Mr. Speaker, I move—

Agreed to.

Mr. Speaker, I move—

When I presented the Railways and Harbours budget last year, I referred to the conditions then prevailing as a period of relative economic slackness. I also stated then that the Republic would have to depend largely on an increase in exports for the generation of growth momentum. Although the export of raw materials has increased considerably, it has not yet been able to counter the negative effects of other factors on the balance of payments. The result has been a deterioration of the balance of payments and a further weakening in economic activities.

It is expected that due to a further decline in real domestic demand and the influence of fuel-conservation measures, the volume of imports will decline during the 1977-’78 financial year. On the other hand, export earnings should be considerably higher as a result of a substantial increase in coal and ore exports. Prospects are thus very promising for an improvement in the current account of the balance of payments. Taking into account the higher gold price and the likelihood of a further gradual rise during the year because of the increase in industrial usage, the balance of payments could improve during the course of 1977 despite the possibility of a relatively low level of capital inflow. This, coupled with an expected further decline in the rate of inflation, could lead to a moderate economic revival towards the end of the financial year 1977-’78. Notwithstanding this anticipated improvement in economic conditions later during the coming financial year, the Department’s real earnings will not improve materially, mainly as a result of high-rated traffic remaining on a relatively low level. On the other hand, the increase in the general price level will continue to have a detrimental effect on the Railways’ expenditure.

In the present changing economic and financial circumstances it has become all the more necessary continually to adapt our policy to meet demands. It involves, inter alia—

1. (1) a more meticulous application and following up of economic evaluation studies in respect of all new capital projects;
2. (2) the pruning of capital expenditure on the basis of a set plan with export projects taking the highest priority;
3. (3) concentrating on maximum liquidity through the freer application of own funds and a greater degree of self-financing of capital projects; and
4. (4) complying with the demands of the high rate of inflation in respect of the replacement of assets by means of higher contributions to the Renewals Fund.

As regards the daily operation and maintenance of assets, the prevailing circumstances also demand greater emphasis on research and basic planning. The pursuit of maximum efficiency through the improvement of operating methods such as heavier loads, improved rolling stock, signalling and other aids which can considerably enhance the maximum safe speed of trains whilst substantially reducing maintenance must, of necessity, receive closer attention.

Hand in hand with this goes improved utilization of manpower through greater selectivity, training and reorganization where necessary.

I trust that our broad policy aims will be clear from the following summary of the past year’s activities and the prospects for the ensuing year.

Goods Services

The upward trend in the total volume of revenue-earning general goods traffic conveyed, was maintained. During the period April to December 1976, 73,3 million tons were moved. This is 5,6% more than the previous year’s figure and is just about equal to the 5,5% growth which I forecast last year. Goods conveyed in the high-rated tariff classes 1 to 10, however, decreased by 3%, as against the increase of 2,5% recorded the previous year. Low-rated traffic, on the other hand, increased by no less than 8,6% compared with only fractional growth in the corresponding period in 1975.

Coal and coke traffic increased by 4,5 million tons, or 21,8%. The exports flowing through Richards Bay were mainly responsible for the increase.

Despite heavy traffic volumes the Department generally succeeded in meeting demands without serious bottlenecks developing and, in fact, had spare capacity over several routes, such as the line to Port Elizabeth.

Mr. Speaker, I feel obliged to refer to the Department’s important role in keeping open transport routes to neighbouring countries. The steps taken to ensure a continuous and maximum flow of traffic in the interest of all transport users and the country generally have paid dividends, and good interrailway relationships have been maintained.

Of particular significance were the negotiations leading to our retrieving on 19 May last year 169 trucks and other equipment, valued at R2,4 million, which became entrapped in the northern region of Moçambique upon the border between Rhodesia and Moçambique being closed. In a similar operation on 14 December 1976, 189 Zaïre and Benguela Railway trucks were recovered by the S.A. Railways, whilst a number of tank wagons and passenger coaches manufactured in South Africa and Rhodesia for Malawi Railways, was delivered to Moçambique for despatch to Malawi.

As hon. members know, negotiations in regard to the take-over by the Railways of the Sishen-Saldanha Bay railway line have been concluded and the necessary draft legislation has been introduced for consideration by Parliament. As indicated in the announcement of this decision, the line will be taken over at cost and operated subject to volume guarantees. The railway line will be exploited as a public line, basically for the transportation of bulk traffic. It will only be possible to accept general traffic when the necessary facilities for this purpose have been provided, which will not be for some time yet. Rates will be cost orientated with a uniform tariff for all users.

The Sishen-Saldanha project will be operated as a unit and will be the tenth System of the South African Railways. This was considered expedient in view of the special circumstances prevailing and in order to ensure the most efficient transition of control and future working.

Harbours

In the history of South African harbours the year 1976 will always be remembered for the commissioning of the deep-sea port at Richards Bay as well as the commencement of iron ore exports through Saldanha Bay Harbour. These two ports have already provided a tremendous stimulus for a revived economy and will undoubtedly still prove to be of inestimable value to the country as instruments for earning foreign exchange.

The upward trend in the overall tonnages of cargo landed, shipped and transhipped has been maintained. During the period April to December 1976, 47,9 million tons were handled as against 46 million tons during the corresponding period the previous year—an increase of 4,2%. There has, however, been a marked change in the pattern of cargo handled. Cargo shipped increased, whilst landed cargo showed a decrease. This trend, though adversely affecting rail revenue, reflects the emphasis on exports and the effect of import restriction measures to improve the balance of payments position.

The extent of the changed flow of cargo is evident from the fact that some 6,3 million tons of general cargo were landed during the nine months ended 31 December 1976, as against 7,2 million tons in the corresponding period of the previous year—a decrease of 12%. This is a continuation of the decline which was noted last year and resulted mainly from decreased general merchandise and steel imports. Contrary to the results of the corresponding period the previous year, bulk cargo landed reflected a decrease of 12,1%. This is attributed principally to a decrease in the tonnage of oil imported.

On the other hand, the tonnage of general cargo shipped rose to 6,8 million, an increase of no less than 29,9% over the previous year’s figure. This can be ascribed mainly to higher tonnages of general merchandise and steel—agricultural products and fruit reflected a decline. Bulk cargo shipped showed an increase of 21,3%; 19,1 million tons having been handled. Larger volumes of cargo-coal, ores and minerals, and sugar in bulk accounted for this increase. A decline was, however, experienced in the tonnages of bunker oil, maize and maize products shipped.

It is pleasing to report that, although general cargo handled showed an increase, no major delays to ships were experienced as a result of congestion. Sporadic bunching of ships on arrival, and inclement weather, have occasioned minor delays to ships.

Passenger Services

During the period April to December 1976, a total of 479 million journeys were undertaken, reflecting a slight increase of 0,2% compared with the corresponding period of the previous year.

Main line journeys advanced by almost 8% from 26,8 million to 29 million due to some extent to the fuel restrictions and the higher fuel prices. This trend was, however, not in evidence in respect of suburban passengers, in which category a decrease of 0,3%, from 451 million to 450 million, was recorded. The unrest in non-White areas was a contributory factor.

It remains our objective to operate services which will meet maximum public requirements. We have, for instance, recently carried out market research studies to gauge public opinion on a variety of aspects concerning rail travel, both suburban and main line. The data is being processed and certain guidelines for future policy will be established.

As a further step towards assisting the travelling public, consideration is being given to the introduction of credit-card facilities to finance main line train tickets, conveyance of passengers’ motor-cars on those trains on which this facility is provided, journeys on luxury tour buses and meals in the main restaurants on Johannesburg and Cape Town stations.

It has also been decided to replace the traditional dining-car on certain passenger trains by a modified car, catering only for light refreshments and take-away snacks. Initially ten cafeteria cars are destined for this type of service, the first of which—a converted main line coach—was released to traffic in July 1976. This service has proved successful and will also alleviate staff problems in the Catering Department.

Road Transport Services

There was a decline in respect of both first and third class passengers conveyed. Third class passengers totalled 13 million, representing a decrease of 4% on the previous year’s figure. This is largely attributable to the hand-over of services in Transkei to the Government of that country. In this connection, it is of interest to mention that the South African Railways is also assisting with the training of Transkei citizens to fill a number of graded posts.

During the period April to December 1976, the Department’s road transport services conveyed some 2,8 million tons of goods traffic, reflecting a decrease of 3% compared with the previous year’s figure. The deterioration resulted largely from smaller quantities of cement having been conveyed since the completion of the Sishen-Saldanha Bay line and the P. K. le Roux Dam, as well as a general decline in goods offered for transport.

Airways

For the period April to December 1976, passenger kilometres and mail ton kilometres on external services decreased by 2 and 1,3%, respectively, as compared with the corresponding period the previous year. External freight ton kilometres, however, increased by 6,1%. On the internal services, passenger kilometres increased by 2,4% and freight ton kilometres by 4,4%, whilst mail ton kilometres showed an increase of 40,4%.

Apart from the general level of economic activity—one of the most important determinants of business travel and air-freight demand—several other factors contributed to the negative passenger growth on external services. The increase in international fares with effect from 1 November 1975, owing to the devaluation of the rand, has resulted in some resistance to air travel. The international fare increases recently approved by IATA with effect from 1 April 1977, may further affect the position.

Although difficult to quantify, operating results for Airways could well have been worse had it not been for the fact that S.A. Airways introduced and further supplemented wide-bodied aircraft on certain international routes. On routes to Europe and the United Kingdom our airline competes directly with carriers flying wide-bodied aircraft and it soon became evident that narrow-bodied aircraft were at a distinct competitive disadvantage. In addition, our airline’s pool partners have the further advantage of flying the shorter route over Africa.

I am pleased to inform the House that the 6 Boeing 747SP aircraft have been delivered and placed in service. The first 3 of these aircraft are being modified to further improve their payload capabilities. These modifications are already incorporated in the last 3 delivered.

The SPs were gradually introduced on the routes to Europe as from May 1976, whilst from August 1976 the twice-weekly B707 frequency on the direct route to New York is operated by B747 and SP aircraft. By mid-1977 the entire international network of our airline, with the exception of the services to South America, will be operated with wide-bodied aircraft.

The 4 Airbus 300 aircraft to which I referred last year, have now been delivered. Hon. members who have had the privilege of travelling in them will, I am sure, agree that we have indeed entered a new era in domestic air travel.

From 1 January 1977, 25 return services weekly are being maintained by Airbus aircraft on the Johannesburg—Cape Town route, whilst such services on the Johannesburg— Durban sector will be commenced next month.

Looking ahead, it has seldom been more difficult to forecast airline trends. However, the expected improvement in the economy, coupled with the attraction of the Airbus, the fuel restrictions and the already high price of petrol, should go a long way towards stimulating domestic air travel. Be that as it may, the stage is set; capacity is available with the most modern equipment to minimize costs and maximize productivity on both the external and internal services.

Pipelines

During the period April to December 1976, some 3,6 million tons of white products were conveyed, representing an increase of 5,3% on the tonnages moved during the same period the previous year. A total of 2,8 million tons of crude oil was conveyed; a decrease of 23,8%.

Construction of the new 406 mm diameter pipeline for white products between Durban and the Reef has commenced. It should be completed by December this year. The extension to Witbank is expected to be completed early next year.

Staff

The staff position, especially in certain crucial grades, has improved slightly. This can be attributed to a more fluid labour market due to the present economic situation, which has also enabled the Department to follow a more selective recruitment policy.

However, there are still vacancies in certain key positions such as station foreman, signalman, guard and fireman/driver’s assistant.

In December 1976 the Department employed a total of 261 369 units compared to 251 323 in December the previous year. The increase in due largely to the staffing of new projects and the filling of essential vacancies. From April to December 1976, total goods and coal traffic conveyed increased by 9,2% compared with the previous year, whilst total staff employed increased by only 2,6%. A high level of productivity is therefore being maintained.

The sound relationship between the Department and its labour force was again manifest in many ways during the past year. It is significant, for instance, that the Department’s non-White staff were in no way involved in or affected by the unrest and disturbances experienced during the year. Hon. members will be pleased to learn that despite the abnormal conditions which prevailed at times, the staff never flinched from their duty and that rail transport services to the affected areas were only minimally curtailed. This assisted immeasurably towards the combined efforts to normalize conditions and to ensure that business activities were not unduly affected. I have only the highest praise for the efforts to maintain services.

Last year I referred to the praiseworthy attitude of the Railway staff associations towards the anti-inflation campaign and the prevailing economic conditions. During the past year these associations, and the staff generally, once again demonstrated their understanding and keen sense of responsibility, particularly with regard to salary adjustments. I would single out their action in this regard as the year’s most important feature on account of its impact on the country’s economy. The extent of their contribution becomes clear when it is considered that the consumer price index rose by 26,9% from June 1974 to June 1976 and that Railway staff could, therefore, with due regard to the provisions of the Anti-Inflation Manifesto, conceivably have laid claim to a salary increase of 24%. However, they accepted the 10% increase which was granted to all workers of the public sector, increased their efforts, as is evident from the higher tonnages handled, and generally applied themselves with dedication to the task of attaining a higher output and containing expenditure. From July to December 1976 the consumer price index rose by another 5,8%. This means that at the latter date the staff had already made a sacrifice of some 18% more than that envisaged by the Manifesto. For this the country and I are deeply indebted to them.

In line with the policy to adjust pensions periodically, railway pensions were increased as from 1 October 1976, involving an additional amount of approximately R15,2 million per annum.

The Department continues, within the limit of available funds, to provide housing for its staff. By December 1976, 25 070 departmental houses were available. A total of 3 130 houses will be purchased under the three house ownership schemes for the White staff during this financial year. The house ownership scheme for Coloureds is gaining momentum; 99 houses will be purchased during the current financial year, bringing the number of Coloured families housed in their own homes, to 207. Problems encountered in acquiring suitable properties for Indian staff have been largely overcome, and the first five Indian families should move into their own homes this year. A committee has also been appointed to investigate the possibility of introducing a house ownership scheme for our Black staff.

Hon. members will agree that modern and scientific management techniques are of even greater value in times such as the present. The management development programme to which I referred last year whereby senior officers are being evaluated and developed, is progressing satisfactorily. A total of 216 senior officers have so far participated in the scheme with most promising results. Representatives of universities and other public and private organizations who have been invited to attend the development centre as observers, have been unanimous in their high assessment of the objectivity and value of the scheme.

Research

Research into all aspects of transport operation is being undertaken continuously, and I should like to draw attention to a few interesting recent technical developments.

I informed the House last year that a passenger-coach type bogie, incorporating the high-stability cross-anchor principle, was being developed for testing. Hon. members would have seen the published results of tests which have been carried out with a suburban type coach hauled by a class 6E1 electric locomotive with improved gear ratio. During the test the almost unbelievable speed of 208 km/h was achieved with remarkable riding comfort and without any signs of bogie instability. This speed has since been exceeded and constitutes a world record for a 1 065 mm gauge track under normal conditions. This is a heartening development with tremendous potential for improved services, but it is as well to point out that to attain this goal associated equipment, for instance overhead equipment, brake systems and signalling will have to be adapted and that maximum benefit is dependent upon the actual track layout. The availability of funds will, however, dictate the tempo of implementation. Nevertheless the breakthrough has been made and higher speed with greater comfort and safety is no longer just a dream.

One motor-car train has already been fitted with high-stability bogies and the equipping of the second train is in progress. In addition, an 80-wagon air-braked coal train has been similarly equipped.

Apart from the high-speed achievement, the economic implications of this invention are far-reaching. Tests have already shown that wheel flange and rail wear are considerably reduced, so that maintenance costs of rolling stock and track will be reduced by several million rand per year once the new bogie has been fully introduced.

This development has earned for the inventor of the bogie, Mr. H. Scheffel—one of our own engineers—the 1975 Shell Prize for Industrial Design, as well as the national award of the Associated Scientific and Technical Societies of South Africa, in the form of a Gold Medal. It is of even greater significance that agreements for the manufacture and marketing of the bogie have been concluded with companies in the United States of America and that several other countries have either conducted tests with or have made inquiries about acquiring this bogie.

The investment in the rolling stock test centre at Koedoespoort is paying handsome dividends. When new types of wagons are built, or new structural features are incorporated in existing wagons, tests are carried out on the test ramp in co-operation with wagon manufacturers. Weaknesses in design can thus be brought to light at an early stage of production and deficiencies rectified before delivery.

Tests have been carried out with a class 6E1 3 kilovolt direct current electric locomotive converted to 25 kilovolt alternating current for experimental purposes. These tests, which were conducted on the new section of track between Lenjanedrift and Vryheid, have revealed that the locomotive’s performance exceeds both specification requirements and the performance claimed by the tenderers.

Policy Matters

Hon. members need not be reminded that the Railways is a dynamic organization which must constantly review its policies and procedures in order to keep abreast of modern requirements and concepts. Our financial policy in particular has been given considerable thought, and I should like to inform the House of proposed changes in this respect.

To ensure that the Railways remains economically viable it is imperative that sufficient provision should be made to replace assets at the end of their economic life. With a persisting high rate of inflation the existing procedure whereby depreciation is based on the historic value and not on the present-day replacement cost of assets, will result in insufficient funds being available for replacement. This could place a heavy burden on the Railways if it is to continue as a sound business undertaking.

In order to ensure that sufficient funds will be available to replace its assets, the Department intends to introduce inflation bookkeeping—a system which is currently being widely advocated for private enterprise. On account of the time required to develop and introduce such a system, and to soften the impact on Railway finances, it is the intention to increase current depreciation rates by 20 per cent as from 1 April 1977 as a prelude to the introduction of the complete system as from 1 April 1978.

The present economic climate has served a purpose in highlighting two financial aspects of vital importance to the Railways, which is basically a financially independent organization.

Firstly, I refer to the need for an organization to provide out of revenue a portion of its capital requirements. Apart from the fact that it has become increasingly difficult to raise sufficient funds on the capital market, financing the majority of new investments out of loan funds will eventually not only place an excessive interest burden on the Railways, but can also undermine its status as a borrower on international capital markets.

To improve the Railways’ ratio of own to loan capital and to assist in obtaining the funds so badly needed for the infrastructure, provision is being made for an allocation of R52 million out of revenue to the Reserve Account of the Sinking Fund for the financing of capital works. Although this represents only a very small percentage of our total capital requirements, the intention is to increase the ratio in future years as conditions improve.

The second aspect is the liquidity of the organization. During times of stringent capital market conditions it may happen that a need for sufficient cash (i.e. lack of liquidity) can retard the progress of the activities of the Department in respect of capital projects. Where the country’s interests require the South African Railways to invest on a large scale in infrastructure, it is important that the financial policy of the Railways be thoroughly examined with a view to the improvement of its liquidity. This can be done, inter alia, by allowing the Administration to use the funds at its disposal in an “integrated” capital budget. This would mean that apart from loan funds, own fund investments could be temporarily utilized for the financing of new capital works. Such a procedure would not only ensure financial flexibility but would also increase liquidity.

An anomaly which has for some time now given rise to difficulties, is the present name of our national transport undertaking. Hon. members will appreciate that the designation South African Railways and Harbours does not adequately describe the multimodal services that the Department operates, namely railways, harbours, airways, pipelines and road transport. The present name is not only incorrect but has often resulted in uncertainty and confusion locally and particularly in countries with which important business is conducted.

The new name which is being considered is South African Transport Administration or, Suid-Afrikaanse Vervoeradministrasie. A name such as this will reflect more appropriately the present functions of what is today officially known as the South African Railways and Harbours. I would welcome the views of hon. members on this matter. It is also proposed to apply more appropriate designations, which would be in conformity with overseas and accepted business practice, to top and senior management officials. The necessary legislation may be introduced later this Session.

†New Works and Equipment

The Department’s objectives in providing an adequate transportation infrastructure have been severely affected by the necessity to curb expenditure.

Initial capital requirements for the 1977-’78 financial year, which would have provided sufficient money to commence with all proposed projects and to proceed with already approved works as programmed, stood at some R956 million. In response to my request to limit capital works for the ensuing year, this figure was pruned back to R630 million. Loan funds from the Treasury have, however, since been restricted to R530 million, apart from an additional amount of R104 million to enable the Department to meet its initial requirements in taking over the Sishen-Saldanha project. To finance minimum requirements, the Railways will also take up foreign loans for approximately R36 million. Total requirements from all funds for essential commitments in 1977-’78 will now amount to R970,8 million, compared with the amount of R1 236,4 million for 1976-’77.

The net result was that only two new items were included in the Capital and Betterment Estimates for 1977-’78, namely, one to acquire 50 branch-line diesel locomotives, and the other to convert 500 AZD type wagons, formerly iron ore hoppers, to covered wagons for the conveyance of certain types of mineral traffic. Furthermore, completion of the majority of previously approved projects will now be delayed. Amongst these are the two additional railway lines between Langlaagte and a point to the east of Braamfontein station and a new terminal station sactioned last year to increase commuter-carrying capacity on the Soweto run, as well as other new works to improve commuter conveyance on the Reef.

The new guaranteed electrified line between Thabazimbi and Ellisras, initially scheduled for completion at the end of 1978, will, in consultation with Iscor, be completed at least two years later.

Likewise, completion of the new electrified double line between Winternest and Mabopane, due for commissioning in 1978, will be delayed for about two years. Similar delays are expected to the schemes for a new station at Belle Ombre and quadrupling of the line between Hercules and Winternest, which form part of the project to provide rail travel for Blacks between Mabopane and Pretoria.

On the Cape Western System, the double line between Nyanga and Mitchell’s Plain, initially planned for completion by 1978, the short-term improvements to suburban passenger facilities in the Cape Town area, as well as various other projects, including the goods depot at Bellville, will be delayed.

The building of the hostel at Umlazi for the Department’s Black workers, and the execution of various other schemes to improve the conveyance of commuters, such as sextupling between Booth and Berea Road, Durban and Umgeni, and between Rossburgh and Reunion, and quadrupling between Reunion and Isipingo will likewise have to proceed at a slower pace.

Only minor financial provision could be made for the central yard at Bapsfontein and its feeder lines. As no meaningful progress can be made, both stages 1 and 2 of this project will be delayed for about a year.

The proposed new hangar for macro jets at Jan Smuts airport has also had to be temporarily shelved.

Expenditure will also be curtailed by reducing stores levels.

The builders of rolling stock were re quested to spread the deliveries for the next two years over three years.

The Department is also negotiating with manufacturers of road vehicles to slow down the rate of delivery.

The implications and effect on the country’s economy of these steps are fully realized, but it would have been irresponsible in the present economic climate not to have taken positive action to curtail capital expenditure. I particularly regret the postponement of the completion of large schemes aimed at improving commuter transport facilities.

I must point out, also, that the curtailment of work designed to increase capacity for the handling and conveyance of goods traffic may restrict the Department’s ability to cope with traffic demands when the next upswing in the business cycle occurs. I am also aware of the fact that these works will in all probability have to be undertaken at higher cost in future, but I am sure hon. members will agree that it would be unwise at this stage to follow any other course.

I shall now report on the progress of some of the more important projects.

The 3,85 km Overvaal Tunnel on the new line to Richards Bay was commissioned in August 1976. Centralized Traffic Control was also introduced over the first 100 km from Broodsnyersplaas and should be in use over the entire line by the end of 1977. Electrification over the whole section should be completed during 1978.

At Richards Bay a 250-metre portion of the four clean cargo berths was commissioned in October 1976. The necessary dredging and reclamation behind these berths should be completed by August this year. Some of the berths can then be made available for limited use whilst the bulk handling plant, envisaged for completion in 1979, is being erected. This facility will be equipped to handle bulk commodities such as phosphate rock, pig-iron, zircon, rutile, titanium slag, sulphur and chrome ore.

As hon. members have probably gleaned from news reports, the Richards Bay railway line and harbour project gained for the Department the South African Institution of Civil Engineers’ award for the most outstanding civil engineering achievement for 1975. This is indeed fitting recognition of the skill and dedication with which the project was tackled and completed on time. The provision of container facilities at the ports is proceeding on schedule, and present indications are that the first berth at each of the three deep-sea ports will be operational on 1 July 1977. This is another instance where the Department’s ability to meet exceptional needs within a limited period was severely tested. I have no doubt that once again we will honour our undertaking of having facilities for which the Department accepted a commitment, ready on due date. It may also interest hon. members to learn that the first daily container train service, forerunner of full containerization, was introduced between Johannesburg and Durban in August 1976. With this service, transit time between these two points is only 19 hours, which compares favourably with ordinary passenger services.

On the Western Transvaal System, the remodelled traffic yard at Zeerust is about to be completed, whilst quadrupling between Knights and Elandsfontein will be completed this month.

At Elandsfontein the remodelled goods yard is due to be commissioned in September 1977. Stage 2 of the new goods facilities will be ready by March 1978.

A new staff residence to replace the C. W. Malan Hostel in Pretoria was built, and the new diesel depot at Koedoespoort introduced during the past year.

Electrification was introduced on the Derwent-Roossenekal section last month. Electrification of the Witbank-Eerste Fabrieke section should also be completed during the first half of this year, and the Phalaborwa-Kaapmuiden section about six months afterwards.

Good progress has been made with the construction of the new single line between Arnot Power Station and Wonderfontein, doubling and electrification of the De Wildt-Brits section, and the new goods facilities for Pretoria at Capital Park. The new goods layout at Rustenburg has been completed and put into use.

