Mr. Speaker, in regard to the business of the House, I want to announce that we shall continue to discuss the Criminal Procedure Bill today. As from Monday, precedence will be given to the Railway Budget, and if there is time between discussions, we shall proceed to deal with the Railways and Harbour Acts Amendment Bill and continue to discuss the Criminal Procedure Bill.

Mr. Speaker, I move—

Mr. Speaker, I rise at this stage—an unusual stage for one to note an objection to legislation—because of its nature and the circumstances in which the Bill is intended to be presented to the House today. I remind you, Mr. Speaker, that in the official yearbook of the Republic for 1975, the following statement appears—

Until yesterday, when the hon. the Minister of the Interior gave notice of the motion which is now before us, that freedom was one of the greatest weapons available to us, and could withstand world criticism of our way of government in this country. That factual statement contained in the yearbook of 1975 was accepted as correct by such critics as Mr. Cronkite of the American Broadcasting Corporation, who was here recently, and by Dr. Dennis Wilcox, in a recent American Freedom House assessment in which he wrote—

We often resent this free institution, the Press in South Africa, because it does things which we regard as not being in the interests of South Africa. Such sentiments were expressed by the hon. member for Pretoria Central, sentiments with which I agreed when it was expressed in this House last year. I might say that personally I perhaps have great reason to resent views and opinions which have been expressed and with which I do not agree, expressions which I regard as not reasonable, or even as factually incorrect. However, that resentment does not justify legislation as implicit as is contained in the long title of the Bill and which gives one reason to object at this stage to the introduction of this legislation. A glance at the White Paper which has just been placed before us, indicates that this Bill contains provisions whereby the Press of South Africa will be State controlled.

Nonsense!

It will be State controlled.

Nonsense! Where do you get that from?

Yes, State controlled! [Interjections.] For instance, the composition of the council. The second aspect, one which one notices by merely glancing at the White Paper, is that there is to be no appeal against the decisions of the Press Council to any court of law. The hon. member for Pretoria Central, when he spoke last year, said that it was in the interests of South Africa that the Press was in fact free and should remain free. He said it was the duty of all of us to protect and to further the freedom of the Press as part of our democracy. The hon. the Minister of the Interior, in that same debate, said—

It is true that the motion provides for the Press code to be applied in such a manner that the freedom of the Press will be upheld. Any argument that we should first await the Bill and study its terms is, I believe, fallacious for irrefutable reasons. The first one is the extent to which the Government has become intolerant of criticism of itself and of its policies, as was evidenced no more clearly than in the attack by the hon. the Prime Minister on Dr. Wassenaar in this House. [Interjections.] Secondly, the paragraph contained in the 1975 Yearbook is strangely enough, but correctly, omitted from the 1976 edition of the Yearbook. The Minister of Information might explain why that statement on the freedom of the Press is omitted from the 1976 Yearbook. Thirdly, the Bill to be introduced was obviously the basis for discussions with the NPU. According to a statement in the Press today those negotiations ended on Tuesday, and now the Bill has been placed before the House. This is obviously another of the “take-it-or-leave-it” negotiations on the part of this Government. The NPU was obviously presented with the Bill on Tuesday and because they did not accept the Bill as it was, it came before this House on Thursday.

M. C. Botha style!

Fourthly, the provisions in this Bill have, according to Press statements, been rejected by the whole of the Press in South Africa, both Afrikaans and English. Fifthly, the Bill departs from the time honoured concept and practice of good government, namely that statutory controls are imposed upon a profession only with the consent and the co-operation of the profession concerned. The hon. the Minister may be able to tell me of one profession where this type of State control has been imposed without the consent of the profession itself.

Throughout the world.

The hon. Chief Whip says “throughout the world”. Yes, in communist States. [Interjections.] The sixth point is that we must recall that in so far as the individual members of the profession are concerned, they are subject, as citizens, like any other citizen of South Africa, to all the statutory and penal codes which apply to matters of security, subversion and the infringement of the personal rights of other persons. Seventhly, the Press itself is already subject to a considerable number of restrictions on publications, restrictions which have been laid down in various statutes, viz. the Defence Act, the Prisons Act, and so on, in the public interest. [Interjections.] Eighthly, the NPU has itself established a Press council in consultation with the Government. In fact, that council has extended its obligations so far as to give redress to complainants who are unable to obtain redress in the courts of law. In other words, people can go to the council and claim redress, even although that redress is not their entitlement by normal process of law. My ninth reason for opposing this introduction is that the introduction of this Bill and the fact that it is unilateral action by the Government will reverberate throughout the Western world to our serious disadvantage. It will destroy, in the words of the hon. the Minister of Information, one of the strongest arguments which we have had to use in world councils in the interests of South Africa. I want to say to the hon. the Minister and the other members of the Cabinet sitting here that we on this side of the House will have no part in supporting a measure which is so unpatriotic as this one is and which is … [Interjections.] The hon. members find that amusing! The reason why they find it amusing is because patriotism to them is patriotism to the NP. [Interjections.] We will have no part in this, because it is unpatriotic as far as the interests of South Africa are concerned and we will have no part in this because it is another authoritarian step being taken by this Government. [Interjections.]

Mr. Speaker, the hon. member for Green Point heard, passed judgment on and sentenced the Bill, and therewith this side of the House, with a total disregard of the audi alteram partem rule of which he is so fond. He has labelled a Bill which he has not yet seen …

What is this document?

… as the end of Press freedom in South Africa. The hon. member said that the Government was intolerant to criticism and insinuated thereby that a Bill which he had not yet seen was aimed at muzzling criticism of the Government. I think this is one of the most irresponsible statements ever made in this House, because if the hon. member feels as patriotic as he says he does, then in his attack on the Bill he would have been careful not to try to undermine in any way the unanimity in South Africa as regards the necessity for Press freedom. If we analyse the argument we have just heard, it amounts to two things, firstly, that the freedom of the Press cannot be upheld if there is Press legislation and, secondly, that newspapers have an absolute right to unrestricted freedom and that any legislation, whatever its provisions may be, is undesirable. Both of these arguments which, implicitly, are fundamental to the hon. member’s whole argument, are based on incorrect presumptions and are totally unbalanced. Right at the outset it is necessary that we on this side of the House should reconfirm that it is the earnest conviction of the NP that Press freedom is one of the most important cornerstones of our democratic system. [Interjections.]

That is a good joke!

Anyone who wishes to call that into question before duly studying the Bill is not only guilty of unscientific action, but proves, too that he is prejudiced and that he does not have the necessary objectivity required of members of this House. This freedom of the Press that we believe in and that will be ensured according to the long title of the Bill is, however, just one of the freedoms, the cornerstones, of democracy in a civilized state. There are innumerable other rights and freedoms, too, apart from the freedom of the Press. One of these other rights which is intimately bound up with the freedom of the Press, to mention but one, is the right of the public to know the truth. The hon. member for Parktown himself formulated this in a Press statement he apparently released yesterday. He said—

Why does the hon. member not want to add to this that it is also the right of the public to be correctly and fully informed? [Interjections.] There are yet other rights and freedoms which are important in a free democracy; there are matters such as the right to privacy, and the assurance that one freedom will not destroy another freedom. My argument is therefore that the freedom of the Press is not absolute and that there is no such thing as absolute freedom in a civilized State.

Everything, including the freedom of the Press, forms part of an involved network of rights and obligations which, seen as a whole, assure and maintain an orderly, civilized and free community. If I am right about this, and I do not think any reasonable man can question the logic of it, then logically it also follows that circumstances can arise in which it is necessary for the State to consider legislation in respect of the Press as well.

We already have legislation!

This must be done with the specific aim of co-ordinating and balancing conflicting rights and freedoms. If, as stated in the White Paper just tabled, there is evidence that notwithstanding existing arrangements to which the hon. member referred, complaints are continually being received from members of the public and bodies that matter published in newspapers is offensive to their moral standards or detrimental to public welfare or is harmful to good relations among the population groups in South Africa, then it is the duty of this House at least to take this subject into consideration. This fact has already been perceived by a number of other free Western countries. In the course of the debate full information will be provided on this point.

Furthermore, legislation relating to particular interests, groups, professions and bodies is surely nothing new in our system of law. Without in any way maintaining that these are direct analogies—I want hon. members to get that clear, please—I nevertheless want to say that I see no reason for making a special exception of the Press when it comes to legislation or regulating. There is legislation in respect of virtually all professions with a view to regulating those professions and protecting the public. Apart from newspapers, all news media, including a very important one, namely the SABC and its television division, fall within the scope of legislation. The Opposition applauded when illegal trade practices were covered by legislation. We therefore ask them whether illegal Press practices are to them something which simply cannot take place. After all, this possibility also exists. If we consider illegal trade practices and all types of illegal practices in other spheres of society here, why, then, should we not be able to consider possible illegal Press practices in this House as well? Here I want to emphasize very strongly that in not one of the cases to which I have referred is it necessary for any person or company concerned to harbour any fear as regards the existing legislation. As long as that person or company carries out its functions in a normal and decent fashion, then legislation does not threaten it. In the same way I believe that the vast majority of newspapers have nothing to fear from legislation.

We in the NP have great appreciation for the important role played by the Press. We have no fault to find with the vast majority of newspapers which act responsibly and honestly. We are not saying through this Bill that the Press is bad. We attach great value to its contribution to the upholding of free speech. However, it is the duty of this House to ensure that when and if there is a deviation from the standards of responsibility and honesty, there should be the necessary machinery whereby to call to account the one newspaper that is at fault. If anyone reads into this Bill that this side of the House wishes to muzzle the Press or wishes to threaten the freedom of the Press in any way, those who make that allegation are doing South Africa a disservice and stand accused before the public of South Africa of being prepared, for the sake of a political argument, to allow the very thing of which the hon. member for Green Point is afraid, to take place. If, therefore, we argue about this—and we want to argue responsibly in the interests of South Africa—then we must argue on the basis that we are unanimous on the point that the freedom of the Press will be upheld in South Africa.

Mr. Speaker, this is a tragic day for South Africa. [Interjections.] It marks the beginning of the end of a free Press in South Africa. It also marks the end of a tradition which began with the Magna Carta for the Press in this colony in 1826 when an autocratic English governor was forced to concede the justness, rightness and the sense of a free and unfettered Press. It is quite obvious from what the hon. member for Vereeniging has said that what he and his party understand by Press freedom, is not what we and the free world understand by it. [Interjections.] They are two entirely different conceptions. In spite of the pious platitudes and the lip service that is paid to Press freedom, these people do not have the foggiest idea of what a free Press means and what its function in the free society should be. They have no idea whatsoever. Our worst fears about this Bill have been confirmed by the few minutes which we have had to look at the White Paper. This, in reality, is the beginning of the end.

I want to explain why we in these benches are implacably opposed to the Newspaper Bill and I want to mention four main grounds. The first reason is that this Bill sets out to provide for the establishment of a Press code which, according to all the evidence, has been drawn up without the co-operation, goodwill and consent of the Newspaper Press Union of South Africa, the body representing the newspapers of the Republic. The code therefore becomes an imposed instrument, an instrument of coercion, and that would be the end of real Press freedom. The second point about the Press code is that there has beer a Press code in existence in this country since 1962 and there is therefore no need whatsoever for a new set of rules to guide the Press in its day-to-day operations.

Secondly, the Bill provides for the establishment of a Press council set up by the Government. With the best will in the world a body of this nature will inevitably become a creature of the Government, else it would not be set up by the Government. Moreover, a Press council has, in fact, been in existence in this country for 16 years and there is no need for a new one. What is wrong with its functioning so far? I submit further that a Press council that is set up by the State rather than by the industry, and a Press council which implements a Press code, will constitute statutory control and thus a total abrogation of the rights of the free Press.

Thirdly, we in these benches oppose this motion because the newspaper industry of South Africa, as the hon. member for Green Point has already pointed out, representing all the Afrikaans and English language daily newspapers, except one—anybody can guess which one that is … [Interjections.] … anti-government as well as pro-Government, is unanimously opposed to the main intent of the Bill as outlined in the motion.

I should add that that action of the Newspaper Press Union has the support of the Society of Editors of South Africa, a professional body to which Afrikaans as well as English language newspaper editors belong, so there is unanimous opposition to this Bill. The Newspaper Press Union and the Society of Editors, both intimately concerned directly with the proposed legislation, are implacably opposed to the statutory control of the Press envisaged in this measure. They oppose such control because it constitutes not only a grave threat to the freedom of the press, but in fact also a grave threat to the democratic processes. This is what is implicit and inherent in this whole matter, viz. the right of the public to know. This is what Press freedom is all about.

Fourthly, I submit that the Bill’s purported intention of upholding the freedom of the Press is suspect and invalid, firstly because there can be no real freedom of the Press as long as there is any measure of State control in the operation of newspapers. There can be no freedom of the Press while the State is meddling in the day-to-day operations of the Press. This is the first reason why all this talk about Press freedom is suspect. Secondly, the intention to uphold Press freedom is suspect against the background of the Government’s repeated threats to act against the Press. Those threats have not come only from the out-back, nor from the kitchen; those threats have come from the hon. the Prime Minister himself as far back as 1973. They have also come from the hon. the Minister of the Interior—he, too, is rather “voor op die wa”—and they have come from the hon. the Minister of Justice and also from others. The hon. the Minister of Defence has of course not threatened; he has simply acted in his new Defence Bill to the detriment of a free Press and to the detriment of the people of South Africa.

