in court. I submit, and I am sure everyone will agree with me, that this constitutes very probably the majority of cases in South Africa. There is one further very important point which is also made by the Bar Council, and that is in paragraph 154 where the memo says:

Those are the words of the Bar Council. Continuing that argument I would like to point out that these changes, to which the Bar Council draws attention, have almost always, in my experience in the 20 years I have sat in this House seeing legislation being introduced, first been introduced under the guise of internal security, as being necessary because of our internal security position. Very often the very first change is comparatively minor and is in fact limited to so-called political cases. But all too soon I find in my experience, that the authorities get used to what are shortcuts in our legal procedure and they undermine the basic sound principles upon which our criminal procedure was based. Soon we find that these laws are being used and extended both in severity and in respect of the crimes to which they apply. I am going to give one or two examples.

One example is bail, which is included in this Bill. The granting of bail used to be traditionally the function of the courts, but over the past 12 years one finds that gradually a whittling-down process, to which the Bar memorandum refers, has taken place as far as bail is concerned. In 1961 the General Law Amendment Act empowered the Attorney-General to order that a person be not released on bail for a period of up to 12 days if he considered it in the interest of public safety or of public order. In 1965 this was made permanent and applied to both political and non-political crimes listed in the schedule. The Attorney-General could also prevent a person being released on bail for up to 90 days. In 1968 there was a further amendment to ensure that the courts could not interfere with the Attorney-General’s discretion and the words “in the administration of justice” were added as a justification of his actions. Now it no longer had to be only in the interest of public safety or of public order, but also for the administration of justice.

The concept of sureties in the granting of bail is to be abolished by this Bill. Why? Why should that be so?. This is surely an extremely important provision which facilitates the release of an accused pending trial. I want to know why the hon. the Minister has introduced cash payments now for bail and has done away with the system of sureties. Allied to this is the very ominous provision which omits the words “and friends” in a clause which allows access to an accused person. Now it is going to be only his legal adviser, but up to now it was also his friends. We all know that in South Africa the vast majority of accused persons do not have legal advisers. They rely on their friends to visit them when they are in gaol and it is those friends' indeed, who go out seeking the legal advisers and it is those friends who normally put up bail for the accused person. Why have the words “and friends” been excluded in this particular provision?

They very important provisions that affect preparatory examinations are also the result of a long whittling-down process. Traditionally every accused to be tried in a Supreme Court was entitled to a preparatory examination in order to make sure that there really was a case against him. That was changed in 1963 in order to give the Attorney-General the power to order a summary trial. I wonder if this was not originally only for a political purpose, but whatever the purpose was, it of course extends to all cases. But now this Bill goes even further. This Bill now provides that no one is entitled to a preparatory examination unless the Attorney-General consider it necessary and the Bar Council memorandum has some very stingent things indeed to say about this. The Bar Council says:

The Council comes out unequivocally in favour of the retention of the system of preparatory examinations. I must say that counsel whom I have consulted, also were adamant that the system of preparatory examination was essential and that its abolition would, in fact, hinder the work of the Supreme Court. Yet, one of the aims of abolishing preparatory examinations, we were told, was so to expedite the work of the courts.

The hon. member for Florida yesterday gave the House what I consider was a very graphic description of what is likely to happen under the new system. It seems to me that he is absolutely right when he points out that not only will this not expedite the work of the court, but if anything, it is going to delay and cause bottle-necks in the work of the courts. It seems quite obvious to me as well, that the lack of a record of a preparatory examination is going to delay the work of the Supreme Court. It is going to lead to longer Supreme Courts trials which will be far more expensive both to the accused and for the State than a preparatory examination in a magistrate’s court would be. I was given as one example to pass on to this House, the example of the Heller trial where the lack of a record of the preparatory examination meant endless delays when the case finally came before the Supreme Court.

Besides the drastic changes in the pre-trial, procedure, perhaps the Bill’s most objectionable, features are the far-reaching changes it introduces at the very time of the, trial. I maintain that not a single good reason has been given for altering a system that has withstood the test of time; not a single good reason has been given for changing it to a system which is now going to increase the dangers of innocent people being found guilty. The proposed system of judicial interrogation is an artificial device. It is a poor substitute for the old, well-tried system that we have used. There is no doubt that once a magistrate starts interrogating an accused, he is unwittingly assuming the role of a prosecutor; he must be doing so. Certainly I have no doubt that the accused, who is often an illiterate and ignorant man who does not know his rights under the law, is going to consider the magistrate as a second prosecutor. He is going to be faced with two people firing questions at him which he will not understand. I believe he is bound to make incriminating statements. It has always been fundamental to our system of law that an accused person does not have to assist the State by making out a case against himself. The onus of proof of guilt which normally rested on the State, has now in fact been shifted; and I believe that this is a very serious undermining of the administration of justice in our country.

I want to deal as quickly as I can with one or two other aspects of this Bill. One was given reason to hope—I do not know why, but I am always an optimist—that at least this new criminal procedure Bill was going to introduce a radical change, if not an actual abolition, of the 180-day clause. That is what one has hoped for. The United Party has already announced that it is satisfied with this particular provision in the Bill and, indeed, I think it was the hon. member for Durban North who stated that this is one of the clauses that the United Party was going to accept.

No, you are wrong; it is an improvement but we want to improve it further.

Is this report in The Sunday Tribune then incorrect?

It is an improvement but we are not satisfied with it as it is.

Well, the hon. member does say, as I understand it, that the improvement is that the new provision requires that witnesses who are held under the 180-day clause, must be brought before a judge within 72 hours.

That the judge will decide and not the Attorney-General.

Then the hon. member has been misquoted, because he is quite wrong if he thinks that. There is absolutely no provision in this Bill for bringing a person before a judge. It is the same sort of mistake as the one he made in connection with the first Terrorism Act. There is no question of bringing the person before a judge. Indeed, I do not think that this is such an important and radical improvement at all because what this now does is to disguise this provisions arbitrary nature by bringing in the person of a judge, but without any of the accepted judicial procedures. The only person who presents any evidence to the judge is the Attorney-General and that is all the judge can consider. In fact, as I read this clause, the judge cannot even order the release of a person because, as clause 185(4) reads, the judge has no power to release the detainee; only the Attorney-General can order his release. I do not know if that is what the hon. the Minister intended, but that is certainly how the Bill reads as it stands at present.

I was also hoping that we would get some improvement in the clauses relating to the death penalty. However, I do not see very much there. One improvement I was hoping for is that perhaps the death sentence would be mandatory only if aggravating circumstances were found, instead of its being mandatory unless extenuating circumstances are found. My views about the death penalty are well known; I am in favour of the abolition of the death penalty. I was hoping we would get some improvement in this regard.

As for the whipping clause to which the hon. member for Rosettenville referred, I was fervently hoping that in 1973 we in South Africa would abolish the barbaric practice of whipping people. I think it is a barbaric practice. The number of strokes that are inflicted is horrifying. There has been a decrease but the number is still horrifying. They never, of course, take into account—there are no statistics—the number of strokes administered to juveniles with a light cane. I was certainly hoping for one such improvement in our criminal procedure in the year 1973. I can say that there has been a slight improvement in regard to the right of the Police to shoot a person who is escaping from custody. Clause 49 to some extent narrows down the sphere in which the Police have this right. I will have more to say about that when we come to the Committee Stage.

I must say that I do wish there had been many more positive improvements in this Bill. I agree with the hon. the Minister that a measure like this ought to be an agreed measure. It is so important that the system, the administration of justice in South Africa, our criminal procedure, should be generally accepted as being the very best system for South Africa. On the contrary, what does one find when one examines this Bill which is scrapping the existing system and introducing a new one? We find that fundamental objections have to be made regarding the departure from the existing system. Those fundamental objections far outweigh the improvements which may have been introduced in some of the clauses.

Now, the United Party has moved that the Bill be referred to a Select Committee before Second Reading. The hon. the Minister thinks, according to the statement he made to the Rand Daily Mail which was quoted by the hon. member for Durban North, that it would not be the right thing for the recommendations of an appeal judge to be tested by a Select Committee. There was a lot of cross-talk as to whether Parliament was being insulted by this suggestion and so on. I can remember the time when I got a fair amount of abuse from the United Party for not accepting the recommendations of a single judge, Judge Snyman, who recommended the 90-day law. But we will leave that to one side. I just want to say that I am not particularly enamoured of this idea of a Select Committee before Second Reading. It just so happens that I am rather off Select Committees altogether at the present stage.

You mean you are not on any?

No, and I wouldn’t be on them. I don’t believe that a Select Committee which is structured on party-political and caucus lines and which does not necessarily consist of experts, is the right sort of body to examine these fundamental aspects of our criminal law in South Africa. I would prefer the suggestion that the Bill be withdrawn entirely and that it be referred to the new Law Revision Committee which was set up, or is about to be set up this year. In any case we passed a law which will set it up. That would be a very much better idea. But in the meantime I want this Bill withdrawn. I do not want this Bill to go ahead as it is, and I do not want it to be referred to a Select Committee. Therefore, my only alternative is to move:

That is what I want done with the Bill. I would like it referred then to the Law Revision Committee, and I would like the hon. the Minister to come back to his House with a completely new Bill. I do not say that I will accept it, but one hopes that three judges being better than one, maybe we will get a better Bill out of all of this. Maybe more attention would be paid to the fundamental objections that have been voiced against this measure by the General Bar Council of South Africa. I do not believe that they are a body of men composed of liberalists who are in favour of the permissive society and of accused persons being found not guilty when in fact they ought to be found guilty. There are certain good features about the Bill, and I would not like those to be thrown out entirely. My suggestion is that those things that are common cause and which have had general approval and have been introduced in the Minister’s Bill could be extracted, and the hon. the Minister could put them into one of those hardy annuals which are such a favourite of his. He could insert those in a General Law Amendment Bill. I am sure, since these particular clauses will have received the approval of the Bar Council, of the Side Bar and of Opposition members of Parliament, that he will have no difficulty in getting them passed. So, Sir, he could select the approved clauses and he could introduce them this year in a General Law Amendment Bill, as is his wont.

I want to say finally that I have noticed in my years in this House that most Ministers like to feel that they are going to go down in history as “the man who introduced this or that measure”. Be it the National Education Bill or be it the Abuse of Drugs Bill, or whatever it may happen to be, they rather fancy themselves as going down in history as “the man who introduced this or that important measure”. I do not think, however, that the hon. the Minister of Justice ought to believe that legal historians of the future will consider his reputation enhanced by the Criminal Procedure Bill of 1973. On the contrary, I believe that if this Bill is passed, the administration of justice in South Africa will have taken a retrogressive step, and I also believe that the right of individuals will have been adversely affected.

I would like to conclude by leaving this House with the words of one of America’s most eminent jurists, Judge Frankfurter: “The history of liberty has largely been the history of the observance of procedural safeguards.” That is very much how I feel about this Bill, and it is for that reason, and for other reasons that I have already mentioned, that I have moved my amendment.

Mr. Speaker, hon. members opposite used the same arguments as they have used in the past. The hon. member for Houghton, of course, came along once again with her “civil rights” idea. This legislation will supposedly be the cause of “a grave injustice”. “This measure is open to abuse”, she says, and “the accused’s rights are to be abused”,

I was quoting the words of the Bar Council.

Whether the General Council of the Bar said so or not, the hon. member came along and said it here. Every time legislation is before this House, the hon. member time and again uses the same words. Mention is made of “a grave injustice”, and she says: “This measure is open to abuse”. No other reasons are advanced. The hon. member says that the legislation of the past has “stood the test of time”. When we introduce legislation to this House, we are always told: “You are living in the past. Why do you not live in the future?” But when this kind of legislation comes up, we are told that we should return to the past. We are always being told, “You want to go back to the oxwagon”. Every time when we want to take a step forward, we are told: “You must go back to tradition”.

Sir, I want to say that the arguments of hon. members opposite came very close to the arguments which they always advance when they say that South Africa is a Police State, They did not say this in so many words in this debate, but every now and again they used the word “inquisition” to create the impression that here we have created an inquisition similar to the Spanish Inquisition of a few centuries ago. Time and again the word “inquisition” was emphasized. The impression which they wanted to create, was that we are creating an inquisition here exactly like the Spanish Inquisition. This happened every time, and that is why the word “inquisition” was used here time after time.

Sir, I also wish to point out that it was said before the time that this debate would really be the major debate of this part of the year. It was stated in the newspapers that this was going to be a major debate and that the United Party would fight this measure tooth and nail. Mr. Speaker, have we seen this measure being fought tooth and nail in this debate up to now? Sir, so far in this debate we have not even seen a single tooth being bared, but the newspapers have said this, and the result is that the Opposition, because they fell into disfavour with those newspapers, are suddenly kicking up a row about this legislation. They want to kick up a row in the Second Reading debate, with these minor points which hon. members should really deal with in the Committee Stage, in order to create the impression among the general public that they have started a tremendous fight in this House.

I want to go further. To use the words of the hon. member for Houghton, we have been conducting this kind of debate for many years. I have here a book written by Prof. Holland of the University of London. I may say that I could have gone back even further, to Dr. Samuel Johnson, but since it has now become necessary to quote Langenhoven, I shall prefer not to do so. Prof. Holland of the University of London wrote a book entitled “Police powers and the citizen”. I refer to this, because this is really what the Opposition were getting at namely the powers of the Police in this country, with reference to this legislation. This is what Prof. Holland says—

From that time on, when he brought the Police Force into being, these arguments have existed, and the arguments used by hon. members opposite are really aimed at our Police in South Africa.

In a more lighthearted vein now, I just want to say that when Peele brought a Police Force into being in 1829, posters appeared all over London, almost like the posters of the Universities of the Witwatersrand and Cape Town. They read as follows—

These words do not differ greatly from those which hon. members opposite now want to use. Sir, if hon. members opposite had looked at the Botha Report, they would not have used these arguments, because the Botha Report followed certain cardinal, basic principles. The first basic principle, to which no one can object, has already been mentioned here, and that is that the conviction of the accused person should be ensured without creating any danger of the conviction of an innocent person. That is a basic principle. The second principle is that any criminal procedure must, under normal circumstances, maintain a strict balance between the interests of society in the maintenance of law and order, on one hand, and the freedom of the individual on the other. This is the second principle which Mr. Justice Botha accepted. There was also a third principle which he accepted. He said that in abnormal circumstances, when the safety of the State is threatened, the interests of the community must obviously weigh more heavily than freedom of the individual and the freedom of the individual must sometimes be restricted in the interests of the public welfare. That is the third principle which he laid down. The fourth principle was this: In all other circumstances interference with personal freedom can only be justified in so far as it may be essential for the maintenance of the interests of society. He had these four cardinal principles in mind when he drew up this report, and I think that no thinking person, no person with a knowledge of our laws, can raise any objections to those four basic principles which he laid down, and this report is based on those four basic principles which he adopted. Sir, there has been talk here of the two systems which are adopted, namely the accusatorial procedure and the inquisitorial procedure. Both of those methods are adopted in all the countries of the world. One country places greater emphasis on the one aspect and less on the other. No one can tell me that there are countries which adopt only the other. No one can tell me that there are countries which adopt only the one procedure and other countries which adopt only the other. Sir, we in South Africa, as they do in England and America, adopt the Anglo-American system. The Anglo-American system prefers the accusatorial procedure. The accusatorial procedure has been described in these terms—

The continental countries, who have not been influenced by the Anglo-American system, adopt the inquisitorial procedure. Here I am quoting the description by Prof.

Dugard of the University of the Witwatersrand—

I shall just go further. Not one of these two systems have a monopoly as far as the justness of a system is concerned. This is only a standard to which both systems aspire in order to ensure that justice is done. Now I just want to mention how these two systems work in spite of the fact that one has the continental system which follows the one procedure and the Anglo-American system, which to a large extent follows another procedure. In 1950 the European Convention on Human Rights and Fundamental Freedoms was held and 15 Western European countries were represented at that convention. Some of those countries had adopted the accusatorial system. The others had adopted the system as it exists on the Continent. And the countries represented on that convention, were countries of which some had adopted the one system and others the other system. But that group of countries, that had adopted both systems, had also adopted these principles, these basic principles, which they considered could be a communal basis for the accusatorial system and for the inquisitorial system. One of the principles which had been adopted by these 15 countries was that a person who is arrested must be advised without delay of the reason for his arrest and of any charge against him. Countries that had adopted the different systems endorsed this, and it has also been embodied in this Bill before us today. Secondly this 1950 convention laid down that the accused should be brought before a judicial officer as soon as possible and that he be tried within a reasonable time. This is the same system which we adopt here. These countries which have adopted both systems, agreed to adopt the provisions of this convention. Thirdly: that there should be a public trial before an impartial judge. Is there any person in this House who says that the legislation before us today will result in there being no public trial? Is there any person in this House who will say that it will not be before an impartial judge? And this was approved by a convention of 15 countries that had adopted different systems. But a fourth principle was also laid down, that there is a presumption that the accused is innocent until the opposite is proved. Of course, Sir, this is also embodied in this legislation. In all countries there are certain statutes, in all countries, whether it be America or England or any country on the continent, there are certain statutory measures in which the onus of proof is placed on the accused. When the onus of proof is placed on the accused, the onus of proof is not similar to that which rests on the State. The onus of proof which rests on the State, is that a case has to be proved beyond all doubt. In this case this means that the onus of proof on the accused is only that it should be so on a balance of probabilities. In effect it is the same as in a civil case.