The new diesel depot at Wentworth was completed in September 1976, whilst the new goods depot at Ladysmith, equipped with a towveyer system, is partially in use.

The scheme to increase the carrying capacity of the Pietermaritzburg-Franklin line, including remodelling of Franklin station, is due for completion in December 1977. Good progress is also being made with doubling and electrification between Empangeni and Richards Bay, the new maintenance depot at Empangeni, work on the Durban new station, and doubling between Newcastle and Clontarf as stage 1 of the scheme to double the Newcastle-Volksrust line.

The new Kensington-Bellville double line, the line to serve the new Table Bay Harbour extension, the remodelling of Beaufort West and Bellville stations and yards, the terminal for motor traffic at Blackheath, the new diesel subdepot at Klawer and the new diesel depot at Bellville should all be in service by the end of 1977.

On the Cape Northern System, the Welverdiend-Coligny electrification was commissioned in July 1976. The full electric service from Welverdiend to Lichtenburg is expected to be introduced next month.

At Port Elizabeth harbour the railway portion of the facilities for motor-car and coastal container traffic is expected to be completed in May this year. The remodelling of the yard at George should be completed in the same month.

At East London a new building to replace the John X. Merriman staff residence has been completed, whilst good progress is being made with the new road transport workshops and the extension of the West quay.

In the Orange Free State, the lengthening of loops at certain stations between Kroonstad and Vereeniging, remodelling of Springfontein, and improvements to the mechanical wheel-shop at Bloemfontein, are set for completion towards the end of this financial year.

Campaign against inflation

Although the rate of inflation decreased moderately during the past year, the Department still had to contend with considerable cost push. This is illustrated by the fact that for the period December 1975 to December 1976, the consumer price index rose by 10,8%, the wholesale price index by 14,4%, and the SEIFSA labour index by 17,2%. In addition, the increases which occurred in the prices of steel, coal, fuel and electricity since April 1976, caused the level of the Department’s expenditure on these items to rise by 29,5, 49,2, 11,5 and 62,4%, respectively. Based on present-day consumption, these increases mean additional expenditure to the Department of the order of R100 million per annum.

This, coupled with the deterioration in the ratio of high to low-rated traffic which seriously affected revenue levels, gives some indication of the Department’s difficulties in balancing its accounts. It explains also the Department’s continuous and intensified support for anti-inflation measures.

With the active co-operation of the staff throughout the organization, war is being waged on unnecessary expenditure in all spheres of our activities. The emphasis is placed on increased productivity and improved working methods. I am pleased to inform the House that excellent results have been attained.

Apart from the substantial reduction in capital expenditure already referred to, operating expenditure is being reduced in many ways, of which I would like to mention a few examples.

With the overall growth in traffic conveyed and the necessity to fill vacancies in the crucial grades as well as to man new services such as the coal line and the port at Richards Bay, and to provide for the two-shift system at harbours, it was essential to appoint additional staff. This trend has, however, now not only been arrested but the number of staff employed has declined by 1 976 from 263 345 in November 1976 to 261 369 in December 1976, and by a further 2 148 in January 1977.

Travelling and other expenses were reduced from R13,2 million in the period April to December 1975, to R12,8 million for the same period last year.

Sunday time was curtailed during the period April to December 1976 by 3,9 million hours, or 13,8%, resulting in a saving of R1,5 million as compared with the corresponding nine months of the previous year. Overtime worked was reduced by 6 million hours, or 12,8%, representing a saving of R2,2 million.

With increased train speeds, heavier train loads, and an improvement in average load per short truck equivalent from 13,2 to 14,5 tons, or 9,8%, it was possible to move the total of 130 million tons conveyed during the 1975-’76 financial year with fewer trains than were required for the 110 million tons carried in 1970-’71. Hon. members may have noticed some changes in the recently tabled Annual Report of the General Manager of Railways. This realized a saving of more than R10 000 in printing costs without detracting from the efficacy of the report.

I could quote many other examples, but suffice it to say that despite the continual rises in costs a substantial saving on the expenditure budget was realized. The Department will not only persevere with its efforts to curb expenditure, but will step up its marketing activities to attract the maximum share of the transportation market through efficient and courteous service.

Operating results for 1976-77

As hon. members know, rates and fares were adjusted on average by 9,4% as from 1 September 1976, solely—and I want to emphasize this—to finance the salary increases granted the staff with effect from the July 1976 pay month and increased pensions as from 1 October 1976.

Judging from the earnings already taken into account, including the additional income derived from the tariff adjustment, as well as current traffic trends, it is expected that revenue for the year will amount to R2 245,9 million, which is R32,2 million above the estimate.

Expenditure is now estimated at R2 279,1 million. This is R67,7 million in excess of the estimate and is due, amongst other reasons, to the salary and pension adjustments referred to. The current financial year is accordingly expected to close with a deficit of R33,2 million, instead of an estimated surplus of R2,3 million. This deficit will be defrayed from the Rates Equalization Fund.

Estimates for 1977-’78

Mr. Speaker, I now come to the Estimates of Expenditure to be defrayed from Revenue Funds during 1977-’78.

As was the case in 1976-’77, the Department expects to move increased volumes of goods traffic in the 1977-’78 financial year, but the improvement will again result mainly from a considerable increase in low-rated export traffic. Taking into account a moderate improvement in prices on the international commodity markets, the total value of all exports for 1977-’78 is estimated to increase by about 25%.

Export coal traffic is expected to increase by a further 50%, or 3,9 million tons, whereas the commissioning of the Sishen-Saldanha project will result in an increase of roughly 15 million tons of ore traffic having to be moved.

A moderate increase in traffic to be conveyed for the agricultural sector is also expected, based largely on more favourable export prospects for maize and grain sorghum.

As regards the domestic iron and steel industry, decreases are foreseen in respect of both the quantities of ores required and the steel products to be railed. Decreases are also expected in the volume of machinery and vehicles to be conveyed.

In the light of current economic conditions it is expected that the volume of imports will decline by 4,3% in 1977-’78, whilst the value of imports will be 5% more than in 1976-’77.

Taking all these factors into account, low-rated traffic is expected to increase by as much as 19%, whilst high-rated traffic will decline by a further 1,4%. The ratio of high-rated traffic to total traffic carried, is expected to decrease from 17,2% in 1976-’77 to 14,7% in 1977-’78.

Mr. Speaker, the provision of facilities to convey these large additional quantities of traffic requires substantial investments resulting in considerable increases in fixed costs in respect of interest and depreciation. At the same time, expenditure is expected to rise further as a result of increases in the prices of production factors. Increases in the prices of petroleum products, electricity, coal and steel substantially affect the operating results of the Railways—as I have mentioned the increased cost to the Railways will amount to some R100 million for the ensuing financial year. On the other hand, the average revenue levels are declining for the reasons already stated.

Provision will also have to be made for the redemption of loan capital. In this regard I have to explain that, due to lack of sufficient long-term loan funds, the Department was forced to finance some of its fixed investments with short-term loans. Owing to conditions on the capital market, it is not always possible or prudent to redeem these short-term loans by negotiating further loans. The Department has, therefore, decided to expand its policy or self-financing to provide for the redemption of short-term loans out of revenue; R52 million is required for this purpose during the coming financial year.

Hon. members may recall that the full depreciation allowance in respect of certain assets was not credited to the Renewals Fund in 1972-’73. In line with what I have said earlier in regard to the replacement of assets, the Fund will be credited with an additional amount of R17,1 million in the coming year to make good the shortfall.

Defrayment of the anticipated deficit for 1976-’77 from the Rates Equalization Fund will deplete the balance in this Fund almost completely, and I think the time is opportune for the principle of appropriations from revenue to this Fund to be established. In view of the present difficult economic conditions it is, however, not the intention to implement this principle immediately.

Total expenditure in respect of all services for the financial year 1977-’78 is estimated at R2 814,4 million whilst revenue is placed at R2 470,1 million, representing a shortfall of R344,3 million. I am therefore left with no choice but to introduce tariff adjustments as from 1 April 1977 to rectify the expected imbalance.

Rates Review

Although it is accepted policy, in line with the recommendations of the Schumann Committee, to align rates more closely to costs and to reduce the gap between high and low rates, it is, due to the difficult economic conditions prevailing, possible to do this only to a very limited extent on this occasion. The Department will, nevertheless, continue to reclassify certain commodities, excepting foodstuff, presently being railed at uneconomic rates, to make their conveyance more economic.

Based on the current financial year’s figures, revenue is expected to be enhanced by 14,6% on average in respect of all services as a result of the revision of tariffs. The more important proposals are summarized as follows.

Revenue accruing from passenger fares will on average be enhanced by 16%. First and second class main line fares will be increased by 20% on average, and third class fares by 15%. On the suburban services, fares in respect of both first and third class journeys will be increased on average by 15%. First and second class season tickets on main line as well as suburban services, are being rationalized by extending the principle of calculating suburban season tickets on 16 return journeys to distances up to 42 kilometres and by enhancing the level on main line season fares to at least that of suburban season fares.

Parcels rates will be increased on average by 20%.

The tariffs for high-rated traffic will be increased on average by 20%. For low-rated traffic, viz. commodities classified in tariff classes 11 to 15, the average increase will be 23,3%. To align rates more closely to costs, the increases will be slightly higher over longer distances.

The special rates for iron and manganese ores conveyed from the Sishen area to Port Elizabeth for export will be increased by 20%.

Rates for coal, coke and anthracite will be increased on average by 23,7%, but the average increase on coal only, will be 22,7%. Concurrently, a new export rate will be introduced for anthracite.

The rating structure for livestock is being rationalized and on average rates will be increased by 20%. In respect of large animals, consignees will in future pay for a maximum of 24 instead of 22 animals per truck as at present. A new rate for small animals is being introduced.

Demurrage charges in respect of trucks delayed by consignees at stations will be aligned to those applicable to private sidings, which will not be increased. Revenue derived from demurrage charges is expected to be increased by 20%.

Handling charges on low-rated traffic will on average be increased by 25%.

Cartage charges will on average be raised by 15%.

On the Road Transport Services, passenger fares will on average be increased by 15%, while the rates for mail, parcels and goods will be 20%, and those for livestock 15% higher.

In so far as harbours are concerned, wharfage remains unchanged with the result that the revenue accruing from the increases on harbour dues and charges will enhance total revenue of harbours by only 5%. However, the handling charge at the Bluff coaling appliance at Durban will be increased by 16,7%. Other charges are also increased by percentages of approximately the same order.

International air freight rates and air fares are not affected by the proposed increase on the domestic services. Having regard to the foregoing it is expected that the average increase of 15% in domestic air fares and air freight rates will enhance the revenue for Airways by only 7,3%. Return excursion fares amounting to 20% discount on ordinary fares, for individuals travelling in the economy class, will be retained. As in the past, travel at the excursion fares will be restricted to specific flights normally not well patronized to ensure optimum utilization of capacity. The special fare for night flights between Johannesburg and Cape Town is being withdrawn but the 20% discount will continue to apply to these flights.

The rates for products conveyed by both pipelines will on average be increased by 20,7%.

Siding charges have also been reviewed. The charges levied in respect of the crossing over of trucks from departmental lines to private sidings are being abolished, whilst the haulage charge is being increased. This will have the effect that the placing of traffic in the sidings of certain private siding owners who undertake their own shunting and marshalling of traffic will in future be done free of charge.

Having regard to the benefits of block train working consideration will be extended on merit to a tariff discount in cases where traffic is offered in block loads on a point to point basis by private siding owners.

Mr. Speaker, provided the traffic volume is forthcoming, additional revenue of R344,4 million is expected to be raised by the proposed adjustment in rates and fares. Total revenue for the 1977-’78 financial year is, therefore, estimated at R2 814,5 million, leaving virtually no surplus on the year’s working.

As previously mentioned, the tariff increase is in line with accepted principles and policy but due regard was also had to the prevailing economic conditions. The adjustments were, therefore, planned in such a manner that they will have a minimum influence on the economy in general. In fact, the primary influence is estimated at only 1,2%.

It is realized that the tariff increase could be detrimental to the export of certain commodities. Export rates are, however, considered on merit by the Railways and the Department of Commerce.

Appreciation

I should like to express my sincere appreciation to the Railway Commissioners, the General Manager and each member of the staff for the diligence displayed in keeping the wheels turning during the past year. Their loyalty and devotion to duty under difficult conditions are a great source of encouragement to me.

Tabling

I now lay on the Table a Memorandum setting out the estimated results of working for the financial year 1976-’77, and anticipated revenue and expenditure for the year 1977-’78, together with the latest traffic and other statistics.

I also lay on the Table Statements of the Estimated Revenue and Expenditure for the year ending 31 March 1978, and Statements of the Original and Revised Estimates of Revenue and Expenditure for the year ending 31 March 1977.

Mr. Speaker, before reacting to the hon. Minister’s budget speech, I should like to associate the official Opposition with the congratulations expressed to those concerned for the recovery from Moçambique of Railway property and vehicles belonging to South Africa and to neighbouring States. This was a first-class effort which, I think, earned and justified the praise and congratulations which South Africa extended to those concerned. I should also like to extend congratulations to the Railways and particularly to the Civil Engineering Department and those concerned for gaining the Civil Engineers Institute Award for the construction of Richards Bay.

Then I should like to express, firstly, my sincere sympathy to the staff and personnel of the South African Railways who have carried a heavy burden and made a sacrifice of 18% of what would have been their rightful due in respect of the cost of living. They have cut their standard of living by 18% in the interests of South Africa.

However, I have almost no words strong enough to express the sympathy I wish to extend to the people of South Africa for this budget. The hon. the Minister has talked of changing the name of the department known as the South African Railways and Harbours. For the sake of the railway user I think he should call it the Department of Recurring Disaster. I do not blame the hon. the Minister because he himself is a victim of the total mismanagement and the economic crisis which the Cabinet, of which he is a member and with which he shares joint responsibility, has imposed on South Africa. The Railways, as part of South Africa, as its single biggest industrial organization and its biggest manpower employer, is a victim of that chaos.

A few weeks ago I forecast shocks for South Africa today. How wrong can one be! I forecast expected shocks. With the inflation rate at about 10%, the reduction in this rate being praised by the hon. the Minister of Economic Affairs and the hon. the Minister of Finance and with the control of inflation which the Government claims to have effected, I expected that there would be an increase in tariffs, but that that increase would be balanced by the tariff increases of over 9% in September and that it would probably average in the region of 8% to 10% once more.

What do we find now? We find that there is now to be an increase in tariffs for White first and second class traffic of 20% and for Blacks there will be an increase of 15%. We find that the Railways, in two months, have reduced their working staff by over 4 000 workers. 4 000 more people are now joining the queues of the unemployed. These are the people who must use trains in their search for work, who must use trains to go back to the homelands to fulfil an ideological nightmare—the fiction that they are not permanently resident in South Africa.

They are the people who by law must go “home” to some homeland at least once a year by train or who are living far away from their work and will now have to pay 15% more on their train fares. These are fares which the Government has always subsidized in the past, but there is no reference to any increase in subsidy. When one looks at the other increases—and I do not intend to deal with them in detail now—at the 20% here and the 15% there, the 20% increase on parcels and cartage, the 15% on airways, the 20% on high-rated traffic and on livestock, and one thinks what it all means to South Africa, how can one reconcile it with the hon. the Minister’s placatory promise that it would only mean an increase in inflation of 1,2%? Only now are we feeling the effect of the September tariff increase causing increase after increase in the cost of living.

In order to allow us to examine the full impact of this budget, the full impact of what it means to the people of South Africa and the extent to which it is evidence of the total failure of the Government in the field of financial and economic management, I move—

I shall return to this matter when the debate is resumed on Monday.

Agreed to.

Mr. Speaker, I move—

Mr. Speaker, we on this side of the House stated our views very clearly at the Second Reading of this Bill and we explained at great length why we were not able to accept it. Nevertheless, we took the measure of introducing a number of amendments in the Committee Stage of the Bill in the hope that the impact of the Bill could be improved. The acceptance of two of these amendments must indeed be gratifying to the Indian community, particularly the acceptance of the amendment which will result in some 50% of the board of directors now being represented by Indians. However that may be, the Bill before us now remains virtually unaltered from the Bill which appeared at First Reading. It is for this reason that we are unable to support it.

While restating our belief that there is ample justification for giving the Indian community an opportunity to advance itself in the field of secondary industry, we cannot agree with the methods that the hon. the Minister has used to make his proposal effective and we therefore cannot support this Bill. We maintain that we should endeavour to assist the Indian people simply by not pursuing the fragmentation of our economy. We believe, too, that the Indian people can and should be helped in the field of secondary industry by regarding them as part and parcel of the economy of the country as a whole. For this reason we believe that the Bill before the House today sets about its task in completely the wrong way. This Bill has come through its various stages virtually unaltered, and consequently the principle contained in the Bill as read a First Time, remains intact. For this purpose, and in order to indicate our opposition to the principle of the Bill, I move as an amendment—

Mr. Speaker…

[Inaudible.]

Mr. Speaker, I am grateful for this opportunity and I believe that the hon. member for Randburg will, in fact, have his turn as well. Since both of us rose at the same time, I just want to convey to him my sincere sympathy for the catastrophe which has befallen him in Randburg. I trust, however, that he will enjoy his last few years in this House, and that he will then carry on successfully with his business undertakings. [Interjections.] I find it astounding that hon. members of the official Opposition are displaying such an extreme reaction to this legislation. We listened very carefully to their arguments during the Second Reading debate, and I subsequently read through them again in the peaceful atmosphere of my study. However, I remain astonished at the arguments which those hon. members advanced. In my opinion, the reasons why they are opposing this Bill, are twofold. On the one hand, they advanced a few personal arguments. Among them, they asked, inter alia, where the hon. the Minister of Indian Affairs was. It is clear to me that those hon. members do not know how a Cabinet operates; that they do not know how a Government operates either. The fact that the hon. the Minister of Economic Affairs introduced this Bill …

The problem is that they will never find out!

They will never find out. It is for that reason that they will never govern either. The hon. the Minister of Economic Affairs stated quite clearly in his Second Reading speech why he was dealing with this legislation. I want to repeat it for the benefit of those hon. members. He said—

It was, after all, a very practical and sober reason which the hon. the Minister of Economic Affairs put forward. For the benefit of those members of the population who will read these debates afterwards, and for whose benefit this legislation is being introduced, I want to say that in his day, the hon. the Minister of Economic Affairs was also the Minister of Indian Affairs. At least, that is as far as I can remember. At that time the hon. the Minister not only demonstrated clearly that he understood the problems and the aspirations, the place and the position of the Indian in the population communities of South Africa, but also that even in his present position, he is competent to continue looking after their interests. The fact that the hon. the Minister of Indian Affairs has not attended the debate, does not prove that the hon. the Minister is not interested in the Indian community. The absence of a Minister from his bench here means that he is busy elsewhere. Many of the members of the study group on Indian affairs have participated in the debate and we have been fully informed on this aspect.

The second argument which the hon. member raised once again, was that the National Party was fragmenting the economic life in South Africa. The hon. members of the Opposition—and I am talking about the PRP as well—use concepts which they do not define or describe. They seize upon a concept, give it a particular content and then simply run away with it. I think it has become necessary for every generation which has to deal with government and the problems of the modern world, to take another look at the old concepts. If one looks at the world’s economic problems, one does not find absolute isolation any more. Things are interwoven with each other. Just as the world economy is interwoven and has points of contact, one has the same thing in Southern Africa.

The important point, however, is that there are various population groups in Southern Africa and those population groups in Southern Africa and those population groups have particular aspirations for themselves. Every facet within the life pattern can, must and will be used for the advancement of the particular population group. It is therefore easy to understand that since we have various population groups in Southern Africa, it is also possible that in the totality a specific population group has an economic facet of its own life pattern and out of its own community serves its common ideals and life pattern through that facet. Although there are points of contact—the points of contact must be there—one cannot simply state summarily that the Government is making a physical biological classification of South Africa’s economic system. That type of argument simply does not hold water. The important point here is simply that the Indian population is a particular population group which, throughout its history, has occupied only one place in the overall population structure in South Africa. All that is happening here now, is that the Government with its insight, position and responsibilities in society now wants to serve the Indian community on a still broader, organized scale, not only for the benefit of the Indian community, but also for the benefit of South Africa as a whole. This is easy and simple to understand. I think we would have been able to conduct a much better debate if more members of the Opposition were like the hon. member for Walmer—and he, too, is an opponent of the Government…

They are wooing them again!

Whenever the hon. member for Bryanston opens his mouth, he says the wrong thing. [Interjections.] I think the hon. member should rather go and help his wife in Randburg. If it is parliamentary to say so, the hon. member’s whole attitude is that of a frightened man. We shall deal with him again on a subsequent occasion. He knows what the voters of Rissik have done to him.

The hon. member for Walmer made a responsible speech. The hon. member for Bryanston must go and read his constitution. The constitution of the PRP says that they recognize the diversity of groups in South Africa.

Of course.

If they recognize that diversity, they should simply take the reasoning further and say, as well, that each particular group will have its economic problems and questions concerning its own community. As soon as one accepts this, one can understand the reason for this particular Bill. This side of the House still supports the hon. the Minister and we know that the result of this Bill will be beneficial not only to the Indian community but also to the economy of all the population groups in South Africa as a whole.

Mr. Speaker, it was an interesting speech made by the hon. member for Rissik and I want to refer to the argument he put forward. He says that we in the PRP acknowledge the existence of different groups in South Africa and that, because we accept that, we should take the next step and accept that each group should be considered economically to be in the same situation. Similarly there are different religious groups and all sorts of other groups, but to say that they are all economically on the same level and should therefore be treated the same, obviously does not make sense. Let us take an example. In the Indian community it is correct to say that one has a group, a small proportion of which, have done very well economically and who are well established in the economy. It is also true, as the hon. the Minister argued earlier in the debate, that as far as the Coloured community is concerned, the proportion of economically prosperous people is less. But if one however takes both the Coloured and the Indian community, one will find that throughout them the bulk of both the Indian community and the Coloured community are in fact on exactly the same socio-economic level. That is the crux of the situation. We therefore cannot understand why, if you want to do something for those South Africans who are all on that same socio-economic level, one cannot have one agency to do it. Why does it have to be divided into ethnic agencies? This is what we object to.

But surely you are being naive now.

These are the facts. That is the way it is.

The second point the hon. member for Rissik made, is when he said that the attitude of the Government was that the people in different groups had different economic objectives or requirements. I want to put a question to the hon. the Minister.

You do not understand very well. Make your own speech now and leave me alone.

I shall put the question to the hon. member for Rissik. If a section of our community, for example the Indian section, progressed economically to exactly the same level as the Whites, would he then accept that there would be no need to have separate ethnic agencies to cater for each group? Would he accept that?

Those are hypothetical questions you are asking now.

Basically my argument is that we do not regard it as necessary to have separate agencies for the different ethnic groups. That is in principle the crux of our argument. But if you are going to do it, we believe you should at least do it properly. We believe that what is being done here, is that the hon. the Minister is giving the Indian community a so-called industrial development council.

But what does it actually mean? Let us again compare it with the CDC. Let us compare it in three aspects: purpose, scope and capital. The purpose of the CDC is quite clear. It is to assist the Coloured community in getting a stake in private enterprise. From the primary industry right through. They have a tremendous income coming in from diamond and lobster concessions, and so on. It is a complete umbrella, a comprehensive thing.

The shares are 100% owned by the State and it is not designed as a profitmaking concern. They bring Coloured shareholders into the subsidiaries which this particular corporation might have. In other words, they go into a project, they might underwrite the project totally, and they then bring in Coloureds as shareholders in each particular venture. There is, however, no suggestion whatsoever that the shares in the Coloured Development Corporation itself should be handed over to the Coloured people. The Coloured Development Corporation does not pay tax and it is not envisaged that it should pay tax, because it is not envisaged that it should make vast profits for its shareholders. The provision that we are dealing with in this Bill is based on the intention that a large proportion of the shareholding—in fact, the hon. the Minister said that he wanted to see this apply to the majority of the shareholding—should go to the Indian community itself. What does this mean? It means that we shall have a conflict of interests, because there will be private shareholders of this Development Corporation whose only motivation for owning the shares will be to make a profit, to pay tax on that profit and to get dividends declared. I assume that the Government’s motive, on the other hand, is not to get dividends from it, but to use the corporation for the development of the Indian people. Therefore I see, in-built into the Bill, a potential conflict of interests at some future stage which will have to be dealt with.

In regard to the scope, I do not think we have heard any good reason why the scope of the corporation should be restricted just to secondary industry. It can be argued that there are enough Indians in the service industries, or whatever the case may be. Arguments of this nature have been put forward, but what I want to know is: What is the result of doing this? By doing this the ordinary Indian, who has not had a chance to become involved in primary industry or in a service industry, is being precluded from using an agency of this nature to get himself involved, because the agency is being restricted to secondary industry. It can easily be said that that is the main need of the Indian community at this stage, but in the case of the individuals of the community, clearly, for many of them it is not the main need. I can see no harm in making the objectives of the corporation broad enough so that, for instance, it can compare with the Coloured Development Corporation.