I should point out that the Press Council, about which I spoke just now, was given teeth and its code of conduct was broadened three years ago in response to complaints by the hon. the Prime Minister that the Press had not put its house in order. The Press Council was then given punitive powers, including the right to fine newspapers up to R10 000 for an infringement of the code. The Press Council did, in fact, only a few months ago fine two Afrikaans newspapers. It cannot therefore be argued either that the Press has been insensitive to the Government pleas or that the present self-control system has not functioned. Those arguments are invalid. I mention this simply to underscore my submission that there is no need for this legislation with its threat to a free Press in this country. There is no need for it as there is ample legislation to deal with any aspect of Press operations which constitutes a threat to public order, the security of the State or any of the areas in which this kind of legislation is needed. At the time these changes were made to the Press Council and its code of conduct one of the Government’s staunchest allies, Die Transvaler, wrote—

*It is my submission that the Press has in fact put its house in order. In spite of this, we are now being presented with this legislation, and this, may I say very seriously, marks the beginning of a long and dark night for the freedom of the individual… [Interjections.] The hon. members may laugh, but they have not the foggiest idea of what Press freedom or individual freedom is. They have no idea of what it means. They may laugh, but we shall see who laughs last. The freedom of the Press includes the freedom of the individual and the freedom of the community. There can be very little democracy where there is not true freedom of the Press. I am referring to true freedom, not government freedom, for a responsible and a decent Press wants no part of that, because that would impose restrictions upon it. It will be a sombre day for South Africa if this Bill is placed on the Statute Book, and for that reason we in these benches are implacably opposed to it.

Mr. Speaker, I do not want to reply to the Second Reading speech of the hon. member who has just resumed his seat. What he and the official Opposition ought to have told us at this point, is why they did not want the Parliament of South Africa even to look at a Bill concerning the Press, and, among other things, the freedom of the Press. That is what they should have told us today. They need not have told us what the issue was; all they had to do was, quite simply, to explain their standpoint to us, and they should have said why the Parliament of South Africa, on which they always place such a high premium, should not look at a Bill introduced by an hon. Minister. He said that this was a sombre day for South Africa. But I want to tell the hon. member that people throughout the country are taking note of the envisaged legislation with gratification. Mr. Speaker, what this legislation envisages is not out of step with the position in the majority of the countries of the West, which also have laws providing that there will be freedom of the Press, but subject to specific conditions.

The constitutions of most countries contain provisions relating to the freedom of the Press. The French have an Act in which they lay down that there will be freedom of the Press. Mr. Speaker, the Germans, the Austrians and the Italians all have provisions in one Act or another which deal expressly with the Press. The German constitution, viz. the “Grundgesetz fur die Deutsche Bundesrepublik”, the Austrians’ “Pressegesetz”, and Italy’s constitution all deal with Press freedom. However, it is regulated Press freedom. We had this in the old Transvaal Republic, the Free State Republic and in the old Cape Province as well, where specific provisions applied.

Hon. members know that Press freedom is recognized and upheld as a principle in South Africa. The National Party is just as concerned about upholding the freedom of the Press and places just as high a premium on it as any other party or any other group of people in South Africa. However, Mr. Speaker, we place a premium on the freedom of the Press and upon the responsibility of the Press, not on licentiousness and irresponsibility on the part of the Press.

I should now like to quote a passage from the book Die Suid-Afrikaanse Persreg by Prof. Strauss—a man whose statements those two Opposition parties listen to with reverence. He states—

But, Sir, there is also Thomas Dawson—a barrister-at-law— who wrote the book The Law of the Press. He is a member of virtually all the Inns in England. What does he say about the freedom of the Press? He states—

Mr. Speaker, the freedom of the State, the privacy of the individual and morality are factors for which this Parliament of South Africa is primarily responsible. In this difficult period in South Africa’s history, the Government would be neglecting its duty if it failed to take the steps which, were it to prove necessary, it would have to avail itself of to uphold the security of the State and the privacy of the individual and the other factors mentioned.

Looking at the White Paper, which I, too, have only just been able to examine, one sees that this is indeed what is dealt with, among other things, in the Press code. On page 8 of the White Paper it is said that editors—

1. (a) exercise exceptional care and responsibility as to—
   1. (i) subjects that may cause enmity or give offence in racial, ethnic or cultural matters in the Republic or incite persons to contravene the law;
   2. (ii) matters that may detrimentally affect the safety of the State …
   3. (iii) the presentation of reports on the commission of violence and atrocities;
2. (b) exercise exceptional care and caution as to matters affecting the private lives and interests of individuals …

Mr. Speaker, looking at the subject matter of the Bill, I want to ask the hon. members: What is wrong with it? It deals, firstly, with the establishment of a Press Council and its activities. Why, then, are they finding fault with this now? There is already a Press Council in South Africa.

The next thing is the establishing of a Press code. They are right: There is already a Press code in South Africa, but, Sir, parliamentary sanction was never afforded either that Press Council or that Press Code. The hon. member for Parktown states that the Bill and this code were drafted without consultation with the Press Union. I do not know whether the Press Union was consulted in the matter, but I want to ask him whether he does not know if the Press Union was consulted in the matter, and what I really want to ask him, is whether the Press Union was prepared to co-operate with the Government in regard to this matter. Was the Press Union prepared to give its cooperation in any way and exchange ideas with the Government as regards this matter? The hon. member may be able to tell us that, because he has closer contact with the Press Union than our side has.

Mr. Speaker, a Press Council is now being established and, to judge from what I have read in the White Paper, I think that the Press Council being established is a very balanced one. Hon. members opposite call it a professional body, but Brian Bamford says in his book that the primary aim of the Press is to make money and that its secondary aim is to provide news to its readers. I want to ask the hon. member whether he does not believe that this will be a more balanced Press Council than the existing one. The previous Press Council also had a judge or ex-judge as its chairman, but then, too, it only had members appointed by the Press Council itself. The Press Union is now being given the opportunity to appoint half of the members of the Press Council and the public, which is dependent on but also subject to the Press, is now also being given a say in that Press Council. I believe that a contribution that could be made by members of the public on such a Press Council, would be a very sobering one.

The Government has an irreproachable record of recognizing and upholding the freedom of the Press, a record which extends over 29 years. A former Minister of Britain who is at present editor of the London Daily Telegraph, Mr. William Deedes, addressed the S.A. Society in London the other day and said—

as the South African Government. He went on to say that he “admired the patience of the regime” towards the Press. Notwithstanding all the slandering, this is the testimonial given the South African Government by an English-speaking editor from England, in regard to its tolerance of the Press.

I conclude by saying that the Government has a record of upholding the freedom of the Press, but it has another record, too, and that is that it has never flinched from doing its duty, whatever the criticism levelled at it, and in particular it has not flinched from doing its duty in difficult times when the need to take steps in the interests of our country and its people has been apparent.

Mr. Speaker, we on these benches will support the introduction of this Bill. [Interjections.] The purpose of the Bill, I understand, is to establish a Press Code. One exists already. As to amendment of the existing Press Code, there have been negotiations for some years between the Press people and the Government about this. All else that the Bill does, as far as we are able to see at this stage, is to provide for the establishment of a Press Council. There is already a Press Council in existence at the moment.

Today I shall content myself with making only two points, of which the first is directed at the Opposition. To the official Opposition and the PRP Opposition I say: How can you judge a Bill on the strength of its long and short titles? To me it is rather like sentencing a man without trial.

What about the explanatory memorandum?

The explanatory memorandum was handed to us as we gathered today and we have not yet had a chance of looking at it. [Interjections.] I wonder if the official Opposition and the PRP do not perhaps have double standards when they speak up for the rights of the individual and I ask whether the Press do not have special rights in their eyes. It seems to me that they have built the Press up into some sort of holy cow. I want to make the categorical statement here today that we do not regard the Press in South Africa, either the English or the Afrikaans Press, as being anything of a holy cow. Also, we do not believe that responsible journalists in both language groups would wish themselves to be regarded as any sort of privileged and special holy cow. Responsible Pressmen would not want to be treated like that. I also want to say that a Press’s role and conduct is of vital importance to any country, but particularly to a country with different languages, with different races at different stages of development and to a country that is being attacked on its borders by terrorists.

Is there anyone present here today who will stand up and say in this House that the South African Press is without blame, that the freedom of the Press in South Africa has not been abused, that the code of conduct of the National Press Union has been satisfactorily observed and that the Press Council is readily accessible and effective in curbing abuse of Press freedom?

I now wish to make my second point. To the Government I want to say that at present there is a Press code and there is a Press Council. Both have been drawn up and operated by the Press itself. It appears from the Bill, which we have not seen, and from the explanatory memorandum which we have just been handed that the Government now wishes to have a statutory code and a statutory council, and it is up to the Government to justify the need for this change. This they can only do in the Second Reading of the Bill. They cannot do it before. That is why we in these benches will agree to the introduction of this Bill so that we will be able and the House will be able in the Second Reading to discuss the Government’s proposals in principle, in detail and at length.

May I conclude by referring the official Opposition to a speech which I made at the end of October 1974, a speech for which I was pilloried, not only outside the House, but also by some of my colleagues inside the House. I was pilloried by Press bosses, by newspaper editors, by political correspondents and even by my then colleagues behind my back, and publicly.

You should hear what they say about you now.

May I say that I prefaced my remarks on that occasion with the following words, and I repeat them today because they mean something to me and they mean something to the members who sit around me in these benches—

May I now conclude by saying what I also said then, and I say this particularly for the benefit of the members of the official Opposition, my former colleagues, who perhaps will appreciate what I am going to say in the light of the circumstances in which they find themselves today …

We do not want your guidance.

I said in that speech (Hansard, 1974, col. 6512)—

I concluded then, Mr. Speaker, and with these words I conclude today (col. 6518)—

It is in this spirit, Mr. Speaker, that I and my colleagues are prepared to look at the Second Reading of this Bill and to judge it on the merits of what we read in that Bill as to whether we will support it or not. [Interjections.]

Order! Up to now I have permitted a far wider discussion than I would normally have done on this stage of the Bill. I have done so on the grounds that in addition to the motion, hon. members have also had the White Paper at their disposal since the meeting of this House today.

Mr. Speaker, in the short time at my disposal I just want to make a few brief remarks. In the first place, I want to congratulate the hon. member for Simonstown on the fact that he and his party have acted in a very balanced and patriotic way in regard to this matter. I want to express my amazement at the attitude of the UP. They really kicked up such a tremendous fuss here and made unjustified insinuations. To the hon. member for Parktown I want to say that this side of the House differs from that side of the House particularly in regard to the words he used. I believe that I am quoting him verbatim when I say that he said: “We believe in a free and unfettered Press.”

Now, Mr. Speaker, we believe in a free Press, too. We believe, and it is our conviction, that we want to uphold a free Press in South Africa as far as possible. However, we do not believe in an unfettered Press. That is the difference between the NP and the PRP. The people of South Africa must take cognizance of this. They must take cognizance of the fact that the PRP believes in a totally unfettered Press.

They believe in licence!

The strange thing about this matter is that the PRP believes in the rule of law. However, the fact is that every right involves an obligation. Before one can exercise one’s right, one has to fulfil one’s obligations. One has to fulfil one’s obligations towards one’s country before one can lay claim to a right of protection in that country. However, those hon. members always put the cart before the horse. They always want to exercise their right, but they do not want to fulfil their obligations.

I believe that in this legislation it is necessary for the Press to fulfil its obligations for it, to fulfil its patriotic obligations and for it to practise proper reporting—and not incite one population group against another. Only then will the Press be able to say: We have a right to continue to survive as a free Press here in South Africa. I have documents before me, amazing documents, documents which make it almost impossible to believe that the kind of reporting that appears in them could in fact occur. However, this is the kind of reporting one gets from some of our Press organs.

In conclusion I want to say that there should be no mistake about the fact that the NP believes in a patriotic Press, in a free Press. This belief is fundamental to the NP.

Mr. Speaker, we are discussing a matter of vital importance today. It is one of those things which constitutes the foundation, the cornerstone, of a free State. What we have here now is the unusual practice of refusing to grant leave to submit the Bill to the House.

Freedom of speech is being restricted.

As the hon. member over there says, freedom of speech is being restricted. This House, the highest elected House of representatives of the people, wants to have the right to consider what is being proposed here, but the Opposition, official and otherwise, is opposing it. They do not want to allow the legislation to be looked at. If this House were to be allowed to look at the legislation which the Opposition is now opposing, it would mean that the House could consider the Bill, take decisions on it and adopt various standpoints in respect of it. For example, the House could even refer the Bill to a Select Committee before the Second Reading; that is a possibility. This would involve thorough analysis to see whether the legislation could be improved. The Select Committee could even argue about the principles and recommend that the principle was wrong and that there should be no such legislation. That right is in the hands of this House, but those hon. members do not want to give this House the right to exercise that right. Such a Select Committee could call for documents, call witnesses and do a hundred other things. The hon. members over there, however, refuse to give Parliament the right to follow its normal procedure. In a Select Committee every political party can adopt a standpoint and put its case and subsequently it can be discussed. However, those hon. members refuse to let this take place.