The fifth section reads that he should have enough time and the facilities to prepare himself for his trial. Is there anything in this legislation which says that the accused will not have sufficient time to prepare himself? Is there anything in this legislation which says that he will not have the opportunity to prepare himself for his trial? Nothing! This is one of the principles laid down in the 1950 convention.

The sixth section reads that he should be properly defended. This is also an aspect of the 1950 convention. Is there anyone in this House who can say that such an accused will not be defended properly?

Who will defend him?

I hope it will not be that hon. member. I should say that I would ask that hon. member to defend me if I were innocent but wanted to go to jail.

The seventh section reads that he may examine witnesses and may also call witnesses. Is this not the case, that under this legislation he may examine and call witnesses? This seventh section is the last one laid down at the time of that convention. These sections are embodied in this legislation.

Hon. members must remember that prior to 1838 we had the inquisitorial system in South Africa under Roman-Dutch law. It was only after 1838 that the accusatory system came to the fore in South Africa.

They even had torture sessions in those days. [Interjections.]

Oh! really, Mr. Speaker, let us not go back to the middle ages now. Since 1838 we have always had a mixture of these two systems in South Africa. Over all these years, whether included in the 1917 Act or the 1955 Act or the present legislation, we have always placed perhaps a little more emphasis on the one system than on the other, but we have always had a mixed system in South Africa.

I want to come to another aspect to which the hon. member for Houghton as well as other hon. members have referred. The hon. members of the official Opposition said that they wanted a Select Committee. The hon. member for Houghton, however, rejects a Select Committee. [Interjections.] If the hon. the Minister were to follow their counsel, to whom should he listen? The hon. members opposite say that there must be a Select Committee, but the hon. member for Houghton rejects this. We have the tower of Babel here now. To whom should the hon. the Minister listen? Hon. members said that this legislation must go to the South African Law Commission.

No, we did not say so.

Does the hon. member agree?

He said so.

The hon. member for Pinelands also said so. [Interjection.] Now, in the first place I want to put the following question. Suppose there were one Judge who had to pass judgment on the proposals of another judge, in this case that Mr. Justice Botha had to go into the proposals of Mr. Justice Hiemstra. Suppose further there were five judges who presented a report similar to the Botha Report; would those hon. members have accepted the proposals of those five judges?

Of course not.

The hon. member for Houghton says that even if five judges were to present a report similar to this report, she would not accept the recommendations of those five judges. [Interjection.] Should we then have appointed all the judges of the South African Bench to the commission? The hon. member for Houghton referred to the preparatory examination. Just to indicate how the opinions of judges differ, I want to quote what is said on page 9 of the Report of the Commission of Inquiry into Criminal Procedure and Evidence. I refer to paragraph 1.29—

In 1964 the Chief Justice and the Judges of Appeal recommended, not with dissent but unanimously that the present system of preparatory examinations be abolished—

The Chief Justice and the Judges of Appeal recommend that preparatory examinations be abolished. I now ask the hon. member for Houghton, I ask the hon. member for Durban North, I ask the hon. member for Transkei—no, wait, let me rather leave him out—whether they agree with the Chief Justice and the Judges of Appeal who say that the system of preparatory examinations should be abolished? Here there was not only one Judge of Appeal, but quite a number of judges. I want to go further and say that the Chief Justice and the Judges of Appeal, in spite of the fact that they say that preparatory examinations should be abolished, could not achieve unanimity concerning what should replace it. Here then we have the position that judges of the highest court in the land, namely the Appeal Court say, “Abolish the preparatory examination,” but at the same time they ask “What should we put in its place?”

Mr. Speaker, I really do not understand why the hon. member for Krugersdorp should, with such artificial pomp and circumstance, ask the official Opposition what their attitude is in regard to the recommendations dealing with preparatory examinations. Almost every speaker who has spoken on this side of the House has made it clear that we support the proposals dealing with the abolition in many cases of the preparatory examination. Indeed, it is one of the cardinal points of difference between ourselves and the hon. member for Houghton. But the hon. member for Krugersdorp’s ability to appreciate what goes on in this House does not seem to extend that far.

He then asked us what was a more pertinent question, namely what we would have done if there had been a commission of five judges and these produced a report similar to report the Botha Commission produced in this instance. Of course, the simple answer to that question that it is in the highest degree unlikely that a panel of five judges would have produced a report such as the Botha Commission produced.

Why do you say that?

I will tell you why immediately. This happens to be part of the introduction to my speech in any event. I am astonished that the hon. the Minister should have sought to rely on the report of the British Criminal Law Revision Committee to the extent to which he did. I am equally astonished that he should have led us to believe that he was in fact doing in respect of South African law what the British Commission recommended in respect of English law. One has only to start with the first page of that report and see who the members of the British Law Commission were. It was not the case of one judge of appeal, but of some 15 members consisting of three or four judges of the court of appeal, a couple of judges from the British Supreme Court, that is to say the persons who do the trial work, a couple of judges from the lower courts, i.e. the county courts, one or two stipendary magistrates who are, as it were, the regional magistrates in the British system, a number of professors from the universities, representatives of the practitioners at all levels—to name some amongst others. A broader-based commission of inquiry, as representative of all sections of the legal system of the country, you could not wish to find. One has only to name the type of body that inquired into the British system to find out what changes should be brought into being. One has only to name them and to describe the sectors of the legal system from which they were drawn, to realize that that commission bears no relation to the South African commission of inquiry and, indeed, to realize the in many ways unfair task that was placed on the shoulders of Mr. Justice Botha. What after all is the most important aspect of the work of a commission of this kind? It is not merely receiving and digesting the evidence which is placed before it, but also the discussion behind closed doors between people with different points of view which take place in a broad-based commission and this Mr. Justice Botha was not allowed to enjoy. It is common knowledge to anyone who has practised in the law, though not to the hon. member for Krugersdorp, that people in the law, like those in any other profession, tend to specialize. This applies to practitioners as well as to judicial officers. You find practitioners who have spent the greater part of their life doing trial work in the civil courts; you find others who do trial work in the criminal courts and others, yet again, whose career has largely to do with the work in Chambers. It so happens that Mr. Justice Botha is a man who falls into the last category. His career has largely been that of a Chamber lawyer, not a trial lawyer. For many years he was a legal adviser to the Government. Apart from three years in the Supreme Court at the trial level, he has spent his entire career either doing appeal work or doing Chamber work. It is no fault of Mr. Justice Botha that his career led him along that course, but it is grossly unfair not only to give a single judge a task of this kind, but particularly to give a judge, whose career has been in Chamber work, the task of examining criminal procedure, which is pre-eminently the field of the practising lawyer, not in the civil courts, but in the criminal courts. One has only to state that basic fact to realize the difference between the commission of inquiry on which the hon. the Minister sought to base the beginning of his case, and the commission whose report we are dealing with here.

Let us now turn to the terms of reference. The terms of reference of the British commission were limited to a review of the law of evidence whereas the terms of reference of the Botha commission were far wider than that. Then there is the question of the time that was spent on the investigation, a question which has already been dealt with by the hon. member for Pinelands. He pointed out how rapid the investigation indeed was in our case and how extensive and time-consuming it was in the case of the British commission.

At a later stage I shall deal further with the report of the British commission of inquiry, but I think it is wise for us to consider for a moment the relationship between our system and the English system. It has been said by the hon. member for Krugersdorp that we have always had here a mixture of the continental inquisitorial system and the Anglo-Saxon accusatorial system. That is simply not so. The growth of our criminal legal system is largely an accident of history. Throughout the civilized world legal systems grew and matured largely during the 19th century, during what we call the Victorian era. That is when the British system really got its cohesion and assumed its present form. It happens to be a fact of history that the Cape Colony was governed by Great Britain throughout the 19th century. So, we had introduced and for a period of 100 years there developed in the Cape Colony, which was the South Africa of those days, the British legal system, though not in the civil courts where the procedure was British but the substantive law that was applied was Roman-Dutch, but in the criminal courts where, certainly, the procedure was almost entirely that of the English system. The substantive law that was applied there was a mixture of our indigenous statute laws together with those brought in from Great Britain.

Now, Sir, the hon. member for Houghton during her speech said that she supported what she described as a legal maxim to the effect that it was better that 10 guilty men go unpunished than that one innocent man be convicted. Now, that is not a legal maxim.

It is a maxim, anyway.

It is a notion popular with Victorian novelists, a notion which was thought to describe the philosophy of the English system. But, Sir, not only does it not in my view describe the philosophy of the English legal system, but in any event I do not agree with it. I believe that the correct approach to the problem is not that it is better that 10 guilty men go unpunished than that one innocent man be convicted. What we should aim at is that all innocent men are acquitted and all guilty men convicted.

Hear, hear!

That is what we should go for and that is the balance that we seek. If that is the goal, the question where we differ is the method to achieve that goal. I believe here again you must look at the history of the people together with the history of the legal system applicable to those people. Our criminal jurisdiction and our criminal procedure grew up in the Victorian years, when in Great Britain, certainly in the beginning of that era, there were many differences in education, sophistication, money income and standards of living. You had there many of the differences which we have in South Africa. Because of the sophistication of those prosecuting and the judges and magistrates administering the law and because of the lack of sophistication and the illiteracy very often of, what the Victorians would have termed criminal classes, by which they meant the classes of society from which the majority of those charged came, you had set up in the English legal system many of those advantages or defences for accused persons which we have inherited in our criminal law today. It was not to make the scales of justice weigh unequally in favour of an accused person that those things were introduced, such as the presumption of innocence, the ruling out of hearsay evidence, and not requiring a man to speak till the evidence had been led against him. These things were done to protect illiterate people who did not know what the law was anyway, who were economically weak in society, who were inclined to obey authority in whatever form they found it and who were disinclined ever to question authority, whether it be in the form of an employer, a magistrate or a policeman.

Today in South Africa we have not achieved the egalitarian society which you have in Europe. We have not the welfare state which you have in Europe. We have not the universal education and the high standard of living which you have in Europe. Consequently, Sir, it is necessary that we retain in our system, at least for the present, many of those factors of the English legal system which may be unfashionable and out of date in Europe today but which were essential for the administration of justice in the Victorian Great Britain of the 1840s. So much of what applied in society in Great Britain in 1840 still applies in South Africa today, particularly in so far as the gulf between the unsophisticated and the uneducated Black man and the more sophisticated and educated White man is concerned whose task it is to administer criminal justice. It is in that light that we must look at the findings of the British commission of inquiry. They refer to some of the factors which made these advantages to an accused person necessary in the earlier days of the British system. If you look at page 10 of the British report, you find this—

This is in the British system. The first reference is quite an amusing one, and I propose to read it—

Sir, the reasons may have been different in Victorian England, but we find, with the pressure of work in the magistrate’s courts today in South Africa, that this very factor arises. Trials are very often conducted with indecent haste, not because of an ill-will on the part of the magistrates, but because they are subjected to such immense pressure of work that they have to rush through their cases. It is said in this report—

Sir, this was Great Britain in 1840. He goes on to say—

I am not suggesting that that sort of thing can be applied to South Africa literally today.

Why do you quote it?

I shall tell you why I quote it. That sort of thing can take place only where you have illiterate and unsophisticated accused persons and where the courts are under pressure. Now we have those two factors in South Africa today. In the light of that, and if one accepts that the social set-up in South Africa is quite different from that in Great Britain, one cannot accept without further ado and examination the recommendations for change in the law of evidence which were made in Great Britain.

Let us look at the other reasons why change was thought necessary in Great Britain. The second point is that accused persons now have legal representation, which they do have in the welfare state in Great Britain. But you do not have that here unless you have money to employ a lawyer, and the great mass of the persons in our lower courts appear without legal assistance.

There are other factors which they deal with. The final one is that criminals in Great Britain are far more sophisticated than they used to be. Sir, we also have our fair share of sophisticated criminals, out whereas a great percentage of them in Great Britain are sophisticated people today, that is not the case here. Ours are illiterate people; they are unsophisticated and still require that protection in criminal cases which they have under our existing law, not in order that the scales may be weighted in their favour, but that the scales balance evently between the prosecution and the defence. That is, I believe, putting the Bill in its right context. I think that if one views it in that light, the hon. the Minister might perhaps on reflection feel as I do that he was wrong in relying as heavily on the British precedent for change as he did in the initial part of his speech.

There are further aspects of the British inquiry which one should consider. First of all, the British committee considered at length the German and the French systems of criminal procedure, as well as those which are followed in the United States and in Canada. The interesting thing is that the continental system, the inquisitorial system, was rejected in so many words by the British commission of inquiry as being inconsistent with their traditional approach to criminal procedure. Sir, I do not believe that the two systems can be mixed as easily as the hon. member for Krugersdorp suggested. It is not simply a question of taking a bit from the French system and a bit from the English system and mixing them up and putting them in the oven and out comes a nicely cooked legal system. A legal system is something which must be looked at as a whole; it is related to the personality of the people of the country in which it operates and it is related to the historical traditions of the people upon whom it is to be imposed, and for that reason I do not believe that the two can be easily mixed.

Sir, there are further points which emerge from the British report. Firstly, I agree with the extracts which the hon. the Minister read as to the desire not to prevent an innocent man from being convicted by letting 10 guilty men go free, but trying to get a direct balance between convicting the guilty and acquitting the innocent. I might say, finally, in regard to the British inquiry that they specifically resisted, as one sees when one looks at pages 27 and 28, the notion of interrogation by magistrates at the commencement of a trial. The very concept which we have embodied in clause 119 of this Bill was rejected by the British commission. Sir, I should like to dwell for a moment on clause 119, which really is the heart of this Bill. I believe that this will not bring about a speeding-up of the procedure in magistrates’ courts and in the Supreme Court. I believe that it is going to bring about endless delay, and I should like to dwell for a moment on subsection (2)(a)(iii) of that clause, the relevant part of which reads as follows—

Sir, I want you to imagine a trial on a hot February day in Durban in the Supreme Court, where a Zulu is charged with murder because he hit somebody else over the head with a stick. Every question put to him and to every witness will have to be interpreted through an interpreter—one of the more rare breed of men these days. When the accused appears before the magistrate, prior to this hearing in the Supreme Court, the magistrate must inquire from the accused whether the plea of guilty or not guilty is intended to place in issue all the elements of the offence. What the accused will say when the charge is read to him is this: “I hit the man, but I did not intend to kill him.” That is what they always say, Sir. Anybody who has practised in the criminal courts will know that this is the standard reply in most cases, certainly where a Zulu is involved: “I hit him on the head with a stick, but I did not intend to kill him.” Sir, how on earth is it proposed that the magistrate should fulfill what is incumbent upon him in terms of what I have just read? First of all, he has to find out whether the accused was under the influence of liquor, because if the man was under the influence of liquor a possible defence is open to him. Secondly, he has got to find out whether the man died as a result of the blow which was administered to him, because if he did not, then there may be a defence open to the accused. He has got to find out, thirdly, whether there was any intention by the accused to kill the individual whom he struck, because that is an element of the offence of murder. I ask you, Sir, by reference once again to the wording of this clause, how on earth this is to be done before the judicial officer knows what the evidence in the case is to be? He has not heard any evidence. All he has before him is a short four-line indictment for murder— that is all—and yet he has to inquire from the accused, because a plea of not guilty would be entered in those circumstances, whether he intends to place in issue all the elements of the offence. The magistrate has to find out from the prosecutor, first of all, whether the offence was committed after a beer-drink and if so, the extent of liquor consumed, before he can ask the accused whether he intends to admit these things or not.