In regard to the capital, there is R3 million in share capital plus R½ million in loan capital, which gives us a total of R4½ million. The hon. the Minister has told us that the corporation is taking over assets of R4 million from the IDC. There is not a tremendous amount of capital left over. Admittedly the hon. the Minister went on to say that it is not really the intention of this corporation to provide much of the capital, because it is expected that the capital will come from the Indian community itself, but I still think that if one is going to have an agency which is viable, which is going to underwrite, which is going to promote and which is going to get things off the ground, it must have a substantial capital base. I do not think it can effectively operate from as small a capital base as this one is supposed to operate from. If one comes to the crux of the matter the Government, through the hon. the Prime Minister, has said time and time again that what they do for the Coloured community, they will do for the Indian community. That has been their commitment. When the Indian community asked for an Indian Development Corporation, I think they expected something similar to what the Coloureds have.

Have you asked them, or is this merely a conclusion you are drawing?

I have asked them.

What did they say?

They said that they wanted something similar to what the Coloureds have. If one makes any comparison at all, it is quite clear that the comparison is disadvantageous to the Indian community. What have these people got? The tragedy is that they have got only what the Government is prepared to offer them and they have to try to make the best out of it. The comparison must necessarily always be there and these people must think that whenever it comes to handing out the goods in South Africa, they always seem to be getting the worst deal. It would have been no skin off the nose of the hon. the Minister if, when undertaking this project, he had done it properly. I really cannot understand why that has not happened.

To adopt a positive point of view, this Bill is obviously going to get through and the corporation is going to come about and there are certain functions which it can undertake.

In the first place, it is an agency which is directed at the Indian community. One hopes that they will undertake feasibility studies within the community, that they will promote schemes and that they will be able to persuade overseas partners to come into projects in South Africa in association with members of our Indian community. This is a particular function which I believe this corporation could undertake quite effectively. Admittedly they have very little capital with which to underwrite, but a second thing that they could do, would be to underwrite some of the smaller schemes themselves before these are off-loaded on to Indian businessmen and entrepreneurs. A third thing which they could do, which is about the only meaningful thing they are able to do in terms of this measure, is that they can give guarantees. They can guarantee loans from banks, for example. This is really the only financial scope which this Corporation has. I hope that, within the scope of what is provided in terms of this legislation, they will be able to render a service to their community. We support the amendment moved by the hon. member for Cape Town Gardens.

Mr. Speaker, except for what the hon. member for Walmer said, it was only towards the end of the speech of the hon. member for Randburg that we began to get anything positive in this debate for the first time. As I understand parliamentary procedure, the principle of a Bill is disposed of at the Second Reading. This Bill is now in its final stage. It is virtually a fait accompli, and yet the principle involved is still being debated. Sir, when I look at this attitude of the Opposition on this matter, I begin to wonder whether it is not they themselves who need a development corporation, not that they would attract many investments. I believe that at this point we must really try and get down to the facts of the matter. As has been rightly pointed out, the Opposition already recognizes the existence of group identities in South Africa. They have accepted this for years. After all, if this were not true, their whole policy of a racial federation would have been completely meaningless.

What the Opposition’s chief complaint amounts to is that this legislation entails a division of the economy. I want to ask this question, however: Is an economic system really divisible? This question has already been dealt with in detail this afternoon by the hon. member for Rissik. The economic systems of the world and of South Africa are not divisible. They form a unit, after all. It is just that they have various facets, based on group interests and group identities. This is a natural process, particularly if one recognizes the identities of the various groups and peoples in South Africa.

The hon. member for Pietermaritzburg South launched an attack on me during the Second Reading because I had said that this request on the part of the Indian Council was a democratic one. He went on to say that he had discussed it with many Indians and that they definitely did not support this Bill. I want to tell him that he is talking to the wrong people. We had the privilege yesterday of holding discussions with various members of the Indian Council and of the Executive Committee. I again asked them candidly whether they wanted this legislation. The chairman of the Executive Committee told me that this was one of the biggest steps forward they had taken for years in South Africa. This legislation is being received with open arms by the Indian community of South Africa. Now I cannot understand why the Opposition is persistently harping on this matter. Now the hon. member for Pietermaritzburg South says that it was not a democratic request.

I said it was not a democratic system.

If that is the case, I want to ask him whether he thinks that the members of the Indian Council are not the true leaders of the Indian community in South Africa. He must tell me whether he thinks that the members of the Indian Council are not the leaders of the Indian community in South Africa. Sir, now he has nothing to say. I am asking him a very simple question.

Secondly, Sir, is this Parliament not a democratic institution? If the Indian Council’s framework and functions do not operate within a democratic system, then within what system do they operate? Are we to believe that they operate in an autocratic system? Surely this is not an autocratic system? In any case, that party makes provision in its own policy for group interests within their own political philosophy. Sir, the Indian population of South Africa has repeatedly indicated that it welcomes its position within the framework of this political dispensation because its interests are specifically differentiated and not swallowed up by the broader public interest. In this particular case, this measure means a lot to the Indian population in South Africa, because it puts into focus the needs which exist in that community.

Sir, I said that we should like to establish a few guide-lines in the course of this debate. Although I have said this before, I nevertheless want to emphasize once again that although the hon. member for Randburg has complained about the small capital basis of this corporation, I think that it at least provides the basis for a beginning. Once a start has been made, there is no reason whatsoever for not augmenting and supplementing this capital basis in accordance with increasing needs in South Africa.

Meanwhile, I also put forward the standpoint that as far as the functions of the Indian Industrial Development Corporation were concerned, I should like to see it give some attention to the smaller concerns in particular, and that the Industrial Development Corporation would still always be there to make contributions or render assistance to larger concerns under this legislation.

The hon. member for Randburg brought up one other important matter here, in regard to which I want to support him. That is, that the Indian Industrial Development Corporation should also act as an agent for the Indian community in South Africa as regards foreign interests and that it should investigate the possibility of creating opportunities for Indian entrepreneurs in South Africa to operate through the corporation on an agency basis or in a partnership in order to mobilize foreign interests in this way in the interests of the Indian population. Sir, I believe that this legislation fulfils a great need and we therefore want to support the Third Reading wholeheartedly.

Mr. Speaker, if the hon. member for Newcastle had listened to my speech in the Second Reading, he would have known the answer to queries he raised this afternoon. This afternoon he talked about something completely different from what he spoke at that time when he said that the request from the S.A. Indian Council had come “out of a democratic system”. I merely pointed out to him, and wish to repeat this afternoon, that the S.A. Indian Council cannot by any stretch of the imagination be considered to be a democratic body. It is not democratically elected. Indeed, it is not elected at all. For him to say that any request that comes from them is “part of a democratic system”, is a contradiction in terms. It can never be democratic. When he asks me if I believe that those members are the true representatives of the Indian people, I say to him “no”. Many of them are, but there are people on that council who, I believe, do not represent the best wishes and the best interests of the Indian people in South Africa.

We now have the situation where this Bill is reaching the end of its passage through this House. I am very glad this afternoon to record the presence of the hon. the Minister of Indian Affairs, because his presence was missed in the Second Reading debate. I believe it is right that he should be seen at least to be interested in the legislation which affects Indian people.

You cannot cast any doubts on my interest in the affairs of the Indian people.

Sir, with respect to the hon. the Minister, not for one moment do I cast any doubt on his interest, but I say that he should be seen to be interested in the affairs of the Indian people. It is for that reason that I am very glad that he is here this afternoon.

As I say, we have now got to the stage where we must consider what the effect of this legislation is going to be. I believe that, as a result of this legislation, certain Indian industrialists are going to be deprived of access to financial assistance because the IDC, which has had the responsibility in the past of looking after all industrialists in this country, irrespective of race or colour, is now going to say to those industrialists when they seek assistance from the IDC: “Go to your own organization which has been established for you.” Certain other industrialists are going to approach their own corporation, the one which is being established in terms of this legislation, and they are going to be deprived of assistance from them because of the narrowness of scope of this particular legislation and because of the policy of the Government who refused to widen the scope of this legislation at Committee Stage. We have the situation where Indians in secondary industry, which involves the processing of primary and other products and which is concerned with the manufacture of products, will be able to approach the organization that is now being established, but is an organization with limited resources and limited experience. This organization will not have at its command the resources or experience that the IDC has. However, many, many other Indian industrialists will not have the privilege of going to this body. I refer to those involved in primary industry, i.e. those concerned with agriculture, forestry and mining. They will have no access whatsoever to this body. What is more, the psychological effect on the IDC is that they are going to say to every Indian: “Go to your own organization and do not bring your financial problems to us.”

Then there are those who are concerned in tertiary industry. I simply cannot understand why they have been specifically precluded from this. Surely the hon. the Minister knows that in Natal many of the services are provided by Indian entrepreneurs. As was pointed out by an hon. member here, the hon. the Minister did refer to them, saying that they are established. What about the new ones who wish to establish themselves? Surely they are also entitled to some assistance in exactly the same way that those concerned in secondary industry are entitled to it. There are those who are concerned with the provision of services, those who are concerned with commerce and with transport. As we heard again this afternoon, one of the biggest problems this country has relates to the movement of people and of goods. Yet the hon. the Minister, through the narrowness of this legislation, will not assist the Indian entrepreneur in this particular sphere in South Africa. The people in the sphere of communications, of education, of finance, of personal services that are provided, such as dry-cleaners and laundries, are specifically precluded from getting assistance in terms of this Bill. I believe that it is going to be prejudicial to the people concerned because the IDC is not going to assist them and because of the limited scope and the limited financial resources of the Indian Industrial Development Corporation.

However, I believe that as a result of this legislation we can look forward to new legislation being introduced in this House. We can look for further legislation to provide for separate institutions for the Indian people and perhaps for the Coloureds and Blacks as well. I can foresee that legislation will be introduced to provide for a separate Department of Agriculture for Indians, for a separate Department of Commerce and a separate Department of Industries for the Indian people, if the attitude which has been adopted by the Government in this particular legislation is to be carried to its logical conclusion. We can also expect legislation to provide for a separate Land Bank. Why must the Land Bank provide funds for all farmers of all colours when the IDC is now being told that they must concern themselves only with White people, or certainly not with Indian people, because a separate body has been established for Indian industrialists? I can see the establishment of a separate Department of Agricultural Credit and I can also foresee legislation being introduced for separate banks. We do have a bank which has been established by the Indian people, but it has been established with the assistance and under the aegis of an existing bank. I can see that this is the way the hon. the Minister and his Government wish to move.

I want to refer specifically to something which the hon. the Minister spoke about in his reply to the Second Reading debate. We know that the hon. the Minister is erudite and that he is a very capable person, but I believe that in that speech, which lasted a long time, he did not do himself a service at all, nor the party which he serves. He played politics, he did not reply to the debate, he indulged in flights of fancy which were nowhere near the truth and by innuendo he tried to draw a completely incorrect conclusion from certain facts. He implied that we on this side of the House do not recognize group identity and that we deny the existence of these people as a separate group by our opposition to this Bill. He implied that we were against the rezoning of Cato Manor for Indian occupation.

You are, are you not?

Who says we are? We have never been asked.

The executive committee said so.

The executive committee never said anything of the sort.

What did they say?

If the hon. the Minister will be patient, I shall tell him in a minute exactly what they did say.

I should like to hear that.

He implied that we were against giving the Indians voting rights on municipal voters’ rolls.

Are you not?

We have never had the opportunity of asking ourselves that question.

You have it now.

May I put it to the hon. the Minister this way? May I ask the hon. the Minister to tell us what his intentions are? Does he intend and does the Government intend to force one common voters’ roll for municipal elections on the people of Natal?

If you want it, tell us.

It is not a question of whether I want it; what is the intention of the Government?

Tell us what you want. [Interjections.]

Order! The hon. member is going too wide now.

With respect, Sir, I am dealing with the reply of the hon. the Minister of Economic Affairs to the Second Reading debate where he referred to and quoted from a letter from the Executive Committee of Natal which was addressed to the hon. the Prime Minister. It does concern this legislation.

Mr. Speaker, on a point of order: I submit that your ruling is perfectly in order. The reason why I referred—and it is quite obvious from the Hansard—to that particular point was because I had been accused of insincerity towards the Indian people by the hon. member.

Order! I have given my ruling. The hon. member is going too wide. I am not going to allow him to continue along those lines.

Mr. Speaker, with respect, may I have your ruling as to whether a matter which was allowed to be discussed in the reply to the Second Reading debate is not in order when discussing the Third Reading?

The hon. the Minister referred to that issue only by the way and he did not make an issue of it. The hon. member for Pietermaritzburg South is now making an issue of it and is arguing on that whole issue now. I am not going to allow him to do so.

Mr. Speaker, with respect, four pages of the Hansard of the hon. the Minister are the side issue to which you refer. I crave your indulgence, Sir, and ask for only a few moments to reply to the hon. the Minister because this is the only opportunity that we may have to reply to him.

Very well, if the hon. member will do so very briefly.

Thank you, Sir.

But you have just refused to reply to him! [Interjections.]

These comments arise from newspaper reports that the Government intended to rezone Cato Manor for Indian occupation and that the Government intended to introduce a common voters’ roll so that Indians would vote for municipal councils. As a result of that the Executive Committee of Natal wrote a confidential letter to the hon. the Prime Minister—addressed to him personally and not to the Cabinet—a letter which the hon. the Minister now quoted during this debate. I am aware of the fact that the hon. the Prime Minister also quoted briefly from that letter during the no-confidence debate. I mention that simply in passing.

I believe, however, that there are many questions which now arise. The first one is: How does a confidential letter, written by the Executive Committee of a province to the hon. the Prime Minister and signed by the Administrator come to be read in this House by a relatively junior Cabinet Minister? Did he have the consent of the hon. the Prime Minister to do that? [Interjections.] Did he have the permission of the hon. the Prime Minister?

Order! The hon. member must come back to the Bill now.

Is the hon. the Prime Minister aware of this, Sir? I believe it is disgraceful conduct, and if the hon. the Prime Minister has given his approval, I believe that this conduct is compounded by that fact.

You are completely off the rails now!

Then, to use this letter …

Order! The hon. member must please come back to the Bill.

To come back to the Bill, Sir, this letter was used—a letter which was addressed to the hon. the Prime Minister—to give in his reply a false impression. It was used in innuendo to give a false impression, to challenge the bona fides of this side of the House in their attitude towards this legislation. Our attitude, the attitude we have expressed all along, is that we believe that the Indian community is a separate community, that they should be given separate political rights. We have a UP administration which has carried this out in that they do have separate local authorities which are controlled by Indians. At the moment—and this, by the way, is the main reason for the writing of this letter—there is a move to establish a metropolitan multiracial body, particularly in the Durban area, a body which will include those Indian local authorities which have already been established. There is no question here of dividing the people. There is no question here of integrating the people. It is not that at all; it is simply a recognition of the identity of the various groups …

That’s it! That is our policy!

… and of a coming together where there is a matter of common interest. The most common interest is the economy of the country. Where one has a body such as the hon. the Minister now contemplates, we believe that it will be to the detriment of that small segment of the economic community and the whole economic community, and that is why we oppose it.

If the hon. the Minister had come to this House and suggested that we should establish throughout the country a series of regional industrial corporations—one for the Western Cape, one for the Transvaal, one for Natal— he would have had no opposition whatsoever from this side of the House, because it would not have been divided on racial grounds. It is when he comes here and divides us and separates us and says this should apply to a particular community only, that we are opposed to it.

Mr. Speaker, I think I have said enough

Hear, hear!

I just want to add that we on this side of the House do not believe that this is the way to develop the economy of South Africa. We have heard from the hon. the Minister of Transport earlier about the shocking state in which the railways have landed because of the failure of the economic policy of the Government, and here the hon. the Minister of Economic Affairs comes to create another body, another body which is going to cost more and which I do not believe will be in the best interests of the economy of South Africa. I support the amendment of the hon. member for Cape Town Gardens.

Mr. Speaker, I am rising merely to say that as far as we in these benches are concerned, we have already stated our case clearly in the Second Reading, and that we shall therefore support the Third Reading of the Bill as well. All the indications are that the Indian community itself wants the Bill and I have heard no argument whatsoever to indicate that we are not in a position to fulfil the needs of the Indian community. Nor do we by any means accept the argument that the establishment of a corporation will lead to fragmentation of our economy. In fact, in an unobtrusive way, we are merely attempting to give effect to the principle of pluralism. Although we should have liked to have seen the Bill open the door a little further for the Indian community, we nevertheless believe that it is better to accept half a loaf rather than no bread. We shall support the Third Reading on this basis, because we believe that the Bill fulfils a need in the Indian community.

Mr. Speaker, I should like to thank hon. members on my side of the House for their contribution to the debate, and I also want to thank the hon. member for Maitland for this support. I find the arguments advanced by the hon. members of the official Opposition irreconcilable with their own amendment and with the standpoint they have adopted towards the Bill. What are the facts? At Second Reading, the official Opposition opposed the principle of the Bill and moved an amendment to it. Briefly speaking, the basis of their opposition to the legislation was of a threefold nature. The essence of their argument was, firstly, that we were further dividing the economy of the country by creating another separate instrument; secondly, that it constituted an extension of the Government’s policy of separate development; and thirdly, that it constituted further interference by the State in the field of the private sector. I want to concede at once that if these arguments had been valid, they would have constituted very strong reasons indeed for the hon. members to oppose the legislation. In the Committee Stage, however, I found that the hon. members, so far from adhering to the principle on which they had taken their stand—that the legislation constituted a division, a further step in the implementation of Government policy and further interference in the field of the private sector—were trying to extend the scope and effect of the legislation, which would require the State to move further into the sphere of the private sector.

But the principle had already been accepted at that stage.

Even though the principle had been accepted, one would at least have expected them, in terms of their arguments, to attempt to restrict the scope of the legislation to an absolute minimum. However, the hon. members did not do this, but asked in the Committee Stage for an extension of the effect the legislation would have on the private sector. They asked for an extension of the policy of separate development. In terms of the amendment, they asked for a more complete division of the economy. Now, in the Third Reading debate, they are back where they started from. They have moved an amendment, which I should like to read, because it is important. It reads as follows—

They took the same line when the Coloured Development Corporation was established.

Yes, except that they have not learnt anything over the past 15 years. In the case of the Coloured Development Corporation, they did not oppose the principle. They moved an amendment to that measure as well, but they did not oppose the principle. They appeared in a different guise at that time. Let us look at the subtle difference which occurs in the amendment they moved then. This amendment reads as follows—

1. (a) develop the economic interests of the Coloured people as an integral part of the economic community as a whole; and …

In other words, they accept this development corporation and say, by implication, that it can be developed as an integral part of the South African economy. I quote further—

So they did not object to the Coloured Development Corporation as a matter of principle, but said that the corporation could involve a process of integrated economic development. In other words, they did not believe that the Coloured Development Corporation would cause a division in the economy. What do we have today? Today we have the opposite argument. They are condemning the Indian Corporation on the grounds that it will mean a division of the economy. Let us test this argument. Will the hon. members on that side give me a frank reply? I want to ask the hon. member for Cape Town Gardens whether, if he were sitting where I am sitting now, he would dissolve the Coloured Development Corporation. I also put this question to the hon. member for Pietermaritzburg South, who talks so much without saying anything. Now there is dead silence. I wish he would always be as silent as now, because then we should be able to get our work done without wasting any time.

The hon. members allege in their amendment that the existing legislation, properly administered, provides for adequate assistance to all entrepreneurs. Let us test this statement. Are the hon. members on the other side satisfied that the Indian population is making sufficient progress on the road of secondary industrial development? Whom are we to ask then, if they do not know this? Which people are best qualified to give us that information? I allege, without fear of contradiction, that the people best qualified to judge in this matter are the Indians themselves. I said at the beginning that the establishment of this corporation had not been initiated by me or by my colleague who is now in charge of Indian Affairs. It was initiated by the Executive Committee of the Indian Council. I did not hear hon. members on the other side advance a single argument to the effect that the Executive Committee does not represent the leaders of the Indian population. I take it that when hon. members on the other side have consultations, they have consultations with the Executive Committee as well. It so happens that the Executive Committee owes its existence to an instrument created by the Government. What is the attitude of these people, who have to take a stand on behalf of their own people? They say—and I should like hon. members to take note of this—that they have come to the conclusion that the Indian population could make a greater contribution in the industrial sphere and that the Government should be approached with a view to establishing an Indian Industrial Development Corporation. For a long time I resisted these representations, but the Indian Council refused to be satisfied until its request had been granted. What is happening now? Hon. members on that side of the House want us to ignore the executive committee of the Indian Council, to doubt their ability to evaluate the needs of their people, and they want the Government to listen to the Opposition instead, for they are the people who know everything, which explains why their numbers keep dwindling week by week. Let us see whether there is any substance in the request and the argument of the Indian population and their leaders. What do these people say? They say that they have made great progress in various sectors of the economy and that they have made great progress in various professions …

Without a corporation?

Yes, without a corporation. For the first time that hon. member is putting his finger on the essence of your argument. They say, however, that they did not do so in the industrial field and therefore need a corporation in that field.

What about the primary field?

I am coming to that argument; give me a chance and I shall give the answer.

*I shall now supply the statistics on which the Indian population and I based our decision as to the principle of establishing a corporation. I have here the statistics for the wholesale and retail trades from 1971. What do these show? In 1971, there were 38 103 White entrepreneurs in the wholesale and retail trades. At that stage, there were 1 433 Coloured entrepreneurs in the wholesale and retail trades, 7 344 Asiatics in the wholesale and retail trades—the hon. members know the size of their population—and 7 787 Bantu. What was the position in the manufacturing industry? In this connection we find that as far as entrepreneurs are concerned, in 1972—these are the most recent figures available to me—there were 10 489 White, 151 Coloured, 707 Indian and 43 Bantu entrepreneurs in the manufacturing industry.

Let us examine the position in respect of the professions. As far as the medical profession is concerned, there is one Indian medical practitioner for every 900 members of the Indian population, as against one medical practitioner for every 6 000 Coloured people, if I remember correctly …

What about the Blacks?

For the Blacks there is one medical practitioner for every 44 000 members of the population. As far as the teaching profession is concerned, almost 100% of their teachers are Indians. In other words, I submit that in terms of their population, they have made great progress in the professions, as well as in the wholesale and retail trades and in the service industries, and that they are in fact lagging behind— relatively speaking—in the industrial sector. For this reason, their initial request was that a corporation be established to assist them in the secondary industrial sector. This is the request I have complied with, and I want to repeat my statement that if there is still a need for assistance in order to ensure a balanced participation in economic life in general, and that assistance is required for primary and tertiary industries, the Industrial Development Corporation is not precluded from providing assistance, for there is nothing in the legislation to exclude Indians from such assistance. Secondly, I should be prepared in such a case to make the necessary adjustments to this legislation. Consequently I cannot accept the arguments advanced by hon. members.

I want to conclude by replying to the arguments of the hon. member for Randburg. He discussed the Bill in the light of three aspects, namely the objectives of the corporation, its scope and its capital. He will concede that I have already dealt with the first two points.

†I would therefore like to come now to the capital. The hon. member said that the capital available for this corporation amounted to only R416 million. That is not quite correct, because the hon. member will see that in terms of the Bill itself the normal borrowing powers of the corporation are limited to 50% of the share capital and the reserves of the corporation, except if I should decide otherwise. Power is also incorporated in the Bill that should, between sessions of Parliament, the need arise to assist the corporation and the requirements are in excess of the share capital and the borrowing powers, I can then increase those borrowing powers until such time as I can come back to Parliament and seek the other money. I therefore submit, with respect, that the argument is fallacious, because the means are created in the Bill to ensure that more capital can be made available to the corporation if the opportunity should arise between sessions of Parliament.

I submit that I have met the arguments of all the hon. members. Mr. Speaker, I hope you will allow me one personal explanation, because I have been accused of disgraceful conduct by the hon. member for Pietermaritzburg South. As usual, his facts are wrong. I did not quote from a confidential letter that was written by the Administrator to the hon. the Prime Minister. I quoted a decision of the Executive Committee of the province of Natal and I did so with the permission of the hon. the Prime Minister because he made …

That is not true.

I did not read the letter, but quoted the resolution of the Executive Committee. I said that in a letter of the Administrator this resolution was …

That is not true.

Of course, it is true.

Order!

I said that in a letter … [Interjections.]

Order!

Mr. Speaker, may I explain the position?

Order! The hon. the Minister may explain the position. There will be an opportunity to pursue the matter further.

The hon. member can then ask me questions if he wants to. The Administrator of Natal wrote a letter to the hon. the Prime Minister pertaining to a report that appeared in the Sunday Times. I had the letter available and I only read that part of it which contained the resolution of the Executive Committee. In reading from that letter I quoted only the resolution of the Executive Committee and I did that with the permission of the hon. the Prime Minister.

They are ashamed of the resolutions of their own Executive Committee.

Order!

That is all. I want to say again that we have not had a reply from that hon. member from Natal as to whether he is prepared to put the Indians on the electoral roll of either the province or the local authorities within that province. I therefore submit that the arguments do not support their amendment and that their attitude is not indicative of the support that they are prepared to give to the development of the Indian people, support which, I submit, they need.

Mr. Speaker, may I rise on a point of explanation?

Yes, but I want to remind the hon. member that this point of explanation pertains to something that the hon. member said during this debate, and it must be short and to the point.

Yes, Sir. I will merely quote from the Hansard of the hon. the Minister himself.

Order! On a point of explanation the hon. member may only explain something about the meaning of the words he actually used himself.