This is the principle at stake here. I could continue in this vein. The Bill could also be referred to a Select Committee after the Second Reading. The Bill could even be voted down … [Interjections.] All I am asking at the moment is permission for this House to consider the matter. It is interesting to see that the Bill is now being opposed by all the liberals in the House, those people who are so concerned about the freedom of the individual and freedom for all, but do not want to allow this House any freedom to discuss a matter when it concerns something they do not agree with. [Interjections.]

I do just want to dwell for a few moments on the matter before us. I want to state categorically that the Bill does not encroach upon the freedom of the Press. The contrary is true. It is of vital importance to know that it is being provided that a Press code is to be applied in such a way that the freedom of the Press in South Africa is to be upheld. This is stated in the Bill. Never before has there been anything of the kind in legislation. The Bill constitutes legislation whereby to uphold the freedom of the Press in South Africa. In the Bill there is a further provision whereby to uphold the freedom of the Press in South Africa, namely that the Press code may never be construed so as to prohibit fair and reasonable criticism. In other words, the feeling that the freedom of the Press is being restricted in South Africa has already been created, and this is the impression that the world is being given, whereas the Bill specifically prevents that. This, then, is the loyalty and the attitude we get from people who have not had the opportunity to look at the legislation and who create such a climate and image in advance in the eyes of the outside world. We are in earnest in wanting to uphold the freedom of the Press in South Africa, but freedom of the Press, like any other freedom, must always be exercised with responsibility. We believe—and this, too is what the Bible tells us—that the greatest freedom lies within the limits of the law, and that goes for the Press too. A high premium is placed on freedom, but an equally high premium is placed on the security of the State, the common weal and the economic welfare of the State, on peace and good order and the maintenance of sound relations among the various peoples in the State and on the rights of the individual and the privacy of the individual in the exercising of his rights. A high premium is undoubtedly placed on that, too, in a free democracy. This freedom must be based on the right of the community to be informed and must have the same free content as the freedom of speech of every citizen, subject to the right of the public and the right of all citizens, to disseminate information and level criticism. The Bill does not concern the freedom of the Press. In essence it concerns the abuse of and encroachment on personal freedom. Hon. members must not tell me that such abuse does not occur or has not occurred in the past. That is far from the truth. The mere fact that the Press itself has, of its own accord, established a Press-Council and has compiled a Press code of its own, points to a recognition on the part of the Press that abuse does occur and that it wants to discipline itself. In other words, the Press Council is designed to take action to deal with instances of abuse.

I want to say at once that there should be no generalization. The vast majority of journalists in South Africa and of our newspapers, are responsible for most of the time. However, no-one will deny that there are exceptions. There are those that abuse the powerful medium of the Press to disturb relations between peoples and to undermine the common weal and the economic welfare of the country. It is against such cases that the Government feels the State must act. It is in these cases that the Government feels that the State must act. The Government undeniably has a duty to protect the State and its citizens, too, against onslaughts of this nature.

Surely we are all aware of the fact that our universities, for example, are autonomous and are jealous of their autonomy. However, universities have no objection to being subject to an Act of this Parliament. The medical profession place a high premium on their professional status, but after all, they have no objection to being made subject to an Act of this Parliament. The law societies constitute a profession in their own right, but they, too, have no objection to being subject to an Act of this Parliament. They all subject themselves to the authority of Parliament, the highest body in the country, in which the national representatives have a seat and in which all political parties are represented. If no-one feels that they are forfeiting their autonomy in the process, why, then, should the Press not subject itself to Parliament as well? I want to quote from the Press Code which is set out in the explanatory memorandum, and ask whether anyone with a patriotic love of our people and fatherland can object to the provisions of this Press Code. I shall read only a few—

1. (i) distortion, exaggeration, misrepresentation or incorrect accentuation;
2. (ii) material omissions; or
3. (iii) precis writing.

Can anyone object to our asking this of the Press? Any responsible journalist will automatically comply with this out of a sense of honour and respect for his profession. The legislation will not apply to him. I quote further—

Is this not the way in which the public will be correctly informed? To obtain a report and publish it gives rise to the public not knowing whether it has been verified or not. If the public is to be correctly informed, then surely it is only right and logical to say: “We have received this report and we publish it, but we cannot verify it.” Surely that is not asking too much of any decent person. This is my point of departure and conviction. I again quote from the explanatory memorandum—

1. (a) exercise exceptional care and responsibility as to—
   1. (i) subjects that may cause enmity or give offence in racial, ethnic or cultural matters in the Republic …
   2. (ii) matters that may detrimentally affect the safety of the State, the common weal and economic prosperity, the peace and good order and the defence of the Republic and its people …

I could continue in this vein, but I shall not do so. Negotiations between the Government and the National Press Union have been taking place for more than two years. Arising out of these discussions, the proposed legislation was handed over to these people on 17 February of this year, to enable them to consider it and comment on it. They were asked to look at this Bill and give their co-operation in regard to its provisions.

Question put,

Upon which the House divided:

Ayes—107: Albertyn, J. T.; Aronson, T.; Badenhorst, P. J.; Ballot, G. C.; Barnard, S. P.; Bodenstein, P.; Botha, G. F.; Botha, J. C. G.; Botha, L. J.; Botha, P. W.; Botma, M. C.; Brandt, J. W.; Clase, P. J.; Coetsee, H. J.; Coetzee, S. F.; Cruywagen, W. A.; Deacon, W. H. D.; 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.; Greyling, J. C.; Grobler, M. S. F.; Grobler, W. S. J.; Hayward, S. A. S.; Hefer, W. J.; Henning, J. M.; Herman, F.; Heunis, J. C.; Hickman, T.; Hoon, J. H.; Horn, J. W. L.; Janson, J.; Janson, T. N. H.; Koornhof, P. G. J.; Krijnauw, P. H. J.; Kruger, J. T.; Langley, T.; Le Grange, L.; Le Roux, F. J. (Brakpan); Le Roux, F. J. (Hercules); Le Roux, Z. P.; Ligthelm, C. J.; Lloyd, J. J.; Louw, E.; Malan, G. F.; Malan, J. J.; Malan, W. C.; Marais, P. S.; Meyer, P. H.; 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. H.; Potgieter, S. P.; Raubenheimer, A. J.; Reyneke, J. P. A.; Rossouw, W. J. C.; Schlebusch, A. L.; Schoeman, J. C. B.; Scott, D. B.; Simkin, C. H. W.; Smit, H. H.; Snyman, W. J.; Steyn, D. W.; Steyn, S. J. M.; Streicher, D. M.; Swanepoel, K. D.; Terblanche, G. P. D.; Treurnicht, A. P.; Ungerer, J. H. B.; Uys, C.; Van den Berg, J. C.; Van den Heever, S. A.; Van der Merwe, C. V.; Van der Merwe, H. D. K.; Van der Merwe, P. S.; Van der Merwe, S. W.; 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.; Vosloo, W. L.; Wentzel, J. J. G.; Wiley, J. W. E.

Tellers: S. F. Kotzé, P. C. Roux, A. van Breda and W. L. van der Merwe.

Noes—31: Bartlett, G. S.; Basson, J. D. du P.; Baxter, D. D.; Bell, H. G. H.; Boraine, A. L.; Cadman, R. M.; Dalling, D. J.; De Villiers, I. F. A.; De Villiers, R. M.; Eglin, C. W.; Graaff, De V.; Hourquebie, R. G. L.; Jacobs, G. F.; Kingwill, W. G.; McIntosh, G. B. D.; Miller, H.; Murray, L. G.; Oldfield, G. N.; Olivier, N. J. J.; Page, B. W. B.; Pitman, S. A.; Pyper, P. A.; Schwarz, H. H.; Suzman, H.; Van Eck, H. J.; Van Rensburg, H. E. J.; Von Keyserlingk, C. C.; Wainwright, C. J. S.; Webber, W. T.

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

Question agreed to.

Bill read a First Time.

Mr. Chairman, I move the amendment printed in my name on the Order Paper, as follows—

At the time of drafting this Bill, the Children’s Act, Act No. 33 of 1960, was not applicable to South West Africa and the subsection was inserted in order to arrange for this matter. The Children’s Amendment Act, Act No. 74 of 1973, was put into operation as from 1 January 1977 by Proclamation 264 of 17 December 1976. The result was that as from the former date the Children’s Act of 1960 is applicable to South West Africa as well. Consequently the necessity of clause 1(2) falls away, and its omission is being moved.

Mr. Chairman, I shall accept the amendment.

Amendment agreed to.

Clause, as amended, agreed to.

Clause 6:

I believe that the hon. the Minister has already indicated that he is prepared to accept my amendment on this clause. He gave certain reasons for this during his reply to the Second Reading debate yesterday. I think that this clause does depart from an established practice and principle of law in our criminal code in this country. Perhaps from his own viewpoint the hon. the Minister has seen this as well, and I am quite prepared to accept his attitude to this matter. This is the clause that provides that where a person has already pleaded, but no evidence has been led and the charge is then withdrawn, he shall be deemed not to have pleaded. I do not think that it is necessary for me to embellish what I have already said, or to give any motivation for it, in view of the Minister’s attitude to the amendment. I now move the amendment, which reads as follows—

I rise to ask the hon. the Minister to explain the intention of the proviso to clause 6(c). We are here dealing with a clause that provides that an Attorney-General or any person conducting a prosecution at the instance of the State, or a body or person referred to in section 8, may at any time after the commencement of the trial— that is, after the accused has pleaded and after evidence has been led—stop the prosecution. We then find a proviso that provides that if the prosecution is at the instance of a person other than an Attorney-General or a body or person referred to in section 8, i.e. a statutory body, such trial shall not be stopped unless the Attorney-General has consented thereto.

Is it the intention of the hon. the Minister and of this legislation that any prosecutor in any court, who is, as I read in line 5 “any person conducting a prosecution at the instance of the State”, and who wishes to stop a trial after the accused has pleaded and after evidence has been led, shall first obtain the approval of the Attorney-General? I would like the hon. the Minister to answer that question before we continue with any argument on this matter.

Mr. Chairman, this applies only to private prosecutions and the statutory prosecutions of the municipalities. In other words, if a court case is already in progress, the trial shall be stopped in consultation with an Attorney-General.

Mr. Chairman, I thank the hon. the Minister and it would appear that my reading of the intention of the hon. the Minister in this proviso is correct. My understanding of the intention of the hon. the Minister is that a public prosecutor in a magistrate’s court or a regional court shall not be required to obtain the approval of an Attorney-General before he stops such a trial. With respect to the hon. the Minister, if he says that it is the intention to apply this to a private prosecution, such as is provided for in clause 7, where there has been a certificate nolle prosequi, I believe that he should do away with this proviso, because as clause 6 reads at the moment, there is no reference whatsoever to a private prosecution. Clause 6 provides for cases where an Attorney-General or a person conducting a prosecution at the instance of the State are involved. I know that a private prosecution is deemed to be on behalf of the State, but it is not at the instance of the State, nor is a private prosecution one which is contemplated in terms of clause 8.

Clause 6 does therefore not apply to a private prosecution, but as the proviso stands at the moment, it will apply to every State prosecutor, who will require, if the proviso is retained in clause 6(c), the approval of the Attorney-General before he may stop such a trial. I accept that it is not the hon. the Minister’s intention to provide for that, and I therefore move as an amendment—

Mr. Chairman, I am not prepared to accept the amendment of the hon. member for Pietermaritzburg South, but I shall have another look at it, and if it proves to be necessary, I shall move the necessary amendment in the Other Place.

I just want to point out to the hon. member for Jeppe that in order to make his amendment, which I have accepted, meaningful, it will be necessary to omit the words “and after evidence has been led in respect of a charge” in lines 19 to 20, on page 10.

That is right.

If the hon. member would like to amend that too, I shall accept it.

Mr. Chairman, I am prepared to move an amendment that on page 10, lines 19 and 20, “and after evidence has been led in respect of a charge” be omitted. Therefore I move as a further amendment—

Mr. Chairman, I just want to deal with the question raised by the hon. member for Pietermaritzburg South. If the hon. the Minister is not prepared to accept the amendment moved by him, viz. to delete the proviso, I think that clarity will be obtained here if after the word “Attorney-General” in line 25 the words “or any person conducting a prosecution at the instance of the State” be inserted. This will clarify the issue and will exclude the State prosecutors who normally operate on behalf of the Attorney-General. If the hon. the Minister is going to consider this further, I believe that that will be a solution to the problem which faces us.

“On his behalf”, rather.

Sir, the same words are used at the beginning of the clause, viz.—

That is how it is referred to.

Sir, I think that for the sake of elegance we should let this matter stand over until I have had an opportunity to consider it properly.

Mr. Chairman, it appears that the hon. the Minister is now aware of our difficulty on this side and that he also has his doubts in this respect. Since he has given an undertaking to look at this question again before taking it to the Other Place, with the approval of the Committee I shall withdraw my amendment.

Amendments moved by Mr. H. Miller agreed to.

Amendment moved by Mr. W. T. Webber, with leave, withdrawn.

Clause, as amended, agreed to.