What are the elements of the crime of murder?

It must be an intentional killing. But, Sir, all the other factors which I have just mentioned are also involved in this.

He can place those factors in issue.

Very well, let us go a stage further.

He admits that he hit the man and that he killed him.

How, Sir, can he admit that the man died from that blow until the medical evidence has been led? The medical evidence is a key factor in all these trials. The doctor is told of the type of blow and he then gives an opinion as to whether that blow and that type of stick was sufficient to crack the man’s skull, and having done that he then examines the deceased to find out whether that blow was the probable cause of death. Sir, all this evidence has to be led before the very point which the hon. the Minister mentions can be dealt with. The magistrate, as I have said earlier, has heard none of this evidence. What is he to do? Must he ask the prosecutor to stand up and read out this evidence from his dockets before he can comply with this section at the initial stage of the proceedings? And if that is so—and I do not see any other way out of it—it is going to take twice as long as the conventional trial which we have at the present time. But, Sir, I have only dealt with the first of the provisos. The clause goes on to say—

That is to say, whether he places them in issue or whether he admits them. Sir, this means a review of the material facts surrounding the events which led to the charge, otherwise this provision, too, cannot be complied with. I emphasize again that under this procedure that evidence has not yet been led. Then, finally—

In other words, he has to find out whether the blow was administered in circumstances where the accused was sober; the accused admits that, but he says, “It was not such a blow as would kill a man.” Or the magistrate must find out whether the reverse is the case, in other words, the accused admits striking the person but says, “My blow was not sufficiently strong to kill the man; he died of some other cause.” Sir, this is a simple criminal trial in which pro Deo counsel appear in the courts of Durban every day. What are we going to do, Sir, with an involved criminal insolvency with an indictment that runs to three pages of typescript, or is that a case where we are going to have a preparatory examination? What are we going to do, Sir, in those cases under the Terrorism Act where the indictment runs to three or four pages of typescript, all of which are brought before the courts as summary trials at the present time without a preparatory examination? How, in those cases, is this procedure to be followed? Now, Sir, I hope I have said enough, with reference to an actual case, to indicate our objection to some of the parts of this Bill, and I hope I have indicated sufficient to show why we believe it is necessary that there should be a Select Committee. Just as I believe in the practice that when dealing with legislation relating to elections, things which affect all of us, it invariably goes to a select committee before Second Reading, so I believe that where we deal with the criminal laws which affect all of us, it too is a matter which should go to the Select Committee before the Second Reading so that there can be useful discussion and a fruitful Bill can come forth.

With respect to the hon. member, who has just resumed his seat, I shall perhaps return in a short while to what he has just said, but I just want to make this one remark now. If I have understood him correctly, the hon. member spoke of a judge of appeal who instituted the investigation, and implied that it was perhaps not the right thing to have appointed that judee because, from the nature of his office, that was not a fitting thing to do. That is how I understood him. But I personally think that the hon. the Minister made a very wise choice when he asked that judge to handle this investigation. We know Judge Botha’s background as prosecutor, as legal man, as legal advisor, as legal draftsman, as judge and as judge of appeal, and I think he is a man pre-eminently suited to undertake a task such as he was requested to undertake. I did not think it would be necessary to have to mention the hon. judge’s name here, but since this has been done, I do want to express my satisfaction at the fact that the Minister made a very good choice. At a later stage I shall come back to the question of whether the magistrate or the presiding officer would be in a position to ask the right questions and get from the accused only what is necessary when it comes to the question of pleading.

Sir, I first want to make a few remarks with reference to what the hon. member for Durban North said. His matter concerned statistics. He rightly said he wanted more figures about how many hundreds or thousands of people have escaped conviction as a result of fabricated or false lines of defence—that could be correct, but I do not actually think it is relevant. An American told me that in his country the occurrence of only one offence is sufficient to make a law that provides in some cases for a fine of $100. I could perhaps also mention to you a few examples here in South Africa. For example, in the case of an alibi I am convinced that a fabricated and false line of defence was raised after certain things took place. The matter concerned a White man who was charged in a sodomy case, and a young boy was involved. Instead of the case taking a day it lasted for weeks, while indications were that on the first appearance a plea of “guilty” would have been lodged, and when bail was requested and was granted, the person returned a few days later to appear, and then his plea was “not guilty” and his line of defence was that of an alibi; and the young child, who had to endure that ordeal, had to endure more under cross-examination by a legal representative, and both knew what the real state of affairs was. Then there was also another case where the Police caught the accused red-handed. After a delay of a day or so, they pleaded not guilty and raised a completely false line of defence. Those are just two cases that I want to mention in passing. There are some of the hon. members here who know me and who know that I would not say such a thing if I did not know it to be the truth, if I had not experienced it for myself and seen what happened. In respect of the plea I would then say that it could be water-tight if the magistrate asks the questions in terms of the provisions that are relevant to that. The hon. the Minister gave us the assurance that there are no strange phenomena in this Bull and that it contains nothing strange that is in conflict with our law of criminal procedure, as we know it. Having gone through the Bill as I have, I do not find any such indications either.

In respect of the plea I can mention that it has frequently happened in practice that pleas are made in good time so that things can be made easy for all parties, because then the witnesses can be on their way and the Police conclude their cases. However, there have never been any prescribed provisions to cover anything of this nature. As the Bill now reads, its chief characteristic is one of justice and of justness.

The hon. member for Durban North also made a few other statements which I do not believe may be allowed to pass completely unrebuked. He asked whether the questions the magistrate would put in court, would be understood. I think there is a hidden insinuation in that question. He said, in addition, that he has already seen what goes on in the courts. If that is not a hidden insinuation, I do not know. I want to inform the hon. gentleman that our magistrates in this country are trained, well-qualified, competent people with the utmost integrity, people of outstanding merit. Merit determinations to get the right man at the right spot is a strict requirement in the Department of Justice. That department has an inviolate honour and tradition which it would not allow to be tarnished in any way by anyone. [Interjections.] I have the utmost confidence that our presiding officers will not detract in the least from this task which is now being entrusted to them in terms of this Bill as it now reads. In fact, they will zealously and profitably carry it out.

The hon. member for Pinelands had certain constructive things to say, and one must agree with them, but how he can make a general statement saying that this Bill is a “bad change to our Criminal Law”, is not very clear to me. Neither is this good enough, as far as I am concerned, if we are deliberating here on so important a Bill. In fact, I allege the exact opposite, and I shall give my reasons for that.

In addition we had the antics of the hon. member for Florida. He really jumped around like a cat on a hot tin roof. He put me in mind of a friend I had in the magistrate’s office who was short in stature, a person who eventually became self-conscious about his own length. He was also a little stocky. In order to at least be able to rub shoulders with those taller in stature, he got himself some shoes with built-up heels. This gives me the impression that the hon. member was adopting a compensatory attitude here which really does not suit him. I think that this compensatory attitude which he adopted, and the fears and doubts he expressed to the effect that the courts would supposedly not be able to take the correct action, to the effect that no one would allegedly know how this Bill would work and that throughout the Bill there runs a thread indicative of benefit to the State’s case with little advantage for the accused except to make it increasingly more difficult for him, does not suit him. He advocates further research and he also alleges, making a great display of this, that delays would be facilitated and that a bottleneck would develop, whereas cases now go through the courts like a flash. I wonder how quick that flash is that he had in mind. We are indeed aware that judges, in particular, when cases come before them, frequently ask why the accused have been detained for so long. From our own experience we also know that one sometimes has to work day and night to work through the rolls so that accused do not have to wait too long to be tried. Now the principle that a short-cut can be chosen is also being included in the Bill. This is not the only time in our law that a short-cut is, in fact, being taken. In fact, case law has made it possible for the courts to choose the shortcut in certain cases where guilt is acknowledged and will not be disputed. This makes it easier for the State, and this procedure is, in fact, adopted. Those principles, laid down by case law, can still always be upheld when we come to the principles being implemented in this legislation.

I also want to return for a moment to what has been said. The hon. member for Kroonstad has sketched the background to this Bill very well. He was followed up very well by the hon. member for Waterkloof. That hon. member said that this legislation is the work of experts. I agree with that wholeheartedly. I did not want to speak about the hon. judge; I merely wanted to refer to him as an exceptionally competent person. The hon. member was telling nothing but the truth when he said that the honour and prestige of the courts must be protected. I agree with that; in fact, I go further by alleging and stating that the honour and the integrity of all officers of the court must be protected. That must be taken care of. In referring to all the officers of the court, I am referring to the presiding officer, the prosecutor and the legal representatives. Their honour and integrity must always be above suspicion. It is not necessary to say this here, but it is nevertheless a fact that things are sometimes said that are not flattering to some office or another in this profession. I should not like to disclose what has been said to me, but in an argument in which I was involved a few days ago, and in which I had reason to defend the office of attorney and of advocate, things were said that were not flattering. However, I should not like to refer to that. In this legislation a very sound balance is being maintained between the matters of the State and those of the accused. What is being emphasized here is the freedom of the individual. Quick bail and a quick appearance before the courts can be arranged and it can be determined what the accused’s defence will be. Then it can be determined how quickly the case can be tried. Arrest is a very serious matter, and the right to enjoy freedom until guilt is proved, is also an object of this legislation. What evidence must be submitted to the court depends on the pleadings and the elements elucidating the alleged offence. In my view this is very essential, because it will be said that no cost must be spared to ensure that law and justice are upheld. I agree wholeheartedly with that concept, but I do not believe that anyone will contradict me when I say that one should nevertheless always guard against wasting time and money and unnecessary witness fees. People sometimes have to travel long distances to appear before the court as witnesses, after which they simply return without having accomplished anything. This is now being eliminated. The submission of documentary evidence, which could actually have been eliminated by an admission, can now be eliminated. In the lieht of what is being proposed in this legislation, it is actually unnecessary to incur many of these costs.

I now want to come to the actual matter that I feel very strongly about, i.e. that the accused is today being protected at all times, Hon. members opposite are only concerned about the accused, but what about the innocent people, i.e. the victims of the offenders, such as persons whose houses are broken into; what about that lady who is assaulted or whose property is stolen? What about those innocent people? Must we not again think very seriously about their position? Let us just take a very minor and perhaps superficial example. Clothes or other valuables are stolen from a person’s house. If they are recovered, they have to lie for weeks or months in the exhibit room before they can be returned to the owner. The principle is being upheld here that exhibits should be returned to the owner as quickly as possible under certain circumstances so that he is not left resentful of the legal proceedings. The fact that the goods, which are durable and valuable as far as he is concerned, are returned to him quickly also entails that witnesses will more easily be persuaded to give evidence in court, whereas today people are inclined to do nothing about it when they see a serious offence being committed. I have just seen this happening again, between 12 o’clock and one o’clock, when a woman’s purse was stolen, and when the guilty party fled no one made an attempt to catch him or to help the woman. The woman simply had to suffer the loss. If he were caught, however, that woman’s purse would have had to remain in safe keeping for a long time until the preparatory examination was concluded or until the case against that person had been dealt with in the supreme court. We must think of what the innocent person suffers in such cases. The amendments or additions to the old Act—and how many times has it not been said here that the old Act has withstood the test of fire—are in the public interest. Thousands upon thousands of rand are spent to have the wheels of justice turn smoothly and if this new legislation could assist in reducing the infrastructure at courts, this would be a salutary effect. Here I should like to mention a few. In connection with the safe keeping of exhibits, buildings must continually be constructed throughout the country and money be spent for the establishment of places of safe keeping. This legislation ensures the elimination of many of these exhibit buildings. It also brings about a saving on witness fees, travel costs and other essential costs in getting evidence to the courts, frequently unnecessarily. The employment of more staff in connection with this matter is also being reduced.

I shall now come back to the way in which this Bill is drawn up. It attests to outstanding dedication and acumen. Firstly, I shall just mention again the great and sound work the judge of appeal has done. I also want to deal with the question of research. The Department of Justice has a secretary and a panel of officials who are masters of sound legal principles. These officials work every day with the matters here before the House and with what is discussed on both sides of the House. They are competent and experienced people and do not have to stand back for any panel in the world. With them it is a question of never-ending research and dedication to guard the traditions of our legal system. The drawing up of this Bill attests to the utmost competence, thoroughness and depth. If some small mistakes are, in fact, to be found, these could only be due to the human element which one could never neglect to consider as far as anything is concerned. The manner in which it is drawn up makes it easier for any legal practitioner to put his finger on the right section and chapter. The classification is sound and makes the administration of justice more streamlined. The way in which the clauses have been analysed and the elements of each clause framed in subsections and paragraphs is praiseworthy and makes it better for anyone to read, follow and understand. Instead of a long hotch-potch of ideas bunched together in one paragraph, there are now various paragraphs under the same clause or there are several clauses in which the matter is dealt with. For example, section 44 of the old Act is. I think, fully and neatly summed up in clauses 25, 26 and 27 of this Bill so that it is also possible for an almost illiterate person to understand it.

Certain hon. members disapprove of the fact that more research has not been done. In the light of what I sketched in connection with the standing panel of the Department of Justice, that complaint is now nullified in my view. There is also the complaint that Parliament’s function is being watered down. That is surely not the case. I have already indicated how this research was done and I have spoken of the irrefutable competence that was not lacking. The hon. the Minister came to the House with a series of amendments for which he is being blamed. I welcome the amendments and I welcome the fact that he says to the House that in his opinion, and after additional study, he thinks those amendments should be introduced. This is an acknowledgment by this Parliament and by himself as a responsible Minister. In addition it is an acknowledgement by him as a parliamentarian that he is placing those documents before us here. I do not think there ought to be any complaints about that.

This House has now devoted many hours to this debate to place under scrutiny the principles contained in this motion. I really cannot understand how Parliament’s responsibility is being encroached upon. In fact, this debate is still far from finished. No, Sir, a Select Committee is not necessary. This Bill contains almost 95% of the provisions and principles that have stood the test of fire for many years. They are now simply being supplemented by the most essential amendments to allow the wheels of justice to continue running smoothly. According to my analysis of the matter, it is clear to me that the over-all majority of decided cases that have already been instrumental in shortening trials, will still be of importance and will still be apposite. I do not have to say anything about the proven principles. The old Act has proved them. I want to support the new Bill with the few new principles contained in it and the amendments which the hon. the Minister is suggesting.

There are perhaps another one or two general remarks I could make. I have already stated that there is now a better balance between the State and defending parties, and that no foreign principles are contained in it. The House of Assembly is now using its full powers to place certain clauses under scrutiny. There is support from outside on the part of higher bodies. We have had good reports of this Bill which is bringing about a measure of consolidation in respect of the original Act and amending Acts and which is a Bill which, in my view, will not only meet the future requirements in all respects, but will also measure up to what the original Act has already taught us about the administration of justice in this country. I therefore support the Bill and the amendments being introduced by the hon. the Minister.

Mr. Speaker, I have listened with great attention to what the hon. member for Innesdal had to say. As a retired magistrate what he said was true, but I have to cross swords with him on one or two points. He gave the hon. the Minister and that side of the House the usual praise which we normally expect from hon. members when they get up to speak about themselves. That is just said in passing. We expect it from them. Otherwise he made a very good speech. The hon. member dealt at great length with people who are acquitted when in fact they should have been found guilty. That was not the fault of the procedure. Surely the evidence must have given the presiding magistrate the reasons to acquit those people. My experience of the bench, particularly the lower bench is that magistrates are not afraid to give a judgment which is just. They give their judgment according to the facts that are placed before them. He also spoke about the appointment of magistrates on the strength of their qualifications and on merit. These are things with which we all fully agree. Nobody disagrees with it and I am glad that he dwelt on it.

The hon. member’s attack on the hon. member for Florida I thought to be a little bit harsh. There was no need to get personal about it. I was rather disappointed that he didn’t give us more of the actual practice and the difficulties in a magistrate’s court. I am surely not going to tell him what the difficulties are that magistrates come up against. I should like to deal with those clauses which affect the police.

We all know that South Africa is blessed with a well disciplined, well trained and experienced Police Force. The Police Force has a proud reputation and we are all very proud of it. The police have certain functions. The first is the preservation of the internal security of the Republic. This is a factor which requires a lot of investigation. The second function is that of law and order. Thirdly, they have to investigate any offence or alleged offence and of course, forthly the prevention of crime. I am glad to see that in the definitions of Peace Officer and police official everybody is included irrespective of rank or race. We are after all dealing with a population of some 20-odd million people of which the Whites form four million. We have to rely more and more on our non-Whites in this country to do our police work for us. Up until now they have been doing it wonderfully well but still under White supervision.