Mr. Speaker, may I then put it that the hon. the Minister was quite correct when he quoted the resolution of the Executive Committee. But then he went further, and I would like to ask the hon. the Minister whether he did not go further and say … [Interjections.]

Order! I am sorry. I am prepared to allow the hon. member to say something on a point of explanation but the hon. member unfortunately is going beyond that and he will have to look for another parliamentary opportunity to pursue the matter.

Question put: That all the words after “That” stand part of the Question,

Upon which the House divided:

Ayes—103: Badenhorst, P. J.; Ballot, G. C; Bodenstein, P.; Botha, G. F.; Botha, J. C. G.; Botha, M. C.; Botha, P. W.; Botha, S. P.; Botma, M. C.; Clase, P. J.; Coetsee, H. J.; Coetzee, S. F.; Conradie, F. D.; Cronje, P.; De Beer, S. J.; De Jager, A. M. van A.; De Klerk, F. W.; De Villiers, D. J.; De Villiers, J. D.; De Wet, M. W.; Du Plessis, B. J.; Du Plessis, G. F. C.; Du Plessis, G. C.; Du Plessis, P. T. C.; Du Toit, J. P.; Greyling, J. C.; Grobler, M. S. F.; Hartzenberg, F.; Hayward, S. A. S.; Hefer, W. J.; Herman, F.; Heunis, J. C.; Hickman, T.; Hoon, J. H.; Hom, J. W. L.; Janson, J.; Koornhof, P. G. J.; Kotzé, S. F.; Krijnauw, P. H. J.; Kruger, J. T.; Langley, T.; Le Grange, L.; Le Roux, F. J. (Brakpan); Le Roux, F. J. (Hercules); Le Roux, J. P. C.; Le Roux, Z. P.; Ligthelm, C. J.; Lloyd, J. J.; Louw, E.; Malan, G. F.; Malan, J. J.; Malan, W. C.; Maree, G. de K.; Morrison, G. de V.; Mouton, C. J.; Mulder, C. P.; Muller, S. L.; Nel, D. J. L.; Niemann, J. J.; Nothnagel, A. E.; Palm, P. D.; Potgieter, J. E.; Potgieter, S. P.; Raubenheimer, A. J.; Reyneke, J. P. A.; Rossouw, W. J. C.; Roux, P. C.; Schlebusch, A. L.; Schoeman, H.; Schoeman, J. C. B.; Scott, D. B.; Simkin, C. H. W.; Snyman, W. J.; Steyn, D. W.; Swanepoel, K. D.; Terblanche, G. P. D.; Treurnicht, A. P.; Treurnicht, N. F.; Ungerer, J. H. B.; Uys, C.; Van den Berg, J. C.; Van den Heever, S. A.; Van der Merwe, H. D. K.; Van der Merwe, P. S.; Van der Spuy, S. J. H.; Van der Walt, A. T.; Van der Walt, H. J. D.; Van der Watt, L. Van Heerden, R. F.; Van Rensburg, H. M. J.; Van Tonder, J. A.; Van Wyk, A. C.; Van Zyl, J. J. B.; Venter, A. A.; Viljoen, P. J. van B.; Vlok, A. J.; Volker, V. A.; Vosloo, W. L.; Wentzel, J. J. G.

Tellers: J. M. Henning, A. van Breda, C. V. van der Merwe and W. L. van der Merwe.

Noes—32: Bartlett, G. S.; Baxter, D. D.; Bell, H. G. H.; Cadman, R. M.; Dalling, D. J.; De Villiers, R. M.; Eglin, C. W.; Enthoven ’t Hooft, R. E.; Graaff, De V.; Hourquebie, R. G. L.; Hughes, T. G.; Kingwill, W. G.; Lorimer, R. J.; Mills, G. W.; Murray, L. G.; Oldfield, G. N.; Page, B. W. B.; Pitman, S. A.; Pyper, P. A.; Raw, W. V.; Schwarz, H. H.; Slabbert, F. van Z.; Suzman, H.; Van Coller, C. A.; Van Hoogstraten, H. A.; Van Rensburg, H. E. J.; Von Keyserlingk, C. C.; Wainwright, C. J. S.; Webber, W. T.; Wood, L. F.

Tellers: E. L. Fisher and W. M. Sutton.

Question affirmed and amendment dropped.

Bill accordingly read a Third Time.

Mr. Speaker, the Bill which is before the House, although it comes in the form of new legislation, nevertheless embodies a variety of things. In the first place it embodies a great deal of what is existing criminal procedure in so far as the South African practice is concerned. Secondly, it embodies the recommendations of a number of commissions of inquiry, the Hiemstra Commission, in some respects, the Botha Commission and the Viljoen Commission. In addition to that, it embodies, I am happy to say, a number of the amendments which were put up from this side of the House when the Bill came in a slightly different form before this House in 1973. It embodies, in addition to that, various amendments which were made departmentally by the hon. the Minister in between that time and the present. In following the existing Act, the 1955 Act, it also, of course, embodies long-standing principles, principles which have been part of our procedure and part of the legal practice of this country since 1917. That practice embodies what might be called the Anglo-Saxon or the Anglo-American system of legal practice. That is the accusatorial system—which I shall say more about in a moment—as practised and originating largely in Great Britain, as opposed to the inquisitorial system which is in vogue in most of the continental countries of Western Europe. In the late 1960s the hon. Mr. Justice Hiemstra proposed certain radical changes in the pre-trial system then operating and now operating in this country. He proposed that we marry into the system which we know at the present time certain of the systems which operate on the continent of Europe under a different system of criminal procedure. It was as a result of that suggestion by Mr. Justice Hiemstra that the Botha Commission was appointed to consider afresh the proposals which had been proposed by Mr. Justice Hiemstra.

It is necessary that I describe briefly the two systems for those who were not present in the House when this matter was debated in 1973. The system which we know, which is basically the British system—the accusatorial system— is a system whereby the presiding officer, the judge or the magistrate, adopts a neutral attitude in a criminal trial. He adopts a neutral attitude between the case brought against an accused person by the State, i.e. the prosecutor or counsel for the State, on evidence produced by the police as a result of a complainant, an injured person. On the other hand, the other side of the scales which the impartial judicial officer has to hold, is the accused person and his defending lawyer, if he has one, who presents his side of the case in a trial. That traditionally is the procedure which we have known over a period of 100 years, largely as a result of the British occupation and government of South Africa, throughout the 19th century.

The continental, or inquisitorial, system is different in the sense that the judicial officer is also part of the system of inquiry, and the whole philosophy and practice is entirely different from what we know in this country. It is important that I deal with this matter at some length because the principal change introduced by this Bill is an attempt to marry certain aspects of inquisitorial procedure at the time of plea, i.e. at the commencement of the trial, into the South African practice. It will be my contention that this cannot satisfactorily be done, and that, therefore, the Bill should be opposed at Second Reading, principally on that ground. First of all, it is of importance to appreciate that the Botha Commission rejected, in principle, the ideas of Mr. Justice Hiemstra. That is clear, if one looks at paragraph 1.16 and paragraph 1.28 of the report of the Botha Commission. There the learned judge states as follows—

The type of thing sought to be introduced by this Bill, Mr. Speaker.—

And here is his conclusion—

Mr. Speaker, I think it is fair to say that the preliminary finding of Mr. Justice Botha, inquiring into the proposals of Mr. Justice Hiemstra, was to reject the inquisitorial procedure so far as our procedure and law is concerned. He goes on to say, in paragraph 1.28—

Mr. Speaker, I am quite aware of the fact that this Bill has modified provisions compared to those proposed by Mr. Justice Hiemstra and, indeed, that they are a modification of what was introduced in 1973. Nevertheless, I believe that clear rejection by Mr. Justice Botha warrants a rejection of the proposals contained in this Bill, proposals which I shall have more to say about in a moment.

Mr. Justice Botha, it is true, adopted in his report a modified system of pre-trial inquiry, which is set out in paragraph 1.29. There he refers to the fact that certain proposals were put to the judges of appeal and that certain recommendations were made by the judges of appeal as to what should be done in this regard. Unfortunately I do not have the time to read out fully what the judges of appeal proposed, but the significant fact is that the judges of appeal, whilst they were prepared to countenance some form of questions of a discretionary nature to be put at the commencement of a trial at the time of plea, made it absolutely clear that the silence of an accused person at that time should not be a fact from which inferences were to be drawn.

In other words, they made it absolutely clear that the presently existing right of an accused person to say nothing at all until he has heard the evidence against him by the State should nevertheless be maintained. This is of cardinal importance because it is that right—the right to silence by an accused person—which is jeopardized in this legislation.

As I understand it, there is a second cardinal element so far as the report of Mr. Justice Botha is concerned. The first was no inference was to be drawn from the fact of the accused person’s silence. The second was that there should be no interrogation or cross-examination of the accused person at that stage. These are the two cardinal points which, I believe, this Bill offends against in so far as this aspect of the proceedings is concerned. What I am trying to say is that, in my view it is cardinal, whatever modifications one may make to the existing system, that he should be entitled to remain silent and that no detrimental inference should be drawn against him.

Clause 115 of the Bill, which is the principal clause concerned with this aspect of the matter, does not reproduce all the modifications which are suggested in paragraph 1.29 of the report of the Botha Commission. There are three recommendations if you read that paragraph with paragraph 1.33. There are a number of objections which emerge from clause 115 of the Bill. Firstly, there is the fact that the answers only to the magistrate’s questions are to be recorded and not the form of the question itself. When one records only answers in narrative form, the objection is not always apparent to the propriety or otherwise of the question asked. In my view it is necessary that the question itself should also be recorded. However, the cardinal objection is in clause 115, subsection (3), where it states that in circumstances where an accused declines to make a statement in reply to questions put to him “the court may draw such inference from his silence as is reasonable in the circumstances.” In this regard I should like to refer to paragraph 1.17 of the Botha Commission’s report. To me it is unanswerable logic that the judge puts forward when he deals with the Hiemstra proposals of interrogation at the time of plea, which is what we are dealing with in clause 115 of the Bill. He says—

One cannot have a more cogent condemnation of the system which is envisaged in clause 115. That comes from the pen of Mr. Justice Botha in his report. As I have indicated, the logic to me is inescapable. Consequently the clause as drafted is entirely unacceptable.

There are further objections to this clause and the proposed procedure. Not only, as I have indicated, can an accused person be compelled to answer questions which might incriminate him, and not only can an inference, adverse to him, be drawn from his silence, but the court can go behind the legal representative of the accused person. That emerges in subsection (4) of clause 115. It says there that where any statements or representations are made on behalf of the accused by his legal adviser, the accused shall be required by the court to declare whether he confirms what the lawyer has said on his client’s behalf. Here again it represents an invasion of the relationship between the attorney or advocate and clients. Particularly with an unschooled, or even with a well-schooled accused person, a lawyer does not indicate to this client in advance every nuance and situation which can arise in the defence and the presentation of the case. That is not his function. His function is broadly to advise his client on the case, and for the rest the client is expected to have confidence in the lawyer that he will present the case properly. What then is a lay person to do when he is questioned by the magistrate or the judge as to whether he agrees with admissions or arguments presented by the lawyer on behalf of his client? Because what may prima facie sound an odd thing for a lawyer to do to a lay person, may in fact be a very important admission or allegation, as the case may be. Again this is a state of affairs which we find objectionable and which we cannot support. Once again, however, it does not even end there, because this is a system of interrogation which in unskilled hands could gravely prejudice an accused person. In the law as it is now, the majority of cases would be subject to automatic review in the Supreme Court. There are, however, other proposals, for example in clause 302, which considerably limit the number of cases which are subject to review by the Supreme Court. If one looks at clause 302, there are limitations in respect of certain classes of magistrates, i.e. senior magistrates, magistrates with six years’ experience and other magistrates in respect of whom a board has issued a certificate that their court work is of such a standard that their cases are no longer required to be reviewed by the Supreme Court. That means that even the protection of automatic review in a large number of cases will be taken away in respect of persons dealt with in terms of clause 115. As I have said, there is then in the case of an unsophisticated accused person— the great majority of accused people fall in that class—no protection from a point of view of a subsequent review by the Supreme Court.

There is, however, yet another aspect which can be put forward which illustrates the undesirability of this clause. Let us take the case of two co-accused persons, one of whom elects to remain silent while the other elects to answer questions put by the judge or magistrate. What is likely to happen, particularly when it is borne in mind that in terms of clause 122 a further innovation is brought in, in that the charge can be withdrawn after plea? In other words, after a person has pleaded not guilty, the charge can be withdrawn and he can be charged afresh. That is not the case under the existing law. Under the provisions of the existing law he is entitled, if there is no evidence, to an acquittal once he has pleaded. In the case of co-accused persons, one may elect to remain silent and the other to answer questions and the one who answers questions may incriminate the other co-accused who has elected to remain silent. The case can then be withdrawn and in respect of either the co-accused, or himself only, a fresh charge can be brought on the basis of evidence that has been revealed as a result of questioning by the magistrate at the time of plea. In other words, an accused person can be brought before the court on a charge for which there is no evidence to convict him, but as a result of questioning by the court at the time of plea, evidence can be revealed in respect of another charge; and so, the charge against him is withdrawn after plea and he is recharged on the basis of evidence that was elicited whilst he was in court by the judicial officer concerned. It is bad in respect of an accused person appearing alone and even worse in the case of two accused persons, one of whom consequently gives evidence to convict the other. This is a denial of the recognized system of the accusatorial procedure and, to our thinking, is wrong. The accusatorial system is not designed to weigh the scales in favour of the State or in favour of the accused. It is designed primarily to convict the guilty and to acquit the innocent.

It might seem, to a lay person, that the procedure is that the accused person has the right to remain silent, the rejection of hearsay evidence and the requirements that the State proves its case beyond reasonable doubt, whilst these old established principles appear at first sight to weigh matters in favour of the accused, I do not believe that on a proper view of the situation it is so. The State is powerful; it has access to a large and efficient police force which collects the evidence on behalf of a complainant; it has access to highly qualified and well-trained legal advisers, both to advise and to present the case; and it has a whole bureaucracy—I say it in the good sense of the term—of officials with which to present its case. An accused person very often stands alone; he is very often both unsophisticated and uneducated, and consequently it is for that reason that over the centuries, and particularly in the last century, the system and these protections have grown up, not to put an unfair bias in favour of an accused person, but to restore the balance between the power of the State in the presentation of its case and the comparative powerlessness of an accused person to ensure that his point of view, if correct, is upheld.

I think it will be seen from what I have said in regard to clause 115, read with the other clauses that I have mentioned, that the innovation of what amounts to a pre-trial interrogation, although it is undertaken by the presiding judicial officer at the time of plea, coupled with the limitation on the right of automatic review, coupled with the ability to withdraw a charge after plea, coupled with the right of the court to draw inference against an accused person if he remains silent, coupled with the invasion of the confidential relationship between an accused person and his legal adviser, brings about a state of affairs which is unacceptable and which, in my view, will not be in the interests of the administration of justice.

That is the main part of the Bill. There are numerous other aspects of the Bill which I shall simply touch on in the short time that is left to me. As far as the plea of guilty is concerned in clause 112, it follows, generally speaking, the recommendations in the Botha Report, and generally speaking seems to be in order. There is, however, objection as far as the plea of not guilty in a lower court is concerned, particularly if the case goes to a higher court thereafter and the interrogation of the accused at the time of plea is done by one judicial officer and conclusions are drawn whereas the trial is carried out by another judicial officer. There again I believe the system is wrong and that the existing system is more acceptable. As far as the limitation on preparatory examinations is concerned, there is a lot to be said for this. However, as far as the drafting of the Bill is concerned, the undesirable features of clause 115 are again introduced and consequently, we are opposed to it to that extent. The clauses relating to assessors—page 46 of the Botha Report— would seem to endorse the existing practice, have been written into the law and seem generally to meet with our approval.

The question of review must be dealt with at a little greater length. That is dealt with in clause 302 of the Bill. It is proposed that there will be limitation on those cases which are sent up to the Supreme Court for automatic review. It is apparently being done because there is a shortage of typing capacity in the department as a result of which the records cannot be reproduced quickly enough to get them up to the Supreme Court for review. The argument is that only a small number of cases which go on review are corrected by the Supreme Court and consequently that this change can be made. For the reasons I have already given in regard to clause 115, this is in my view undesirable. There are, however, additional undesirable factors in this regard. I think that it will produce an undesirable climate of opinion amongst magistrates because some have the rubberstamp, as it were, of approval of the department designating them competent trial judges and that consequently their cases do not have to go on review, whereas the cases of those who do not have the approval of the department will have to go on review to the Supreme Court. This would seem to me to introduce an undesirable distinction between some judicial officers and others.

I am going to propose an amendment on this.

The hon. the Minister says he is going to bring in an amendment in that regard and I will consequently say nothing further until we see what the amendment is.

Chapter 13 is entirely new. It deals with medical aspects of criminal procedure, the question of the capacity of an accused to understand proceedings, the mental illness of the accused and his criminal responsibility as a result of that. Generally speaking it is an improvement, but we shall be moving a number of amendments in an endeavour to improve the situation in this regard.

As far as the position of husband and wife is concerned and the ability of the one to give evidence against the other, the existing position is being retained where wives married by customary rites, even if registered, to a husband, as is customary among many of the Bantu tribes, can nevertheless be compelled to give evidence against their husbands. I think that it is time for a change in this regard, and we shall be moving amendments also in that respect. After all, Sir, it is not the formality surrounding the marriage ceremony which is at issue here. What is at issue here is the relationship between man and wife, which is a confidential relationship and which can be just as confidential and just as well founded in a customary marriage, which is permanent, as in a marriage concluded under Christian rites. Consequently I think that the time has come to apply the same rules to a customary union as we do to the generally accepted Christian marriage at the present time.

We shall also seek to move amendments in the case of the conviction of a person on the evidence of a single witness, particularly in the case of accomplices. As far as clause 255 is concerned, which enacts the recommendations of the Viljoen Commission dealing with persons addicted to drugs, and matters of that kind, I think that this, generally, is an improvement.

It is a pity that the Minister did not find it possible to bring in the recommendation of the Viljoen Commission in regard to adjournments. That matter is dealt with in clause 168 of the Bill. It re-enacts the present position and gives the court a discretionary right to adjourn the proceedings at any time. On page 32 of the Viljoen Commission’s report recommendations are made which I would have liked to have seen in this Bill. I beg your pardon, I seem to have the wrong reference, but I shall give the recommendation from memory. The Viljoen Commission recommended putting limitations on the right of a magistrate to adjourn the proceedings. There could not be more than two adjournments without good cause being shown by the State.

In my opinion this would have been a desirable change, because it has been the experience from cases in the past that are adjourned and adjourned and adjourned time without number because the State is not ready to present its case. This is, I may say, greatly to the detriment of the accused person, both to his pocket, if he is legally represented, and to his nerves, as a result of the anxiety caused. It seems to me that if the State is not prepared to present its case to the court, then further consideration should be given to the release, on bail, of the accused person. In any case, the case should not have been brought to court until the State was prepared to present its case in the proper manner.

The reference is on page 44.

I am reminded that the reference is page 44. Unfortunately I do not have the time now to go further into the matter. Clause 297 of the Bill brings in a desirable change, viz. the ability of the judicial officer to suspend the imposition of a sentence or to suspend the punishment in a variety of circumstances—that is to say, upon the payment of compensation by a convicted person to the complainant or the rendering to the aggrieved person of some benefit in lieu of compensation for damage or pecuniary loss, or the rendering of some service for the benefit of the community, or submission to instruction or treatment, or the compulsory attendance at a certain place for treatment, and matters of this kind. I think that this is a welcome innovation because in the times in which we live, particularly if one reads the Press on recent events and if one considers the disturbances of the last six months, there are a number of instances in which this type of condition can be brought about either without passing any sentence or punishment at all or by imposing a sentence of punishment, imprisonment or a fine and suspending it for a period of years on the condition that certain things are done. For example, as is mentioned in one of the commission’s reports, if a juvenile is convicted of maliciously damaging flowers or plants in a park, the sentence or punishment can be suspended upon condition that he works in that garden and restores what he has damaged. This is beneficial in two respects: It brings home to him what he has done and it keeps him out of gaol. In addition, it probably obviates a whipping. All of this is desirable in proper circumstances. In the case of the recent disturbances, where juveniles destroyed public property such as libraries, it could be usefully employed by requiring them to help in the rebuilding of what has been damaged without sending them to gaol and causing them to be associated with hardened criminals. I think that this is a welcome change.

Sir, I have now given a brief summary of some of the salient clauses in this Bill. There are a great many others—it is a long Bill, covering the whole of our criminal practice. I should like to summarize the point of view of these benches as follows: The Bill contains a lot of what is known, established and desirable in the existing criminal practice; it contains a number of new innovations, some of which I have referred to and which are welcome. However, it unfortunately contains some fundamental changes which go to the very heart of our criminal practice and which are undesirable. Because of these, we are not able to give this Bill our support, and shall vote against it at Second Reading.

Mr. Speaker, in the course of my speech I shall refer to specific points raised by the hon. member for Umhlatuzana. Other hon. members on this side will reply in respect of the other aspects he touched on. As was indicated by the hon. member who has just resumed his seat, this Bill is similar to that which we took up to the Committee Stage in this House in 1973. However hard we try, we shall not be able to avoid repeating the arguments advanced and the passages quoted made at that time. In fact, it will be necessary, in the interests of meaningful debate and chronology, that this should occur.

The law of criminal procedure in South Africa has a long history of development, a history which is well-known to us and which I do not wish to dwell on at any length at this point, save to mention that before Union, each colony had its own separate law of criminal procedure and that it was only seven years after Union that we had the first general Criminal Procedure Act for South Africa. That Act was based on the English Criminal Procedure Act and to date has remained the basis of our criminal procedure legislation. Thirty-eight years after 1917 we passed the existing Act and now, after a further 20 years, it appears that the time has again come to place a new Criminal Procedure Act on the Statute Book.

It is true that law, legal officers and the administration of justice are indeed conservative. Similarly, those who deal with and apply the law are conservative. I do not believe that if the late Beau Upington were to awake from his resting place, it would take him long to find his place once again in today’s administration of justice in South Africa. And yet he would detect tremendous changes, too, in the administration of justice in South Africa. When I say this, I say so with the aim of making a specific point, namely that particularly as far as our criminal procedure is concerned, one of its important characteristics is that it has not remained static. In 1917, and in 1956 as well, the legislation was brought up to date in accordance with what was regarded at that time as the requirements of the moment and the procedure necessary to comply with the requirements.

This Bill’s predecessors, I believe, comprise the most often applied legislation in South Africa. Not a single working day goes by without the Criminal Procedure Act being implemented in any one of numerous courts, whether it be the Appellate Division in Bloemfontein or an ordinary magistrate’s court. Besides that, it is applied by the practitioner, the police and the academics. It is constantly being discussed, moulded, analysed and pollinated so that in fact, what we have here is a living legal organism.

It is also a characteristic of our legislation and administration of justice that we have never hesitated to borrow from other systems, whether it be analogous applications of a specific principle or around a corresponding set of facts, or a case in respect of which no precedent exists in our own system. This borrowing is done by the practitioners and the judicial officers, and by the legislation as well. These Criminal Procedure Acts of ours are examples of this borrowing process. There are many other Acts, too, to which I do not need to refer now. The fact of the borrowing has never meant that the further development or application has given rise to a slavish imitation of the example in question.

Originally, particularly here in the Cape, the hon. member for Umhlatuzana has also indicated, and after the British conquest of the Transvaal and the Orange Free State, English law in particular had a major influence on South African law, and large-scale borrowing from English law took place. However, to the extent that the Afrikaner again began to win himself a place in the legal world, and as he made progress, this tendency decreased. Not only was there an endeavour to purify the Roman Dutch law of the many foreign principles, but also, due to greater contact by students and others with the Continental systems, examples and precedents over a wider field were sought, found and introduced into our legal science.

The Bill before us at present is not just an instant product that has been knocked together. Its concepts go back a very long way. Its development has been continuous, wide-ranging and intensive, but its point of departure is the existing Act, the Criminal Procedure Act of 1955. I am not going to deal again with the development up to and including 1973 at this juncture; this has already been done. What I find important is the fact that after the uproar had broken out over the 1973 legislation before and during the Second Reading debate, the present Minister did not simply carry on with the 1973 Bill as it stood, but instead, all the objections of outside bodies as well as those raised during the debate, were considered afresh. Then departmental consultations took place once gain, certain pertinent recommendations made by Mr. Justice Viljoen were brought in and the end product of this process and all the work that went into it is what is before us at the moment. As far as I am concerned there are two basic, two primary requirements which must be met by criminal procedure legislation. In the first place—and I do not believe that we shall differ on this score—it must ensure that maximum justice is done. In the second place it must, in my opinion, give the accused notice as soon as possible of the end result of his trial; viz. whether he is guilty or not guilty, and if he has in fact been found guilty, what penalty has been imposed on him. There are many other requirements that could be stated, but as far as I am concerned these are the two basic requirements with which criminal procedure legislation ought to comply. I believe that this Bill complies with those two basic requirements. As far as the first requirement is concerned, namely that maximum justice must be done, I believe that it is the task of Parliament to introduce criminal procedure legislation containing as few loopholes as possible. The Act is not there to allow the guilty to go free. Nor is the Act there to make procedural measures available to guilty parties enabling them to fool around, gain time and waste the time of the court.