Clause 16:

Mr. Chairman, I move the amendment printed in my name on the Order Paper, as follows—

Clause 16 provides that if the accused is acquitted in a private prosecution in a court, the court may order the private prosecutor to make good the costs, or part thereof, incurred by the accused in respect of that case. The clause has been taken verbatim from the present Criminal Procedure Act. The object of my amendment is to exclude from the provision concerned, private prosecutions instituted in terms of clause 8 by local authorities and others. In terms of certain ordinances, local authorities have the right to prosecute transgressors in terms of their regulations. Here I have in mind for example, the building regulations and certain health regulations. In the larger centres of our country particularly this right is used freely. However, this right of the local authorities does not exclude the right of the State to prosecute. It seems to me that a distinction could be drawn between private prosecutions and public prosecutions of this nature. In public prosecutions the costs incurred by the accused do not enter into the picture at all, and it is suggested that the same should hold when local authorities act in terms of statutory law. Although at present the provision does appear in the Criminal Procedure Act of 1955, the Department of Justice is not aware of any case of the court having awarded costs to an accused in terms of this provision. Local authorities usually exercise their right in a responsible manner and usually obtain the services of a lawyer who knows what is going on. If this right were to be abased, the Attorney-General would still have adequate powers in terms of clause 8 to take action against that private prosecutor.

Mr. Chairman, I am prepared to accept the amendment.

Amendment agreed to.

Clause, as amended, agreed to.

Clause 20:

Mr. Chairman, I should like to move the amendment printed in my name on the Order Paper, as follows—

This clause authorizes the State to seize an article or document or substance under certain circumstances. Although the meaning of “article” is very wide, according to dictionary definitions, there is some doubt as to whether the words, and the word “article” in particular, include an animal. Since it must be possible to seize animals as well, the matter is put beyond any doubt by this amendment.

Mr. Chairman, I am prepared to accept the amendment.

Mr. Chairman, I just Want to ask the hon. the Minister whether he is satisfied that by using the word “anything” he will not in fact broaden the whole picture too much. Was that the original intention in dealing with this? Was the object not to look for certain documents or articles which may be needed in connection with a possible offence? “Anything”, on the other hand, is a wide and very comprehensive term and I am not sure whether this does not widen this matter too much. That was not what was asked for because there are provisions in other laws for the type of search which may be contemplated in terms of the use of the word “anything”. This really puts the person searched almost at the complete mercy of the warrant.

Mr. Chairman, before the hon. the Minister rises to express his views, I should like to express my own views in regard to this matter for his consideration. The section as it exists at present in the Criminal Procedure Act is precisely the same as it is in the Bill before the Committee. The words in the clause as it stands today are—

I do not consider the amendment which has been proposed to be an improvement at all. In fact, I think it would complicate interpretation. I think the words as they stand and have stood in the old Act are better and I would request the hon. the Minister to leave them as they are and not to accept the amendment.

Mr. Chairman, may I raise the point that from the point of view of English to omit “any article, document or substance” and to substitute “anything” compared with substituting “any thing”— two separate words—will make a difference in the meaning. I wonder whether the hon. the Minister will not give his attention to that. Simply to say “anything” could mean any single thing throughout the whole world, whereas “any thing” is some specific object which is being sought. I think that the separation of the word “any” from the word “thing” might make it clearer.

Mr. Chairman, the words “any article, document or substance” are limited by paragraphs (a), (b) and (c) of clause 20. I recommend hon. members to look at these. In practice we experience problems with animals which have to be searched for. We are not quite sure whether an animal is an article. A problem of interpretation may arise. I think that the hon. member for Mooi River knows what I am talking about now. It is a very real problem which he has to contend with in his constituency as well. Therefore, since there is a limitation in the abovementioned paragraphs, I feel that the word “anything” ought to be applicable in this case.

Mr. Chairman, in the present section 42 of the Criminal Procedure Act the word used is “anything”. So, in the old code the word use is “anything”.

Is it one word, or two?

In fact, it is three words, because it says “any such thing”. Mr. Chairman, frankly, I do not think that it is really of very great importance either way. I believe that the amendment may even be an improvement. I do not believe it has ever been in issue in any court.

Amendment agreed to.

Clause, as amended, agreed to.

Clause 21:

Mr. Chairman, I move the amendment printed in my name on the Order Paper, as follows—

My reason for moving this amendment is so that the person who is being searched should at least know what he is being faced with. I believe it is important because it would at least leave some sense of security in the mind of the citizen, a certainty that the search is not being conducted for a purpose which might involve him in something with which he has nothing to do at all. A warrant has to be issued in any event. Certain facts have to be put to the magistrate, judge or judicial officer in calling upon him to issue the search warrant. It states that he can seize anything in question. It also deals with the premises which are identified with the warrant, and I believe that, in view of the fact that it also deals with the person himself—“to search any person found on any such premises”—it should state what the nature of the offence is in order to make it clear to the individual and to the persons in charge of the premises, even if it does not give particulars in absolute detail. In my view it makes the warrant much more complete and much more adequate a document.

Mr. Chairman, unfortunately I am not prepared to accept the hon. member’s amendment. I think that the hon. member and I debated this matter sufficiently when the legislation was amended last time. I think it was last year. I think that this matter is adequately regulated by case law. I want to refer the hon. member to a case which he will probably know about. I am referring to the case of Pullen, N.O., Bartman, N.O. and Orr, N.O. v. Waja. This was a case in the Transvaal Provincial Division and was reported in the law reports of 1929. On page 839 we find that the court ruled as follows in this case—

This is a flexible rule and I do not think that we should interfere with it, since in my modest opinion it is applicable to all these cases. It is very difficult to say specifically what offence is suspected. It may be broad, because it may cover various offences. I think that we must leave this to case law.

Mr. Chairman, I am afraid we are not prepared to accept the hon. the Minister’s argument. The hon. the Minister is quite right; we did debate this matter in 1975. We felt very strongly about it then and I believe that we divided on the issue. We feel that there must be some suspected offence in respect of which this search warrant is going to be issued. If the party who is going to be subjected to this search knows what the general offence is in respect of which the search is being conducted, I do not believe that it is going to affect the State detrimentally. If simply an indication is given to the person who is subjected to the search that there is an alleged offence and what it is in respect of, I do not believe that there will be any action taken afterwards if the offence which is declared in the search warrant is found not to be an offence in respect of which the search is being conducted. It may well be that another offence could arise out of the search itself, but in my view I do not believe that the State is going to be prejudiced at all. It is only going to be to the advantage of a possibly innocent person to know in respect of what alleged offence the search is being conducted. The subsection itself relates to what should be included in this search warrant.

It states that the premises must be identified—that we can understand in terms of this court decision—and that the person must be identified. Surely, the general tenor of the offence can be added as well. This will give an indication to the person of exactly what the purpose of the search is. We feel rather strongly about it and we ask the hon. the Minister to reconsider his approach here. We do not believe that it is going to adversely affect the State in any way.

Mr. Chairman, we would like to support this amendment, because when a police officer approaches a person with a search warrant, that person may be innocent. The person may afterwards be found guilty, but I think that when the police officer comes to the person, that person receives him with a sense of shock and it is only fair that the person should be apprised of what the alleged offences against him could be. I do not see how this can in any way adversely affect the State’s case or the course of justice in the matter. I think that it will to a large extent alleviate the plight of a person if he knows what the search is all about and I do not think that it will in any way detract from the search by the police. I do not think that the person can do anything to upset the search, but I think it will set the person’s mind at ease, especially when you bear in mind that it may well be an innocent person who is the subject of the search. In these circumstances I would like to support the amendment.

Mr. Chairman, I would also like to support the amendment. The point made by the hon. member for Walmer that the police may be searching an entirely innocent person in respect of a crime suspected to have been committed by somebody else is a good one. In respect of the old section 42, there were a number of decisions by eminent judges. Judge Ramsbottom pointed out that this right that the law confers, of search and so on, is a serious encroachment on the rights of the individual. Judge Ramsbottom said—

I think that in those circumstances it should be a limited right. I agree with the hon. member for East London City that the person whose premises are being searched, the person who owns or occupies the premises, should be in a position to know in respect of what crime he is being searched. I therefore support the amendment.

Mr. Chairman, I am afraid I cannot agree with the hon. gentleman on this particular point. I think it is clear to us all that a search warrant is something which is restrictively interpreted, because it is an encroachment on a person’s normal rights. That being so, if the offence is inserted on the warrant and it turns out that it is the wrong offence and it subsequently appears to the Attorney-General that he will be able to prosecute a person for a similar offence, although not exactly the same offence that was stated in the warrant, the warrant itself may be invalidated. I am unfortunately not willing to accept this amendment.

Mr. Chairman, I am not entirely satisfied with what the hon. the Minister has said in this regard I appreciate what he read out to me in that judgment, but he must of course accept that the point that is made there is that it is desirable, and not necessarily essential. That is the aspect we regard as important. After all, the objective here is to try to ensure that the Bill provides the best and the fairest possible means of dealing with these intrusions on the liberty or the privacy of a citizen. Therefore, when a judge states that something is desirable, he obviously does not want to use any stronger word to indicate his attitude with regard to the matter. That is the reason why we have asked the hon. the Minister to accept this amendment. There is no other motive whatsoever. I think the amendment was explained quite well by the hon. members on this side of the House.

Mr. Chairman, I think the hon. member is quite incorrect with regard to this matter because he is attributing too great a knowledge of the law to the police, taking all the circumstances into account. When a policeman seeks a search warrant, he does not at that stage have a lot of knowledge at his disposal. He cannot sit down and say that with what he has at his disposal at that stage, he can categorically state what the offence is. However, what he can do, when the suspicion is based on something that he knows is an offence, is to go under oath to a magistrate, who looks at it and says: “There seems to be some sort of an offence, but one cannot categorize the offence at this particular stage of the proceedings.” In view of the fact that it may invalidate the search warrant, I cannot put it any better than it is in the Bill at the moment.

Amendment negatived (Official Opposition, Progressive Reform Party and Independent United Party dissenting).

Clause agreed to.

Clause 22:

Mr. Chairman, I move the amendment printed in my name on the Order Paper, as follows—

I should like to draw the hon. the Minister’s attention to clause 21, with which we have just dealt. I want to quote from clause 21(3)(a). I quote—

This is a search warrant which is called for and issued by a magistrate, a judge or a judicial officer—

Very important restrictions are in other words laid down in this particular clause to ensure that if it is to happen by night, it must be authorized specifically in writing. I presume that representations will have to be made in order to ensure that the request for its execution by night will be authorized. Therefore, if a police official has to search without a search-warrant because of the fact that there was no time to get it, he must on reasonable grounds believe (a) that the warrant will be issued according to clause 21(1)(a)—I have just referred to it—if he should apply for it and, secondly, that a dealy in obtaining the warrant could defeat the object of the search. Therefore there are extraordinary circumstances and he has to act. My amendment requests that it should be, firstly, made by day as far as possible and, secondly, that as it is made without any specific authority, when he suspects something is taking place and he has to take action in the reasonable knowledge that he should get a warrant if he were to apply for it, I believe it would be in the interests of justice if he did it in the presence of two or more respectable inhabitants of the locality in which the search is made. I think it is important for his own protection, and it is also a very important factor regarding the protection of the public. With regard to the question of the time, I have specially ensured that if something really vital and urgent takes place, then he will have to do the search by night, but it should be done by day as far as possible. I think this is not an unreasonable amendment. I think that in regard to all these questions of search which, as the hon. the Minister himself knows, suggest that it is an intrusion on the privacy of the citizen, we should provide the best safeguards we can within the ambit of the clause and the objective which the law seeks to attain.

Mr. Chairman, I do not think this side of the House can accept the amendment, for this criterion which the Opposition is trying to introduce into our legal system is absolutely impracticable. The hon. members for Jeppe spoke about respectable inhabitants, and I wonder what his definition of “respectable inhabitants” is. One should adopt a practical approach to this matter. According to the hon. member upon arriving at the scene the police should first find two respectable inhabitants. Does the hon. member want the police to go around asking the inhabitants: “Are you an inhabitant of this area or locality?” In the second place the police must ask them: “Are you respectable?” How are the police to test the respectability of these people? Therefore, this is to my mind an absolutely impracticable amendment and I think the hon. member is making the difficult task of the police even more difficult. This side of the House cannot accept the amendment and I wish to suggest that our Opposition must be practical in their outlook and in their view of this matter.

Mr. Chairman, in regard to the last argument that was made, I should like to say that the present law uses the same word. Section 43 refers to two or more respectable inhabitants of the locality. I want to add nothing more than merely to say that we support the measure and to ask the hon. the Minister to bear in mind that the amendment only states “as far as possible”. It is not an absolute requirement, but merely states “as far as possible”.

In view of that, I urge the hon. the Minister to accept it.

Mr. Chairman, I wish to point out to hon. members that the section was amended in 1975 to read as it does now. The hon. member for Jeppe will remember that we debated this at that time, too, and I think that I brought the reason for this to the attention of the House at the time. However, if I did not do this, I do so with pleasure now. At the time the General Bar Council had the following comment on the old system to which the hon. member for Durban North referred—

This is a completely impractical procedure and one should not forget either that all these things take place with the consent of the person.

Mr. Chairman, may I ask the hon. the Minister what he means by “met die toestemming van die persoon”? Can we eradicate those words from the record?

Yes.

Amendment negatived.

Clause agreed to.

Clause 28:

Mr. Chairman, I note that in the definition of the possible offences committed by a police official, provision is made for occasions on which the police official acts contrary to the proviso contained in clause 26. Does provision not also have to be made in clause 28, therefore, for the possible unlawful actions of the police official acting in terms of the proviso in section 26?

How do you relate that to clause 28?