Further, this Criminal Procedure Bill, like its predecessor, the Criminal Procedure Act and the one before it, makes no distinction as to whether a person is White or Black. It refers here to a member of the police or a policeman and there is no reference to a Black or a White policeman.

Do you not want it that way?

Yes, I am in favour of it. I have said so. There are many members of the public who do not realize that the non-White policeman has the same powers as the White policeman. I seem to remember reading once that somebody was surprised that technically, and legally too, a White person could be arrested by a non-White policeman.

I now come to the question of the investigation of any offence or alleged offence. Here of course one relies on the information that comes to the police about a crime. Whenever a crime is reported to the police, it is their duty to investigate it and to place all the available evidence before the court. A policeman cannot refuse to investigate a case if somebody lodges a complaint. It is the duty of the police to investigate such a complaint and to lay the results of their investigation before the public prosecutor for his decision as to whether he is going to prosecute or not. All this entails taking statements from the complainant and from the witnesses, and these statements cannot all be gathered within five miles of the police station. These people are often scattered. Particularly in the country districts and in the Bantu homelands the police have to travel miles just for one statement, and nine times out of ten they cannot find their witness. These are factors which cause a great deal of delay in bringing a case before the court. I know that magistrates have often criticized the police because a case has taken a long time to come before the court. One must bear these problems in mind. Let us take the case where a person is murdered in a place like Zululand, some 30 miles from the police station. There are no taxis, telephones or buses there, so some informant walks to the nearest police station and informs the police of the crime. Out go the police, nowadays in their Landrovers. They find the body and they start investigating the matter. By now everybody has scattered, and it takes days, and a great deal of travelling and endeavour to investigate such a case.

As is the case in other professions, the police have pride in their workmanship. Most people do not realize this. Therefore, when a policeman presents his docket, he has to be sure that the case has been properly investigated. It is not just a matter of running around the corner, collecting a few witnesses and pushing them before the court. These statements, furthermore, have to be reduced to writing in one of the official languages. Unfortunately the Force does not have a large number of policemen who can speak the vernacular of the particular area in which they are carrying out an investigation, whether it is Xulu, Tswana, Venda or Xhosa. A policeman then has to use an interpreter. Having translated the statement and written it down in one of the official languages, the policeman then presents it. We are glad that, as a peace officer, a policeman can now affirm those statements. Gone are the days when you had to bring the witness before a justice of the peace or a commissioner of oaths. Police constables have been given the power to take these statements and administer an oath. All this has been done in the fight against crime. Everybody is worried about the incidence of crime, but let us be fair. Let us give the police all the powers they need so that these cases can come before the courts speedily and expeditously. My comment here is that clause 119 as it stands at the moment is going to offer some sort of temptation to certain investigators—I do not suggest that this applies to the general run of investigator— to push an accused person hurriedly before a magistrate without having thoroughly investigated the case. The accused now comes before the magistrate, who will put the charge to him, and then ask the accused to answer the case against him. That is my fear as far as clause 119 is concerned, and I think it is a very real fear. Like all other human institutions, the police have their weak links and their black sheep. However I am proud of the fact that we have always taken strong action against them. It has been the police who have investigated these cases; they have not waited for somebody to raise the alarm or to write to the Press or anything like that. Where officers inspecting dockets have come across these weaknesses, they have taken the appropriate action, and that is why the police have maintained this high standard.

Sir, we now come to the stage where the policeman has taken a statement from the accused and feels that he has every reason to arrest him for an offence under Schedule 1 of the Bill. Sir, many people think that the police arrest people willy-nilly. Let me assure you, Sir, that the instructions in this regard are of long standing and perfectly clear. It has been impressed over and over again upon policemen, particularly young ones, that the main reason for arrest is to ensure the appearance of an accused before the court to answer the charge which is laid against him. Arrest is not and was never intended to be a form of punishment for an offence on which the man has not yet been tried or on which he has not yet been found guilty. The police have never resorted to arrest as the first measure to be taken. They use their discretion, and I find that they use it wisely every time.

Are you advocating more powers for the police?

No, I do not; I welcome this provision here.

Why are you fighting, then?

Clause 40 sets out the powers of arrest of a police officer without warrant. Even a private person has had these powers of arrest without a warrant. Sir, another thing which is not generally known is that a male between the ages of 16 and 60, when called upon to assist in making an arrest, may find himself criminally liable if he fails to do so. These are all things which are provided for, and I am glad to see that they are embodied in this Bill.

Then we come to clause 49, which refers to the use of force in effecting an arrest. When one effects an arrest one may—

I now come to subclause (2) in regard to which there has been much heartburning—

Here again we see that that is provided for in the Bill. Then there is the use of firearms by the police. [Interjections.]

Mr. Speaker, is an hon. member allowed to tell another hon. member he will give him hell?

Order! Did the hon. member say that?

Mr. Speaker, may I say on a point of explanation that I did say that, but the reason …

Order! The hon. member must merely say whether he has said that. The hon. member must withdraw it.

I withdraw it.

The country generally has been shocked from time to time by the high incidence of people who have been shot by the police when escaping from custody for petty offences. Now, we know that the police are widely spread all over the country and for the department to issue hard and fast rules when you may or may not shoot is difficult. But the instructions are there and they are strictly enjoined to use the utmost forbearance and tact and judgment on each and every occasion. The occasions when a policeman may use his firearms are when his barracks are being attacked or when an attempt is being made to divest him of his arms or of his prisoner, or when other people are being unlawfully attacked, to protect them from death or serious injury, and also to protect himself from death or serious injury. Here, as I see it, the improvement is this. [Interjections.]

Order! I want to appeal to hon. members to give the hon. member an opportunity to make his speech.

It is pleasing to see that here an attempt has been made to forestall these—what shall I say—free shootings where it says under Schedule 1: “Any offence, except the offence of escaping from lawful custody in circumstances other than the circumstances referred to hereunder, the punishment where for may be a period of imprisonment exceeding six months without the option of a fine”. This will now be a brake on those over-zealous young men, and let us face it, most of these shootings by policemen have come from the young men, and not from the old experienced policemen.

They are slow on the draw.

No, they are not slow on the draw. They know their law, and they know how to deal with a problem. In any case, the injunction is there that when you shoot you must not shoot to kill. But then it is very difficult to say when a man is shooting at you or not because some people are very bad shots. However, the injunction is also that when in doubt, do not shoot. Here I may just say that this use of fire-arms by police —I just say this in passing—allows the police to kill a person whereas certain restrictions have been placed on judges as to whom they may or may not sentence to death. Anyway, I just say that in passing. Perhaps we could go into that in the Committee Stage.

Clause 38 refers to the methods of securing the attendance of accused in court by arrest, summons or written notice in terms of clause 56. I am sorry to see that the old warning which was contained in section 310 is being omitted, because I feel that it is going to add to paper work. The old warning, I know, had no real force of law behind it, but it did save a lot of paper work. I personally would like to see this included in clause 38. It did have the desired effect.

Like other hon. members on this side of the House, I feel that this Bill could have been gone into more thoroughly and perhaps a more satisfactory Bill, which would not have been so full of loopholes had we had this Select Committee, could eventually have been enacted. I therefore support the idea of referring the Bill to a Select Committee.

Mr. Speaker. I want to begin by associating myself with what was said by the hon. member for Kroonstad yesterday when he expressed his appreciation and thanks to those who were involved in the drafting of this Bill and also for the amendments of which notice was given on the Order Paper after discussions had taken place between this side of the House and the hon. the Minister and his department. I believe that it cannot be stressed enough that we are dealing here with a piece of work which demanded pains, deep thought and serious consideration of the jurists who were responsible for the job of drafting, writing and checking this measure. One can imagine the intensive work which was continually being put into this Bill, literally over a period of years, and this was not done by only one Judge, as was suggested by the hon. member for Durban North. Yes, he went so far as to say, if my memory serves me correctly, that “it was the brainchild of one Judge”. I just want to say in passing that it is by no means true that this is the “brainchild” of one Judge only. Even if that were true, I would have much more respect for this “brainchild” of one Judge than for the “brainchild” which he came up with when he drafted the Opposition’s federal plan.

But, surely, what you are saying now is history.

I want to repeat. I do not think this House can sufficiently express its thanks and appreciation to all of those who were involved in the drafting of this Bill; the Judge of Appeal, the other Judges, all the experts, the offices of the attorneys-general, the numerous officials in the Department of Justice and, in particular, Mr. W. P. Theron and Adv. D. D. van Niekerk. Then, of course, there is also the patience with which our hon. Minister gave us a hearing. The hon. the Minister invited the Justice group of this side of the House to discuss this Bill with him. To us the Bill was nothing new. It was discussed in the course of a number of meetings and, partly as a result of our discussions, welcome changes were effected in it. To indicate to you with what an open mind the hon. Minister listened to us—he also said so himself in the course of his Second Reading speech—I want to point out that some of us were concerned about the question of legal representation at the first appearance of the accused in terms of clause 119. It is that very process to which the Opposition is objecting so strongly now. We did not want to find fault with the process, but we did want to make quite sure that it had to be clearly understood that the accused could also have legal representation at that stage. This has now been included in the amendment to clause 119.

From the amendment it is clearly apparent that this is the case. Then there is another important clause, namely clause 151. I should like to point out that we did not always agree as if we were a bunch of kindergarten pupils who, as it were, always trotted along behind the Minister and his department to promulgate allegedly suppressive measures. This is the scandalous suggestion sometimes made by that side. We discussed this matter very seriously amongst ourselves. We also had differences of opinion. This was one of the main differences of opinion, and the hon. the Minister gave us a sympathetic hearing. Subsequently these changes were effected. As far as clause 151 was concerned, some of us, including myself, were concerned about the provision that when an accused, in reply to the question whether he wished to adduce evidence, answered in the negative, he could only, in terms of the original clause, adduce evidence at a later stage if he was able to advance sound reasons for not having said in the first place that he wanted to adduce evidence. We felt that it had to be put beyond all doubt that the person should at all times have the right to be able to give evidence in his own case and to tell his story. That amendment, as well as other amendments, was then effected.

When we had done that, we completed what had been years of research, sifting and deep reflection for us. An invitation was in fact extended to the Opposition to discuss the Bill with the department, and they cannot deny this, but they do not avail themselves of it. The hon. member for Durban North said yesterday that he in effect he had only had notice of this Bill for the first time three weeks ago. That is what he intimated. After that he told a long story about why he did not take cognizance of such measures before the Government came to the House with a Bill in a form which was more or less final.

I want to ask the hon. member what he thinks was the real purpose of publishing it in the Government Gazette of 10th December, 1971. This matter was published in that Government Gazette in the form of a Bill. Does he think that it was an Andy Capp story? What does he think it was? How does he explain his reaction, after the commission’s Bill was published in full in the Government Gazette and sent to him? Those interested and members of the public were invited in the Government Gazette to comment on the Bill. This request appeared in the Government Gazette in 1971, but, as the hon. the Minister explained, it had already begun years before that. There were polemics on the matter and various Judges published their views on it. During the same period all sorts of commissions were appointed throughout the world to go into the question of combating crime, to go into the question whether the procedures of these other countries should not be amended, too, in order to see whether one could not restrict the incidence of crime more effectively. The hon. member asked: “What motivation was there for the hon. the Minister … ?” It is this kind of reaction which raises a serious doubt about the motives of the Opposition in their resistance to this Bill.

The Opposition was invited to comment, they were invited to propose, if they wanted to, improvements or amendments concerning the way these matters should be handled. Why did they not do so? Why did they wait till the last moment to come and threaten us, so to speak, with long debates? I want to pursue this matter. What was their basic approach? What was the approach of the hon. member for Durban North in respect of steps taken, steps such as the publication of a draft Bill in the Government Gazette, repeated publication in our newspapers and discussions in informed legal circles throughout the country on the desirability of change? He delivered himself of a stream of criticism in the newspapers and from Natal set the whole world ablaze in order to imply that this Bill is supposedly going to bring about a “miscarriage of justice”. He says that long delays will occur and commits himself in advance by saying how terrifying this Bill is going to be. This is what he now has to advance as a reason for their opposing the Bill in this House in spite of the fact that it does not do what he said it would do.

Business suspended at 6.30 p.m. and resumed at 8.05 p.m.

Mr. Speaker, just before the adjournment I made the statement that the hon. member for Durban North had committed himself against this Bill in advance. His approach was to run to the Press and make all kinds of critical, one could almost say, accusations, against the Bill as if its provisions amounted to all kinds of terrible miscarriages of justice which would be perpetrated in terms of this legislation. Now that he has already committed himself, he finds himself in the dilemma that he is actually unable to take another standpoint after having seen what the provisions of the Bill really mean. I do not want to be unfair to the hon. member for Durban North. I want to go as far as to say that it seems to me that even if he did make a study of the Bill, there is another characteristic inherent in him which prevents him from seeing any good in this Bill. This is that inherent characteristic of his to oppose all change. In these modern times we have the phenomenon that large companies even appoint experts whose full-time occupation is to remove people in their managements who oppose change. They call it the “R.C. factor”, the “resistance to change factor”. I want to suggest that the Opposition could profitably make a study of this dilemma which is caused for them by their blind, dogmatic and obstinate resistance to all change.

The hon. member nearly hit the roof because of a caricature which he himself has created of the process of clause 119 of this measure. He says that thousands of questions will arise, questions that will be asked by the magistrate at the first appearance of the accused. The simple question to be put to him is how many offences in South Africa are made up of thousands of elements. To illustrate this point somewhat, I want to mention that one could still attach some value to what was said by the hon. member if indictments or charge sheets were still being drawn up today as they were in the past. To give an example, I want to quote how a typical indictment in the case of murder read up to 1938 in the state of New York. A man is charged with murder because he shot another man. This is how the indictment read—

I could understand such a charge sheet giving rise to quite a number of questions. All that has been said so far in this charge sheet of the state of New York used until 1938, is that the accused fired a pistol at the deceased. Then the charge sheet goes on as follows—

Mr. Speaker, this is a charge sheet for murder which was in use in New York. Actually, all that is said in the second part of the charge sheet, is that the man sustained a wound in his chest. Then the charge sheet ends by relating that poor John Blank—

I can understand that the magistrate would have thousands of questions to ask at the first appearance of the accused if this were the kind of charge sheet which is drawn up. The hon. member for Durban North knows that this is not what happens today. All that is required is to say that the accused unlawfully and intentionally killed the deceased. In this connection I also want to refer to what was said by the hon. member for Zululand. This evening he was having problems with his examples. He even said—and I am grateful to him for having done so—to rub it in a little, that his example was an example of the kind of case very often found in Natal, or wherever it is that he comes from. He said he was having difficulty with what would happen under the process in terms of clause 119. His difficulty is this: What must the magistrate ask an accused pursuant to the accused replying as follows: “I hit him, but I had no intention of killing him.”?

What has your experience been?

I owe thanks to the hon. member for Zululand. What happens now? What must the magistrate do in terms of the provisions of clause 119? This is the simplest thing imaginable. I do not know why the hon. member did not use a more difficult example. The magistrate simply writes down: “I hit him, but I had no intention of killing him.” That is all that the magistrate has to do. That is all he has to record. Then that record goes to the Attorney-General, and in all probability the Attorney-General will, if the other evidence in his possession is such, not charge the man with murder, but with manslaughter. Instead of the State hunting for evidence for months, and instead of there being a danger of the accused being detained for months, it will now be possible for us to dispose of this process more quickly, in the interests of the accused, in the interests of the State, in the interests of fairness and in the interests of justice. Therefore I say that I owe thanks to the hon. member for Zululand for the fine example he gave in support of the practical value of the process contained in clause 119.