It is the task of Parliament to provide the courts and the parties before the courts with procedural law machinery so that the truth may be determined and so that the findings of the court may be given effect to. That is to say, so that the courts can be in a position to find people guilty or not guilty. It is a monstrosity when the criminal procedure legislation is full of loopholes so that as a result guilty parties can go free. It lowers the prestige of the courts, particularly in the criminal world, gives rise to contempt of the legal process, and indifference towards person and property.

Mr. Justice Botha said—

That is the standpoint, not only of the South African lawyers, but also of foreign lawyers. I am sure you will permit me just to read a single quotation in this connection. I quote from the report of the Rhodesian Courts Inquiry Commission of 1971. On page 88 of that report we read the following—

An important aspect we must bear in mind in the streamlining of the Criminal Procedure Act is that the criminal is not lacking in invention. Someone once said—

In the 20th century with all its development, science, technology and progress in virtually every sphere, man has not yet been able to succeed in eliminating crime. On the contrary. We all bear witness to the fact that crime is indeed on the increase throughout the world. If the truth be told, the world of crime has kept pace with modern times and development and is utilizing the products of technology and other developments such as the availability of knowledge, to further its own aims.

We have all borne witness to the fact that criminal methods have become sophisticated. We all know how terror gangs and the world of organized crime have made crime a science and criminality an industry. Equipment and tools for the criminal of the most sophisticated kind, from pen pistols to booby-trapped bombs, are available to those who know where and how to obtain them. It is to be regretted that we have to say that there has been an equally serious increase in human perversion and cruelty. For example I have in mind the increase in child abuse of which we hear so much nowadays. Anarchists, communists and others direct their attacks on the administration of law and the symbols of law themselves. This is done specifically to undermine the prestige of the symbols of law. This forms part of the total onslaught on the existing order. Modern criminal procedure laws have to deal with the situation and criminals of this kind throughout the world. To these must be added the very smart, clever, learned legal practitioners of the finest quality who make criminal law and the law of criminal procedure their specialities and then we know what we have to make provision for and we can only hope that this Bill, when it has become the new Criminal Procedure Act of South Africa, will in fact meet the demands it will be set over the next 20 years.

If, therefore, pleas are made for the retention of the Criminal Procedure Act in its present form, I want to remind those who advocate this that it is the duty of this Parliament to establish the necessary statutory machinery so that in these times crime may be combated, law and order may be maintained and the person and property of the private individual protected to the maximum extent. One of the pieces of machinery which is made available for this purpose is the Criminal Procedure Law. I further say that it must be borne in mind that laws are made to meet the needs of the times and in accordance with the knowledge and experience of the times. The present legislation had its origin in a different era, one which was less urbanized and quieter, and in a community far removed from the present community, because it was more homogeneous, peaceful and far less sophisticated.

I am still referring to the first requirement I stated, viz. that the Criminal Procedure Act must ensure the maximum justice. During the debate on the previous Bill a great deal of fuss was made of the accusatorial and the inquisitorial systems. The hon. member for Umhlatuzana referred to this. I am pleased that he did not become as excited about it as did his predecessor, in whose time there were cries of “Inquisition! Inquisition!”, with the express aim of criticizing the legislation from the outset.

Mitchell never used that word.

The hon. member for Houghton said it, in any case. [Interjections.] I am pleased that the hon. member for Umhlatuzana did not adopt that tone in this connection. I differ with the hon. member in the statement he made to the effect that we are trying to bring about a marriage between the accusatorial and the inquisitorial systems. If he looks at clause 115, he will see, firstly, that in point of fact two options are given in the clause. It is not obligatory for the presiding officer, the judicial officer, the magistrate and the judge to ask him whether he wishes to make a statement. Please note: “Whether he wishes to do so.” In other words, if the judge were to decide that he was going to ask him to do so, then he could make such a statement if he wanted to. I believe, too, that the hon. member is wrong to compare with the pre-trial interrogation. It is not a pre-trial interrogation. This question is asked after he has pleaded guilty and it is dealt with in clause 115. As I see it, these are questions which may be asked and, as is also provided in the Bill, they are asked with the sole aim of isolating the real facts at issue. There is nothing else to it. It is not an inquisitorial system. I believe that this measure will be a very useful one, because one will not have the courts being fooled around with, since in point of fact, the courts are there to ascertain the truth and to make a finding on the basis of the truth.

The hon. member also referred to clause 115(4) in terms of which the accused has to give confirmation if his legal representative makes a statement on his behalf. There is nothing wrong with that. As the law of procedure reads at present, it is left to the accused himself to plead; his legal representative does not plead on his behalf. When the legal representative does it for one reason or another, it is confirmed as such by the accused. I therefore find a parallel for clause 115(4) in existing practice.

If there are people who detect signs of the inquisitorial system in the Bill, I want to say that I am not opposed to the inquisitorial system. The inquisitorial system is merely a different form of administration of criminal law, in the same way as the accusatorial system is such a form. Whether we have the one or the other or a little of each, makes no difference to me. What is important to me is whether the requirements of justice are met at all times. I believe that this is in fact the case as far as this Bill is concerned.

It seems to me in any case as if we in South Africa are developing a sui generis law of criminal procedure for ourselves, that we are establishing for ourselves a law of criminal procedure peculiar to South Africa. I agree wholeheartedly with this and have no objection to it. South Africa is a free country and we, meeting here in an autonomous Parliament, surely know our country and people better than anyone else. That is why it is surely our right, and it is right, that we should develop and give effect to our own law of criminal procedure, retaining what is good from what we have inherited and also taking what is good from what we are only making acquaintance with now.

The second requirement I stated was that the accused should get to the end of his hearing without delay and should know what is to become of him if he should be found guilty. I believe that this should be so for the sake of the accused, so that he can have finality. From the moment he becomes aware of the fact that he may stand trial, the hearing hangs over him and over his people like a sword of Damocles. It is therefore in his interests that he should be able to start adapting himself as soon as possible to the situation in which he will find himself if he should be found guilty. This is in the interests of his family, too. The longer it drags on, the greater the strain put on him by the uncertainty. Apart from this, I believe that our legal process should work like a modern and fast machine, because there are practical problems which give rise to long-drawn-out hearings. Here I have in mind prisons that are too full and hearings that have to be postponed for too long because the judicial officers are not available. We should rather try to get rid of these undesirable factors. This is not always the fault of the police or any of the other officials, but is sometimes the fault of the accused himself or that of his legal representative, who juggle with the court and the legal process in order to delay sentence, for whatever reason.

This game which is played by legal practitioners, that of wanting to make the court into a theatre, is as old as the hills. Usually their aim is to impress those outside. Our courts are juridical forums and there is no place in them either for actors or for clever games of hide and seek. Our courts are there to decide in an impartial, calm and unprejudiced manner on the innocence or guilt of the person charged and to determine the truth. It is therefore in the interests of everyone concerned with the administration of justice that our courts should deal with the greatest possible volume of work every day, viz. to sentence guilty parties and to allow the innocent to go free. Our courts do not exist for the sake of capers and antics. The kind of things we have had in our courts before does not serve to further at all times the prestige of our courts, the administration of justice and the symbols of law. I believe that this Bill is a praiseworthy effort to bring our Criminal Procedure Act into line with the requirements of this decade of the 20th century and to cause our courts to function as they ought to. It contains characteristics peculiar to our times, country, people and requirements. Indeed, I believe that the future will prove it to be a milestone in the development of our system of criminal law, which will, in turn, give rise to further development and which may be further extended and improved.

Mr. Speaker, I listened with great care to what the hon. member for Waterkloof had to say. I understood him to maintain that the introduction of clause 115 in the Criminal Procedure Bill is in fact not a mixing of an inquisitorial system with an accusatorial system. There, I am afraid, we differ completely. I believe that the hon. member for Umhlatuzana has already shown clearly that there is a mixture and I hope that I, myself, will be able to show too that it is a mixing of an inquisitorial system and an accusatorial system.

Then I understood the hon. member to go on to say that he was not opposed to an inquisitorial system. He nods his head, so it appears that he is not opposed to such a system. If that is so, I believe that what he should do today is not to support the Bill that the hon. the Minister is now introducing, but to plead for a proper inquisitorial system, on the lines of the French system, to be introduced into this country.

I also said it should be a mixture of the two.

It is then completely wrong for him to accept this Bill and to plead for it and to say that it is a good Bill when, in point of fact, it is a half-hearted Bill, providing for a mixture between an inquisitorial system and the accusatorial system.

It has already been said that this Bill, which is to become a new Act, is in fact one which has wide ramifications in which many and varied aspects of criminal procedure are being dealt with. There is also a totally new concept being introduced into our law, namely what I like to call the pre-trial and post-plea investigation by the judicial officer. Out of this new concept and out of the many new amendments which are now being introduced into our criminal procedure, arise many questions which, as the hon. the Minister has rightly said, will exercise the minds of members of the legal profession in different ways. I am glad to tell him that this side of the House has, through its members of the legal profession and also through other members, come to certain conclusions which, I am glad to say, are unanimous. At least we, amongst our legal people, have found a degree of unanimity. We are unanimous that the new provisions as introduced with regard to the post-plea and the pre-trial investigations are unwise and that they cannot and should not be supported.

The hon. member for Umhlatuzana has already dealt, in the main, with the philosophical and some of the practical aspects, particularly of clause 115, and I, too, will later on mention a few. Before I deal with that aspect, I would like to comment on the main provisions of the Bill as they can be related to change in our existing system, apart from clause 115.

We are pleased to note that many of the objections which were previously raised to a very similar Bill which was introduced in this House in 1973 have been sustained by the hon. the Minister. We are also pleased to note that many of the suggestions that we made as to how the Criminal Procedure Bill could be improved have been accepted by him as well. I am thinking here particularly of the provisions relating to bail bonds, the provisions relating to the retention of the preparatory examination system and also our suggestions relating to the publication in open court of a decision in respect of which the court has been sitting in camera.

There are other suggestions which we made and which have been incorporated in the new Bill which we have before us. At this stage I just want to say that we in this House, particularly on this side of the House, and those of us who were not privileged to take part in the debate in 1973, salute our colleagues on this side who through sheer persistence and logic managed to bring about a situation where their views prevailed. I am quite sure that the contribution which this side of the House will now make in relation to this rather complicated Bill will be equally successful because we have approached the Bill in precisely the same way as the hon. the Minister said that he was approaching the Bill, viz. that we attempted to see that a fair and equitable trial would be afforded to all persons in this country and that the public of this country would likewise be protected. Having said that, I want to make it quite clear that a fair and equitable trial coupled with the protection of the public is the only real consideration which motivated us. We must say that we do not share the views of the hon. the Minister as expressed by him when he said that the question of the saving of time and of money for the State should be a consideration in relation to this Bill. In our view the saving of time and money …

You are wasting time.

… are completely alien to the lawyer seeking justice for his client and should be equally alien to the State seeking protection for the public from wrong-doers. The hon. member who maintains that I am wasting time here should rather leave this Chamber instead of making inane remarks. It is in this spirit that we have approached the Bill.

Dealing with the clauses in the Bill, I want to say that we regard the penal provisions which have been amended mainly as a result of the Viljoen Commission’s report, as being good ones. They are welcomed by us. We are satisfied that the abolition of the mandatory sentence for corrective training and the prevention of crime, and the provisions for solitary confinement and spare diet, are long overdue changes and are in keeping with the results of the exhaustive inquiries which were made into crime prevention and the rehabilitation of offenders in the main by an organization known as Nicro. I am certain that the hon. the Minister will agree with us when we extend a particular word of praise and thanks to that organization which has done so much, sometimes under considerable difficulties, to probe the reasons for crime, the best methods for preventing crime, the efficacy or otherwise of punishment and particularly the most suitable manner in which persons who have been subjected to punishment can again be absorbed into society. I believe that society in general in South Africa owes a great debt of gratitude to that organization, its directors and its personnel.

As the hon. member for Umhlatuzana mentioned earlier on, an innovation in the Bill is that dealt with in clause 297, viz. the provisions relating to the suspending of sentences subject to certain conditions. It has long been felt that penalties for moderate crimes should be directed towards, naturally, the traditional deterrent and the punitive function, but also towards the ultimate rehabilitation of a criminal and that such punishments should have an element of positive contribution towards society in general. We feel that the provisions which have now been introduced in this Bill in terms of which a sentence may be postponed or passed and then suspended subject to conditions relating to the rendering of service to the community will serve both of the last two criteria in that, firstly, it will overcome the objection to an unhardened criminal, if I may put it that way, being influenced by gaolbirds, if I may call them such, if he is sent to gaol—this is in fact part of rehabilitation— and secondly, it will mean that the psychological effect of making a contribution towards society will stand as an atonement for misdeeds. Many wrongdoers, I believe, are genuinely contrite in respect of their wrongdoings.

Then we have the clauses dealing with whipping. Those clauses have been considerably modified and we are in full agreement with that. However, I believe we do still have a query relative to the limitation of whipping, which apparently is imposed on adults only. Although the hon. the Minister in his introductory speech dealt with the reasons why it was not extended to minors as well, we believe there should be a further explanation, which we shall deal with mainly in the Committee Stage, particularly in the light of certain judicial decisions relative to the whipping of minors.

I now wish to deal with the concept of the pre-trial investigation. I do not believe it should be expected of a member of Parliament to examine academically the new provisions with the exactitude of a university professor. Therefore I am going to attempt to confine my remarks in the main to the practical difficulties which I believe will emerge if this Bill is passed. There are three clauses which, I believe, are very much interlinked, as was mentioned by the hon. member for Umhlatuzana. Those are clauses 6(b), 115 and 302(3). Clause 6(b) deals with the question of the withdrawal of a charge, as the hon. member for Umhlatuzana mentioned, after the accused has pleaded. We all know that in terms of the existing law, once an accused has pleaded to the charge the court shall make a finding as to whether he is guilty or otherwise, and that this provision operates to the extent that the accused cannot again be indicated in respect of the same elements of the same offence. That concept is generally known and expressed as the concept of autrefois acquit. This autrefois acquit is good law, because when issue is joined between the adversaries, the issue is joined when the plea is made. That is the certainty that is brought to the matter. The purpose, I believe, of this provision, originally was to bring about certainty for both the State and particularly the accused. Clause 6(b) is followed by 6(c) which, I believe, is in conformity with the norms I have just mentioned. Clearly this paragraph (b) has been put in here specifically for the purpose of the interrogation that will be carried out in terms of clause 115. The hon. the Minister may recollect that this matter was debated at length in 1973.

I am going to accept that amendment from your side.

I see. I just want to mention that it was debated at length in 1973, but the provision has been changed in minor respects. We appreciate this. As the hon. the Minister has indicated that he may well consider amending this clause in accordance with the amendment appearing on the Order Paper as proposed by this side of the House, I shall now pass on to another aspect of the matter. Clause 302(3) is one of the provisions which we believe must be read in conjunction with clause 115 in that it deals with the question of reviews. The hon. the Minister emphasized in his Second Reading speech that the need to cut down on the number of review cases was dictated in the main—and I say in the main—by considerations of cost and administration. We do not believe that this should be a criterion at all. Although we agree with the hon. the Minister that the standard of magistrates’ judgments has been improving—obviously indicated by the figures which the hon. the Minister mentioned in his Second Reading speech— we believe that measures other than clause 302(3) should be introduced to alleviate the administrative problems. We also do not believe that the existing review procedures in this country should be watered down in any way, but that the safeguard provided by our system of automatic review should remain in general. Furthermore, the procedure envisaged in terms of clause 115 allows any magistrate, however new he may be, to participate. In other words he may examine. We say that the introduction of procedures whereby the automatic review is going to be cut out, is all the more reason why we should retain the old system in toto, namely an automatic review procedure. We know there is a division among the judiciary in respect of this particular clause and we share the view that the new provision is an unsatisfactory solution to whatever problem may exist.

There are numerous ways in which this situation can be alleviated. We believe that the recruitment of magistrates and the encouragement of people to come into the service, i.e. the Justice Department, as magistrates, etc., may have an effect on the administration problems which are facing the hon. the Minister. We believe that serious thought should be given to the extension of clerical staff in the magistrates’ courts. Then, although I am not casting aspersions, I do know that unnecessary delays sometimes do occur in magistrates’ courts with regard to the holding of trials themselves. I believe that our review procedure is admired, particularly by people from overseas, and that it should not be watered down in any respect whatsoever.

In dealing with clause 115, our main objections have been clearly set out by the hon. member for Umhlatuzana. However, I want to emphasize the difficulty of attempting, as this clause 115 does, to mix the inquisitorial system with the accusatorial system. I refer to certain clauses in the Bill itself, where it refers to the rights and protection of an accused regarding his previous convictions and the rights and protection of an accused regarding his right to silence. The side note to clause 89 reads: “Previous conviction not to be alleged in charge.” This is not new and it has always been part of our system. I believe that it is a good system. Furthermore, clause 211 of the Bill emphasizes this approach that previous convictions should not be included or related to the court which is going to hear the trial, by virtue of not being included in the charge. Clause 211 emphasizes this and states that evidence of previous convictions before judgment should not be admissible in evidence. I maintain that in terms of clause 115 the questioning envisaged by that clause cannot be regarded as evidence and as such there will be no protection given to that information obtained from the accused in terms of clause 211 of the Bill. In fact, I would say that clause 115 renders nugatory the whole essence of clause 211. We will have to decide whether, if this Bill becomes an Act, and if clause 115 is proceeded with, we can in fact retain in our law this concept of the court not being entitled to know of previous convictions before judgment is given. I do not suggest that specific questions will be directed by the presiding officer of the court in terms of clause 115 towards previous convictions. I do not suggest this at all. What I am trying to say, is that such information can emerge, not only from a person who is represented, by virtue of the method of questioning; it can also emerge from an accused who is not represented, and the judicial officer will therefore be able to be informed of previous convictions. I believe that the reason why we excluded this question of knowledge of previous convictions to the presiding officer until after judgment—and that has been the case virtually from time immemorial—is quite clear. It is to protect the accused from possible bias on the part of the presiding officer against the accused himself. After all, we must protect…

That is a fallacy and has never been true!

Mr. Speaker, that hon. member does not know the first thing about the Act. He does not know the first thing about the Bill, and he does not know the first thing about law. [Interjections.] The whole purpose was to protect the accused against possible bias. We must accept that magistrates are ordinary human beings, and ordinary beings are also subject to a possible bias. We believe that this is a vitally important provision. It stood the test of time, and we believe that section 211 of the Act must be retained in the Bill, although we will have difficulty in retaining it in conjunction with the operation of clause 115.

Then I want to refer to the provisions of clause 197, which relates to the giving of evidence by an accused, evidence which tends to incriminate him. He is protected from answering such questions in terms of our existing law. Clause 197 will apparently not apply in respect of the investigation to be carried out in terms of clause 115, because it is not evidence. If we do not apply the time-tested provisions of clause 197 to an inquiry in terms of clause 115, we are rendering completely nugatory the protections which have also stood the test of time in regard to an accused’s right to refuse to answer questions which may tend to incriminate him. Therefore I believe that the mixing of the breeds, so to say, will, with the best will in the world, only confuse the basic philosophy of criminal procedure in South Africa. I also believe that it could lead to an unwarranted intrusion into the traditional rights of the individual.

Finally, I would like to say that the South African system of criminal law at the moment has in fact, even now, inquisitorial elements, viz. before the passing of this particular Bill. The South African system of criminal procedure is substantially accusatorial, although there are strong inquisitorial elements. There are three main inquisitorial elements in our law as it stands today. This is made up mainly of statutes which allow, firstly, a suspect to be held without trial for a lengthy period for the purpose of pre-trial interrogation without the assistance of counsel. Secondly, there are statutes which deny bail to an accused and, thirdly, there are statutes which permit a summary trial before a superior court. The statutes relating to the holding of a suspect for interrogation are section 17 of the General Law Amendment Act of 1963, section 215bis of Act 56 of 1955—that is our Criminal Procedure Act at the moment— section 22 of a later General Law Amendment Act and section 6 of the Terrorism Act. The provisions which deny bail to an accused are to be found in section 108bis of Act 56 of 1955. In regard to summary trial procedures in the Supreme Court, we have section 21 of Act 76 of 1962, section 152bis of Act 37 of 1963 and section 5 of Act 83 of 1967. These are all drastic provisions which have been passed in this country over the past 20 years. There we already have an inquisitorial system which is operating in South Africa. I want to quote what Prof. Dugard said in regard to the question of an inquisitorial system being introduced together with our accusatorial system. He says this (The South African Law Journal, Vol. 87, page 422)—

I believe the essence of the change is extracted from the Hiemstra proposals—

That is the first point. He goes further—

Prof. Dugard talks about the 1970 code as being those drastic provisions which I have just mentioned. That is the opinion of an eminent jurist, a person who is an academically trained man, and he sees difficulties in the imposition of these provisions. But is there any hope that if this Bill is passed, the provisions which I have mentioned will be repealed? I doubt it. I fear that we are now setting a course where the protection of the accused to enable him to get a fair trial is more and more being whittled away in favour of the interests of society as a whole. The basic criterion that I believe the hon. the Minister believes in as well, namely that the law of criminal procedure should be seen as a set of rules designed to establish a system of criminal justice, which strikes a delicate balance between the interests of society in the preservation of law and order and the interests of individual liberty, I maintain, is now being disturbed. For that reason we oppose this Bill.

Mr. Speaker, I should like to come back in a moment to the hon. member for East London City and make a few remarks about his speech and about that of the hon. member for Umhlatuzana. I just want to say to the hon. member for East London City that the proposals contained in the Bill are proposals that have come not from academics, but from hard-headed men dealing with the practice of law—judges, magistrates and practising lawyers. I think the hon. member for Waterkloof showed very effectively this afternoon why the change in our criminal procedure was a most essential one. He also quoted very relevant passages in this connection. If we take into account our scientific and technological progress and the changes that have accompanied them, we must bear in mind that there is just as much room for change in our system of law. This must happen, because time does not stand still. In the criminal world, too, changes take place and our system of law has to adapt to that. I just want to show how our population has changed since the first Criminal Procedure Act was placed on the Statute Book in 1917. In 1917 we had a population of a mere 6¼ million people. In 1955, when we altered the Criminal Procedure Act again, our population was 14 500 000 people, and now, in 1977, the population is estimated at 26 million people. I mention this in order to impress upon the hon. members that our population has increased from 6 million to 26 million and that the system of law has to be adapted to this.

Business suspended at 18h30 and resumed at 20h00.

Evening Sitting

Mr. Speaker, before the adjournment I was just beginning to point out that procedures which were effective for 20 to 60 years are no longer effective today, specially as a result of the population growth and the change in the circumstances of the country. It is also the case due to the increase in the number of criminal cases. Looking at the past 10 years, we see that in 1965, 1 006 000 criminal cases were dealt with in the magistrates’ offices, whereas in 1974 this had increased to 1 536 000 criminal cases. This represents a tremendous increase in the number of criminal cases, due specifically to an increase in the types of crime. I should also like to refer the hon. members opposite once again to a paragraph in Gardiner and Lansdowne’s sixth edition, which reads—

It is specifically in view of this that we still have to look at the effectiveness of the Criminal Procedure Act today. We have to consider the changes that have taken place and how our procedure works at the moment.

If one gives one’s thoughts free rein and considers, in the first place, the innumerable delays in our magistrates’ courts and Supreme Courts in the hearing of criminal cases, and in the second instance, the number of cases which are repeatedly postponed, to the vexation of the public; in the third instance, the longwindedness at hearings, specifically due to irrelevant aspects raised by the defence and perhaps by the prosecutor himself, and in the fourth place, the witnesses that sometimes have to sit around outside and wait for hours to be called in, and then in the end not be called in, then it is very clear that there must be a change in our procedure. Over the years one fact has crystallized out very clearly: Justice must be done, not only for the sake of the accused, but also for the protection of the community. There is also a relevant quotation in this regard from Mr. Justice Hiemstra in a Law Journal of 1963. I cannot quote it now, because time is too short. Since at the moment protection is predominant, we must see to it that there is not merely a one-sided protection of the accused. We must effect a change in this regard because the community demands it of us. I do just want to refer to Mr. Justice Hiemstra’s article in the Law Journal of 1965, in which he states, inter alia—

The result of circulating the Bill …

The Bill was circulated by the department after the 1963 article.

If, then, we go into this, we see that a number of safeguards have been built into the Bill. It is in this spirit that we must approach the Bill. An innocent person must not be put in any danger of being found guilty, but similarly, a guilty person certainly must not go free after he has committed the deed in question. Our Criminal Procedure Act has been revised repeatedly over the years and various commissions of inquiry have been appointed to investigate it. In this regard I have in mind Mr. Justice Hiemstra’s articles, the Rumpff Commission, the Botha Commission and the Viljoen Commission. To what extent have the bars and the side-bars reacted to the Bill?

I want to come back to the arguments of the hon. members for Umhlatuzana and East London City.

What does the bar say? [Interjections.]