Mr. Chairman, clause 28 makes provision, inter alia, for police officials acting contrary to the provisions of clause 25. Clause 26 has a proviso which provides that a police official may not enter a private dwelling without the consent of the occupier thereof. No sanction is laid down in clause 28, however, if a police official does not comply with the proviso in clause 26.

That is not a crime, but simply a civil law action.

Is it simply a civil law action?

Order! I think the hon. member has received his answer, or does he want another answer?

Mr. Chairman, I do not find the answer satisfactory because the fact remains that it appears to me that there is a deficiency in clause 28.

Order! I think the hon. member should first give the hon. the Minister a chance to reply to that. Subsequent to that he may have another turn to speak, if necessary.

Mr. Chairman, the reply ought to satisfy the hon. member because in clause 26 the condition is made that a police official may not enter a private dwelling without the consent of the occupier thereof. If he does, in fact, do so it is, in any event, a common law offence because one may not enter the property of a private citizen. This is a common law offence and such a person can be charged for doing so.

Mr. Chairman, I am aware of the fact that it is a common law offence but the hon. the Minister has not furnished a satisfactory explanation as to why provision cannot also be made in clause 28 for the offence committed by a police official.

Mr. Chairman, clause 28 has to do with search warrants which are a statutory matter. If one commits an offence in this regard, one has problems, and therefore we must have a statutory provision covering this. However, common law sanctions are applied to the entering of a person’s property without consent.

Clause agreed to.

Clause 40:

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

I do not want to spend a great deal of time on this amendment. I am expecting one of my colleagues to deal with this matter as well, but I think the word …

Mr. Chairman, to shorten the proceedings, I want to say that I am prepared to accept the amendment.

Amendment agreed to.

Clause, as amended, agreed to.

Clause 49:

Mr. Chairman, the provisions of clause 49 and the consequences of those provisions were raised by the hon. member for Houghton under heavy fire, if I may say so, during the Second Reading debate. Nonetheless, there are grave objections to this clause, objections which I believe must be voiced. Allow me to quote the offending subsection, subsection (2) of clause—

Mr. Chairman, the first aspect to be considered is the contents of schedule 1, which lists the crimes in terms of which this clause is operative. If we look at Schedule 1 we see that the following crimes will make this clause operative, viz. treason, sedition, murder …

Yes, we know them all.

The whole House does not know them all, and I am going to read them: culpable homicide, rape, indecent assault, sodomy, bestiality, robbery, assault when a dangerous wound is inflicted, arson, breaking or entering any premises, theft, receiving stolen property, fraud, forgery, offences relating to coinage, and so forth. Most of the crimes mentioned are of a most serious nature, but let us look at them more closely. Take for instance culpable homicide. It could be a case of a hit-and-run motor killing. It could also be a case of a bricklayer’s assistant accidentally dropping a brick on the head of a passer-by and then in a blind panic runs away. I ask if it is possible that the shooting of that person could be justifiable. Take the case of an indecent assault. It could be a heinous and repulsive attack, but it could also be a case of an infatuated young man trying to make an advance to a strange woman.

How are you going to assist him? Must we say in the Bill “except in the case of an infatuated young man”?

No, Mr. Chairman, the hon. the Minister is making a frivolous remark against what is in fact a serious argument. Take the case of breaking or entering. It could be a case of Raffles, the burglar, stealing or attempting to steal thousands of rand, but it could also be the case of a 14 year-old burgling the local sweet shop. Take a theft. It could be a case of the lifting from a counter of goods worth hundreds of thousands of rand or it could involve the stealing of a package of sausages to eat. So we could go on. There is one further point worth mentioning and that is the last line of the Schedule enumerating these offences. Included in the offences which I have mentioned, are those mentioned in the last line of the schedule which reads as follows—

This means that any attempt to steal the sausages is as physically dangerous as the commission of the theft itself.

I am sure

Mr. Chairman, the hon. the Minister wishes to say something.

I am asking you.

I could not hear you.

Do you not know that an attempt is as bad as the deed itself?

Indeed. It is common cause that an attempt is considered as bad as the crime. But when one relates this to what are in fact minimal crimes and could in fact be minor crimes, it becomes very serious indeed that the person’s life is placed at stake. If one looks at this aspect of the consequences of this clause in total isolation, if one looks at just this aspect, one can readily see that it is far too wide and all embracing and literally a blanket permit to use a gun. However, there are still other aspects. Who are authorized in terms of this Bill to effect arrests? The first category of persons thus authorized are those who are designated peace officers, whose duties are set out in section 40 et seq. Who are peace officers? They are magistrates, justices, police officials, prison officers, or in fact any person thus appointed by the Minister. The other category of persons entitled to effect arrests of suspects or actual offenders in respect of the scheduled offences are those for whom provision is made in clause 42. These are in fact private people.

The police have the benefit of their standing orders as a guide. Those standing orders lay down strict rules in regard to the use of fire-arms. Private persons have no such guide. Surely, looking at just these two aspects, viz. the question of the offences concerned and the people entitled to use this type of force, it is clear that the permissibility of killing, failing other attempts to apprehend, is far too wide as regards both the offences and the persons authorized to shoot.

So far I have mentioned two objections. The first relates to the fact that any person has this right and the second relates to the fact that the clause allows that a person may possibly be shot dead, whilst he may or may not be guilty of what is in fact a minor offence, when trying to escape. Indeed, it allows the killing of a minor, someone who is but a youth.

There is a third objection and that is the psychological effect this probably has on would-be arresters. Very often those persons are the only witnesses to the shooting and the presiding judge has only their evidence as to what happened. I am not in any way alleging or suggesting that policemen or private persons shoot people for the fun of it. Obviously they do not. However, the wording of this clause makes malpractices all too easy.

If I might quote an old and well known case in the S.A. Law Reports, I wish to refer to the case of Rex v. Labuschagne, 1960. It is to be found in volume 1 of the S.A. Law Reports for 1960. That case is a well known authority on this provision. On page 369 of the judgment, Judge Schreiner, Judge of Appeal, said with reference to this provision that it offered “extremely, indeed dangerously wide protection”. In Labuschagne’s case a 23-year-old policeman, but a callow youth and an inexperienced person himself, fired two shots at and killed a 19-year-old youth who was attempting an escape while being conveyed from court to gaol after he had been fined £5 or 20 days for the possession of dagga. It had to be found that the requirements of protecting a policeman and of making a killing justifiable were in fact met. However, the judge said it was not an easy case.

That is to say, it was difficult to prove that an available alternative way of preventing the deceased from escaping was neglected by the accused. Schreiner stated that it was tragic that here a young victim had been killed while there was no reason to suppose that the community would have suffered had he made his escape. In other words, the discretion to kill is too wide. In fact, I believe it is dangerously wide.

Life is not cheap; it is precious to all of us, whether young or old, rich or poor, good or bad. If subsection (2) of clause 49 were deleted, it would still leave intact the very adequate clause 49(1) which permits a person to use such force as is reasonably necessary to effect an arrest. Very few crimes, if any, can justify the killing of one who has not yet been found guilty. In addition to this, I do not believe that shooting is totally excluded by clause 49(1). It may well be objectively necessary, for instance, where self-defence is involved. I therefore move the amendment printed in my name on the Order Paper, as follows—

Order! This amendment deals with the use of force in effecting arrest. I regard this as one of the principles of the Bill agreed to at the Second Reading. But I am prepared to give the hon. member for Sandton the benefit of the doubt. I am therefore going to allow the amendment, but I hope that hon. members will not indulge in a lengthy discussion on this principle, which has already been discussed in the Second Reading.

Mr. Chairman, I would like to move the amendment standing in my name on the Order Paper, as follows—

This amendment seeks a limitation of the provision. This particular provision which incorporates schedule 1 as the yardstick, has been in our law since 1917, and in 1955, when the new Act came into effect, it continued to appear. Obviously the object is to provide some sort of protection for the police under extraordinary circumstances. One can well understand that and therefore one must appreciate acceptance of it. I am asking that this provision be limited to those items under schedule 1 in respect of which the sentence of death is a competent sentence in terms of the Act. My reason for this is that in the era in which we live—and I say this in the most benign sense that I command—the use of lethal weapons is almost inconsequential, so widely are they used. For instance, most people in this country possess pistols. I must confess that I myself have never applied for a licence to possess a pistol and I do not possess one. I have sufficient confidence in the security which prevails in this country and the common sense of my fellow citizens, perhaps more in the latter sense than in the former. I have no doubt there is sufficient goodwill not to warrant the possessing of a fire-arm. Nevertheless we are living in an era when the use of lethal weapons is a common occurrence.

As we are all aware, events are daily taking place amongst the citizens of our country, amongst families, in homes under all sorts of extraordinary, peculiar and silly circumstances, where people are killed or badly injured. It is important, however, that one must not deny those who might have to maintain law and order the right to use a fire-arm in self-defence and to deal with people who fall under the heading that I intend mentioning in a moment, those mentioned in schedule 1 and who are dangerous to their fellow citizens and dangerous to the State. Under schedule 1 we find treason, sedition, murder, rape, and other offences such as assault with the intent to kill and there is also house-breaking with the intent to commit an offence. There is also robbery with aggravating circumstances. All these sentences are punishable by a sentence of death. In those cases, which I do not think are that obscure especially in the mind of trained police officers, I do not think that we are asking too much to limit it to those particular cases.

One of the matters which we must bear in mind is that in apprehending someone, there is sometimes an unfortunate tendency, perhaps quite unconsciously, to use the best and easiest means available. Without going into too much detail, the hon. the Minister himself knows of a number of cases which were dealt with in 1973. Persons were apprehended for offences which did not amount to a great deal, just as one was slipping away from the custody of a person who had caught him unawares he was perhaps killed in the course of being apprehended by the use of a lethal weapon.

Business suspended at 12h45 and resumed at 14h15.

Afternoon Sitting

Mr. Chairman, as I was saying just before we adjourned, we seek a limitation of this particular clause, whilst not necessarily depriving the police force of the necessity of protection. The police force must be protected in some of the serious duties they have to perform. The hon. the Minister will know himself that quite a number of incidents took place over the last few years, incidents in which the loss of lives could possibly have been avoided. I believe that it is not unreasonable to ask that there should be some form of responsibility placed as a type of guideline, as a deterrent, as a form of caution, a guideline which should be used by the police when trying to apprehend a person or persons under these difficult circumstances, where they seek either to escape or where they are involved in other forms of activities which make it difficult for the police to apprehend them or to take them into custody. I would want the hon. the Minister to know that, without unduly delaying this subject, he must be aware of the number of matters which were referred to some years ago. I believe that this should receive the very careful consideration of the hon. the Minister. I hope that he will see his way clear to, in some manner or another, impose a limitation which will not be unreasonable in the circumstances in which we motivate the amendment moved.

Mr. Chairman, the matter just discussed by the hon. member for Jeppe and the hon. member for Sandton is, we all concede, a difficult one, a matter one should not pass over lightly. The argument the hon. member for Jeppe advanced, however, is the well-known UP argument, an argument one really cannot support. Were we to accept the motion, it would mean, for example, that people who are taken into custody, inter alia, due to certain of the following offences, would simply be able to escape, to run away without fear of the police firing at them in order to bring them to justice. I refer to schedule 1 on page 240 of the Bill were we find that someone may now escape without the police attempting to stop him by making use of a firearm. Offences at issue here include, inter alia, the following: indecent assault, assault when a dangerous wound is inflicted, arson, escaping and conspiracy. Such offences can be described as very serious in any language. According to the hon. member for Sandton, a person can now be shot for committing a small offence, he mentioned the theft of a smallish article. That is true, but that is the lighter side of the matter. However, it can also be very serious. Someone could run away without a policeman being allowed to use his firearm to stop him. I believe this is going to create an untenable situation. On closer examination this means, inter alia, that someone can now be very seriously assaulted but someone can be arrested on the spot while the person who was assaulted is still alive. The accused may run away, however, and the policeman may not be allowed to stop him by making use of a fireman. Even if the victim is still alive, although seriously wounded, the policeman may not use his firearm in an attempt to arrest the fleeing suspected assailant. Of course, the victim could subsequently die. The policeman cannot know this beforehand either. A further example.

Suppose someone is setting a fire. This is one of the offences I referred to, offences which have, in fact, occurred very frequently in recent times. People are caught in a burning building. They are seriously injured and the subsequent charge against the suspected arsonist could be a very serious one, i.e. much more serious than the mere charge of arson. At the time the suspected arsonist is taken into custody, however, all those victims are still alive. He may simply escape, however. A policeman may not fire at him in order to stop him. It is my honest opinion that people will laugh at police to scorn if this amendment, moved by the hon. member for Jeppe, is accepted. I could mention many more similar examples.

The amendment which the hon. member for Sandton moved is, in my opinion, much more serious because it is much more far-reaching. It is also the old PRP argument we have heard down the years from the hon. member for Houghton; the pink, liberal standpoint just like a gramophone record which has stuck. One cannot but gain the impression—I am now being very honest with the hon. member—that down the years she has developed chronic hatred of our police. The hon. member hates them with a bitter hatred which is astonishing to any responsible hon. member. We never hear a word of thanks for our police.

Order! The hon. member must at least refer to the clause.