As I have said, the hon. member for Durban North nearly hit the roof. He had never heard of the words used in clause 119, in terms of which the magistrate may put certain questions to an accused who has pleaded not guilty. He had never heard of that formulation. I should like to refer the hon. member to section 169(5) of the existing Act, which reads as follows—

There it is! I concede that as things are at present, the accused has a choice; but the idea is not a new one, and this idea is sometimes used. It is not true that it is never used. Where then is this atrocious injustice to the accused? The hon. member comes along and pretends never to have heard of this in his life. He says, “What a lot of nonsense.” But there it is stated in the present Act! It is just that it is not often used. He did not indicate what disadvantage to the accused would flow from this. No, Mr. Speaker, the whole approach is one of opposition to something with which they are actually not conversant. I am unable to agree completely with the historical survey given this evening by the hon. member for Zululand on how some of these rules for the protection of the accused came into being. The history is that in the years 1500 to 1600 in Britain, abominable processes had to be contended with. Accused persons were tortured and the rack was used. They did not have legal representation. The notorious Star Chamber tortured the accused to such an extent before the trial that after a while they gave in. It was a repugnant form of torture and diabolical instruments were used for that purpose. What the hon. member said about only the impoverished inhabitants of Britain having been affected by this, is not true. There was the notorious case of Lilburn, who refused to take an oath at the pre-trial stage. He received 500 strokes and had to pay a fine of £500. That is the kind of procedure which applied in those years. It stands to reason that the development of humanity brought about a repugnance against methods of that kind. This is what happened. Only in 1836 was unlimited legal representation for the accused fully accepted as a rule. And what happened then? Then in the process, they leaned right over to the other extreme. Then the accused was not allowed to say a word. The situation arose where the advocate walked up and down before the jury and made an emotional plea to the jury and said, “Look, this man cannot open his mouth. If he could only open his mouth, he would convince you totally of his innocence in regard to what happened, and then you would have found him not guilty.” That is the situation which arose. There is a very interesting case of a man who was found guilty of fraud and sent to gaol in terms of this rule, viz. that only the advocate may speak and not the accused. Subsequently the man who had been defrauded brought a civil action against him. In a civil action the accused or defendant could in fact speak. He then succeeded in convincing the jury that he was not accountable. There one has the anachronism that he was sent to gaol in the criminal case whereas he won the civil case. That was the kind of situation that existed. Only in 1898 did the basis of our present-day criminal law procedure gain proper shape. Only then did one have the rule that the accused could speak if he chose to do so, but he could not be forced to speak. However, this rule was only established after fierce opposition, just as we are also experiencing opposition against an extension of it now.

Now, it is very interesting to note what was said by a famous British scholar about the basic principle of clause 119, i.e. that a judicial officer must put questions to the accused. Of course, this does not include cross-examination as it was put by that side of the House. I refer to Mr. Glanville Williams, a famous jurist conversant with all systems of criminal law in the Western world. With reference to the attempts made before 1898 to establish this rule, namely that an accused was now allowed to speak, but could not be forced to do so, he explained the prevailing opposition to this rule before 1898 as follows—

That is very interesting. He said that the implementation in practice was lacking and that was why people were against it. Then he quoted Bentham, who was a great jurist in the previous century and who was in favour of the Court having to be in a position to interrogate an accused. I quote—

Mr. Speaker, it is very clear that this whole storm which the Opposition has been trying to raise about the “rule of law” and aspects associated with it is completely unfounded. There is not one single provision in this Bill which increases the danger of an accused who is really innocent, being found guilty. There is not a single provision in this Bill which increases that danger. What it does in fact contain, is provisions which will assist in ensuring that the truth, the facts, comes to light more quickly and that possible issues are ruled out, also to the benefit of the accused, because he will be spared costs and possible detention for a long period. The case will now remain alive because a date must be stipulated by the magistrate for the next appearance. All the traditional concepts of “the rule of law”, the legal guarantee against arbitrary action, all the basic principles of an open trial, of a trial as soon as possible after a person’s arrest, of legal representation, all those principles of an impartial and fair trial, are contained in this Bill and are by no means affected. For that reason we can say that we note with appreciation the pains taken and the hard work done by the hon. the Minister in giving South Africa a new process in the interests of the accused and particularly in the interests of those who are really innocent. By these means our criminal law procedure is being overhauled and brought into line with modern views.

Mr. Speaker, I find myself in the fortunate position again this evening of following the hon. member for Wonderboom in a debate in this House. I was particularly interested in the remarks he made when we resumed the debate after dinner. He referred to my colleague, the hon. member for Durban North, as one who was “teen enige verandering”, in other words, I gathered from him, a real conservative. The hon. member for Wonderboom then presented himself to this House in a different form. He reverted to his “Declaration of Human Rights” speech which he made in this House. As he spoke I was also reminded of the fifth amendment to the American Constitution, which he no doubt now supports. If I may say so, Sir, he presented himself even further this evening, as a change agent in so far as South Africa is concerned. One wonders whether, in presenting himself as a change agent, he is restricting himself to the purely legal debate we are having, whether he is speaking for himself personally, whether he is speaking for his party or whether, perhaps, he has the hon. member for Waterberg as a fellow-traveller in the change agency he is advocating.

The hon. member before dinner made reference to my colleague, the hon. member for Durban North, and the question as to what discussion had taken place outside this House and what opportunities for discussion were available to the hon. member for Durban North before this Bill was debated in Parliament. Shall I say, in the parlance of the fraternity to which the hon. member for Wonderboom belongs—he belongs to the Bar and I belong to the Side-Bar—that I have now been sufficiently briefed; I can now reply on behalf of the hon. member for Durban North. The hon. member for Durban North informs me that he approached the hon. the Minister in the lobby. The hon. the Minister will remember this. He asked the hon. the Minister whether a White Paper would be issued as far as this Bill was concerned. He informs me that the hon. the Minister then told him that it would be difficult for a White Paper to be produced, but that the official who had drafted the Bill would be down in Cape Town, and, as the hon. the Minister then put it to the hon. member, “You or your people have my authority to talk to him about the Bill.” The hon. member for Durban North then said, of course, that an official would be helpful to us on this side of the House. If there was not to be a White Paper, at least he could supply cross-references between the clauses of the Bill and the sections of the existing Act, which he would obviously have at his fingertips. The hon. the Minister was good enough to say that that service could be provided. Sir, that document, or rather those two documents, were received by this side of the House and we are grateful for them. They were received some 10 days later. Sir, on Friday last the hon. member for Musgrave out questions in this House to the hon. the Minister. He asked the hon. the Minister whether representations or comments had been received from persons or bodies on the Bill as published in 1971. That was the original Bill published for general information. He asked the hon. the Minister what those comments were, and the answer from the hon. the Minister was that he had received many comments from many persons and bodies, but that they were too voluminous to incorporate in an answer; and then the hon. member for Durban North asked the hon. the Minister whether he would make these representations available to Parliament before the Second Reading debate on this Bill. The answer from the hon. the Minister was that too many representations had been received, but that hon. members who had the industry to read them could come and read them in the Minister’s office. That is the invitation which was extended to this side very recently, just before the debate on this Bill started.

Sir, the hon. member for Wonderboom seems to approach the whole problem of this legislation from the point of view that we should have had discussions with the Minister and his officials and that we should have come to some agreement, if we could, where we required amendments to this legislation. First of all, the hon. member was wrong on the facts when he said that all this information was available to us a long time ago. Secondly, Sir, I want to ask him whether the responsibility for accepting or rejecting amendments is in the hands of an official, or is it in the hands of the hon. the Minister? But we were invited to discuss this matter with the officials.

You could have discussed it with me; I had you in my office.

The hon. the Minister knows that we were asked to discuss it with the officials. [Interjections.] Sir, I want to say to the hon. member for Wonderboom that from our point of view the place where we discuss legislation is in this House, especially in an instance where a Bill of this sort is presented to the House and the hon. the Minister of Justice has not prepared a White Paper for the information of hon. members. Sir, this is not a simple measure; it is a very complex measure, and it affects every citizen of South Africa, Black, White, Coloured and everybody else in every walk of life, but there is no White Paper on it. No, it is left to the general public to ascertain how they are going to be affected by this Bill. I want to tell the hon. member for Wonderboom that in the fullness of time and in due course the amendments which we have to this Bill will appear on the Order Paper. The hon. member will have a list of them and they will be numerous. We will argue those amendments here in the House in the Committee Stage and not in discussions at departmental headquarters. Sir, our duty on this side of the House is to expose the Bill’s deficiencies and to reveal, as we see it, the intent and the effect of what is in this Bill. May I just conclude on this aspect of the matter by saying to the hon. member for Wonderboom that we on this side of the House are not available to do patchwork repairs to Bills introduced in this House by Ministers.

The hon. the Minister, in introducing this measure, had rightly referred to the fact that a revision of laws is required from time to time. We agree with him. That revision can be motivated and justified by a variety of factors. One of them, of course, is the changing circumstances in which we find ourselves, the changing ways of life, of which the hon. member for Wonderboom is now one of the agents. We also find it necessary from time to time to amend laws to improve their effective administration. But, Sir, we also have to adapt procedures to conform to advances in the ways of life of our people and to the advances of civilization, particularly here in South Africa where we have persons of different races and different colours and at different stages of civilization. It does become necessary from time to time for us to revise our criminal code and our criminal procedure. Sir, when one looks at the broad picture of the matter, and when one looks back to the Middle Ages, one finds that where there was an accusation against a person that he had committed a crime, a form of summons was taken out which entitled the accuser to interrogate the accused, and if the answers were not satisfactory to the accuser, then he made another application to the authorities, and that was literally to turn on the screw, to apply the old torture procedures of the Middle Ages to see whether he could not get more satisfactory answers in interrrogation. But, Sir, we have evolved far beyond that stage; we have, as the hon. the Minister correctly pointed out, reached the stage where we have a criminal code, which has its origins in common law, now being taken up in statutory law, and against that we have our criminal procedure which is based in the main on English law, with the necessary adaptations to meet our situation in South Africa. Sir, we have progressed considerably in our law from the old basis of interrogation with the pressures of torture of the Middle Ages; we have reached the stage where, when it comes to the question of confessions, for instance, there are safe-guards in our laws today against the misuse of the procedure of obtaining a confession from an accused person. Sir, there is a long case history which has determined what we have today, and that is that the confession must be freely and voluntarily given; that it must be given by a person in his sound and sober senses at the time at which the confession is made; that it must be made without any undue influence upon the person; that it must be reduced to writing, and it can only be taken after the individual concerned has been cautioned that he is not obliged to make any statement in which he incriminates himself. It is not a question of saying, “Are you guilty or not guilty?”, but he is warned that he is not obliged to make a statement in which he incriminates himself and, secondly, he has to be informed that what he says will be used in evidence against him in any subsequent proceedings. These prerequisites are being observed today, as we debate this measure here, in our criminal courts. But, Sir, I believe that the safeguards against confessions being irregularly obtained are being blunted, if not obliterated, by the provisions of this Bill which is before us. The hon. the Minister, in motivating this Bill, said, first of all, that we can fortunately discuss this measure in an era of calmness in South Africa when there are no particular political pressures or circumstances which require an amendment of the law. Secondly, he acknowledges that in any country the ordinary or, might I say, almost conventional crimes of theft, assault and so on will go on as they have gone on over ages and will continue over the ages. But then the hon. the Minister says that we must realize at the present time that these conventional crimes, for which our criminal law was framed originally, are now nothing in comparison with the new crimes which have arisen in this century—the air-hijacking, drug-peddling, terrorism and acts of that sort. Sir, that is correct. This House has been asked by the hon. the Minister at various times to pass legislation to deal with those specific crimes in an adequate way in the interests of security for the whole of South Africa and in the interests of the maintenance of law and order. Sir, we have had our differences on details, but in the event this House has eventually passed legislation to that effect. But I cannot for the life of me see why fundamental aspects of our law should be changed, fundamental aspects which affect the ordinary man and woman in the street, because there are these particular types of modern crime to which the hon. the Minister has referred. I do not believe that they justify, to the extent that it is brought about in this Bill, the revision of proceedings and procedures which we have in our criminal law in South Africa. We must be careful, in attempting to streamline procedures and to modernize them, that we do not create avenues for the miscarriage of justice so far as individuals are concerned. I think that is the problem which we always face, namely to evolve an effective system which at the same time safeguards and prevents, to the maximum extent, miscarriage of justice. In our earnestness to ensure that no guilty person is acquitted we should not overdo that aim to the extent that we draw into the net the innocent person who becomes convicted under the system we evolve. I realize that the hon. the Minister is as aware as any of us are of the necessity for maintaining that balance in the determination of our procedures. But the right to refuse to answer incriminating questions is a right which has been enshrined in British law since the time of the Restoration, and in our law since our criminal procedures were first enacted and put into legislation in this country. Is that right being maintained under the provisions of this Bill?

The change from the old system, from the inquisitorial to the accusatory procedure, is one which is described by Lord Mac Dermott in a recent paper which he delivered in England, in which he said that this change from an inquisitorial to an accusatory procedure is usually ascribed to a revulsion of feeling against the procedures of the Star Chamber and to 17th Century disputes between the common law and the ecclesiastical courts. I am not suggesting for a moment that we are going back to the Star Chamber, but what I do want to say is that we must be careful that in our streamlining we are not taking a retrogressive step in so far as the administration of law is concerned and the general public of South Africa are concerned. Half a century later the Fifth Amendment to the Constitution of the United States was adopted and there the underlying principle enshrined in the Constitution of the U.S.A. was that no person shall be compelled in any criminal case to be a witness against himself. That is the view that has been expressed by the General Bar Council in their memorandum, but the hon. the Minister has said in his introductory remarks that a plea of guilty, whatever the circumstances, is the best evidence of guilt. That is what he said. Sir, the hon. the Minister must be aware of circumstances in which an individual may well plead guilty to an offence when in fact he is not the guilty person but shields someone or is the stooge who is put up for a gang in the modern sophisticated crime life of the world. If you take that confession or that admission of guilt as being the best type of proof of guilt, then one is running foul of the rule of law and the substantial proof of a crime, especially when the hon. the Minister has pointed out, as he has, that the requirement of evidence aliunde as far as a crime is concerned, is now to be abolished to the extent proposed in South Africa.

Now, to what extent are these interrogations which are envisaged here in fact interrogations with or without coercion? The very fact that a person is in custody will exert upon that person an inducement, at least, to speak, because he has no other alternative. The legal writers on this matter of questioning a person in custody, who has been charged with an offence, refer to this as a situation which is inherently coercive, and which creates an atmosphere of compulsion to speak.

Do you think that will make him tell a lie?

It may well be that if there is one person within a group or gang which has been working together, and he is under interrogation, he will say: “They have caught me; I will say I have done it and my other five accomplices can go free. I will carry the baby.” And that can happen. [Interjections.] The hon. member for South Coast says he has had such an experience. I have heard of many cases, where one man is caught and he is told on being arrested: “We have you; you have everything up against you; you are the guilty man.” But there are five of them operating as a gang and he thinks that he will accept the guilt. That is why I think it is important that if there is interrogation, that interrogation should take place before the man is charged and not after the man is charged. If you are trying to see what is happening it must be before and not after. I want to refer again to what Lord Mac Dermott said in this particular address he gave. Talking of the English Law he said this—

But what do we have under this Bill? A person is apprehended and is charged with some offence, which might be in the lower strata of offences, and that person is then brought before a magistrate to be interrogated. We must remember, taking the line of the hon. the Minister, that if we are looking at the drug-pedlars and the hijackers, those are sophisticated criminals who know everything about the law and how to evade the law. But you are not going to get them under this interrogation. What you will get is not those persons, schooled in what to do when apprehended; you will get those persons who are unversed in the niceties of the law. You will get those persons who are unversed in the meaning of mens rea or culpa, those who are unversed in the factors which constitute crimes. So you will get persons guilty of lesser offences, who will be dragged into this net which is designed, according to the Minister, to deal with the modern crime of today. Let me take the question of a motorist charged with negligent driving. A woman is charged and she is brought before the Police and charged with negligent driving. She is taken before a magistrate and in the circumstances she says “Yes, I am guilty of negligent driving.” But the ordinary motorist is quite unaware that a charge of negligent driving can be withdrawn and it can be turned into a charge of reckless driving, or another charge of dangerous driving, driving to the danger of the public, and it can go up in the scale almost to culpable homicide if another person is involved. But this motorist is answering questions on a charge of negligent driving. By giving facts which are unknown to the Police or to the prosecution, because she is honest, having been charged purely with negligent driving, she may find herself charged with culpable homicide.

What is wrong with that?

If the hon. member for Pretoria Central says that, then he is violating the very basis of our law, that no person should be compelled to give evidence to convict himself without the evidence of another person.

He is not compelled.

Mr. Speaker, there are one or two other matters with which I want to deal. I want to point out the very informative speech which we had from the hon. member for Florida yesterday on the procedural problems which he himself has experienced in dealing with these prosecutions. I believe this matter is going to lead to considerable delays.