The hon. member for Umhlatuzana tried to indicate that Mr. Justice Botha had rejected the opinion of Mr. Justice Hiemstra and he quoted paragraph 1.16 of the report to the House. However, I think that the hon. member did not go far enough; he should also have quoted paragraph 1.31 because he would then perhaps have seen the matter in a different light. His argument was by no means correct. In paragraph 1.31, Mr. Justice Botha states that although he cannot accept the recommendations of Mr. Justice Hiemstra, nevertheless—he uses the word “nevertheless”—he is of the opinion that an accused should be brought before a magistrate to plead to the charge against him and that he should be afforded an opportunity, if he should so choose, to put his side of the case against him or to make a statement, irrespective of whether the charge against him is triable in the magistrate’s court. This contradicts the whole argument of the hon. member for Umhlatuzana as regards this aspect. Precisely what is stated in the paragraph in Mr. Justice Botha’s report is embodied in the Bill.

The arguments advanced by the hon. member for East London City this evening were vague in the extreme, particularly his arguments relating to the accusatorial system, the inquisitorial system or a mixture thereof. He sounded absolutely confused and I want to point out to him that the Bill in no way detracts from the existing system of previous convictions. It does not detract from it in any way, and apparently the hon. member had the French system in mind and confused it with what he wanted to say here this evening. In the inquisitorial system that applies in France, it is in fact the case that previous convictions are read out in advance, before the accused has been tried, but this is by no means the case here and is by no means at issue this evening. I do not know whether the hon. member wants to link it to this in any way. I think that the two hon. members should be more clear on this point.

As far as the Bill itself is concerned, I think that the most important alteration of the existing Act is undoubtedly in respect of the first appearance of the accused in court and the so-called examination process. According to clause 75 of the Bill, summary trials will be the usual method of trial. An accused can be brought directly before the Supreme Court without the intervention of another court being necessary. The most important aspect of this is probably that every accused now pleads in the court where he will be tried, except perhaps in the case of the provisions of clause 119. Clause 112 concerns the plea of guilty. This applies not only in respect of the magistrate’s court, as in the previous Bill, but in all courts. A uniform procedure for all courts is being introduced and this will result in a major improvement. In terms of the provisions of the clause, matters of a petty nature to which a person has pleaded guilty, can be dealt with very quickly.

However, as far as matters of a serious nature are concerned, the court has to examine the accused on the alleged facts. It must always be borne in mind that the accused has already pleaded guilty. He is now examined with regard to the facts of the case and this is of course quite different to the case to which clause 115 applies. If the facts support the admission of guilt of the accused, he can of course be sentenced at once. However, if the facts do not tally, the magistrate can enter a plea of not guilty or request the prosecutor to continue the trial. This affords the accused built-in protection. If the appropriate sentence for the offence in question is the death sentence, the guilt of the accused must first be proved in any event. A statement can also be submitted by the accused or by his legal representative. The presiding officer can nevertheless then examine the accused with reference to his statement.

As regards evidence aliunde in the case where an accused pleads guilty, I believe that clause 112, which I am still discussing, will not achieve its aim, and the provisions in question might as well fall away. Furthermore, the stating of the facts of the case to the accused who pleads guilty is greatly improved and the presiding officer can have the matter elucidated sooner. The Botha report, too, deals with this matter at length on page 28. A solution to the problem in clause 112, namely that although a person pleads guilty, he is nevertheless found not guilty, has been sought for many years. This is what our people are not always able to understand: They know that a person is guilty, but in the end he is nevertheless found not guilty.

We also find an additional and far stronger safeguard in clause 113. If there is still any uncertainty, the court has to enter a plea of not guilty even though the accused pleaded guilty. In the same way, clause 114 establishes a further safeguard and protection for the accused. Where an accused is referred by a magistrate to a regional court for sentence—and this is still in respect of a plea of guilty—the magistrate of the regional court can nevertheless satisfy himself that the accused is in fact guilty.

The other important clause is of course clause 115 and this is in respect of a plea of not guilty. In that regard, this Bill differs considerably from the Bill we discussed in 1973. The pre-trial examination by a judicial officer other than the one hearing the case, now falls away entirely. I think that this, too, is an argument which the hon. member for East London City tried to advance here, but his argument was not quite correct. I do not know whether he understood the clause entirely. The obligation on the presiding officer to examine now falls away as well. It is now no longer an obligation, but is discretionary. A mini-preparatory examination may now take place and there ought to be no objection in principle to this because it is in fact already a custom with us. Much time is saved for everyone and justice is done in that case.

We ask ourselves—and this was raised by one of the hon. members over there, too— what will happen if an accused is not prepared to be examined. Surely this is not different from our preparatory examinations we have had up to the present. An accused just sits tight throughout and does not say a word. However, all the time he is listening to the State’s case and is building up his own case in accordance with what he hears. In the same way an accused can remain silent here and the presiding officer can then draw such inference from his silence as he sees fit. This is just the same as that of a preparatory examination, and in fact there is no difference in this regard.

Opinions have been expressed on various occasions and at various places in the world concerning criminal procedure. We find this in various countries, inter alia, Rhodesia, Holland, Italy, Japan and America. Virtually all of them have revised their criminal procedure and it is only we who will have to subject this matter to a penetrating investigation again and effect changes if necessary.

Clause 115 provides that a presiding officer may ask the accused whether he wishes to make a statement, but if the accused does not wish to make a statement, the presiding officer can examine him in order to establish the points of dispute or obtain clarity. It must be clearly understood that there is no question of a cross-examination here, but that this is only to establish the points of difference and by so doing, to eliminate entirely the unnecessary delays to which reference has been made. If the accused says nothing at all, the presiding officer can make what inferences he wants to. A further safeguard has been built into the clause, viz. that if the legal adviser of the accused applies on behalf of the accused, the presiding officer can ask the accused whether he agrees with or confirms it. The whole problem in our present system is that the accused is afforded so many opportunities to build up a case, something which he might not have been able to do if we had had the procedure proposed in this Bill. The community is entitled …

May I ask the hon. member a question?

Mr. Speaker, unfortunately I only have a few minutes, since the Whips did not give me the privilege of the half-hour. I shall have to resume my seat shortly; otherwise I would have allowed the hon. member to put a question to me. The examination to which the hon. members referred and which they are making such a fuss about is not a pre-trial examination, because the questions are only asked after the accused has pleaded. What is very important is that after that, no cross-examination may take place. We must bear in mind, too, that the accused has his right to legal representation throughout, as he has always had. An accused is furnished with assistance throughout, in that he can have pro Deo legal representation. An accused is assisted throughout in that he may approach the Legal Aid Bureau if he should require legal aid.

The Viljoen Commission, too, published a number of interesting statistics. Before I resume my seat I just want to refer to them briefly. The Viljoen Commission furnishes statistics concerning those awaiting trial, and it indicates that on 30 June 1975, 251 000 were awaiting trial, but of these, 65 000 were found guilty. This shows that a change must be effected in order to abbreviate our criminal procedure so that cases can be dealt with more quickly and those awaiting trial need not wait for that long procedure, wait around for so long and perhaps have to incur expenses. Furthermore, the Viljoen commission also pointed out that in fact there were very few complaints of wrongful detention. The 251 000 people awaiting trial who were being detained, were not being detained wrongfully, although a great many of them were found, on trial, to be not guilty. This shows that we must consider a drastic revision of the whole procedure. The Viljoen Commission also proposes that in the case of detentions, postponement should be eliminated as far as possible. All these facts combine to make it necessary that we should revise the Criminal Procedure Act and support the Bill which has been introduced.

Mr. Speaker, I hope that the hon. member for Potgietersrus will not mind if I do not respond immediately to what he has said, but in the course of my speech I shall deal with what he has said. This Bill is a matter of importance because it was said in 1973 in this House: If there is such a thing as a charter of human rights in South Africa, it is the Criminal Procedure Act. Even the hon. member for Waterkloof has said that it forms the basis of the legal system in South Africa. As it is not a political matter, we would have liked it to be not contentious but, unfortunately, the Bill introduces into our criminal procedure serious deviations of principle, which are loaded consistently against the accused. In fact, they all make inroads into the basic protections of an accused person. Of course the Bill, as it is now introduced, has removed some of the objectionable features of the 1973 Bill, and for that we are pleased. Also, a number of existing provisions in the Criminal Procedure Act, Act 56 of 1955, are retained. With that we are also pleased because that system has stood the test of time.

Are you then going to support the Second Reading?

No. Mr. Speaker, I should like to look at some of the fundamental, serious deviations of principle in the order in which they are contained in the Bill. Let me start with the arrest of a man and look first at the question of bail. It is the basis of our criminal law that an accused is innocent until he is proved guilty. An accused is not therefore to be imprisoned until sentenced, except where his imprisonment is necessary to prevent prejudice to the interest of justice. That is how our law stands at the moment. For that reason bail applications are usually made within 48 hours of a man’s arrest when he is brought to court or even before that. The most common reason for the first application for bail failing is that the police are still continuing their investigations. If those applications for bail fail, further applications for bail can be made. Sometimes bail is applied for again and again and, finally, it may be granted. In terms of clause 60(2) of the Bill only one application for bail shall be made, unless an accused can show in a new application some new facts arising or discovered after his application. That is a very serious inroad into an accused’s rights because the accused is often unrepresented at the first appearance and often makes his application without giving reasons for it.

One sees dozens of times in the courts that the accused goes into court and asks for bail without giving any reasons and is then opposed by the prosecutor because the police are still investigating. Then bail is refused. In terms of the present clause in the Bill the accused, having made his application, may spend the next 10 months in gaol—cases often take 10 months to be completed— because he cannot in terms of the Bill make a fresh application. I suggest that there is absolutely no need for this intrusion into basic rights.

So much for the bail applications. We now come to the prisoner who, awaiting trial, is in gaol. At present, in terms of section 84 of the Criminal Procedure Act, an accused person has access to “friends and legal advisers”, as it is framed. That is a very important right. One must bear in mind, too, that in terms of our law he is an innocent man at that stage. If he is imprisoned, he has certain grave disadvantages. He has to prepare his defence and may want to get in touch with friends, whom he may want to make contact with witnesses to the incident to testify on his behalf at the trial. He may need documents. He may need exhibits to be searched for and fetched so that he can examine them in the preparation of his defence. All that is done away with in the new Bill. He no longer has access to any friends or even to legal representatives. All that the Bill provides, in clause 73, is that he may have assistance from a legal adviser. However, he has no right of access in terms of the clause as it now stands. The prison authorities are quite entitled in terms of the Bill to say to the lawyer: “You can speak to the accused, but speak to him on the telephone. That is how you can give him your assistance.” There is no right of access even to a lawyer. That is a very, very serious inroad into an accused’s rights.

In chronological order we now come to the trial. In terms of the Bill the accused shall be tried by summary trial. Preparatory examinations are no longer required, even in respect of serious matters. Under the new Bill they become exceptions rather than the rule. Under the new Bill the position is that the accused is not even entitled to see the statements of witnesses, as he used to see them in the old preparatory examinations to establish what the case against him was. All he gets in terms of this Bill is a statement of facts drawn up by the prosecutor. In the United States of America, for example, they have a system of preliminary investigations where matters are investigated by a grand jury, or the complaint is made against the accused that he has committed a felony.

In England they have a preliminary investigation and it is conducted in the magistrate’s court prior to the committal of the accused for trial. Even in the USSR article 201 of the criminal procedure there has provisions for acquainting the accused with all the “materials of the case”. That is what it is called in the Russian provisions. The accused there is entitled to look at all the materials of the case, he is entitled to have them presented to him and he has the right to copy them. I could accept as reasonable that preparatory examinations be not the rule, but then, with respect, what should happen is that the accused should be allowed to see the statements of witnesses or at least summaries of the statements of witnesses.

We then come to the trial itself, and perhaps the most important point in this whole Bill, as was raised by the hon. member for Umhlatuzana and the hon. member for East London City, is the questioning of the accused at an early stage, particularly in cases where there are serious allegations made against him by the State. Much has been said of the Botha Commission and I just wish to refer to two quotations from that commission. I refer in the first place to par. 1.17—

Then the Botha Commission also stated—

Read paragraphs 1.31 to 1.33.

I am coming to that. I quote further—

I know what is going to be said, and I have been asked to read paragraphs 1.31 to 1.33. However, the position is that the Botha Commission also said—

What the Botha Commission in effect did was that they took the suggestion of the Chief Justice and the judges of appeal. There were three judges of appeal who did not agree with this, but the others and the Chief Justice said the following—

Here in this legislation it is said that silence is a fact that may be taken against the accused. What the Botha Commission did is that it went so far as to say in paragraphs 1.31 and 1.33 that he should be given an opportunity, but no more; an opportunity to state his case if he wishes. Naturally this danger is enhanced in the case of ignorant and illiterate people and, unfortunately, in our society many people are ignorant, illiterate and unrepresented. It goes further. In terms of clauses 119 and 50 of the Bill, where the crime is so serious that it can only be dealt with at this present time by the Supreme Court or a regional court, the position is that an accused can be hustled straight into court immediately upon arrest. If a prosecutor requires him to plead right away, then he must plead right away. Then the magistrate, if the prosecutor requires him to do so, shall in some cases and may in others question the accused to get admissions from him. The questions and the answers are recorded but the alarming thing is that the recordings of those admissions are proof, not of the admissions made, but are proof of the facts contained in those recordings. They are actually proof of what is contained in those recordings. In terms of this Bill these recordings are then sent to a higher court where they are proof of the facts in those recordings. If the accused has pleaded guilty in the magistrate’s court he will simply be sentenced by the higher court in terms of this Bill. If he has pleaded not guilty the same recordings are still proof against him in the higher court, but interestingly enough, here they are proof only of the admissions and not of the facts contained in the admissions. With respect, I submit that it is an extraordinary and incredible change in principle in our law that one judicial officer can elicit admissions and record them and that there is a legal statute which says that that recording is proof of the facts in his trial before another judge or before another magistrate.

It means in effect that the judicial officer not trying the case is an arbiter of whether a fact has been proved in a trial which takes place before another judicial officer, when the latter judicial officer may even be a judge, while the former one was a magistrate. The principle is that one man finds a matter proved for another man to sentence him. I submit that that is a very unsatisfactory principle. It is an example, too, of the unsatisfactory result of making a judicial officer a participating party in the case. Mr. Speaker, our legal principle in South Africa has always been that a judicial officer is an impartial arbiter, simply in effect, a referee between two parties. He simply has to decide which of the two parties’ contesting versions is the correct one. All he does is to judge between the two versions. He takes no part in the contest. So much does this long-established principle in our law mean, that in Roopsingh’s case, in 1956, in the Appellate Division, it was held that where a judge descends into the arena and becomes a participating party, he is no longer an impartial arbiter. That alone was held to be sufficient grounds to overthrow the verdict in that case. Now, in terms of this hybrid system that we are getting now—the hybrid between the inquisitorial and accusatorial systems— the judicial officer is to be, in effect, one of the parties in the case, and that is to be a principle of our law. The judicial officer is now to get into the arena, question the accused and establish the case against him. [Interjections.]

Order!

Mr. Speaker, the whole idea that the accused should be placed in a position where the case against him is made out of his own mouth, is violently opposed to our law. The case for the State can be made in this way through the accused himself. One of the questions arising immediately, is this: Does the magistrate at that time, when asking the accused, understand what the elements of the charge are? How can a magistrate in any case know what the elements of a charge are from a charge-sheet which has been drawn up against an accused who was arrested, say, yesterday … [Interjections.] In terms of clause 50 he can be hustled into court in 48 hours. And now there is a simply drawn charge-sheet. Where can he get the facts which he can put to the accused? [Interjections.]

Mr. Speaker, certain hon. gentlemen on my left here want to know why it cannot be done. I want to tell them that the State could not even prepare a charge-sheet in 8 months in the Saso trial in Pretoria. It was quashed after eight months. They could not get their charge-sheet right in 8 months, never mind getting it ready by the next day. [Interjections.] Even the State may not know what the elements of an offence are at that time. [Interjections.] Mr. Speaker, these hon. gentlemen on my left… I do not know whether they have ever had complicated fraud case or any complicated statutory case. It is very difficult to know what the elements … [Interjections.] Mr. Speaker, it makes me smile to think that one of the things put up by the State in nearly every case of an application for bail, is: “We do not know what the elements of the charge are, because we have not completed the investigation yet. We cannot allow the man to go out on bail.” However, here in this House we are told that it is very simple to know exactly what all the elements of an offence are on the day one hustles the man into court for the first remand. [Interjections.] The accused may well be … [Interjections.]

Order!

… and he will be in a specially unfavourable position.

Mr. Justice Botha of the Botha Commission pointed out that illiterate and ignorant detainees without legal representation can easily incriminate themselves falsely. The Botha Commission mentioned Njaba’s case (1966 A.D., Vol. 3, p. 140) in which an illiterate Black was sentenced to death on a confession of murder, though it appeared later that he had nothing to do with it, and that, in fact, he was in prison at the time the murder was committed.

In any event, another serious criticism of the Bill is that admissions made before the evidence is led, will often be made without appreciation of the significance of the admission being apparent at that stage by either the State or the accused. How often in a trial does not the State or the defence realize that they have made admissions at an earlier stage without realizing its significance, causing them to withdraw that at a later stage during the trial? But one must not forget that in terms of this Bill, if one has made an admission, that fact is proved and you can never challenge it. All one can do is challenge the recording. The fact cannot be challenged at all.

The whole principle of self-incrimination is foreign to our legal system and I submit that it flows from an intention, which is enshrined in this Bill, of getting quick admissions from the accused. The whole question of the onus being on the State is attacked in this Bill. When I listened to some of the speakers, the thinking seemed to be that people that come before the courts are largely guilty anyway, so why waste time on them? Much has been said about guilty people getting off. The main reason why guilty people get off, if they do, and I assume that some do, is because of the poor investigation by the police and poor prosecution. In the Botha Commission Judge Botha himself made that point when he said that the large number of acquittals could not necessarily be ascribed to our system of criminal procedure, and that many other factors such as poor investigation of a case or ineffective presentation of the case to the court, or other human failings, could contribute thereto. I want to refer to one of these cases where you get an admission from an accused. I appeared in a case in which four people were accused of possessing LSD. No. 3 accused said that he was the driver of a motor-car. What actually happened in the magistrate’s court was that the magistrate asked: “Who owns this car?” The answer was accused No. 1. The magistrate asked who the driver was and was told that it was accused No. 3 The magistrate asked accused No. 3 if he was the driver and he answered: “Yes, I am the driver.” If that had been recorded it would have gone to the Supreme Court. It then turned out that accused No. 3 was accused No. l’s driver, but on that particular occasion he was not driving the motor-car. In the magistrate’s court it would have been recorded as an admission by accused No. 3 that he was the driver. In terms of this Bill there is no way that he can challenge that admission in the Supreme Court. In that case an innocent man would have suffered five years’ imprisonment. When one judicial officer makes a recording of an admission and it is sent to another court the situation may well arise that the accused will challenge that admission and allege that he did not make the admission. What happens then? The magistrate who recorded the admission will now have to become one of the witnesses in the case, because there is now a dispute between the accused and the magistrate as to whether it was recorded. It is a most unsatisfactory position if the magistrate, who actually was the judicial officer and made findings of fact on which the other man has to sentence the accused, now has to be a witness in the case. This is clearly a highly unsatisfactory situation and is an illustration of the undesirability of trying to mix in a hybrid sort of way the accusatorial and inquisitorial systems. I have nothing against the inquisitorial system as practised on the continent, but there are built-in safeguards and checks there that we do not have in our criminal procedure as it stands now.

Coming in chronological order the next startling new principle is clause 151. In terms of this clause the accused has to give evidence before he calls any witness. The State can call witnesses in whatever order it likes, but the accused cannot. With respect, it is ridiculous, illogical and designed to prejudice the accused. Imagine a case like this. An accused is charged with importing a prohibited substance. He may have expert evidence available to him which can prove that that substance is not in fact a prohibited substance. The accused will have to try to guess whether that expert witness of his is going to be accepted, because if he is not accepted, the accused cannot then go into the witness-box and give evidence as to how he was, in fact, not technically in possession of the stuff. He has to try to make an assessment as to whether that witness is going to be accepted. The result of it is that the accused has to go into the witness-box first …

Not necessarily.

The court will have to sit and listen to the accused being examined, being cross-examined, being re-examined. All this will be a waste of time, while he has an expert witness who can deal with the matter in a very short time. With great respect I want to say that there can be no justification for this discrimination against a party in a case when the other party can do what it likes in regard to the sequence of witnesses.

I want to come to clause 185, the clause which, inter alia, purports to provide for protection of witnesses. In terms of this clause witnesses, not accused people, can be detained in prison for six months if the Attorney-General submits affidavits which satisfy a judge in chambers.

The whole idea of witnesses being used against an accused person, and of those witnesses being held in prison until after they have given evidence, is abhorent to our legal principles. The whole basis of our adversary system is that the impartial arbiter, the judge, adjudicates upon two sets of voluntary witnesses. When one introduces witnesses being held in prison, bringing them straight into court from prison and then back to prison in many cases, one is in effect producing witnesses who come into court with a pistol at their heads. They are incarcerated by the State to give evidence for the State and their prime consideration is to do all they can to get out of prison as quickly as possible. If that has become—as it has—one of our legal norms, our legal principles have degenerated very severely. What is worse is that the person who is imprisoned in terms of this clause has fewer rights than the accused person, and he is only a witness. He has in fact no rights at all. He is in prison without any provision for notice to be given to him of an application to be made by the Attorney-General. There is no audi alteram partem, no hearing of the witness. He has no right to reply to the Attorney-General when he goes to the judge in chambers with his affidavit. The whole thing is done on ex parte statements of the police. As a State witness, the first thing that witness knows, is when he is grabbed and pushed into gaol. In terms of the Bill he has no right to put his side of the picture. I do not know why we bother with the accused’s rights when we do not even give rights to the witnesses. The witnesses are the innocent parties. All this may well happen while the accused himself is out on bail. The witness may well in fact spend a great deal longer time in prison than the accused. The accused may in fact never go to prison and may be acquitted, while the witness has spent a year or two in prison. This is a very objectionable principle.

I want to come to another principle introduced in this Bill and that concerns evidence of husband and wife. This Bill now provides that where there is a joint trial, evidence of each accused against the other shall not be inadmissible on the ground only that such accused was not a competent witness. This clause arises out of the Groesbeek case where the husband and wife were charged with murder of the lover of one of them. I can understand what the hon. the Minister of Justice is aiming at, but the clause goes far too far. The clause should merely provide that the evidence should be admissible where there are cases of common purpose, between the two, but not by just charging them together. There must be a common purpose, because, as a great American jurist has said “there is a natural repugnance in every fair-minded person about compelling a wife or a husband to be the means of the other’s conviction”.

I then want to come to clause 213. This is one of the most pernicious clauses in the whole Bill. That clause provides that written statements by any person other than the accused shall be evidence to the same effect as oral evidence. This clause is clearly and unambiguously opposed to the findings of the Botha Commission. It is a radical departure from our traditional form of criminal trial, which requires witnesses to testify and to be subject to cross-examination. In terms of this clause the State can simply serve a police docket containing statements upon an accused person and it can obviate the whole necessity of the trial. Only the accused would have to give evidence and the rest would be a trial by police docket. There are many weighty objections to this clause. I do not know if I can deal with them all. The statements, however, cannot be cross-examined like witnesses. The court has to make an assessment of the demeanour of witnesses, but one cannot assess the demeanour of a statement. It is to be given the same weight as oral evidence. The court will have to reject contradictory evidence, unless it is corroborated. One cannot show deficiencies in a written statement and one cannot apply the cautionary rules existing in regard to single witness evidence to statements. Up to now all witnesses, including the accused, have been treated on an equal footing. The accused also ought to be allowed to give his evidence by a written statement.

The safeguards which the Bill provides here are not safeguards at all, because although the accused can object two days before the commencement of proceedings to the admission of written statements, the Bill does not, however, provide that he be told about that right. Secondly, an accused can come to court, he can object, or the magistrate can say he wishes to hear oral evidence, halfway through the trial, on the written statement which has been put in but now the whole matter has to be adjourned, and the accused is prejudiced again.

The matter of automatic review has been raised by the hon. member for East London City and I want to add that the clause about automatic review was rejected by Mr. Justice Botha, who said—

This clause is therefore quite clearly against the Botha Commission’s proposals. This Bill radically alters our fundamental principles of justice, and for these and other reasons we cannot support the Bill. In fact, we oppose it very strenuously and therefore, on behalf of my party, I wish to move the following amendment—

Mr. Speaker, while the hon. member for Durban North was speaking, I felt very many years younger than I really am. It reminded me of the days, about 17 years ago, when the hon. member and I often crossed swords in the Supreme Court in Pietermaritzburg. Those were the days when I was a prosecutor on the staff of the Attorney-General and that hon. member appeared against me pro deo now and again. Nothing has changed since those times, because today I am still on the side of right and justice while that hon. member is still partial to the accused.

All you do is to pass more laws with less justice. [Interjections.]

I could react to the interjection of the hon. member for Bryanston in the same way as the hon. member for East London City referred to me earlier on, but I do not want to be so insulting towards him. I want to tell the hon. member for Durban Point—and this also goes for the hon. members for Umhlatuzana and East London City—that there was only one aspect of his argument which I agreed with, and that was when he said at the very start: “This is not a political matter.” The fact that we consider it in this light, will help us to conduct this debate on a high level. However, I want to make a serious objection to the undertone to be detected in the arguments of hon. members on that side of the House, implying that they are the champions of the so-called tried and tested legal principles and we are the people who, as he put it, make inroads on basic protection of accused persons. The hon. member created the impression that we were people who wanted to violate so-called sacred legal principles and who did not care what ultimately happened to right and justice as regards the individual.