The hon. member for Sandton has now joined the chorus, and the meaning of his amendment is much more serious than that of the hon. member for Jeppe. The hon. member does not want the police to use their weapons at all, not even for the combating of a single offence mentioned in schedule 1. We must be practical about these things; in practice this means that a crazy murderer or rapist can escape; in such a case the policeman may not use his firearm to prevent the person going any further. The criminal can simply be let loose to go tearing down the street to freedom amongst innocent people. The policeman will be in no position to stop him if he cannot overpower him in any way other than with his firearm. In the process the murderer could rape, maim or kill innocent people. That can happen in practice. The hon. members for Houghton and Sandton say they feel sorry for a thief who runs away and is then shot and maimed. Why does he run away, however? If he has done nothing surely there is no need for him to run away or try and escape. Hon. members loose sight of that fact. What of the innocent people, the innocent child, whom the escaped murderer or rapist encounters along the way and who are maimed or otherwise harmed? I think hon. members have to tell us where then-sympathy lies. Does it lie with those who have committed a crime and are on the run or does it lie with the innocent inhabitants of our country? After all, the police do not simply shoot left right and centre.

It is a pity they do not shoot left and right?

Mr. Chairman, an hon. member says it is a pity, but before a policeman uses his firearm, he knows there will be a post-mortem investigation into the incident. He knows this beforehand. He also knows that a crime has to be committed before he may shoot. He knows that there has to be an attempted arrest or an arrest, that there has to be resistance that there has to be an escape and the knowledge that he could not have caught the escapee in any other way. He knows all those things and the court subsequently considers them too. The hon. member for Sandton mentioned the instance of a person being shot for a minor offence. That is unfortunate and we do not want to condone it but we must be practical and accept that the things I have mentioned also can and do, in fact, occur. Now the hon. members want to take from the police the weapon that must ensure our living here in peace and safety.

As I have said, the police do not shoot left, right and centre. They are aware of these things, they are careful and they attempt to display the necessary judgment in order to prevent people being injured unnecessarily when they shoot. The police shoot only when it is essential and, even then, not to kill but simply to stop the person concerned. However, the policeman does not have a lot of time to deliberate and give thorough consideration to these things. Nor does the fugitive stand still so that he can be shot in the leg. He runs away and it is difficult to wound him with accuracy. One must therefore be very honest about this and accept that it is an extremely difficult matter. I think that down the years our police have performed a difficult task very well. One feels sorry for people who commit less serious crimes and are wounded in the process.

We must choose, however, between the maintenance of law and order on the one hand and chaos on the other, chaos which, in my opinion, could break out on a large scale if we accept the amendments. In my opinion the motion is absurd in the light of the times we are living in. Lawlessness is certainly not on the decline in today’s world; I think it is increasing. The police must combat it with all means at their disposal. Every member in the House expects this from the police. The view of this side of the House is that we can trust them to do this in the best interests of South Africa and all its people, White, Black and Brown. We cannot remove these essential powers from the hands of the police.

Mr. Chairman, I really do not know whether I should waste any of my valuable time—limited as it is—in replying to the silly argument of the hon. member for Verwoerdburg and the equally silly argument used by the hon. member for Rosettenville yesterday. Both of them made the absurd statement that because one was against the use of force and the killing of people who attempt to evade or escape arrest, one was therefore completely unconcerned about the safety of the police, that one had hatred for the police and that one never had a good word to say about them. Year after year I have raised in this House the fact that the police do shoot an inordinate number of people who are attempting to escape arrest. I think that is valid criticism. But I have also stated over and over again that I realize that the police often have to deal with violent criminals and that in those instances they are certainly fully entitled to defend and protect themselves. Indeed, when the corresponding clause to this one was being debated during the discussion of the 1973 Bill, I stated this emphatically. I do not think the hon. member for Verwoerdburg was in the House at that time, but certainly the hon. member for Rosettenville was. I quote from Hansard, 1973, col. 4845—

This also applies, of course, to those who appear to be about to inflict injury upon others. I have made that perfectly clear over and over. That does not mean to say, however, that I or the hon. members on these benches are prepared to condone the shooting of people who are trying to evade arrest and, more particularly, those who are suspected—I should like to point out to the hon. member for Verwoerdburg that they have not yet been charged and found guilty in a court of law—of committing what I would put in the category of less serious and petty crimes. I have cases of this sort on record. For instance, there was a man called Elliot, a young man whose crime was driving a car under the influence of alcohol. I do not know whether the hon. member for Verwoerdburg considers that a capital offence and whether he will agree that the police therefore had the right to shoot this man dead when he attempted to escape arrest. I may say that the man was climbing a prison wall at that stage, and could easily have been apprehended without having been shot. Equally I have at least two cases on record of youngsters, one aged 14 and the other aged 16, who have been rendered helpless paraplegics for life while attempting to escape arrest. The one was caught in the act of stealing a car and the other was suspected of stealing some articles from a supermarket. [Interjections.] I do not say that they were innocent, but surely they should not have been shot at with the intent to kill or seriously wounded in cases like that? Anyway, those hon. members and I have completely different points of view with regard to this matter. I have a few humanitarian feelings in my heart. [Interjections.] They have only a feeling of revenge, because that is the only explanation I have for this ridiculous attitude. Certain conditions are laid down in the police standing orders. [Interjections.] For the benefit of the hon. member who rightly drew my attention to the fact that I had the old standing orders, I want to quote what the new standing orders have to say on the use of arms. I quote—

It is most strictly forbidden, but unfortunately these instructions are certainly not observed to the letter, because of the cases which I have quoted and many more cases I could bring to the attention of the House. Indeed, I have figures—I quoted them during the Second Reading debate—which I used to show that in 1975, 98 adults and four juveniles were shot dead by the police while attempting to evade arrest or trying to escape. I do not know how many of those were people suspected of committing serious offences and how many were not, but it seems to me that 98 cases are not exceptional.

Are those the only examples you have?

No, I have many other examples to which I can refer the hon. member. In 1976, as I have already mentioned, of 117 who had already been arrested and then attempted to escape, 20 died as a result of being shot or injured while attempting to evade arrest. According to the answer given to me by the hon. the Minister, many of those cases were not serious crimes at all. There was, for instance, theft and possession of dagga, and surely none of these are crimes which deserve capital punishment. The hon. member looks at me in such a peculiar manner; would he have capital punishment for that? [Interjections.] I rather think he would hang by the neck until dead anybody who had been found smoking or possessing dagga.

Order! The hon. member must address the Chair.

I did refer to the hon. member in the third person and, therefore, I was addressing him through you, but I shall now look at you as well as address him through you, Sir. If the amendment of the hon. member for Sandton is defeated, we shall support the amendment moved by the hon. member for Jeppe, because it tends to limit, to some extent, the right of the police to shoot people who are attempting to escape or evade arrest. We do not, however, think that his amendment goes far enough. We also believe that it rather anticipates the verdict of a court of law, because the hon. member says that the police may shoot anybody whose crime would carry the capital punishment. Again it rather anticipates the decision of the courts of law, because such people might well be found innocent and, therefore, I do not think the hon. member’s argument is very rational in that regard. Nevertheless, because it is a limitation, we shall support it. I must add, however, that we do not find ourselves able to support the clause, even if it contains the limiting right which is implicit in the hon. member’s amendment. I think we should exclude the whole subsection (2) as the hon. member for Sandton has proposed. I am worried about schedule 1, because it includes minor offences or what could be minor offences, for example, theft. It might well be the theft of a packet of cigarettes.

What about the serious offences?

I still believe that the police ought to try to apprehend without using firearms. That is certainly the case in England and in other countries of the world. When someone is shot in the back …

[Inaudible.]

The police there are not even armed. I do not know what the hon. the Leader of the Opposition is talking about. The hon. the Leader of the Opposition must know that the police in England do not carry firearms.

They can.

They do not, as a rule, and they are not allowed to draw a gun and shoot a man who has stolen a packet of cigarettes, a bicycle or even a motor-car. They are also not allowed to shoot people who are running away after having committed a theft. [Interjections.] I deny it and I will not bow to the legal luminaries in this House in this instance, because I think that they are dead wrong.

Mr. Chairman, I think the hon. member for Verwoerdburg and the hon. member for Houghton ought to be put in a police cell and locked …

And shoot it out? [Interjections.]

I do not want to be the judge!

With respect to those two hon. members, they each take an extreme point of view. The hon. member for Verwoerdburg takes the point of view that if one places any limitation—he refers to our amendment—on the indemnity, which is all that appears in subsection (2), one is then prepared to tie the hands of the police so that they cannot carry out their function properly. That is an absurd argument because since 1917 there has been a limitation on the indemnity given to the police in cases where they may use fire-arms in respect of persons who are resisting arrest. There is not an unlimited indemnity. Since 1917 the police have not been able to use fire-arms to prevent a person resisting arrest or escaping in every case. It has been limited to those offences set out in schedule 1; that is to say there has been a limitation. All that the official Opposition is seeking to do—and it is a material change, I admit—is to narrow the field in respect of which an indemnity operates. We do this because we believe—and the hon. member for Jeppe has put it correctly—that we live in times where on all sides, and there can be no distinction between the police and private individuals in this respect, fire-arms are more freely owned and more freely used. That is the society and these are the times in which we live. Bearing that in mind and knowing on the other hand the difficulties that the police do have in cases where they arrest persons who have committed or who are suspected of having committed a serious offence, we seek to limit it to that class of cases where the sentence of death is a competent sentence. This not only applies in the case of murder. The field of offences has been spelt out by my colleague from Jeppe and because those are particularly serious offences, it would seem to us to be a reasonable limitation on the indemnity which is given to the police.

The hon. member for Houghton, I believe, goes too far in the other respect because the amendment which she seeks is to do away with the indemnity which appears in subsection (2) altogether. Just as I believe that the hon. member for Verwoerdburg’s argument goes too far on the one hand, I believe that the hon. member for Houghton’s argument goes too far on the other. She quoted the case of a young man driving a car under the influence of liquor and being shot when trying to escape arrest. In those circumstances that policeman would not be able to plead the indemnity at all because driving a car under the influence of liquor is not a schedule 1 offence. Therefore it falls entirely outside the existing law, let alone the law as set out in this Bill. That argument, therefore, is not valid. There is no principle involved here. The extreme view on the one hand is that there should be no protection for the police at all in these circumstances. The other extreme is that one should give them complete protection, even in the case of petty offences. The one view, I believe, is wrong and the other view is equally wrong. Somewhere in the middle one will have to draw the line.

There is common law protection, is there not?

There is a measure of common law protection but since 1917 it has apparently been found inadequate. That is why the indemnity has been brought in. Where is one going to draw the line? In 1917 the legislature, probably following British precedent in those days, although I do not know, drew the line at schedule 1 offences which were in those days, considered to be the more unusual offences and the more serious type of offences. Unfortunately, today the schedule 1 offences are not the more unusual type of offence. They are, one might almost say, becoming commonplace and consequently I believe one should place a narrower limitation which we believe is reasonable at the level of persons suspected of having committed an offence for which the sentence of death is a competent sentence. Those are well-known offences and there is no more difficulty in ascertaining those offences on the part of a policeman than is the case at the present time in ascertaining what are schedule 1 offences as far as the policeman is concerned. As I say, one cannot be dogmatic about this and a line must be drawn somewhere. As far as we in these benches are concerned we believe that is where the line should be drawn and accordingly I support the amendment moved by the hon. member for Jeppe. I may say that we take our viewpoint seriously that the Bill, as it stands, which merely re-enacts existing law, is definitely too wide. There is no doubt about that. Therefore, if our amendment is lost, we shall nevertheless support the amendment being moved by the hon. member for Sandton.

Mr. Chairman, I just want to say to the hon. member for Houghton that loss of life and loss of limb is grieved for by all of us who sit in these benches. I can assure the hon. member for Houghton that we on this side of the House have the strongest humanitarian feelings and we have the greatest respect for life. In a police force consisting of thousands of people it is obvious, like in any business organization, that you will have certain weak links. We believe it is the duty of the hon. the Minister and his senior officers to eradicate those weak links. On the whole we have a very dedicated and patriotic police force, a force that does its duty day and night to ensure that the entire population of South Africa can sleep safely, including the hon. member for Houghton.

How do you know how well I sleep at night anyhow?

If the hon. member for Houghton has sleeping problems, there are other remedies.

Mr. Chairman, the amendment that the Progress seek to this clause is to handcuff the police instead of handcuffing the suspect. This attitude towards the police is well known. It has been stated by the hon. member for Houghton on many occasions and we cannot support the stand taken by her. The official Opposition proposed an amendment whereby the killing of a fleeing suspect can only be justified where the offence is one in respect of which the death sentence is a competent one. The arguments used by the hon. member for Umhlatuzana were in many cases valid, but we believe that his arguments do not go far enough. I will expand on that a little bit later. Obviously the police or any other persons must only use firearms as a last resort, and only after all other possibilities have been exhausted.

No!

The hon. member for Durban Central says “no”. Must they then use firearms as a first resort?

No, I am not saying that, and you know that.