Let me give one more example in regard to the motorist. In terms of the proposed legislation a person who is to be charged must be brought before the magistrate as soon as possible or straightaway to acknowledge guilt, or to plead otherwise and to be interrogated. What happens then? The person answers this, but the magistrate cannot continue with that case, because where is the Police plan; where are the witnesses? This is the day after the arrest or the day after the charge. As the Bill now reads there shall be two appearances in court—that is, one which is now going to be interrogatory and then a subsequent trial period. Under our present legislation the matter is brought to court once and the accused has to bear the heavy expense of employing legal advice once only. However, in terms of the proposed legislation it will be twice. He will have to have somebody the first time and he will also have to have a legal adviser or lawyer the second time, because no case involving a motorist, for instance, in reckless or negligent driving can possibly be completed a day or two days after the event. The hon. the Minister knows there are plans and there may be laboratory tests and so on that have to be carried out on the person concerned and which will not be available. I believe, as the hon. member for Florida pointed out, that this matter will lead to ordinate delays in dealing with matters for which the attorney must be available on both occasions.

I want to conclude by saying that I believe there are dangers in this Bill with which we could deal later in the Committee Stage when the individual clauses are put. However, I believe that the basic essential in our legislation is to ensure that no person, no individual can be prejudiced because of his lack of knowledge of legal niceties and because of his unsophistication. I believe that this procedure is going to react very heavily against those persons who perhaps do not have the education of our sophisticated society or against those persons who are in the position where they cannot ring up and who do not have recourse course to a legal adviser when they are in any trouble and who are unaware of the fact that they should seek legal representation.

I believe that this Bill offends against that basic principle. It will act detrimentally against that class of person. For that reason I believe it was so necessary—this is not an urgent matter—that this Bill should have been considered by a Select Committee. It has been considered by the Justice group of the Nationalist Party as we heard today from the hon. member for Wonderboom and there are about 15 amendments on the Order Paper. That shows the necessity of reconsideration and it certainly shows the justification of the hon. member for Durban North, because our amendments will be a little in excess of that number. We will have to deal with them at the Committee Stage. It is for that reason that I believe that this Bill should have been sent to a Select Committee.

Mr. Speaker, this Bill has given the United Party a very good change of gradually becoming reconciliated with the Sunday Times. In the Sunday Times leader last Sunday, the following was written about this Bill—

Then came the following instruction—

That is precisely what the United Party has done. Here we have a Bill on the law of criminal procedure, and it contains 350 clauses. I want to say that the United Party is most certainly not going to oppose all these 350 clauses. The Council of the Bar did not even object to one-eighth of these clauses. I want to predict that the United Party will agree with most of these clauses, but they are nevertheless rejecting the Second Reading of this Bill in toto, as the Sunday Times said they should. We are therefore witnessing here a slow return of the political fraternity between the Sunday Times and the United Party.

Let us return to the Bill as we have it here before us. In the report of the Botha Commission, on page 4, I read the following—

The object of the substantive criminal law, supported by the law of procedure, is the protection of society as a whole. Society has to be protected against the criminals in its midst. The object of the law of procedure should be to make the substantive criminal law effective. Now I want to point out a very important aspect of deterrence. Deterrence has always been very important in the consideration of crime prevention. It has always been important to bear in mind how one is going to deter a potential criminal. There are two ways of doing this. The one way is to keep on making the penalties heavier; the other way concerns not the intensity of the penalty, but the intensity of prosecution. In other words a person should realize that the probability is that he will in fact be convicted if he commits a crime. This Bill is intended, I hope it will have this effect, to make the law of procedure more effective. It seeks to ensure that if a person is guilty, he will be found guilty. In assessing this Bill, we must consider what the cornerstones of our law of criminal procedure are. We should assess this Bill with reference to the question whether it will or will not harm or change the cornerstones of our law of criminal procedure in any way. The first cornerstone of our law of criminal procedure is that a person is entitled to legal representation when he is charged. Clause 73 (1) provides, and when I quote I am reading only the gist of it—

In other words, this legislation provides that from the time a person has been arrested he may be assisted by a legal adviser. The procedure as provided by clause 119—this relates to the questions a magistrate may put to a person—is a procedure which will take place in the presence of the legal representative. There is most certainly no reason why the legal representative cannot answer the questions on behalf of the accused. The accused is not at that stage a witness; he must simply furnish the State with the particulars, in a procedure which amounts to an exchange of pleadings in a civil case, as has been mentioned here before. There is a second important basic principle of our law of criminal procedure which is in no way being affected by this. It is that an accused cannot be compelled to speak if he does not want to. It is a fact that this Bill, in spite of clause 119, nevertheless recognizes this rieht of the accused. I want to refer hon. members to clause 109 of the Bill, which provides—

This means that the procedure to which hon. members of the Opposition voiced such a serious objection is only brought into operation if the accused is prepared to plead at that stage. If the accused says at that stage: “I do not want to make a plea: I shall say nothing”, the procedure as set out in clause 119 cannot be brought into operation at all.

There is a third important cornerstone of our criminal law which remains untouched, and this cornerstone is that the onus to prove the guilt of the accused continues to rest unchanged on the shoulders of the State. This onus is something which the State has to acquit itself of at the end of the case, i.e. the onus resting on the State to prove the guilt of the accused beyond any reasonable doubt. This means, so our courts have found, that if after considering all the evidence before the court there is a reasonable possibility that the accused is innocent, he is acquitted. The court does not make a positive finding that the accused is innocent. The court does not go that far. The court states that if there is a reasonable possibility that he is innocent, he is acquitted. That basic principle and cornerstone of our law remains untouched. It ensures the rights of an accused person. It ensures, in spite of anything that happens, that the accused should at the end, if there is the least doubt, be given the benefit of the doubt and be acquitted.

In the light of these principles and those of the entire Bill as a whole and in terms of the provisions contained therein, I do not think the objections of the United Party can be taken seriously.

I want to refer briefly to another matter which I also regard as being of great importance. The General Council of the Bar of South Africa drew up a memorandum on this Bill. In paragraph 7 of the memorandum the following is stated—

The important point I want to make here is that this is basically a confidential memorandum submitted by the Bar Council to us, to hon. members on that side of the House, to the Minister of Justice and to the Progressive Party.

It was also handed to the Press

In terms of this explanation, this memorandum was not handed to the Press.

But it was.

The memorandum of the Council of the Bar of South Africa was, according to what they say here, not a Press statement. I want to make it clear that I have established from people who ought to know, people who have representation in the body in question, that the position is that this memorandum was never intended to be a Press statement, but was to be a confidential document submitted to the persons I have mentioned here. But what do we find now? On Sunday we found in the Sunday Times the report to which I have already referred containing a quotation from this document, a quotation with an unfortunate political import, which hurls a reproach at the National Party and the Government. In terms of what the Council of the Bar said here, the National Party and the Government is being attacked. Certain quotations were made from this document, as when, for example, reference was made to the General Council of the Bar of South Africa—

Now we have the position here that the National Party is being attacked by the General Council of the Bar of South Africa, not on a technical assessment of the Bill as such alone, but also with a political reproach to which I shall refer again in a moment. The question now arises how this document reached the Press. The members of the National Party, the Government and the Minister, will most certainly not have handed this document to the Sunday Times so that it could be used to attack them. That eliminates us, therefore. The second possible person who could have handed this document to the Press, was the hon. member for Houghton. I asked her in the Lobby whether she had done so, and she gave me the assurance that she had not handed this document to the Press. The third group of persons who could have handed this document to the Press, was the General Council of the Bar of South Africa itself. If they had done so, surely they would have stated in paragraph 7 that they had also handed this document to the Press. They did not do so. By a process of elimination we come to the United Party, as the last on the list. It seems to me as though the United Party has betrayed the confidence of the General Council of the Bar by handing a confidential document to the Press.

Mr. Speaker, may I ask the hon. member a question? Did he ask the Secretary to the General Council of the Bar whether the General Council of the Bar had handed the memorandum to the Press?

This is a memorandum from the General Council of the Bar.

What is your answer?

I wonder if the hon. member would not perhaps put his question in English; I would then be able to understand it better.

If the hon. member cannot understand Afrikaans, I could put the question in English as well. But the question is quite simply: Did the hon. member ask the Secretary of the Council of the Bar whether he gave this memorandum to the Press.

No, Mr. Speaker, I did not. I did not do so because this document speaks for itself. It is not necessary for me to ask him. This document states clearly that it was not issued to the Press. I just want to say that the hon. member ought to know that the General Council of the Bar of South Africa only issues a Press statement if every member agrees to that Press statement. If that were the case, I should like to see it happening. If that were the case, I would have read it in this document. Because it is not stated in the document, I conclude that this is not a Press statement by the General Council of the Bar of South Africa. I want to go still further. The hon. member for Durban North must tell me whether he handed this document to the Press. I shall tell him why I am putting this question to him. I heard in the Lobby that it was he who handed it to the Press.

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

Order! Does the hon. member want to answer a question?

The hon. member need simply say “yes” or “no”.

Mr. Speaker …

Mr. Speaker, I do not want to reply to the hon. member’s questions. I am asking the hon. member a question. He need not ask me a question. He need only answer “yes” or “no” across the floor of the House.

Mr. Speaker, may I ask the hon. member if he is accusing me of handing this document to the Press? Is that his accusation?

I have made no accusation at all. I am simply asking the hon. member a question. [Interjections.] The hon. member is free to say “yes” or “no”. [Interjections.]

Mr. Speaker, on a point of order, is the hon. member for Florida allowed to tell the hon. member for Pretoria Central that he is afraid?

Yes!

Order! The hon. member may proceed.

Mr. Speaker, the hon. member for Florida need not be concerned; I am not afraid.

Mr. Speaker, on a point of order, the hon. member for Uitenhage referred to a member on this side of the House as a “bloody loafer”.

Order! Did the hon. member say so? Did the hon. member use those words?

No, Mr. Speaker.

The hon. member may proceed.

Mr. Speaker, should the hon. member not rise to his feet when he addresses you?

Order! The hon. member has denied that he said it. The hon. member for Pretoria Central may proceed.

Mr. Speaker, let me make this clear to the hon. member for Durban North. All I want from him is information. I put a question to him. He is still welcome to reply to that question.

I want to return to the statement made by the General Council of the Bar of South Africa. I should like to refer to paragraph 154 in particular. Yesterday the hon. member for Kroonstad referred to this paragraph. However, he did not quote from this document. He quoted from a report in the Sunday Times in this connection. I want to make it clear that we on this side of the House are being compelled to react to this document of the Council of the Bar because the Press gave publicity to it, and because hon. members on that side of the House brought it into this debate. The result is that the document is now public, and we have to react to it. Paragraph 153 reads inter alia as follows—

This particular paragraph contains, in my opinion, a political reproach. It is not juristic criticism. What we expect from the Council of the Bar is juristic criticism of legislation. We appreciate the fact that the General Council of the Bar of South Africa is prepared to look at legislation. I want to make it clear that the Government appreciates the fact that the General Council of the Bar of South Africa appointed a specific committee to investigate legislation involving the courts and affecting the profession, and that recommendations are being made to the Government. Nothing that I say should be construed as meaning that this criticism and recommendations of the General Council of the Bar of South Africa, directed at the Government, is not welcome. We appreciate it at all times. However, we do not want to become involved in a political argument with the General Council of the Bar of South Africa. We did not want the General Council of the Bar of South Africa, which is a professional body, to hurl political reproaches at this Government. If they do that, they must expect the hon. member for Kroonstad and other members on this side of the House who are members of the Justice group, to react to that in the way in which the hon. member for Kroonstad did in fact react. In addition I think, with all due respect, that the Council of the Bar of South Africa was a little hasty with paragraph 154. I wish to invite the General Council of the Bar to re-write paragraph 154, and remove from it the political reproach. If they are prepared to remove the political reproach from that paragraph—they need not otherwise water down their criticism in any way—the hon. member for Kroonstad has authorized me to say that he is prepared to withdraw in public his criticism of a political nature of the actions of the Council of the Bar. I sincerely hope the advocates decide that paragraph 154 cannot remain as it is, and that they will withdraw it.

In regard to the report of the Council of the Bar, I want to refer to certain provisions in it. If one had to refer to it in general, one would have to say the Council of the Bar, unfortunately, did not act in an entirely positive way. They did not really come to this Government with positive recommendations. The impression is being created, when one takes a closer look at certain items of criticism, that they were more concerned with shooting down this Bill. On page 50 of this rather long memorandum there is something to which I want to refer you.

Paragraph 114 reads as follows:

The new Bill has omitted the words “and credible”. The memorandum of the Council of the Bar then goes on to state—

Sir, surely it goes without saying that no court in South Africa will find a person guilty on the evidence of a single witness if the witness is not credible. It is not at all necessary for these particular words to be in the Bill. This is a completely unnecessary provision. But the objection of the Council of the Bar rests on the erroneous assumption, so it seems to me, that the cautionary rule stems from these words “and credible” which appear in the existing Act. That is definitely not the case. I am referring to the book Strafprosesreg van Suid-Afrika by Swift, where, on page 370, the following is stated (translation)—

Mr. Speaker, I am quoting this to indicate that the cautionary rule definitely does not rest on the words “and credible”. Thus the objection of the Council of the Bar in this connection is an inappropriate one.

On page 51 of their memorandum the Council of the Bar states, referring to clause 212(4)(a)—

I think the hon. Council of the Bar has lost sight of the provisions of clause 212 (4)(b). This provides that where a person issues such a certificate and makes a statement which is false, this will have the same penal consequences as in the case of a sworn statement. I think that if the Council of the Bar had considered this elementary little paragraph, they would have acted otherwise.

I refer next to what they said on page 63 of their memorandum in respect of confessions. They said the following—

Then follow these astonishing words—

Mr. Speaker, does the hon. Council of the Bar want to suggest that in terms of this legislation a court will find an accused guilty on the basis of his confession if the court itself thinks, or is convinced, that this confession was not freely and voluntarily made? This is so ridiculous that it is hardly necessary to furnish a reply to it. The State still has to prove the case beyond reasonable doubt, and it is absolutely unthinkable, and nothing but an insult to the Bench, to think that the court will find a person guilty if the court “may have serious doubts as to whether it was freely and voluntarily made”. We cannot accept this type of objection to the Bill. But I do want to say this to Council of the Bar: During the Committee Stage the points raised by the Council of the Bar will most certainly be given very careful consideration by this side of the House, and sound objections will be heeded. If there are sound objections, we shall try to improve the Bill accordingly.

I want to refer to the speech made yesterday by the hon. member for Durban North. I want to express my disappointment in respect of one or two statements which he made. Inter alia, referring to the Botha Commission and the fact that this commission consisted of one judge, he said the following (Hansard manuscript, page 0.2)—

Why does the hon. member for Durban North say a thing like that? What does the hon. member mean by it? What does it avail the hon. member to refer to the person of the judge? What does that have to do with this matter? Why can we not discuss this entire matter on the basis of the report of the judge and the Bill which is before this House? Sir, I think the hon. member for Durban North probably owes Judge of Appeal Botha an apology, and the sooner he offers that apology, the better.

Sir, I want to refer to a second aspect of the hon. member’s speech. I quote—

Here he is referring to the Bench—

Then there was an interjection: “But that is the position today in our Supreme Court”.

Yes, you made that stupid interjection!

We shall come to the stupidity in a moment. After the interjection the hon. member continued as follows—

In other words, the hon. member is trying to imply that a judge cannot find a person guilty on a plea of guilty alone, but that he should first consider the preparatory examination record. Only then can he say “Yes, it is clear …”

I was referring to the sentence.

Sir, the hon. member must take a look at section 258 of the Act. [Interjections.] Oh well, the hon. member displays no knowledge of it. Section 258(1) provides, inter alia, the following—

Yes, because there has already been evidence at the preparatory examination.

No, Sir. The evidence before the preparatory examination is not in itself evidence before the higher court. It has to be handed in and accepted as evidence, in which case it is then in fact evidence. There is no obligation whatsoever on a judge to accept that evidence. It happens quite frequently that that evidence is not accepted. This section is also applicable in the case of a summary trial in the Supreme Court.

Sir, I also want to refer to an aspect of the speech made by the hon. member for Florida. The hon. member said the following (Hansard manuscript, page RR. 2-3)—

[Time expired.]

Mr. Speaker, after what we have heard this evening from the hon. member for Pretoria Central, he should hang his head in perpetual shame from this moment onwards, and I shall tell him why. On the showing of what we had tonight—and it will not be very long before he knows exactly why I am saying this I would feel unhappy if he, a member of the Bar, were to defend my worst enemy’s pet polecat. I would feel unhappy about this, much the same as I would feel most unhappy about the prospect of the hon. member for Wonderboom, on the showing of what we had tonight, representing our land at the World Court.