I object to this, because it is not true. I want to accuse hon. members of regarding some concepts in our administration of justice, especially in regard to the law of criminal procedure, as sacred cows and therefore adopting the attitude that changes in regard to certain matters cannot take place, because these matters—because they are still unknown—may not stand the test of time. I want to ask these hon. members not to take such a narrow view of provisions of this type in the Bill, but that we should rather look at them objectively, that we should decide whether or not we want to uphold certain basic principles relating to the administration of justice in this Bill.

If we look at the report of the Botha Commission, it becomes apparent that four cardinal premises—basic principles, one might say—were stated, in accordance with which this Bill as a whole must be judged. The first is that the conviction of the guilty party be guaranteed, without any danger of an innocent person being convicted. The second premise is that a balance be maintained between the interests of the community on the one hand in maintaining law and order and the freedom of the individual on the other. In the third place, the interests of the community must of course weigh more heavily than the freedom of the individual in abnormal circumstances, where the security of the State is threatened. Finally, interference in personal freedom, in any other circumstances, can only be justified to the extent to which it is essential in the interests of the community.

In this connection I want to refer to the article by Mr. Justice Hiemstra which appeared in the South African Law Journal, 1963, Volume 80, under the heading “Abolition of the Right not to be Questioned”. In this article he says the following, and this is basically what the whole argument is about, particularly in regard to clause 115—

This is a basic premise which we must also take into consideration and which we definitely cannot get away from. The purpose of a hearing is to determine facts—no more, but no less, either. The hon. member over there repeated the old, well-known pronouncement of the Appeal Court a moment ago, that a judge must not step into the arena. However, I shall deal with this in a moment and point out that this is not what is happening here. There are also decisions which lay down that: “A judge is not merely an umpire”, and the hon. member knows this, but he did not quote them. Therefore, as the hon. member put it, he is not only a man who has to adjudicate, according to the rules of the game, between two sides or two parties which submit facts or evidence to him, nor is it his only task to ensure that the rules are not disregarded. This is not his function. A judicial officer has a very specific task and function and this is to be entrusted with determining the facts of the argument and then passing judgment on the basis of those facts. In that process he can also put questions, and furthermore he does this every day in our courts. The only difference is that he may not cross-question, he may not create the impression that he is biased or that he wants to favour a specific side. This he may not do.

Therefore he may not be a Prog.

The basic issue in a court is the search for truth. That is why the accused ought to participate in this just as freely and—I want to emphasize this—should even be compelled to participate, because nobody knows more about the correctness or otherwise of a charge against an accused than the accused himself. Therefore I say that our system ought not to allow people to go free due to technicalities, as is the case at present. The hon. member is shaking his head, but he will also remember that in the same article to which I referred earlier, Mr. Justice Hiemstra quoted certain statistics which caused him to draw the conclusion that between 40% and 50% of all the accused in our courts are found not guilty. Now I want to ask that hon. member and all other hon. members in this House who are concerned with legal practice, what our experience is. Is it not true that the percentage of truly innocent people among those 40% to 50% is minimal? A percentage of those who are found not guilty in our courts, are found not guilty because they succeed in putting up a valid defence, such as self-defence, or whatever it may be. There is a certain percentage among them, and it is a very large percentage, of whom one knows, as an advocate or lawyer, that although they leave the court as free men, they are as guilty as sin. However, they are found not guilty because there are certain legal procedures which the law cannot overcome in order to prove their guilt. I say that those who are really not guilty constitute a very small percentage.

Helen, that goes for all your clients.

Mr. Speaker, I want to return to the clause which deals with the matter of examination and first of all I want to ask what the purpose of it is. The hon. member for Durban North made a great fuss and practically said in so many words that we were dealing here with nothing but an attempt to make the accused “assist in proving the case against him”. This is what he said. He also said that it seems “(a) if there is an onus on him of proving his innocence”. This, amongst other things, is what he quoted from the report of Mr. Justice Botha. I want to tell him that this is not correct. If he reads clause 115 properly, he will see that the judicial officer cannot question him in regard to the facts. Therefore it is not his aim to determine the facts of the case, but merely to determine the points of difference. All this means is that he asks him which points, among the essential elements of the charge sheet drawn up against him, he is prepared to admit. That is all. That is as far as it goes. Then, if the accused admits essential elements of the charge sheet against him, what of it? What is wrong with this? Why can an accused not also tell a court in all honesty what his position really is? If he is really an honest man, if he is really an innocent man, then this does not create a problem for him.

Now I come to the question of “silence”, about which such a fuss has been made about. The British commission of inquiry to which the hon. member for Umhlatuzana also referred earlier this afternoon, which is of the opinion that the accused should reveal his defence to the examining officer before the hearing, says the following about the rule that an accused should not be interrogated—

There is naturally no question of this here, because he is asked at the hearing—

This is fundamental. The hon. member also quoted an argument advanced by the General Bar Council. I, too, want to refer to this. For the purpose of the argument I just want to read the paragraph concerned once again—

In all seriousness I want to ask what is wrong with an accused realizing at his trial that he feels obliged to assist in revealing the truth.

Is the UP against it?

Yes, Sir, they object to it. Why can the accused not help the court to reach the conclusion which he wants it to reach. After all, this takes place during the trial. The accused knows what the case is about, after all. After all, he has nothing to hide—unless he is guilty, of course because then he will have a great deal to hide. Right and justice must prevail at all times, and this is not a one-sided matter. Right and justice is not always maintained in regard to the accused only—it is also maintained in regard to the State, which is prosecuting in this case, and therefore also in regard to the community which wants law and order maintained.

One encounters the ludicrous standpoint that this interrogation may result in an accused incriminating himself. I really want to ask what is wrong with a man incriminating himself. Is this another one of the sacred cows we have to preserve here? Dr. Glanville Williams says that people were opposed to this previously because the practical application of it fell into disuse for more than a century. Then he states Bentham’s standpoint on this as follows—

In this connection I refer, with your permission, to a very informative paragraph which appeared in a publication by the American Bar Association, Police and Public in Great Britain in which they quote Lord Shawcross as follows—

Intelligent people are raising these questions in different parts of the world and it is being found increasingly that this type of thing is being adapted in respect of criminal procedures throughout the world. There is nothing in the Bill which increases the danger of an accused who is really innocent, being found guilty, nothing in comparison with the existing position in our present Criminal Procedure Act. Until the contrary is proved, I think hon. members must adopt a different attitude towards it. Our purpose is to cause the truth and the actual facts in a dispute to be established more quickly. It is not only to the advantage of the State to establish those issues more quickly, but also to the advantage of the administration of law in general. Therefore it is also to the advantage of the accused to co-operate and pursue the truth, because he, too, is also saved costs, not only for himself, but for the State too; he also saves himself and the State time and contributes towards his trial taking place more quickly.

The hon. member for Umhlatuzana referred time and again to the provisions of clause 115 as a “pre-trial interrogation”. In that connection I must cross swords with the hon. member, because after all, it is not true. What is the crux of the whole matter? It is an interrogation with a view to determining the points of difference and allegations of the accused in regard to the charge. This takes place after the man has pleaded; his trial has already begun.

I said that.

His trial has begun; it is not a “pre-trial”. Clause 112 must be stated in contrast to this. In that case, since he has acknowledged his guilt, the basic issue is that the facts upon which his guilt is based, form the basis on which the presiding officer may determine his guilt and then pronounce sentence accordingly. This is the basic difference between clause 112 and clause 115.

Mr. Speaker, it is quite apparent that the hon. member for Koedoespoort has been reading the 1973 debates and has really not paid much attention to what has been said here this afternoon and this evening. It is all very well for the hon. member, the hon. member for Durban North and the hon. the Minister himself, to talk about what is happening in the courts at the level at which they have practised. But we have to look at this legislation as it will be applied throughout the country, not only in those superior courts. I want to agree with one thing that the hon. member for Koedoespoort has said, viz. that justice must be done and that the whole intention behind this legislation, of any legislation, is that justice shall in fact be done. He does not have to tell us that. We are all well aware of the fact that justice is impartial and that justice rejoices as much when the innocent is set free as when the guilty is punished. Justice is impartial; it does not worry about those things. It does not worry if the innocent is free or if the guilty is punished. However, when justice does worry, is when the innocent is punished and the guilty is set free. That is what we have to look at today when we look at this legislation, viz. to see that we do not have the situation arising where an innocent person can, through the application of a system, be punished for an offence of which he is not guilty and, similarly, that a guilty person should not, because of the system which is applied, go free for an offence of which he is guilty.

Before I come to the main gravamen of what I want to say, in the course of which I will reply to the hon. member for Koedoespoort—many of the points raised by him will be dealt with in the course of what I want to say—I want to refer to the hon. member for Potgietersrus. Unfortunately, he is not here at the moment, but he, in his speech earlier referred to the hon. member for Umhlatuzana who had quoted Mr. Justice Botha. The hon. member suggested that the hon. member for Umhlatuzana had not quoted far enough. He then proceeded to quote further from the report of the Commission of Inquiry into criminal procedure and evidence—RP. 78/1971. I must refer the hon. the Minister and the hon. member for Potgietersrus to paragraph 1.31 of the report, where the hon. judge had the following to say—

Exactly!

Yes, exactly. Let us read further.

And this is what hon. members on that side seem to forget. They seem to forget that Mr. Justice Botha made the explicit point that the accused may make a statement “if he chooses to do so;” not if the magistrate chooses to question him. The choice must be that of the accused. That is the recommendation of Mr. Justice Botha. However, what do we find in the Bill? The Bill does not allow the accused any choice whatsoever, except to say to the magistrate, when the magistrate questions him: “I do not want to answer your question.”

What is that?

Now, what is that? The hon. the Minister says: “What is that?” Surely, there is a tremendous difference between saying to an accused that he, at his own instigation, shall be free to make a statement to the magistrate, if he wishes, and saying to an accused: “Now, I am going to ask you questions, but you have the right to refuse to reply, or not to answer if you so wish.” Now, can the hon. the Minister say that there is no difference? Surely, there is a tremendous difference between the two points that I have put to him, especially when we look further at clause 115. Let us look at clause 115(3), which provides that, where an accused declines to make a statement when asked or invited to do so by the magistrate or by the presiding officer … I quote—

In other words, the court may say that silence is guilt. Whether the accused is aware of this or not, is he not prejudiced immediately? Is he not prejudiced on account of that same reason for which we are opposed to this legislation.

There are other reasons as well. I am the first one who will concede to the hon. the Minister that there are good aspects in this Bill. There are certain innovations which are introduced here, which are going to help to expedite the administration of justice, and I believe, innovations in terms of which justice will be seen to be done. However, there are certain provisions which we cannot accept, for that reason. This is one of them. As I say to the hon. the Minister, there is a difference between saying to an accused: “If you wish to make a statement, you may go to the magistrate and do so,” and allowing the magistrate to ask the accused to make a statement and then having the accused choose to refuse to do so.

In South Africa we have a judicial system which is unique in the world, a system which has evolved out of many different practices throughout the world, and which has evolved here in South Africa through the experience of our courts, and which has been brought about by the peculiar circumstances which pertain in this country. We do not only have a heterogenous society from the point of view of belonging to different races and cultures; we are also heterogenous in that the races are at different stages of development. Thus we have a very large unsophisticated population with a different set of standards, beliefs and taboos to those that we, who embrace Western civilization, have in South Africa. On to this large unsophisticated population we have attempted to graft a sophisticated and complicated civilization and a way of life which they largely do not understand. We also have a large divergence of circumstances pertaining in the different levels of our courts. Those different circumstances have come about for precisely the very reason that I just stated— because of the heterogenous nature of the people in this country and because of the different circumstances that pertain. I want to say to the hon. member for Koedoespoort that under the circumstances that pertain in the Supreme Court, all that he has said could be beneficial to the administration of justice in the country. I am prepared to concede that point. In his introductory speech the hon. the Minister also made the point that it could be beneficial for us to introduce these measures in the Superior Courts. I am not in a position to judge the effect of this legislation at the level at which the learned judge, Mr. Justice Hiemstra, who first suggested such a system, applies justice in the Supreme Court.

For that reason I am prepared to concede that this system could apply in the Supreme Court. But that is only one end of the scale. At that level you have the hon. judge in his eyrie, conducting a trial where the prosecutor is an Attorney-General … If I could have the attention of the hon. the Minister! Is it necessary for the hon. member for Waterkloof to be briefing the hon. the Minister? [Interjections.] It appears that the hon. the Minister must depend on the hon. member for Waterkloof. As I was saying, it is all very well for the judge who sits in his eyrie in a trial where the prosecutor is an Attorney-General and where, if the accused speaks a different language, the interpreter is one of the finest in the country and understands the languages and the nuances of the law, the nuances of interrogation and of the questions that are put to the accused and where the accused has the finest legal representation and can at no stage plead that he is ignorant of his rights or the facts or anything else because he is fully represented. Under those circumstances the accusatorial system can perhaps apply.

However, we have got to look at the other end of the scale, the end where justice is applied every day to tens of thousands of people and where most of the trials take place, i.e. in the magistrates’ courts. In many cases the magistrates have minimal qualifications. Some of them only hold lower law diplomas and in some cases do not even hold that qualification. The magistrates are working under tremendous pressure, not only as a result of a very, very long court roll, but also as a result of their administrative duties. They have to run an office or a whole district and do not simply preside over a court only. With this magistrate, who has minimal qualifications, probably appears an unqualified prosecutor, who could be a police officer who has obtained his experience only in practical court work or a civil servant with a modicum or academic legal study behind him. The investigating officer could be a police constable with very short service and thus not aware of all the ramifications of the offence which is being investigated. The interpreter could be inexperienced and, without in many cases a proper command of either language. The accused could be illiterate, frightened and may not understand what is happening and feel intimidated by circumstances—not by the police or by the judicial officer concerned— but simply by the circumstance of having been apprehended and arraigned before the court. He might be confused and he might not be represented. The hon. the Minister laughs. But I have seen this happen.

No code in the world can say that. You can argue about this any way you like, but the picture you paint is unacceptable.

With respect, I want to say to the hon. the Minister that he is now entirely making my case, viz. that this unique system which we apply in South Africa today, has evolved out of those very circumstances I have now sketched to the House. It has been tried and tested and is, above all, accepted by the people themselves, that when a man is found guilty today under the circumstances of a trial, where his relations and friends are present, have seen witnesses being called, have listened to the cross-examination, have heard the accused cross-examine the witnesses, have heard the accused call his own witnesses if necessary, and have heard the accused make his own statement, not in answer to question by the magistrate who is sitting on the Bench—

That is not in this Bill.

The hon. the Minister says that it is not in the Bill. I shall later call as my witness Mr. Justice Hiemstra, who says that exactly that can happen. It may happen.

At this stage, before I give a false impression, I want to pay tribute to the magistrates in South Africa and to say here and now that not for one moment am I criticizing the way in which they administer justice. In fact, what I have just said to the hon. the Minister is that the faith which the African people in particular have in the application of justice in South Africa is due to the way magistrates have applied justice. I am paying tribute to them today and not for one moment am I critical of them.

You are contradicting yourself.

No, I am not contradicting myself at all. I am saying that under the circumstances pertaining today the people have faith and confidence in the administration of justice, and I am hesitant to interfere with that by introducing a system which is entirely revolutionary and which completely changes that system.

I now want to deal with the hon. the Minister. In his introduction in Second Reading he said that with this new Bill, as opposed to the 1973 Bill—the 1973 Bill was a lot worse than this Bill—he believe that there could be a gradual change-over. The hon. the Minister must honour that undertaking when we come to the Committee Stage by accepting some of the amendments that we shall move to provide for a gradual change-over of this system, for example an amendment that the accusatorial system can be applied only in the superior and regional courts—perhaps we must draw a line at the level of the regional courts—with the same proviso, i.e. that it is at the discretion of the presiding officer. Let us test it and find out how it works in practice with these people.

But you are insulting the magistrates’ courts now.

Not for one moment am I trying to denigrate the magistrates or their courts in any way. Let me tell the hon. member, who is a new member in the House, that there was a time when I sat on the Bench. I am an ex-magistrate myself. I have sat as a Native commissioner and I have tried cases. These are therefore my colleagues I am talking about and I speak from first-hand experience as a magistrate, as a prosecutor, and subsequently as a complainant who appeared quite often in a magistrate’s court because of these things and where the accused is almost invariably an African or one of the people whom I have described earlier. The Bill is an improvement on the 1973 Bill in so far that questioning is not mandatory, but discretionary. However, I believe it still goes too far, and I want to ask the hon. the Minister to allow the system to be tested in the superior courts. I want to quote Mr. Justice Hiemstra and I have here Acta Juridica of 1975, which is a report on a conference on crime, law and the community held at the University of Cape Town in 1975.

What volume is that?

There can only be one volume; there is no reference to another volume. Mr. Justice Hiemstra had the following to say on page 99—

I have done just that.

I am glad to hear that. I read further—

That is the gravamen of my plea to the hon. the Minister this evening and that is why I have sketched this extreme picture of what can happen and what very often happens in the magistrates’ courts particularly in the lower magistrates’ courts in the rural area. I should now like to remind the hon. the Minister of what he said when he introduced the legislation and I quote (Hansard, 1977, col. 430)—

I want now to appeal to the hon. the Minister to consider, when we discuss clause 115 in the Committee Stage, accepting an amendment to the effect that the new system shall be applied in courts of regional magistrates and the Supreme Courts only. Let us test the matter and see what happens under our peculiar circumstances.

Let us see how these unsophisticated people react. From the trial and error which will thus take place under magistrates and judges with superior experience, the uniform system which Mr. Justice Hiemstra has suggested, can evolve. I am afraid that the Black public could lose confidence in the judicial system, but by doing this I believe we could obviate that happening. I am one of those who learnt law in a practical way, in its application in the courts, first as a clerk of court, then as a prosecutor and later sitting on the Bench, having studied a certain amount of law as well. The hon. the Minister must not forget that there are others too who have come up that way and the hon. the Minister knows that it is happening in his department and in the Department of Bantu Administration today. The courts are our training centres. I believe it is good that they should be training-centres, but I do not believe that one can train people while experimenting with a new system.

Let me say in conclusion that the public of South Africa, in particular the Black public, have confidence in our legal system and I am very afraid of upsetting that confidence. Therefore I must support the hon. member for Umhlatuzana in opposing this legislation.

Mr. Speaker, so far it has been an interesting debate, and it was also interesting to listen to speakers on the other side of the House, although I must concede that one sometimes listened with amazement to some of the arguments from that side. I am very sorry to say that the hon. member for East London City said, earlier in the debate this evening, that the lawyers on their side of the House had discussed this Bill and were all unanimous about the attitude they would adopt towards the Bill. I should like to assume that when the hon. member for East London City spoke of lawyers on the official Opposition side, he excluded the hon. member for Pietermaritzburg South. Whilst the hon. member for East London City and the other speakers on the Opposition side were not prepared to consider this legislation in its present form, the hon. member for Pietermaritzburg South was at least prepared to have us experiment with the proposed clause 115, but only in the Supreme Court of South Africa and in the regional court. We should therefore now like to have the position clarified by the official Opposition. Do they want us, in South Africa, to have one system of legal rules for Supreme Court and regional court procedure and another set of principles for the lower courts in South Africa? So much for the hon. member for Pietermaritzburg South.

What really amazed me about the lawyers on the Opposition side, however, was their extremely one-sided and selective quotations from the report of Mr. Justice Botha during this debate this evening and this afternoon. There is one thing which one can never forgive a lawyer, and that is for only quoting those parts of the source which it suits him to quote and remaining silent about the rest. In the days when I appeared in the courts, a magistrate did not like it very much if a lawyer quoted only that section of a law report which suited him and remained silent about the rest. This is what we had here today. However, I want to begin with the hon. member for Umhlatuzana, who referred to the report of Mr. Justice Botha as evidence in support of why the official Opposition was unable to accept, in particular, the provisions of clause 115.

I should like to take the hon. member back in time to what he said about Mr. Justice Botha during the debate in 1973 in this House—and I was not here at the time. Today he wants to quote Mr. Justice Botha as an expert on why these provisions cannot be accepted. However, in 1973 the hon. member for Umhlatuzana called into question Mr. Justice Botha’s competence, as a judge, to decide and pass judgment on criminal procedure. I can refer to hon. member to what he said in Hansard at that time, i.e. that Mr. Justice Botha did not have the necessary experience because he was a clerk and a chamber court judge who had no experience of criminal procedure. That is why the hon. member for Umhlatuzana did not consider Mr. Justice Botha competent to pass judgment on legal procedure. [Interjections.] In addition, both the hon. members of the official Opposition and the hon. member of the PRP quoted those sections of Mr. Justice Botha’s report which suited them. However, what specifically was Mr. Justice Botha’s recommendation concerning clause 115? These are the recommendations of Mr. Justice Botha as they appear in paragraph 1.33—

He continues in this vein.

What does he say in the end about silence?

The judge’s recommendation is precisely what is contained in clause 115. [Interjections.] Apart from all the arguments we have heard from the other side, those of us who have been in practice know from experience how often, when one is going to defend an accused in a criminal case, one contacts the prosecutor in advance, or he contacts one as the defence council, and asks what facts one is prepared to admit in the case.

That is a different thing altogether.

It is customary in those instances, is it not, to make the necessary admissions to the court, and then it is not necessary for the State to lead any evidence. The only additional element in this instance is that the magistrate will ask the accused whether he wants to reveal the nature of his defence to the court. He will ask him whether there are certain admissions which he is prepared to make. We are not dealing here with the question of cross-examination. The accused is free to tell the magistrate forthwith that he denies all the allegations on the charge-sheet and that is all there is to it. Then the magistrate has nothing more to ask, because the accused places all the facts and allegations on the charge-sheet at issue. Then we are right back where we started. That is how simple it is.

What about the inference.

But, Sir, the hon. members on the other side of the House are so worried about this sacred cow, the right of an accused to remain silent. In this instance, an accused does not have to give evidence either because all this clause requires him to do is to give the court an indication of what the nature of his defence would be. That is all there is to it.

However, I want to come back to the hon. member for Durban North, a counsel of the Supreme Court of South Africa. In this debate we have heard many arguments as to why the Opposition cannot accept this Bill. I now just want to refer to one specific instance the hon. member for Durban North argued about. He referred to the provisions of clause 213. He threw up his hands in horror and said that we are now introducing this terrible provision in terms of which the State can merely submit a written statement by a witness and that that would be sufficient to dispose of the matter. He said the accused would not have the opportunity to cross-question the person concerned and that the judge would not have the opportunity to give the witness who made the statement a hearing. This is the impression which the hon. member for Durban North wanted to create about clause 213. What does clause 213 provide? Clause 213 provides that the State may use the written statement of a witness. But what conditions does clause 213 lay down? The conditions are that if the State wants to make use of that statement, it has to serve a copy of that statement on the accused before the trial. If the accused does not agree to that statement being used as evidence in the court, the State may not use the statement as evidence. This is surely not the impression the hon. member created here. He tried to create the impression here, did he not, that we summarily want to introduce a written statement to the court and that the accused has no further rights in that connection.

Go and read my speech.

That is not all. Even when an accused has agreed that the State can present that written statement as evidence in court, the accused is still free, during the trial, to ask the magistrate to …

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

Sir, I only have five minutes left.

It is just a short question.

You are wasting my time. [Interjections.]

Order! The hon. member is not prepared to reply to a question.

The accused still has the right, at any time during the trial, to ask the magistrate or trial judge to bring the person who made the statement before the court. It is how easy it is. What is more, the accused—I mean the hon. member for Durban North— that was a slip of the tongue …

No, that was not a slip of the tongue.

The hon. member for Durban North almost had a fit about the provision in clause 185 concerning the possible detention of witnesses. The hon. member shuddered with horror. But what the hon. member did not tell the House is that clause 185 does not summarily give the Attorney-General, the State or the Police power to detain anyone at will. The hon. member neglected to say that such witness can only be detained after the Attorney-General has made an application to a judge of the Supreme Court of South Africa.

This is the first time he has heard about that.

He may be detained only after a judge of the supreme Court, once an application has been made, has ordered that he be detained.

You must listen when I talk.

Does the hon. member allege that a judge of the Supreme Court of South Africa would order a witness to be detained without sufficient grounds?

The hon. member went further. He wanted to make out that the State will make use of this clause to break down witnesses so that they give evidence against the accused. This is the impression the hon. member wanted to create when he argued the matter. I want to tell hon. members opposite that we on this side of the House who have a legal background are just as concerned about the maintenance, development and stabilizing of our legal system as they are and that we guard this as jealously.

You could have fooled me.

Sir, I do not want to refer to that hon. member now. He has no idea what this debate is all about anyway. I just want to tell hon. members on the other side that they must not think for one moment that a feeling for the law and for justice is the exclusive birthright of English-speaking people.

Who spoke about English-speaking people?

We on this side of the House also have a feeling for the law and for justice, but we also have a sense of responsibility towards the community. If we know that existing procedures do not only aim at advancing right and justice but may, in some cases, also be used to promote injustice in the sense that guilty people escape justifiable conviction because of this provision of our criminal procedure legislation, we must, to a certain extent—a very slight extent—change the present procedure. It is as simple as that.