We believe that the police should only use fire-arms as a last resort. If it is shown that the person who did the killing, did so mala fide, then it is obvious that this clause will not protect the policeman or the person who acted mala fide, and the charge will be far more serious than a charge of culpable homicide. This clause, I believe, protects the policeman who acts in good faith and does his utmost to protect the entire civilian population. Death is always a tragic thing and life is always very precious. Anyone that uses a fire-arm indiscriminately must suffer the consequences and if he suffers the consequences it may be far more serious than a culpable homicide charge. Mr. Chairman, there are certain offences in schedule 1, like treason, sedition, murder, etc., that there can be no complaint about if a suspect refuses to allow himself to be arrested and he is fatally injured in the process. There are also other offences, and here I want to draw the hon. the Minister’s attention to crimes, like theft or forgery where it may not be of a serious nature in certain cases. There are many theft and forgery cases which may not be of a serious nature, or where a juvenile may be involved. Then I believe that this subsection should not be applied as stringently as is presently provided for in the clause. I believe that there are one or two ways out of this predicament and of solving the problem. Firstly, we believe that the hon. the Minister should seriously consider redefining schedule 1 offences to include only the more serious offences. We realize that there are certain cases of theft that can be very serious, but there can also be cases of theft that are trivial. In addition to redefining schedule 1, a lot will depend on the standing orders that are issued to the police by the Commissioner of Police and I would like the hon. the Minister to tell us something about those standing orders. We have heard something in this regard from the hon. member for Houghton. She was corrected in a previous debate by the hon. member for Umlazi, but I believe that a lot depends on the instructions that are given to the police in carrying out their duties under this particular clause. I would like to hear from the hon. the Minister if it is not possible to redefine the more serious offences under schedule 1 and allow only those to apply in respect of this clause.

Mr. Chairman, I do not think the hon. member for Walmer has read the amendment of my colleague very carefully because, if he had, he would have seen in respect of which offences the sentence of death can be applied. I understood him to say that schedule 1 should be adjusted to include serious matters such as treason, etc., so that that could be applicable in regard to clause 49(2). In actual fact sentence of death, in terms of clause 277, may be passed by a superior court upon a person convicted of murder, a person convicted of treason, kidnapping, child-stealing, rape, robbery, attempted robbery, or any offence, whether at common law or under any statute, of housebreaking or attempted house-breaking with intent to commit an offence. That is a very broad spectrum of offences and I want to remind the hon. the Minister that in 1973, when a similar Bill and in fact the identical provision was discussed in the House, his predecessor said the following (Hansard, Vol. 43, col. 4852)—

He went on to say—

In other words, the then Minister of Justice conceded that perhaps schedule 1 did go a bit too far. I believe that schedule 1 does indeed go a bit too far because it particularly refers to “any offence … the punishment where-for may be a period of imprisonment exceeding six months … For a comparatively minor crime a sentence of imprisonment exceeding six months may well be imposed. I believe that when the Minister of Justice in 1973 considered this whole matter, he was under the impression that robbery, for instance, was not included as a crime in respect of which the death sentence could be passed, because he said in col. 4854—

In other words, he seemed to be under the impression …

He was right. It does not apply to all cases of robbery.

Yes, I know he was right, but he was under the impression that robbery would not be covered by an amendment such as the one this side of the House is moving today.

That is right. It does not apply to all cases of robbery.

Well, Sir, it is clearly set out in clause 277(1) that—

This is in fact what we are aiming at. We believe that, if this can be narrowed down, it is going to mean that the police are going to take particular care about the use of fire-arms.

I must tell the hon. the Minister of a personal experience of mine. In the middle of the night I heard some shots outside my house and I found that a Bantu male had been attempting to break into a motor-car which was parked just outside the house. The police who were patrolling saw this and fired three shots at this Black man. One of the shots hit him and he was arrested. Fortunately he did not die. If he had died, I believe that that would have been unjustifiable use of firearms. He would have had difficulty in obtaining an indemnity under those particular circumstances. We do not believe that the indemnity should be as broad as it is now. We believe that it should be narrowed down.

How do you get past the proviso?

I believe that since 1973 the hon. the Minister should have given his attention to this matter, as the Minister then indicated that it was necessary to review the crimes referred to in schedule 1. Regarding the hon. member for Walmer’s suggestion that schedule 1 should be watered down, I do not believe that that is a valid contention, because schedule 1 applies to many other provisions of this Bill.

Mr. Chairman, I want, firstly, to indicate to the hon. member that he is wrong in saying that robbery as such is a capital offence. If he looks at clause 277, the death sentence may be passed upon a person convicted of a robbery, but only “if the courts finds aggravating circumstances to have been present”. It is therefore not simply robbery. It is subject to the condition “aggravating circumstances”. This could normally be encountered with armed robbery, etc. Therefore the previous Minister of Justice was correct when he said that robbery was not a capital offence.

That is the only type of robbery that ought to come under the schedule.

The hon. member must allow me to continue with my argument. Does the hon. member wish to ask me a question?

I have just said that that is the only type of robbery that can come under the schedule.

Mr. Chairman, the only difference, as it seems to me, between the Opposition and myself is a difference of degree. The hon. member wishes me to draw a line somewhere. Schedule E has, in any event, been curtailed. If hon. members refer to the schedule, they will see that provision is only made for the most serious crimes. I cannot understand how the Opposition can ask, for instance, that we should exclude a crime such as arson from this clause, arson which has become the weapon of the modern urban terrorist. This type of terrorist cannot be arrested in any other way than by shooting at him. The police are usually at a distance of 200 to 300 yards from him and often even further than that. Arson is not committed in close proximity to the police.

†The hon. member for Walmer asked me about the police standing orders, but the provision itself goes very, very far. A policeman is not allowed to shoot unless he cannot arrest the offender or prevent the offender from fleeing by any other means than killing him. The policeman has to try every other possible means before he shoots at somebody. So this is the most extreme case that one finds.

The policeman is not allowed to draw his revolver and start shooting at people; it must be under circumstances where he can do nothing else to arrest the man but by shooting. These are the circumstances, and it is quite clear that the policeman always operates with the sword of Damocles over his head. If he does not take the conditions laid down by this provision into account and draws his firearm and shoots an offender too soon, while there are other means of arresting him, he will land up before the courts. The Attorney-General will open a case against him. This is the policeman’s difficulty. He may only use his firearm as a very last resort. Under these circumstances I cannot see how hon. members can even suggest that I shorten schedule 1, which contains all the serious crimes, by cutting it down to merely the capital offences. It would leave out far too many serious crimes.

Name them.

I have already mentioned one, namely arson. I do not know whether the hon. member understood me. I referred to it while I was speaking in Afrikaans. I said arson was the weapon of the modern-day urban terrorist. The only way one can stop an arsonist and arrest him, is by shooting him. One cannot do anything else. It is just one of those things. In terms of the amendment…

Draft a new Schedule.

How can the hon. member redraft the amendment now? It is very difficult. Let us take theft. Theft is a very serious crime. Some thefts are not so serious. Where does one draw the line? Where does one draw the line in an amendment or in a schedule? Theft is theft and if a suspect runs away, he has to be caught. Shooting is only a last resort. One must not forget that.

Why do you not draft a new schedule? [Interjections.]

Therefore, Mr. Chairman, I am not prepared to accept these amendments.

Mr. Chairman, let me say at the outset that we in these benches accept that a policeman should be entitled to use force in circumstances where he meets with resistance or where he is trying to prevent an escape. The point is that that is provided for in clause 49(1). However, I can see the difficulty that the hon. the Minister of Justice has. It is a very difficult situation because once one starts measuring the situation against the genus of crime, one must, of course, inevitably get into difficulty. What is worse, for example, trying to apprehend a dealer in LSD—and say he is in possession of a couple of million rands worth of LSD— who is trying to escape or somebody who has stolen two cigarettes? We must remember that the former is not covered by schedule 1. [Interjections.] Mr. Chairman, one must admit that it is difficult because, in terms of schedule 1, one has to let him run away. One cannot draw one’s gun. On the other hand, the man who has stolen two cigarettes, can be shot with impunity. That is the difficulty, Mr. Chairman. What really should happen, is that one should be measuring … the policeman should have to measure the force he uses against the circumstances that are there. That is what clause 49(1) provides for, so that if, for example, the person he is dealing with, has a knife or he is in the circumstances plainly a very dangerous character, the policeman will be justified in using a gun. However, now we are using as criterion the genus of crime and one knows that even in the various different crimes, there are crimes of a vastly different moral turpitude. In this very Cape Western Division of the Supreme Court, it has already happened that a person convicted of murder has been sentenced to be detained only until the rising of the court. Even within the range of capital crimes there are crimes of a vastly different moral turpitude.

With respect, it is impossible to make the criterion the type of crime. What clause 49( 1) says, is that any person, in order to effect the arrest, may use such force as may be reasonably necessary in the circumstances. That is sufficient, Mr. Chairman. Any court, in interpreting that, does not act as an armchair critic. The court does not sit in an armchair afterwards and says: “Well, was the policeman absolutely correct, or not?” The court says: “In those circumstances, he might have gone a bit far, but we won’t sit as an armchair crictis.” Thus the policeman will be excused.

What, in fact, happens is, as in Labuschagne’s case, that a man had already been convicted and sentenced to a fine of £5, when he was shot dead. Now, in terms of schedule 1 that is permissible shooting. There is another anomaly. In terms of clause 49(2) a policeman can shoot and cripple a man, but not kill him, and he is not protected in terms of this subsection. There is a decision to that effect. Clause 49(2) only protects a policeman who kills someone. It is therefore to his advantage to kill him. I am not talking about the practice of policemen at all. I am not discussing that. I am not anti-policeman. In fact, I have defended many policemen in my life.

However, the point is that we are talking here about powers that we give. As the hon. member for Umhlatuzana has said, those powers must be balanced and must not be excessive or too wide. Our Appeal Court and our judges have said that this is a dangerously wide power. I do suggest to the hon. the Minister that clause 49(2) be dropped. In the case of Brits in the Transvaal in 1942 it was pointed out that you can satisfy the provisions of clause 49(2), but you can still be entirely unreasonable and still be protected by clause 49(2). We should have some test to what is reasonable and that test is in clause 49(1)—

That is sufficient.

On amendment moved by Mr. D. J. Dalling,

Question put: That the words “(2) Where the person concerned is to be arrested for an offence” stand part of the Clause,

Upon which the Committee divided:

Mr. Chairman, I move the amendment printed in my name on the Order Paper, as follows—

Mr. Chairman, I have indicated to this hon. member that I was prepared to accept his previous amendment which he has withdrawn. However, I am not prepared to accept his present amendment because it is far too inelegant and it does not mean enough. I am prepared to accept the previous one. I leave the choice to the hon. member.

Mr. Chairman, I am quite happy to withdraw the amendment.

Amendment, with leave, withdrawn.

I now move the following amendment—

Amendment agreed to.

Clause, as amended, agreed to.

Clause 54:

Mr. Chairman, before I proceed I want to tender my apologies to the hon. the Minister that the amendment which I intend moving does not appear on the Order Paper. I am sure you will appreciate it, Sir, that under the pressure we have worked recently gremlins do get into these things. [Interjections.] No, Sir, those are the members who have got no work to do. It is quite obvious that they have no work to do. So they can sit there and make a noise. My apologies to the hon. the Minister that the gremlines got in amongst our papers and this amendment was not tabled.

We deal here with a clause providing for summonses to be served on people. The provision that worries me is subsection (3) which provides that—

The amendment which I wish to move is—

It is a minor amendment and aims simply to bring into line with what has been the practice in the past. There has been no provision in the past for laying down a specific period, but it has been the practice to allow an accused person 14 days within which to prepare his case. I submit to the hon. the Minister that it is a reasonable amendment. I believe that the State very often takes a lot more than 14 days to prepare its case and I believe it is only reasonable to allow the accused a period of two weeks to prepare his case.

I am prepared to accept the amendment.

Amendment agreed to.

Clause, as amended, agreed to.

Clause 56:

I move the amendment which appears in my name on the Order Paper, as follows—

Under clause 57, an accused on whom a summons or a written notice has been served under section 56, may admit his guilt and pay a fine without appearing in court. However, clause 56(1) requires that the offence in respect of which the notice is issued, shall have been committed in the presence of the officer issuing the notice. It is feared that if the latter requirement were to be strictly adhered to by the S.A. Police, it would lead to accused persons being detained for unnecessarily long periods. Police officers who execute arrests, are not always available or on duty; consequently, it will not always be possible to release accused persons as soon as they have obtained the money to pay their admission of guilt, but they will have to wait until the police officer concerned is available. If this requirement is deleted—as is being proposed—any police official on duty will be able to issue the notice and release the accused.

I am prepared to accept that.

Amendment agreed to.

Clause, as amended, agreed to.

Clause 57:

Mr. Chairman, clause 57 deals with the acceptance of admission of guilt fines. I believe this is something which we should allow and for which we should provide in our law. Generally the clause has the support of the Official Opposition, with one exception. We find a provision here in terms of which, where an offence has been committed, the admission of guilt must be paid within the area of jurisdiction of the court—that would be within the district where the offence was committed or the trial is to take place. The effect of this would be that if any one of us in this Committee were to commit a parking offence or traffic offence in Cape Town somewhere in the middle of June and should receive the summons for the offence after returning home at the end of the parliamentary session, he would have to return to Cape Town to pay an admission of guilt fine.

What about the post?

Sir, that hon. member asks: “What about the post?” I want to put the following question to that hon. gentleman over there: If I put my cheque in the post, will it be accepted as admission of guilt? [Interjections.] Sir, I do not believe that it will be accepted.

Yours will not be accepted!