Do not get personal.

If that is the sort of thing that was done in our name at the World Court, then I shudder to think of it.

Sir, let us come back to the hon. member for Pretoria Central. I must say that knowing some of the institutions in his constituency, his attitude seems to suggest that he is worried about the under-population of his constituency. Let us get down to some of these facts. He made some wild accusations tonight about leakages to the Press of the memorandum put out by the General Council of the Bar. I can tell him here and now that he did not take the slightest trouble to check the correctness of what he was saying before he made this accusation.

As usual.

Let him hang his head in shame now, as he is doing. He never made the slightest attempt to check those wild allegations against my colleague, the hon. member for Durban North.

I only asked a question. I just wanted information.

You never asked anything; you made accusations.

The hon. member made accusations against my colleague, the hon. member for Durban North, but when he was challenged he did not have the fibre to follow them up. He did not repeat them. He made allegations against the hon. member for Houghton; he accused her of betraying confidences.

That is not true.

She can defend her-self.

Sir, let me give the hon. member some of the facts. He is pretending not to listen. He is going to feel very uncomfortable in a moment. You see, Sir, we on this side of the House took the trouble to have contact with the General Council of the Bar. I was a party to that contact. We went to a building not very far from here, within walking distance of this House, a building called Utilitas, last week. There we saw the representative of the General Council of the Bar, and amongst other things he told us that this statement was being released to the Press.

Why did they not say so?

Not only did the representative of the General Council of the Bar tell us that, but he took the trouble to supply the memorandum to the South African Press Association. He took the trouble to supply it to members of the Press Gallery in this House, and I should think that if that hon. member really wanted to find out what the facts were before he made these wild allegations …

I made no allegations.

… he could even have asked some of the representatives of the Nationalist Press in the Press Gallery; that would only have involved picking up a telephone. He says now that he did not make wild accusations.

I asked for information.

Why ask us when you could have asked the people involved?

What did he mean, Sir, when he talked about violation of confidences? Is that not a wild accusation, when he could easily have established that it was untrue? Sir, if that is the measure of the sort of nonsense that we are going to get from that side of the House on what is an important piece of legislation, then heaven help us!

Get to me for a change.

I will. There is one other thing to which I take extreme exception and that is the suggestion of the hon. member for Pretoria Central that we are being led by the Sunday Times in relation to our attitude to this Bill.

They pushed you.

Apart from the fact that I can tell him that we are not governed by the Sunday Times and never will be—we made our attitude perfectly clear—why did he not just use his brains, if he has any, and consider the fact that the attitude of this side of the House was made public in a Press statement long before the Sunday Times appeared last Sunday? What was he suggesting when he told us that we in regard to our attitude were relying on what the Sunday Times wrote in its leading article last Sunday? It is absolute nonsense.

May I ask a question?

No.

When last did you get a cheque from the Sunday Times'! [Interjections.]

Sir, is an hon. member allowed to tell another hon. member that he has changed his name?

The hon. member may proceed.

Just going on with the hon. member for Pretoria Central for a moment longer, although I do not want to waste too much time on him, because he is not worth it, he seems to be obsessed with the idea of what he calls making the process of justice more effective. He says that all they on that side of the House are concerned with is ensuring that if a person is guilty he must in fact be found guilty. But what he does not seem to realize is that in terms of the provisions of this Bill in regard to interrogations we are convinced that there is a very real danger that people who are in fact not guilty might be found guilty.

Why?

The hon. member asks “why”. I could give one example of this from my own experience.

From your court experience?

I have more experience of what goes on in courts than you have. I could give that hon. member several examples if I wanted to. The case I want to mention was in fact an abduction case and when I spell out the details I want him to think how this accused would have shaped under interrogation. It was an abduction case involving a young man and a minor girl. The young man pleaded guilty to the charge.

What was his name?

I am not mentioning names. He pleaded guilty to the charge. He was an ignorant young chap. He met this young girl and they moved off from the town in which they lived to another town. He was charged with abduction and pleaded guilty. Fortunately he had an attorney who came into the case later and when the young girl gave her evidence, it became perfectly clear that she had left home of her own volition, and she had casually met him somewhere, not by any pre-arranged plan and had then gone to the other town. She had in fact left home before they met. In other words, it was clear to everybody—and this only came out in the final evidence—that this young man was not guilty. He had not removed her from her parents’ home. Now I ask everybody here tonight, particularly the hon. member for Pretoria Central, what would have happened to this young man in an interrogation where the girl would probably not have been called?

What are the elements of the charge?

He would probably have agreed to the basic elements of the charge, in his ignorance, and I am convinced in my own mind, as that hon. member over there should also be, that this would probably have ended in a conviction where in fact a proper finding was one of “not guilty”.

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

No, I am not prepared to reply to questions. [Interjections.]

That is the most stupid example I have ever heard.

What has emerged from this debate …

Give us another example. [Interjections.]

Order! The hon. member for Pretoria Central has made his speech and can now listen for a change.

What has emerged from this debate is that it seems that the hon. the Minister is taking, what I believe, a thoroughly unparliamentary attitude to this Bill. We have made the point that we feel it should go to a Select Committee because it is, we believe, immature as a piece of legislation. We made the point that we should at least have had a very comprehensive White Paper. It seems to me that the only attitude on that side of the House—and it is embodied in the hon. the Minister himself who is responsible for this legislation—is that there was a one-man commission of inquiry headed by a judge of the Appeal Court and that is sufficient. In other words, that the hon. the Minister is hiding behind the robes of an Appeal Court judge when he should be doing his job as a minister of State. [Interjections.] We ask ourselves who is governing this country? Is it a judge of the Appeal Court, however eminent he might be, or is it this Parliament, because he, the hon. the Minister, does not seem to worry at all about motivating his case. Even his Second Reading speech, his introduction of the Second Reading, disclosed this.

I want to mention one or two things in connection with this Bill which caused me grave concern and grave concern to this side of the House. They deal with the whole question of publication of criminal proceedings, not only in respect of identifying accused either prior to or after conviction, but the publication of criminal proceedings in general. However, before I do so, I want to mention something in passing.

I want to deal very briefly with the provision in the Bill that is substantially the same as a provision in the present Criminal Procedure Acts. I refer to clause 40(1)(1) on page 36 of the Bill which gives a peace officer the power to arrest, without warrant, any person—and I quote—

Quite obviously we have no objections to the provision for arrest without warrant of a prohibited immigrant into our country, into the Republic as a whole. However, what we ought to object to is what this Bill seeks to perpetuate: the granting of powers to peace officers to arrest without warrant citizens of our own country, merely because they have infringed provincial boundaries. [Interjections.] It is quite clear what this is aimed at. It is aimed at the Indians, the people of Asiatic descent in this country. We all know that there are laws which confine some of them to certain provinces. However, I believe that at this stage in our country’s history we should object most strongly to anything of this nature that allows indignities such as summary arrest of our own citizens just for being in the wrong province. Indeed, whatever might have been the consideration behind this provision in the past, I believe it should be forgotten today. We have had some indication that there might be a move on the part of the Government to relax these restrictions. I hope this is so. Meanwhile I believe, and we propose to move an amendment to this effect, that we should remove this indignity towards our fellow citizens of Asiatic descent and that we should remove this provision from the Bill.

I want to come back to the question of publication. This is something which is canvassed very widely in the report of the Botha Commission. I still believe, however, that the Botha Commission has not grasped the basic facts that it should have grasped. Indeed, I believe that only a Select Committee of this house is capable of studying this measure in its proper perspective and in its full breadth. As hon. members will see, an entirely new principle is embodied in the new clause 154(1). We all know— and this is very much the present position —that the courts for certain reasons are empowered to hold their proceedings behind closed doors or to exclude certain classes of the public. The position is that this can be done if it is held to be in the interests of good order or in the interest of public morals or in the interests of the administration of justice. Now we have an entirely new provision in clause 154(1) which says that where a court has decided to close its doors either to the public generally or to a class of the public—

This could create an intolerable situation and I hope to be able to deal with it at greater length in a moment or two. Clause 154(2) also represents quite a change from the present position; in fact, it represents an improvement on the present position. I believe, however, that there are some basic defects in the provisions of clause 154(2) as well.

As this Bill stands at the moment, I believe it can be very unfair both to the public at large and indeed to the complainant. I want the hon. the Minister to consider a set of circumstances which I propose putting to him. Unfortunately it is already the position that in certain types of cases, even though there are fairly severe restrictions upon publication—publication can only take place under certain fairly stringent rules—those cases need not necessarily be held in camera. For instance, I think of rape cases. I think all hon. members here who belong to the Bar will know that rape cases are often held in open court, especially in our Supreme Court. I think that is something which could be cured by the presiding judge. However, I want to put it to the hon. the Minister that in terms of the Bill as it stands now, an accused might plead guilty to a charge of rape or indecency and admit the facts alleged against him. He may in fact be guilty; let us assume for the moment that he is. The complainant may not even be called to give evidence. In the absence of the complainant or any need for the complainant to be there, it is unlikely that there would be a request under clause 153(3) for the proceedings to be held in camera. In other words, the courts will not be required to make any decision about the publication in terms of clause 154(2)(a). This is what my note says and what I intended. I think it is clear from the meaning too. Can we make the charge? If this is so we have the position where the complainant in the case, in what would have been a very valid case, could quite legitimately be identified in any report of the proceedings. I think the hon. the Minister will agree with me that this could easily be the case. I think this shows up a very glaring gap in this entire provision. This is as far as the complainant is concerned. I believe there could be other permutations of this which could result in what I believe would be injustices.

But we have the other side of the coin. I believe that the provisions of this new Bill could benefit an accused unduly. The new clause 154(1) gives magistrates or presiding officers wide powers that they do not possess today, powers to prohibit the publication of almost any case at all. All the magistrate would have to decide is that in terms of clause 153(1) the public or a section of the public should be excluded. He follows it up with an order under clause 154(1) that nothing must be published, and there it is. We all know of some very strange decisions that have been made by magistrates even in terms of the existing law and I shudder to think what sort of decisions are capable of being made in terms of the very wide provisions of clause 154(1). I shall mention just two examples. Last year there were a number of extortion cases in Johannesburg. Extortion cases, as the hon. the Minister knows, fall into a category under our present law where nothing can be published except under a certificate by the magistrate or the judge. What happened in one case? The magistrate hearing the case, in which there were instances of policemen who were alleged to have extorted money from Africans under pain of having them prosecuted if they did not pay, decided that no details whatever should be published. These policemen, as the hon. the Minister knows, were found guilty and to this day the public of South Africa does not know anything about it. I am quite sure that any right thinking person in this House will agree with me that this is a very serious state of affairs. No reasons were given and one asks why such a decision was made. I do not raise this point lightly, because it was obviously in the mind of Mr. Justice Botha when he presented his report. In dealing with precisely this sort of thing he said that in these cases prohibition is clearly intended to protect the interests of the complainant and not those of the accused. In fact, the Commissioner went further and said that when a trial, as this one was, is held with closed doors merely in the interests of good order or the administration of justice, there can be no objection to the publication of the proceedings which take place behind those closed doors. He went further and on page 54 of the report said—

I speak with feeling about this because I myself was involved in a case involving the prohibition to publish. I am not mentioning names because this happened a long time ago, but it was a case concerning a very prominent South African who was charged with indecently assaulting a young girl. In this case, too, the magistrate, without giving any reasons, decided that there should be no publication of the case. Oddly enough, as the hon. the Minister knows, there is another anomaly, namely that in terms of the Magistrate’s Courts Act, anybody has access to the records of a case. So, even though publication can be prevented, any member of the public can go and look at the records. In this case, as I say, this very prominent South African who was charged with a very serious offence— he pleaded guilty and was convicted—was protected by a prohibition publication of the case. I was editing a publication and I made it my duty to find out if the magistrate really had any basis for his decision.

Here I wish to remind hon. members what Mr. Justice Botha said—

The father of the child said he had no objection to publication; a fact which was known to the magistrate. I took a chance and published the case. What is more, I questioned the magistrate’s ruling that there should be no publication of this case. Quite naturally, I was charged and convicted. The funny thing about this is that my sentence was rather heavier than the sentence of this very prominent man who had been charged with indecently assaulting a young girl.

So you are a man with a record!

Yes; I am glad that the hon. the Minister said that because I took the case on appeal and, even though I lost the appeal, I would like the hon. the Minister to read the comments of the hon. judges in the case. These were very interesting indeed. They found that I had done this with the very best motives; they said some very flattering things about me. [Time expired].

Mr. Speaker, the hon. member for Kensington is apparently not yet completely free of the ties binding him to his previous employer. He has delivered a plea here for revealing information through the Press in respect of cases regarded by a magistrate or a judge as being of such a nature that they should preferably be conducted behind closed doors. I do not want to go into that in detail; it is sufficient for me to say that it is not only the male or female complainant in a case who can be adversely affected by publication under particular circumstances, but that the accused frequently has relatives as well. Where the disclosure of the identity of the accused can have a serious adverse effect on the relatives, I can find many good reasons why there could be circumstances which make it desirable that the case should not be published.

Did you read the report? It does not agree with you.

Mr. Speaker, the hon. member for Kensington also displayed a piece of political opportunism by having made an emotional appeal in respect of the provisions in clause 40, if I remember correctly, in connection with the arrest of persons without permits, and he alleges that it is apparently also applicable to Indians who go from one province to another without a permit. But, Mr. Speaker, for his information I can mention that we have already piloted a Bill through the House this session in terms of which the Minister has powers to grant an extensive measure of relief in respect of the periods for which this group of persons may make visits from one province to another without permits.

This debate has now made sufficient progress for us on this side of the House to have every right to begin drawing certain conclusions about the basic approach of the hon. members of the Opposition in respect of the fundamental principles embodied in this Bill. Conspicuously absent from their arguments thus far has been concern for the position of the other party in a criminal case. We have heard about the rights of the accused, and these have been illuminated for us from various angles. But there are also other people involved in a criminal case. For every person charged with murder, there is a corpse; for every charge of theft there is someone who has been robbed; and for every charge or rape there is someone who has been deflowered. But the members on that side of the House are not concerned about law and justice also being operative as far as that party is concerned. For them law and justice lie only with the accused. But behind the murder victim and behind the person who has been robbed there also stands the mass of law-abiding citizens of South Africa. They are the ones who ask of us in this House that our legislation should be effective and that our courts should take effective action so that they will have legal security and will know that if a person commits an offence there is more than a reasonable chance that he will be found guilty and will receive his punishment. That is why we are coming to this House with this measure. We believe that we can make the existing legislation more effective. About this question of whether we can make it more effective, and whether this Bill is indeed making it more effective, we have heard very little from the other side of the House except that they harped on one or two clauses. They apparently took no notice of the rest of the Bill, or else they cannot count furthere than 119.

A learned American writer, Prof. Richard B. Morris, an historian and also an exceptional authority on legal history, said the following in a foreword to one of his books which deals with the subject “Fair Trial”—

Hon. members of the Opposition are, in my view, hypersensitive about “the rights of the accused”, and extremely blunted as far as the rights of the community are concerned. I shall come back to that at a later stage.

Another aspect frequently mentioned by them is the question of the various races that we have here and the degree of education lacking in the Bantu who are in general not defended and who are not in a position to exercise their rights properly in terms of the new Bill.

But in the past, and under the present Act, Bantu have surely been charged as well, and they have also appeared in our courts without legal representation, and hon. members of the Opposition must tell us whether they are alleging that there has thus far been unjust treatment of the Bantu. I do not believe that is their allegation. Sir, if thus far, with the present system, we have allowed the undefended Bantu to have a just trial at all times, by our magistrates and prosecutors in the lower courts and by our Judges and prosecutors in the Supreme Court, to such an extent that the Bantu have respect for us, for our courts and for the justness of our courts, why would these same people, if this Bill were to become law, suddenly turn round and become persecutors leading these Bantu into all kinds of traps and trying, in terms of section 119, to catch them out with questions in order to have them unjustly sentenced? No, Sir, these people who have always looked after the undefended accused, who have always ensured that justice is done, that justness prevails and that the Bantu is assisted in conducting his own defence, will also, with the implementation of this measure, act with the same discretion and justness in meeting the highest ideals in our law and for the just trial of those Bantu about whom hon. members of the Opposition are now concerned.