Mr. Speaker, most of the speech of the hon. member for Barberton was devoted to replying to legal points which have been raised by other members in this House and therefore I shall not deal with his speech, except when I come to deal with clause 185, to which he devoted a fair amount of time. I want to say at once that, as is known in this House, I participate in this debate as a layman. I have no legal training, although, heaven knows, I have sat in this House long enough to learn a good deal about law. I do not therefore intend to devote much time to any of the strictly legal points. I shall leave that to the legal luminaries in this House. I must say, however, that after listening to the speeches that have been made by the hon. member for Durban North and the hon. member for Umhlatuzana, I do not believe that the hon. the Minister can justify or has justified the claim that he made in his Second Reading speech, i.e. that “the Bill retains all the basic principles required for ensuring a fair and equitable trial”. It seems to me that hon. members who have spoken already in this debate have indeed already undermined the hon. the Minister’s claim.

I believe that especially in a country such as South Africa, it is of the utmost importance that the basic concept of justice—and it is a basic concept in spite of everything that hon. members on that side have been saying—that an innocent man shall not be punished even if it means that occasionally a guilty man goes unpunished, must be retained. I cannot accept the contention made by the hon. member for Koedoespoort that thousands of guilty men go unpunished under our present system of law. I stick to the original concept, as has been accepted in most Western countries, that it is far more important to see that an innocent man is not punished than to worry about the occasional guilty man who goes free.

It is not merely an occasional man. There is no principle involved in that.

The hon. member for Barberton accused the hon. member for Durban North of quoting those sections of the Botha Commission’s report that suited him. There is another section in the Botha Commission report that the hon. member for Koedoespoort should read, namely the section which specifically refers to the fact that it is important that the innocent man should go free. The judge goes on to say that only the occasional guilty man in fact goes free.

I referred to that in my speech.

We are therefore at odds on that matter.

How dare the hon. member for Barberton touch one of your chickens!

Yes, and how dare you; you had better watch it too! [Interjections.] I say that that concept should apply especially in South Africa because the vast majority of accused persons, as has been pointed out by other hon. members on this side, are Black, and they are poor, many of them are illiterate, most of them are ignorant of the law and of court procedures and of their rights therein, and most of them appear in court unrepresented. Therefore it is particularly important that the basic concept of justice be observed most carefully in South Africa.

Can you name one innocent man who has been convicted?

This Bill seems to me to show an impatience with the well-tried procedures which give protection to accused persons. I notice that in his Second Reading speech the hon. the Minister refers to changes that he is making being similar to changes that have been proposed in Great Britain and elsewhere. I wonder if the hon. the Minister can tell us whether the changes that he is making in this Bill have in fact been implemented in Great Britain and elsewhere. Have the changes which were recommended by commissions in Great Britain in fact been implemented in Great Britain? I wonder too if the hon. the Minister will tell us whether the General Council of the Bar in South Africa had any comments to make on this Bill and, if so, whether they were in the main favourable. I think it would be important to this House to know something about those two points.

The hon. the Minister has also told us that he has included some of the recommendations of the Viljoen Commission on Penal Reform in this Bill. He has done so, one of them, for instance, being an attempt—not a very valiant attempt, but an attempt anyway—to try to reduce the prison population by increasing the conditions under which suspended sentences can be imposed. That is an important thing, I suppose, if it serves the purpose of reducing the prison population. I am very keen on that, because our daily average prison population has already reached the horrific figure of 100 000, whereas in Britain, 42 000 out of a population double the size of ours is considered to be the danger point. I know that the hon. the Minister is very worried about this. However, while the hon. the Minister is in this House, trying to introduce procedures which might reduce the prison population, is it not extraordinary that there is no liaison between him and other Ministers of the Government who, in the Other Place, are busy introducing Bills which are going to enormously increase the prison population of this country. I refer, of course, to the increase in the fines for pass offences which we will be discussing in this House at a later stage. It does seem to me ironical that the two processes are continuing at one and the same time. So much for the hope expressed by the hon. the Minister during his Second Reading speech, that the other hon. Ministers concerned would go into aspects of penal reform recommended by the Viljoen Commission. It seems to me that they have already discarded those recommendations altogether.

I must say also that I am really disappointed, indeed, that the hon. the Minister has given no indication that he is prepared at any stage to implement another one of the Viljoen Commission’s important recommendations, and that is the abolition of mandatory and minimum sentences. Even though it may have been difficult to include those recommendations in this particular measure, I think that the hon. the Minister might have given us some indication of that intention.

I had also hoped that the hon. the Minister would have taken this opportunity of bringing our criminal procedure more into line with the thinking of most of the Western world in the last quarter of the twentieth century. I would have hoped that this measure would have seen the end of some of the outmoded forms of punishment which are still being inflicted on people in South Africa. I want, for instance, in this regard to discuss the whole question of whipping. I would have hoped that this medieval form of punishment would have been completely abolished in this day and age. It is true that the hon. the Minister has introduced a few changes to the whipping procedures, and those are welcome changes. The maximum number of strokes, for instance, in respect of minors and adults has been reduced from ten to seven, though, interestingly enough, I might say, the main objective in doing this is to see that more than five are given in so-called extreme cases. I might add that the Viljoen Commission’s recommendation in this regard is a maximum of five strokes for both adults and juveniles. The hon. the Minister has accepted the Viljoen Commission’s recommendation that the age limit of a person subject to punishment by whipping be reduced from 50 to 30 years, and that is indeed a very welcome improvement. Another recommendation, that no one should be subjected to a sentence of whipping more than twice, was rejected in the case of minors, as was the recommendation that, as far as inferior courts are concerned, whipping may only be imposed after a conviction of violent offences against another person or for having defied lawful authority. I am surprised that the hon. the Minister did not see fit to accept the Viljoen Commission’s recommendations in that regard.

It seems to me that the hon. the Minister and the Government set great store by this archaic form of punishment, especially as far as Africans are concerned. In fact, the hon. the Minister told me in reply to a question I put to him earlier in this session that he is still considering whether or not he will legalize the makgotla system, which I believe to be a gruesome and primitive form of justice, if ever there was one, in which rude and crude justice is meted out by self-appointed judges in the townships. I do hope that the hon. the Minister will have second, third and fourth thoughts about this before he does anything so dangerous as to legalize the makgotla.

Where do you find that in the Bill?

It is not in the Bill, but it has to do with whipping, and I am saying that the general attitude taken up by the Government is that whipping is something that Africans will understand and which is a good form of punishment. I am simply taking advantage of this occasion to try to persuade the hon. the Minister from going ahead with this system.

You are misusing the opportunity.

That is for the Speaker to say, not you. I think, as I have said, that it is quite extraordinary that we have not abolished this archaic form of punishment. It is Anno Domini 1977. The United Kingdom abolished corporal punishment in 1948, that is 30 years ago, and it has long ceased to be used in the United States, which has also got a heterogeneous population. I will discuss the whipping clause in more detail in the Committee Stage, because I obviously will be voting against it and I am hoping very much that some members of the House will support me when I do that.

I now want to discuss the death penalty which is provided for in clauses 276 et seq. Hon. members who were in the House in 1969 will remember that I moved a private member’s motion at that stage asking for a commission of inquiry into the death penalty, although I made it quite clear that I myself am in favour of the abolition of the death penalty. I did not receive the support of a single member at that time. Not one single member supported me, although I did ask that the matter be discussed—as I believe it should be and as I am discussing it now and will do in the Committee Stage—as a matter of individual conscience and not on behalf of a political party. I believe that the subject of the death penalty should always be discussed without the benefit of the whip, if one can put it that way. Hon. members should allow their conscience to influence their vote. As I have said, I could not get the support of a single member in 1969. I am very much hoping that during the Committee Stage there will be members on these benches that will certainly support me and that there will be members in the other parties that will support me.

Are there certain of your members that do not agree with you?

There may be, I do not know. I have said that I do not intend to discuss that particular clause as a party matter. In most parliaments it is traditionally left to a free vote, as the hon. the Minister will know. In 1969 Government members said that I was in favour of murder, because I was against the death penalty. That was the attitude that I count at that time. I might also say that it was an hon. member of this side of the House who said that I was extremely cruel, because what I obviously wanted was for people to languish in gaol for the rest of their lives. The implication was that it is very much less cruel when you hang people. Again, I will not go into too much detail, because I will raise this again in the Committee Stage. I just want to state quite flatly that there is no truth whatever in the suggestion that capital punishment is a deterrent to murder or any of the other violent crimes for which it is laid down as punishment. On two occasions in the House of Commons in Britain, attempts have been made to reintroduce capital punishment which had been abolished by them in 1965, I think it was. In 1973 and 1974 motions were introduced in the House of Commons to try to get capital punishment reintroduced. This was largely following on the IRA terrorism. I am glad to say that on both occasions the British House of Commons was bright enough to reject the motions.

What about the United States of America?

In one or two states it has been reintroduced, but only one person out of “death row”, which contains many dozens of prisoners, has been executed and I would be very surprised if there are many more executions in the United States. South Africa is one of the very few countries in the Western world that retains capital punishment. Spain and France are the only ones in Western Europe that have done so. I would like to add that our figures for executions have mercifully decreased because of reprieves, and so on, from 81 persons in 1970 to 68 people last year. That is an appreciable difference, but this is still, I believe, a shudderingly high figure for 1976. I am not under any illusions that I am likely to get much support in the House, because I am afraid that South Africa has a punitive and rather bloodthirsty society. However, I am at least hoping that if I do not get abolition, there will be some improvement in the conditions under which the death penalty can be imposed. If I do not succeed in getting abolition, I shall be moving an amendment making the death sentence mandatory only if aggravating circumstances are found in cases of murder, instead of it being mandatory unless extenuating circumstances are found.

What about armed robbery with the intention to kill?

In other countries there are armed robberies with the intention to kill, as well as terrorism, but other Western countries just do not believe that the death penalty is a civilized punishment. What they do is to put them in prison. [Interjections.] One imprisons them for life. I am not suggesting that these people should go unpunished. I, together with many other people, just happen to find the death penalty an abhorrent one.

They are quite prepared to kill.

I want to tell the hon. member that for people like that and fanatics, like those who belong to the IRA, the death penalty is no deterrent whatsoever. Those people are fanatics and are prepared to kill and die, so the death penalty is no deterrent to them whatsoever. This just happens to be my point of view.

I want to say a few words about clause 49, which is the provision which allows force to be used against persons trying to evade arrest or trying to escape arrest. In 1975, which is the last year for which I have figures, 98 adults and four juveniles were shot and killed by the police in attempting to evade or escape arrest.

What section is this?

It is clause 49. Why do you not read the Bill? If I examine the hon. the Minister’s reply to me in detail, I find that out of 117 people who died while in detention in 1976, 20 died as a result of having been shot or injured while trying to evade or escape arrest. I want to make it quite clear that I am not talking about detainees held under the security laws, but about ordinary criminals who are being detained in prison and who have either been sentenced or are awaiting trial.

Over the years there have been some really appalling cases of people—some of them young people—who have been killed or very seriously injured while attempting to evade arrest or escape custody. The point I want to make is that this has happened to some people who have committed a comparatively minor crime. I am not referring to people who have committed violent crimes, but to people who, for instance, have committed theft and who have been caught in the act of pinching a car. A few years ago there was the case of a young White man of about 16 or 17 years of age who was caught pinching a car outside a cinema. He attempted to run away when he saw a policeman arriving on the scene, and the policeman drew his gun and shot him.

That is a pretty serious crime.

Pinching a car? It is not a capital crime, is it?

Ask anybody who has lost a car …

I have lost a car, but I would not dream of shooting anyone in the back for it. [Interjections.] It is obvious that if this man had been apprehended and charged in a court of law, he would not have been sentenced to death; he would not have received the sort of penalty imposed on him by this trigger-happy policeman, who has rendered this your man paraplegic for the rest of his life.

If the hon. member had the facts of the case, she would find out that the policeman did not try to kill the man.

Of course he did not, but he should not have shot him. All I can say is that he is a very bad shot. [Interjections.] That is not the point. He shot him in the back when he was running away, with the result that the man is paraplegic.

To which case are you referring?

Then there was the Elliot case. [Interjections.] If a policeman is attacked by a violent criminal, he is entitled—as indeed under common law the hon. member for Rosettenville is entitled—to defend himself and shoot somebody who is trying to take his life. Under common law he is entitled to try to protect himself in any way. That is not what I am arguing about. What I am arguing is the readiness with which the police shoot people who have committed a minor crime while they are trying to evade arrest. This does not happen in other countries. Why are we exceptional in allowing this in our country?

What about America?

They are not allowed to shoot. They try to bring down their suspect in other ways, they are not allowed simply to go gunning people who have committed minor crimes such as theft. It is unheard-of in civilized societies, for the information of the hon. member for Rosettenville. Relatively minor offences are thereby turned into capital offences, because the police often shoot these people dead. The hon. the Minister should considerably narrow down schedule 1, which allows the police to shoot people while evading arrest or attempting to escape.

Finally, it will come as no surprise to hon. members who have been in this House for a number of years, to know that I object most strenuously to the provision giving the Attorney-General the power to detain witnesses for up to 180 days at a time. Just when I wanted to reply to the arguments of the hon. member for Barberton, he has vamoosed, disappeared.

He waited for a long time.

I told him I was going to reply to him. I want to tell the hon. member for Waterkloof, who is interjecting, that I never used the word “inquisition” during the 1973 debate as he accused me of doing when I was sitting behind him earlier this evening.

I was not talking behind your back, you were sitting behind mine.

That is right, but I never used the word “inquisition”. I used the word “inquisitorial”, which means something completely different.

When the hon. member for Barberton tried to escape, you should have shot him.

There are certain hon. members that maybe I would shoot, but I shall not say who they are. I want to return to the clause which allows the Attorney-General to detain witnesses for 180 days and more. It is true that the Attorney-General has to present his case to a judge in chambers, etc., but the unfortunate witness is not given any opportunity to appear before the judge. As a matter of fact, he is not given any opportunity to put his case at all, either personally or through a legal representative. All he knows, is that he can be picked up on the dot at 5 o’clock in the morning, like the unfortunate professor was picked up, and he can be put in gaol for up to 180 days. I might add that the 180 days limit does not mean anything, because they can let him out for 5 minutes

The court must do it on request.

No, it is not the court that does it. The judge agrees to its being done and there are not normal processes of legal representation or protection for such a person.

It is not the Attorney-General who does it.

I have already said that it is not simply the Attorney-General who does it, but I do not have faith in procedures which do not give the accused, the witness or the man who is going to be detained …

I accept that.

Well, then you should not argue about it. That is the whole point I have been trying to make, namely that it is a very one-sided affair, and once a man is in, he is incommunicado, in solitary confinement, if so decreed. It is true that he may be allowed visitors, but there is nothing in the law which states that he shall be allowed visitors. Indeed, there are many cases where witnesses have been kept in solitary confinement and that is why what the hon. member for Durban North said is fully justified, because those witnesses are intimidated by knowing that they can be kept in not only for 180 days, but that they can be released and re-apprehended again for another 180 days. I know of a case where a man was kept in gaol under the 180-day provision for well over a year. Indeed, the provision states that no person other than an officer in the service of the State, acting in the performance of his official duty, shall have access to a person detained under this section, except with the consent of and subject to the conditions determined by the Attorney-General or an officer delegated by him. Very often they are kept in solitary confinement, as I have said, and what the hon. member for Durban North said was accordingly perfectly correct. Let me remind the House that this provision was first introduced in 1965. It was the second of the famous laws which undermine habeas corpus in South Africa, the first one of course being the 90-day detention law which was not for witnesses but for suspects. The 90-day law …

Mr. Speaker, on a point of order: I should like to inquire whether, in referring to Acts of Parliament in this way, the hon. member is not reflecting on previous legislation passed by Parliament.

Order! It is in order to criticize previous Acts of Parliament. However, hon. members must not refer to them in unparliamentary language.

Mr. Speaker, we are now considering a new measure. The original Criminal Procedure Act is being scrapped entirely and we are considering …

He is on your side!

Oh I am sorry. I thought he said I may not do so.

No, carry on.

The first of these measures was the 90-day provision, which was introduced in 1963. That was the major breach in our habeas corpus rights, and that was followed by the 180-day law which was passed in 1965. That in turn was followed by the Terrorism Act of 1967 under which hundreds of people have been and indeed are being detained incommunicado. The 1967 Terrorism Act has in fact replaced, to a large extent, any detentions under the 180-day law, although that was originally introduced, ironically enough, to protect witnesses who might be in danger as a result of the evidence which they were going to give. What cynicism that is! One protects a witness until he has given State evidence and after that, to the devil with him! Who cares what happens to him?

He is still protected.

For ever more, for the rest of his life? I find it very difficult to believe that anybody who has given evidence after being “protected” under the 180-day law, is given protection for the rest of his life. Will the hon. the Minister tell us why he needs the 180-day law? He hardly uses it these days.

We usually change the roles in any case. The accused usually goes in, the witness comes out.

I know there are different roles, but everybody these days is detained in terms of section 6 of the Terrorism Act because it is much easier. One does not need a visit by a magistrate once a week, one does not need the Attorney-General, one does not need a judge to decide that the detention is in order, one is merely grabbed by the police and taken into detention. It is much simpler. What a weapon for the police! Therefore the 180-day provision has largely, although not entirely, fallen into disuse. There were 230 people held in 1966 under the 180-day provision and there were 14 held in 1971 under that provision. I have not bothered to put questions about it since then because I know that all the people are being held under the Terrorism Act because it makes it so much easier for the police.

We shall of course move to omit this section when we get to the Committee Stage, not because it has fallen into disuse, but because to us it belongs to that abhorrent bunch of laws which deny people the right of habeas corpus. These laws allow the hon. the Minister, the police or the Attorney-General to hold people incommunicado, and they deny them the right of access to legal advice and the courts. People die in detention under the most mysterious circumstances and these provisions cause the basic rule of law to be breached. We on these benches would vote against this Criminal Procedure Bill, which now supersedes the original Criminal Procedure Act, for no other reason than the fact it contains a provision such as clause 185. That is one of the main reasons why we are in favour of the total rejection of this measure and it is one of the main reasons why I have pleasure in supporting the amendment moved by the hon. member for Durban North.

Mr. Speaker, at this late stage I shall not deviate from the topic by replying to the old, old accusations of the hon. member for Houghton because I should like to highlight other aspects. Every lawyer and jurist in this country should welcome the new Criminal Procedure Bill. It is noteworthy that this is only the third piece of legislation of this kind since 1910. The first was the Criminal Procedure and Evidence Act of 1917. The second was Act No. 56 of 1955, and now we have the third piece of legislation, the Bill under discussion. The fact that we have had only three pieces of legislation in the 67 years since the advent of Union, i.e. in 1917, 1955 and now in 1977, is irrefutable proof that our legal system is built on firm foundations in compliance with the demands of justice. The fact that our criminal procedure legislation has been amended three times attests to the fact that our legal system in general, and our criminal procedure in particular, take cognizance of changing times and circumstances. This is as it should be, because if the legal system is not continually changed, amended and adapted, it could quickly become rigid and antiquated and promote injustice and iniquity. Yet changes in our law are nothing new. They are an intrinsic part of it, and our legal history is proof of this. We first had Roman law which, over the centuries, was adapted to Dutch law in such a way that at present we have the valuable legacy of Roman-Dutch law. Where our law fell short of the mark, we even made use of English law, for example in our law of criminal procedure. It is against this background of change and development that we must judge our legal system and this new Criminal Procedure Bill. This Bill, in turn, also differs from its predecessor introduced in this House in 1973, and is proof of the fact that we take changes into account, even in the space of four years.

Another factor we have to take into account is that we live in fast-moving times. Time is valuable and therefore long-winded procedures must be avoided without encroaching upon the core concept of the law, i.e. justice.

I think it would be very fitting to pay tribute again to the late Mr. Justice D. H. Botha, Judge of Appeal, for the important spadework he did. As you know, Mr. Justice D. H. Botha died in a motor accident near Bloemfontein on Sunday, 28 December 1975. In a tribute in the Appeal Court, as reported in the SA. Law Journal, Vol. 93, part 2 of May 1976 on page 205, the Chief Justice paid exceptional homage to the late Mr. Justice Botha, and I was therefore aggrieved when I read what the hon. member for Umhlatuzana had to say about that particular judge on 11 April 1973. Let me just quote a short paragraph. He said (Hansard, Vol. 43, col. 4596)—

And what does Chief Justice Rumpff have to say? After having said that he was appointed legal adviser in 1943, he went on to say—

I leave it at that. Hon members can judge for themselves who we must pay attention to when it comes to remarks such as these.

Before referring to specific principles, I should first like to point out a few outstanding general principles on which this legislation is based.

The very first consideration in dealing with and judging the Bill is the basic question as to whether it complies with the basic principle that should obtain in every legal system, i.e. whether justice will prevail; in other words, whether it complies with the demands of our norms of justice. Applied to criminal procedure, what this boils down to is the fact that a person who is guilty may never be acquitted and an innocent person never convicted. In my humble opinion there is no provision in this Bill that could give rise to the conviction of an innocent person.

Another extensive basic principle which runs like a golden thread through this criminal procedure, and also formed one of the points of departure of the Botha Commission, is that under normal circumstances the balance between the interests of the community in maintaining law and order on the one hand and the freedom of the individual on the other must scrupulously be maintained, but in abnormal circumstances, when the security of the State is threatened, the interests of the community must obviously weigh more heavily than individual freedom and the freedom of the individual must sometimes be restricted for the sake of the general interest. In this respect we disagree radically with the PRP which places a higher premium on the individual than on the State and forgets that the State must be placed on a par with the individual and a final decision given about when that right is encroached upon. Therefore, in order to preserve balance and harmony between the interests of the community and the freedom of the individual, criminal procedure must continually strive for the maintenance of justice and avoid unfairness and injustice, not only as far as the alleged offender is concerned, but also as far as the State and the community are concerned. The Bill under discussion meets these requirements.

Another basic principle the Botha Commission took into account—and the outside world would do well to take note of this—is that the overall majority of persons who come before our criminal courts are illiterate and unsophisticated and find it difficult to adjust themselves to the complexities of modern civilization. For the most part they are unaware of their rights, and measures which may be just to others can prove to be very unjust as far as they are concerned. The Bill also meets this requirement. Special cognizance was taken of that consideration, and that is why I found it strange to read what the hon. member for Green Point said in the Second Reading debate in 1973. He said that this basic principle was being infringed upon. The hon. member for Pietermaritzburg South mentioned it again this evening. I think the Viljoen Commission eliminated those objections to a large extent by the following statement in paragraph 4.3.2.15 on page 48 of the report—

In other words, this Bill and our law in general make specific provision for that contingency.

Another basic principle laid down by the Botha Commission is that it is in the interests of both the accused and the State that a charge against an accused be dealt with as soon as possible after his arrest. It is wrong for an accused, whether guilty or innocent, to be kept in custody for a long time pending trial. That is why certain provisions, i.e. clauses 50, 75, 105, 112 and 115 in the Bill, aim at making it possible for an accused brought to trial and punished or released as soon as possible after his arrest, and for the trial to proceed as rapidly as possible.

Let us now take note of a few of the objects of the Bill. I am particularly pleased, in contrast with the Opposition, that section 108bis of the present Criminal Procedure Act is being retained in clause 61 of the Bill. As hon. members are aware, there have been many objections to these provisions from certain quarters, an example being a statement by the hon. member for East London City this evening. The principle that has been retained empowers the Attorney-General to object to the granting of bail to the accused in cases of certain prescribed offences which, in his opinion, cannot be disclosed without prejudice to the public interest or the administration of justice and which, in his opinion, show that the release of the accused on bail is likely to affect the administration of justice adversely or constitute a threat to the safety of the public or the maintenance of public order, and the court must then refuse the application for bail. The overall objection to this principle is that it transfers to the Attorney-General a purely judicial function which he can exercise administratively ex parte without giving the accused a hearing. This measure is, in fact, out of the ordinary, but if we remember that it makes provision for drastic cases, we realize that it is not that far-reaching, as is apparent from the following quotation which clearly sets out its history and background. I should like to quote only one paragraph from Hansard of 11 June 1965, col. 7912, where the then hon. Minister of Justice said the following—

The hon. the Minister went on to speak about the new situation that was developing in South Africa, that of armed robbery, and said it should be our task to combat it. Examples were given of instances in which it was essential for the Attorney-General not to grant bail.

An interesting concession to accused persons is that the court or a police official can release an accused with a warning instead of on bail. Clause 72 provides that instead of releasing an accused from custody on bail, a police official or a court can warn him to appear before a specified court at a specified time and on a specified date. The Viljoen Commission expressed an opinion on clause 72, stating that in the Criminal Procedure Act there is no express provision for release or warnings, though it has become customary to release the accused on his own recognizance. The Viljoen Commission praised the fact that this short-coming was now being eliminated.

In conclusion I should like to congratulate those who drew up this Bill. It is a difficult Bill but they handled it logically, and I prefer, in particular, to the clauses involving bail. This is an example of how a complex subject can be set out logically.

The Viljoen commission referred to contempt for authority and said, inter alia, that lawful authority was being undermined and that anarchy would be the inevitable result. I should like to point out to the Opposition that they must realize that if they absolutize freedom—the freedom of the individual—a breakdown of authority will result.