Mr. Speaker, with this Bill now before us at the Second Reading I want to request that we view it as a whole and not fragmentarily, as the Opposition has thus far done in the light of one or two clauses; and if we do this, we must test this Bill, not in the first instance in the light of the existing legislation, but in fact in the light of the following question: Does this Bill meet the objective for which it was placed on the Statute Book? In the process of answering this question about whether the Bill meets the objective in terms of which we want to promulgate the Act, we can certainly profitably refer to the existing legislation. Sir, I went to look for an objective test, a test we could apply to determine whether this Bill meets the objective for which it is being introduced in this House of Assembly. Sir, I found an objective test in an authoritative source, i.e. the book A Text Book of Jurisprudence by G. B. Paton, a well-known legal philospher from England and also a legal practitioner. If hon. members of the Opposition wish to question his authority, I can tell them that he has two honourary doctorates in law, apart from other qualifications. This gentleman puts the following test to legislation such as this; he states—

There are three elements in this test; the first is that it should ensure the speedy conclusion of the case; the second is that the costs involved in concluding the case should be reasonable; and the third is that justness should be ensured for both parties in this dispute. Sir, I think this test is a fair, acceptable and juridically sound test, and I should now like to dwell for a moment on each of these three elements and then test this Bill of ours in brief in the light of those elements.

In the first place there is the test of whether the quick conclusion of the case will be ensured. There are two particular measures contained in this Bill that will ensure that criminal cases in the future will be more quickly concluded than under the existing Act. The first is the abolition of preparatory examinations. According to the report of the Department of Justice for the year 1972 there were 5 283 preparatory examinations in 1972. If we were to make a projection at an average of ten hours per preparatory examination—and I can assure you it frequently takes 30 hours and therefore an average of ten hours is not a very high figure—then in round figures 50 000 hours were spent on preparatory examinations in 1972, 50 000 hours involving not only one person, but at least one presiding officer or magistrate, one prosecutor, one accused, one witness and frequently one legal representative as well. That is five people at an average of ten hours per case; in other words about 250 000 hours were sat out in courts in 1972 for preparatory examinations to draw up records which must then be completely rehashed in the Supreme Court.

Sir, we are saving time by abolishing preparatory examinations and we are complying with the test which I applied. But the abolition of preparatory examinations also saves the 5 000 accused the tension of having to go through the same process twice, and since hon. members of the Opposition are so concerned about the accused, they ought to welcome the abolition of this aspect with greater jubilation.

A second clause in this Bill that is going to save time is this much-discussed and controversial clause 119. Thus far the discussion in respect of this clause has basically centred on the question of whether it is inquisitorial or not. I think that the members on this side of the House have very successfully quashed the inquisitorial idea. Anyone who sees anything inquisitorial in thiat clause, has not the faintest notion of what an inquisition is and is only trying to stir up bad feeling. But this clause also contains the positive idea of saving time. Let me explain this in the light of a simple example. An accused is charged with assault, and in answer to the questions clause 119 lays down, he indicates to the magistrate that he acted in self-defence. In doing so he does not prejudice his chances. He still has the same valid defence that he would have had if he had not said this to the magistrate before the time. But now it becomes clear to the prosecutor and to the Police that they need not advance evidence about every other element of this offence. Now they no longer need to prove the injuries and to go through the identification of exhibits. All these aspects are eliminated, and this saves time. Therefore, if clause 119 is correctly implemented and if we obtain the co-operation of the legal practitioners in particular, it is a time-saving measure that can, to a very large extent, save the time of the legal practitioners, the Police, the magistrates, the prosecutors and, last but not least, also the time of the accused himself. I therefore state that in respect of the first test, i.e. as to whether this Bill will result in time saving, that this Bill succeeds eminently and that it meets these requirements much better than the existing legislation. The speedy conclusion of cases is going to be ensured by this means.

Then there is a second test, and that is that measures such as this must ensure that the resulting cases can be concluded at a reasonable cost. I do not have to elaborate on this. I have just given you information about the time-saving that will result from this Bill, and we surely know today that time is money, and if we save time, we are saving money. This is surely a logical consequence. More than 600 courts are sitting simultaneously in South Africa every day. From experience I can give the assurance that in at least 200 of the 600 courts at any moment of the day there is an attorney or an advocate who is sitting waiting for his case to come up and who is unproductively sitting and listening to other cases or gossiping. If we think of the fact that 600 of 1 200 highly-trained people, on whom this country spent a great deal of money to have them obtain their qualifications, are sitting round uselessly in our courts throughout the country while time-saving measures such as this could be passed to ensure that they would waste less time and would be more productive, we must welcome this legislation. If we think what they are being paid to sit there, these figures would, if I began to multiply, assume astronomical proportions. It is therefore my argument that this Bill also meets the second test and that it is therefore a cost-saving measure in respect of our Criminal Law.

However, there is also a third requirement. It is a requirement I already touched upon at the beginning. Justness must be ensured for both parties in the dispute. It is essential, for a start, for us to acknowledge that in a criminal case there are also two parties to the dispute. On the one hand there is the State that prosecutes and represents the whole community which has placed the State there and from which, in a certain sense, the State derives its authority. The community is entitled to a system that effectively combats crime. That is the one party in the dispute. The other party is the accused who is being charged with specifically having committed an offence against that community or against a member of the community.

It is specifically in answering this question that the large gulf between the Government and the hon. members of the Opposition is revealed. There has been a thread running through their arguments up to now, a thread in respect of what I want to call the absolutising of the rights of the individual, the exaggeration of the rights of the accused, the individual, when it comes to the all-prevailing test by which procedural measures must be tested. How many of them have not said that it is better for 10 guilty individuals to go free, for 100 guilty individuals to go free, rather than that one innocent person should be found guilty? However, on this side of the House we endeavour to maintain a proper balance between the rights of the community on the one hand and the rights of the individual on the other. I want to state very clearly that we are not absolutising the rights of the community in relation to the rights of the individual. We are seeking a balance. We are striving to balance the scales and to eliminate injustice to the one side or the other. We are seeking the ideal that every accused who is guilty will be found guilty and that every accused who is innocent will be acquitted and will go his way.

Let us take a brief look at the existing legislation as against the Bill, and let us see how the accused is at present being unjustly benefited in relation to the State when it comes to handling his case. At present ha is being favoured by the following factors: If a preparatory examination is held under the existing legislation, by the time the case reaches the Supreme Court his advocate gets the full record of every word that every State witness is going to use in respect of this accused and the case against him. But the State, which must prosecute him, has no idea yet what his case is. The advocate has that record before him, and should a witness in the Supreme Court, if he is repeating his evidence for the second time, just dare to state matters any differently to what he did six months previously, the advocate immediately has a starting point for cross-examination with which he can break that poor witness down completely or make him nervous. Now we are doing away with preparatory examinations and now the advocate in the Supreme Court will not know exactly what evidence the State has either. He does, in fact, have the right to know exactly what the charge is, and this Bill confirms that right. He has the right to request further particulars and the Bill also endorses that right, but he no longer has those detailed statements by witnesses at his disposal. It is therefore a restoration of balance because, after all, there was an imbalance. The second factor is that even if there had been no preparatory examination it is a fact that in terms of the existing legislation the accused is entitled to a charge sheet and he is entitled to request full particulars concerning the charge against him before the case begins. However, the State does not know what the accused’s defence is and may not request particulars in connection with that. All that is now being done is that the State is going to have an indication of what the accused’s case is going to be so that it can also know what it is all about. No longer does it need to storm in blindly and cover every possible defence that can be raised. This is again merely an equalizing measure and I want to say, with the utmost respect, that even then things will not be equal, because the accused still has the benefit in relation to the State if one could weigh the situation exactly. I want to emphasize that this Bill is not taking from the accused any real rights which they have at present, except for the question of preparatory examinations and the time when he gives evidence. All the Bill is doing is to establish a more functional procedure whereby the quick, cheap and equitable conclusion of cases is ensured on a basis of equal opportunitites for the State and the accused. I believe that the implementation of this Bill by a legal profession which is well disposed towards it and decides to implement it to the best of their ability, will contribute to saving as far as legal costs are concerned and will be to the benefit of everyone in this country. In this connection I want to appeal to legal practitioners to give their co-operation in connection with this Bill when it appears on the Statute Book. As things are at present, we have enough crime. The same hon. member who became so excited yesterday about this legislation, the hon. member for Florida, told us with great satisfaction, on another occasion, of the tremendous number of offences being committed in South Africa, and accused us of not effectively combating this state of affairs. He became virtually hysterical about the negligence of this side of the House in respect of the combating of crime. Now we are coming along with a measure that ensures—not even ensures, but does in fact offer us a better opportunity to have the accused found guilty if he is guilty. That hon. member’s hair is now standing on end again because he feels it will be less successful, but I do not know what his motivation for that is. I support this Bill with the utmost confidence and I believe it complies with all the principles of justness which a civilized legal system can impose on such a Bill.

Mr. Speaker, the hon. member for Vereeniging, who has just sat down, started his speech by saying that the citizens of South Africa wanted an effective legal system and that they wanted the guilty to be found guilty. Nobody on this side of the House has disputed that the citizens of South Africa do want an effective legal system. In fact it has been the pride of members on the Government side and on this side to tell the outside world of our effective and fair legal system. This is the one thing we have been proud of, and the Government members as much as those of the Opposition have held out our legal system to the whole world to justify our attitude to the different race groups in this country. We have no reason to be ashamed of our legal system. I do not know why the hon. member now should come to this House and say that what the people want is an effective legal system as if we do not have an effective legal system. What has been wrong with our legal system? There has been no criticism of our legal system in this country before and certainly there has been no criticism of our legal system abroad. The one defence that our friends abroad have put up for us in South Africa is our legal system. He said we wanted the guilty to be found guilty. Of course, we want the guilty to be found guilty. I do not know what debates the hon. member has been listening to, but he asked here how many of us on this side have said that we would rather have a hundred guilty persons go free than one innocent person convicted. He is not listening to me now but is talking to the hon. member for Kroonstad, but I challenge him or the next speaker on the Government side to name anyone on this side of the House, in this Opposition, who said that we would rather have a hundred guilty go free than one innocent convicted. Who said it? The hon. member for Houghton made some reference to it …

No, I only said one.

I know you did not say it, but you did make some reference to it. But the next speaker on our side, the hon. member for Zululand, stated quite clearly what our position was. He said that as far as we were concerned we wanted the innocent to be found innocent and go free and the guilty to be found guilty. That is what he said. [Interjections.]

I did not.

The hon. member for Kroonstad must wake up. I am not talking to him, but to the hon. member for Vereeniging sitting next to him.

Read the speech of the hon. member for Green Point.

He did not say that, and one can easily check up in his Hansard. As far as we are concerned, the innocent must be found not guilty and the guilty must be found guilty. The hon. member then asked us whether we had fault to find with our present system and whether we thought the Bantu were not getting a fair deal. We have contended, and we still contend, that the Bantu are getting a fair deal. He took the Bantu as the most ignorant group of our people. Why are they getting a fair deal? They are getting a fair deal because of our system. He has said that they respect the law and that they respect our system. That is true. They do respect our system, because it is as it is. Then why change it? If, according to that member, it has worked satisfactorily as far as the Bantu are concerned, why does he want to change it? He went on to say that there are three principles set out by Mr. G. B. Peyton, I think the name was. The first is that there must be a “spoedige afhandeling” of law suits.

He then went on to deal with preparatory examinations. I cannot understand hon. members opposite, because other members have taken the same line as the hon. member for Vereeniging. I do not think they have listened to what we have said. They think we are just opposed to any change. The hon. member for Durban North made it quite clear that we accept in general the provisions in the Bill as regards preparatory examinations. We accept it; we are not asking for preparatory examinations to continue the way they are now. Why does he waste so much time talking about the waste of time of these preparatory examinations when we are not defending them? I do not think he listened to what we were saying. He came prepared to take part in the debate, thinking that we were going to defend the preparatory examinations. So he went on and made his speech on that assumption. What I want to say is that the new system, as provided for in this Bill, is not necessarily the answer to the abolition of preparatory examinations. We will deal with that in the Committee Stage. We accept that there is a need to alter the preparatory examination system.

The hon. member went on to say that the costs in a case must be reasonable. That is all very well in criminal cases, but I wish that the Government and the hon. members opposite would take the same line when it applies to civil cases. What we need to assure that the costs will be reasonable, is a better legal-aid system. That is what we require. Until we have a proper legal-aid system, the costs will not be reasonable. This Government fails in its duty in not furnishing the citizens of this country with an efficient legal-aid system. The costs must be reasonable. The majority of the criminal cases in this country do not involve costs to the citizen because they go undefended. The citizens cannot afford to pay the cost. They cannot afford to employ lawyers. Therefore the argument that the costs must be reasonable, does not affect the vast majority of the criminal cases which are heard in South Africa.

One of the reasons why the hon. member thinks that the provisions of this Bill before us will have the effect of reducing the costs is that, as he says, the barristers and attorneys will not waste their time sitting around waiting for the cases to come on. However, we have heard what hon. members in this House say is going to happen.

I am thinking especially of the hon. member for Florida who has had experience as a prosecutor. I know from the practices in the magistrates’ courts what is going to happen. This is not going to save the attorneys’ and barristers’ time. If the hon. the Minister and his department think that this measure is going to save time, they are wrong. The memorandum sent to the hon. the Minister of Justice by the Association of Law Societies points out that they do not believe that this will save time.

The hon. member went on to say that the system must be fair to the parties. That, of course, we all agree on. We quite agree that the accused should not be put in such a position that all the odds are in his favour, but what we fear is that, with this system which is being introduced now, the odds will not be in the favour of the accused; in fact, they will be against him.

The hon. member for Umlazi made a very interesting speech. He was a policeman and knows how policemen should set about investigations and preparing a case. I think that the hon. the Minister should be guided by speeches such as those from the hon. member for Umlazi and the hon. member for Florida because they are people who have practical experience of what is going to happen. The hon. member for Umlazi pointed out that often the nearest police station from which the policemen must operate, especially in the reserves, is far away from the scene of the crime. Therefore they arrive on the scene of the crime probably a day or so after the offence has been committed and must then start their investigations. Now, Sir, unfortunately it happens in the majority of cases that the policeman investigating cannot talk the language of the people in the area. He therefore has to have an interpreter with him. He then has to find the evidence; it is not to hand and nobody comes forward as witnesses. He has to find the witnesses. That too takes time.

What has that got to do with the Bill?

You just listen. I am not referring to the speech you made this evening; it is not worthwhile referring to, except …

Order! The hon. member should address the Chair.

The Police have to do the investigation and as the hon. member for Umlazi pointed out, this is not an easy matter. Under the present system the Police have to prepare a proper docket to hand to the prosecutor, who very often in the country is the policeman himself. He has to prepare the case, act as prosecutor and present the case to the magistrate. The accused is brought to court and the charge is read to him. He pleads guilty or not guilty. Then the Police prosecutor has to lead evidence to tell the accused what the case is against him. He cannot do it unless he has properly prepared his case. But now under this system he will be tempted to act on circumstantial evidence and to arrest a suspect, bring him before the court and he, the suspect, will then have to tell the magistrate what he knows about the case. And he the Prosecutor may have to rely on circumstantial evidence. The accused does not know what the full case is against him. A very good example of how wrong people can be on circumstantial evidence was given to us this evening by the hon. member for Pretoria Central. He said that the Bar Council had handed their memorandum to the member for Houghton, to the members of the Opposition and the Government. Then he said that the Press also got it. He said that he first thought the hon. member for Houghton may have handed it to the Press. Somehow or other he was sure that she did not. So what did he do then? He then accused the hon. member for Durban North.

I never accused him. I only asked him whether he handed it to the Press.

Of course you did. He asked: “Did the hon. member for Durban North hand it to the Press?” Only three bodies had received this document. He does not ask whether the Minister of Justice or one of their members handed it to the Press. No, straight away the hon. member for Houghton is suspected and then the hon. member for Durban North. It is circumstantial evidence. He says straight-away that we got it and that one of us must have handed it to the Press. That is typical of what is going to happen under this system. The Police will not have to investigate the case as fully as they have done in the past. They will get a circumstantial case, arrest the accused and rely on him to furnish the evidence. It is not always easy for a suspect to counter a circumstantial case, especially when he does not know what facts they have against him. He does not know what he is supposed to answer and he therefore has to answer in the dark without knowing what case is being brought against him. The hon. member for Pretoria Central has given a satisfactory answer to us as to why the hon. the Minister should not proceed with this Bill.