Sir, the hon. the Minister of Economic Affairs is someone who knows something about cheques and he says that that cheque would not be accepted. That is the whole point. The hon. member for Verwoerdburg is completely out of court. To ask “What about the post?” just shows, I believe, the standard of intelligence of that hon. member. The point is that in the past a person who was charged of an offence, for which an admission of guilt fine would be accepted, was allowed to go to any police station or to the clerk of any magistrate’s court to pay the admission of guilt fine there. I believe that it is reasonable that a person who commits such an offence should be allowed to pay his admission of guilt fine at any police station or magistrate’s court.

We have the situation at the moment that there are very stringent laws in existence in the country against traffic offenders who exceed certain speed limits which have been laid down by that hon. Minister of Economic Affairs. Sir, if, while travelling from here to Durban, I happen to exceed the speed limit while passing through De Aar and then receive a summons after I get home, it will now be expected of me to drive back to De Aar to pay my admission of guilt fine in the De Aar magisterial district. That will completely negate the regulations of the hon. the Minister of Economic Affairs. I do not believe it is reasonable that a person should be compelled to pay an admission of guilt fine in the district where the offence was committed. I admit that, generally, this does happen. Generally one commits the offence in one’s home district and pays one’s admission of guilt fine there, but there are these exceptions. Therefore I ask the hon. the Minister to accept my amendment, which I now move—

Mr. Chairman, the hon. member for Pietermaritzburg South is sure to keep us busy for a long time yet in this Committee Stage. I want to tell the hon. member that if he is afraid of his own cheques, he can simply send a postal order. There is nothing in this Bill that says that if I pay an admission of guilt fine by cheque, it will not be acceptable. I think the hon. member is simply making a mountain of a molehill. The proposed amendment of the hon. member actually deprives this whole clause of its effectiveness. This clause is in fact effecting the important amendment in practice that admission of guilt fines now have to be paid in the area of jurisdiction in which the offence occurred.

The hon. member will surely understand that there must be very good reasons why this change is being effected. In the first place, the existing practice places a tremendous administrative burden on the police. At present, a heavy onus is also being placed on the police in that they have to ensure that admission of guilt fines from all over the country are received at their destinations well in time to prevent warrants being issued in the event of non-appearance when the fine might already have been paid and actions for damages could result.

In the second place, the present practice costs a tremendous amount of money every year. I am speaking under correction but I think that for two years, it cost approximately R300 000 just in the commission which had to be paid to the Post Office for the transfer of the moneys.

In the third place, approximately 95% of the admission of guilt fines are municipal fines such as traffic fines. I see no practical problems in regard to the payment of admission of guilt fines within the area of jurisdiction in which the offence occurred. The media through which payments may be made are so effective today and so easily accessible that no one will be inconvenienced by this. Actually, there are hardly any formalities attached to the question of admission of guilt fines and if the new clause stays as it is without the amendment the hon. member is moving, it will simplify matters a great deal. In my opinion, the hon. member’s amendment would render the clause completely worthless and I cannot associate myself with it.

At present, there is really only one formality which is still required when an admission of guilt fine has to be paid, for the document in which the admission of guilt is made has to be signed by the accused. All that is then really desired of the accused, is that he must complete the applicable portion of the summons or the written notice and if he is not going to pay personally he sends the fine to the office concerned, as indicated. In many cases of this nature, the accused omits to sign the document before he forwards it and this, too, gives rise to a tremendous administrative burden in our magistrates offices and in other ways as well. At the present moment, the legal provisions are to the effect that the magistrate cannot sanction the fine in that case. Consequently, the money must first be put into a pending account and the document has to be sent back to the accused for his signature. Now it often happens that the accused has changed his address or that he is not interested in returning the document. In that case he must first be traced, and so on. In this way, some of those cases are held up for many months and they remain pending.

Despite the fact that the signature of an accused on such a document could possibly facilitate proof of previous convictions, we find in practice that admission of guilt fines are seldom advanced in our courts as previous convictions and I believe it is a general consensus that the advantage in this is so negligible that it is far outweighed by the attendant disadvantages.

The proposed admission of guilt procedure which is set out in clause 57, will naturally lead to an increase in payments made by post because one will only be able to pay such fines in the district in which the offence was committed. This will only aggravate the problem and I should therefore like to move the amendments which are printed in my name on the Order Paper, as follows—

1. (1) On page 44, in line 39, to omit “under his signature”;
2. (2) on page 44, in line 40, to omit “and pay” and to substitute “by paying”.

Mr. Chairman, it gives me great pleasure to support the amendment of the hon. member for Pietermaritzburg South. I think that the past procedure has worked very, very well. One of the real difficulties is that in sending payment, that payment is to be sent to the area where the offence took place. For example, somebody from Johannesburg visiting Cape Town will have to send money to Johannesburg for a parking offence committed there. One may send the money two weeks before the trial date as set out on the parking meter summons. If one has not received the receipt, one does not know whether the money has reached Johannesburg and if the money in fact has not reached there, one will have to appear in court for contempt of court. One of the important things about being able to pay now at any police station, is that one gets one’s receipt straight away and one will then know that one has a defence if charged with contempt of court for not being in court. There is no way one is going to get around this.

It is going to cost a great deal more money to do what the hon. member for Klerksdorp has suggested because, in any event, if one sends one’s money by post to the police station for example, in Durban, if that is where the offence has been committed; then they, in turn, have to send one one’s receipt which means that the postal services have already been used twice. Furthermore, there is the cost of the postal order. I suggest for the consideration of the hon. the Minister of Justice that he accept this amendment as it will cause very great hardship if he does not do so.

There is another point to which I wish to refer. Quite often it is not even the person who has committed the offence who is charged. I may lend my car to somebody—I have had a lot of experience of this—and that person receives a parking ticket. I receive the parking summons for the offence, but I cannot afford to go to Durban to fight the case there, so I pay here in Cape Town at the police station. So here we find that it is not even the person who committed the offence, but the innocent party who has to go to Durban to pay or he has to send it by post and not be sure whether the money has arrived there. I have had experience of this type of offence where other people have borrowed my car and I can say that the present system seems to work very well. I am often quite staggered, when I pay here today for a matter which is due to be heard by the court tomorrow in Durban, that the whole matter seems to be all right and I do not receive a warrant for my arrest. It has worked very well in the past and I do earnestly ask the hon. the Minister to continue with the practice which we have had in the past.

Mr. Chairman, I value the support of the hon. member for Durban North in this amendment. I also value the support of the hon. member for Klerksdorp, because the effect of his amendment is to go in part along the way to meet my problem.

You are looking for company!

No, not at all! What is the effect of the amendment moved by the hon. member for Klerksdorp? The effect now is that a person need no longer go personally when he pays an admission of guilt, and need no longer sign the actual admission of guilt. So, this does allow for the first time for the posting of an admission of guilt. If one thinks of the problems that are going to be created by this—as pointed out by the hon. member for Durban North, and as pointed out earlier when I spoke—the hon. the Minister must not lose sight of the fact of delays in the mail. He cannot deny that this takes place. He also cannot deny the fact that the person will have no receipt whatsoever, and no proof whatsoever. When he is arraigned before the court for contempt of court for having failed to appear, it is no good for him, I submit, to produce a cheque stub and to say: “I sent a cheque on the 26 January, and, therefore, I am not guilty of the offence of contempt of court.” I do not believe that that will be any defence at all. Mr. Chairman, I happen to have here, at the moment, a summons, a summons under the present law. [Interjections.] The first point is that on the front it says—regarding the admission of guilt—”the aforementioned amount may be deposited at any police station or magistrates’ court.” Why does the hon. the Minister want to upset that arrangement? The hon. member for Klerksdorp referred to the delays in the receipt of the admission of guilt moneys at the court where the offence is charged. The hon. the Minister is also the hon. Minister of Police, and he knows that the police have an instruction that if there is a possibility that the signed admission of guilt form will not be before the court, they have to send a telegram. He knows that. I believe that that system works perfectly well. I do not believe it is necessary to upset that situation.

I now want to come back to the inane interjection by the hon. member for Pretoria East a little bit earlier. On the back of this, where the admission of guilt is to be signed by the person concerned, it is written in large black letters: “Cheques will not be accepted.”—“Geen tjeks word aangeneem nie.”

Where do you get that from?

From the police. [Interjections.]

†Mr. Chairman, this is the situation, and I want to say to the hon. the Minister I believe that the combination of the two amendments moved by the hon. member for Klerksdorp and by myself would result in a smooth administration of justice. I do not believe that the State would be prejudiced in any way. I do not believe that the accused would be prejudiced in any way. In fact, I believe that it will be to the advantage of any accused person not to have to appear personally to pay his admission of guilt. There have been times when it has been a damn nuisance to me, to put it bluntly, to have to leave my business and to go to a police station to pay this, where it would have been a simple matter to say to my son or my daughter: “When you pass there one day, go and pay this R5. Here is the form.” And that is what the effect will be of the amendment moved by the hon. member for Klerksdorp, and I appeal to the hon. the Minister to accept all his amendments.

Mr. Chairman, I am prepared to accept the amendment of the hon. member for Klerksdorp because, as the hon. member for Pietermaritzburg South has just said, it makes the whole procedure easier. It is no longer necessary for the accused to go in person. He need no longer sign his name. All the State is really interested in is payment of the fine. After that the matter has been disposed of. But since that concession is now being made, I am afraid I cannot make the other concession as well. I want to tell the hon. member why not. At the moment police stations find that they have to transfer a tremendous amount of money to the magistrates’ courts. They must send money to a great many magistrates’ courts but the police stations themselves have to buy the postal orders for those sums of money. That money can be sent in no other way than by means of a postal order. Hon. members on the opposite side of the House have had occasion to take issue with me because policemen so often have to act as agents for other departments. Now the police have to take out postal orders for each one of those innumerable payments, postal orders which are then sent to the various magistrates’ courts.

No, that is wrong.

Yes, this is done. [Interjections.]

Order!

These are not cheques; they are postal orders. In 1975 it cost us R125 402 in postal order commissions for fines alone. In 1976 the amount was R118 459. This is commission on postal orders which we pay on behalf of the public. The position is that we are now simplifying matters for people. Previously one had to go to the police station, but now one simply goes straight to the Post Office. One buys the postal order for one’s admission of guilt and attaches it to one’s summons which one need not even sign. One registers one’s letter and one now already has one’s receipt. There is no longer any further difficulty. One simply takes one’s receipt and if one should ever receive a summons because of some negligence on the other side and one’s official receipt had not been sent quickly enough, one could simply show the policeman one’s registered docket as proof. That is the end of the matter. This will simplify the whole situation and that is why the Bill provides that the offender himself has to ensure that the fine is received by the police station or magistrate’s office that has jurisdiction over the area in which the offence was committed. The State has already spent a tremendous amount of money on behalf of the public as a result of this enormous amount of money being sent backwards and forwards. On top of that, the money must then be transferred to all of the various municipalities. The transfer of money to the provinces and municipalities in itself entails a lot of administrative work. Hon. members themselves will understand that this is a tremendous amount of trouble and that the public must be charged with this because it is the public’s fault. If a person receives a summons, then the least that person can do is instead of going to the police station as he does at present, to go to the Post Office and forward the small amount.

Mr. Chairman, I hope the hon. the Minister will reconsider this. In accepting the amendments of the hon. member for Klerksdorp, the hon. the Minister indicated that he was prepared to make a concession in so far as those amendments were concerned. However, he is not prepared to make a concession in so far as the amendment of the hon. member for Pietermaritzburg South is concerned.

I think that the hon. member agrees with me now that I have explained it.

I agree that is the system, but I believe that the system is wrong.

I will deal with that. What the hon. member for Pietermaritzburg South is saying is that he accepts that this is the system as it exists today, but as I shall point out, the system is unnecessarily complicated. It is the system that should be changed and not the law as it exists today.

How do you change it?

I shall suggest to the hon. the Minister how it may be changed, but let me put it to him firstly that he is not being asked to make a concession. The law as it is today provides for what the hon. member for Pietermaritzburg South is asking. So it is the hon. the Minister who is now seeking to change the existing law. The hon. the Minister is not being asked to make a concession; he is being asked to keep the existing law as it is.

I made a concession with the amendment of the hon. member for Klerksdorp.

As the hon. the Minister puts it, he has made one concession. The hon. the Minister has made one change by accepting the amendments of the hon. member for Klerksdorp, but what the hon. member for Pietermaritzburg South is asking, is to retain the law as it exists today.

I do not think the hon. member has asked that. I think he accepts with appreciation the change made by this amendment.

The hon. member accepts the amendments moved by the hon. member for Klerksdorp, but he still persists in his amendment. We can stop the argument by asking him.

My amendment retains the status quo.

That is right. This is what he wants to do. Now that it is clear to the hon. the Minister that the hon. member for Pietermaritzburg South still wants to persist with his amendment, let me try to justify it. I hope the hon. the Minister will give serious consideration to this, because by accepting the amendment moved by the hon. member for Klerksdorp, the position has improved. Nevertheless, people will be placed in considerable difficulty by the fact that they cannot go to a police station or magistrate’s court to pay their fine and obtain a receipt for their money. I think this is the important thing.

One can go to the post office and obtain a receipt.

That does not help. All one gets from the post office is a receipt for one’s postal order, but the court will not be interested if the accused does not appear on the day that he is supposed to. How will they know whether that postal order has even been posted? One can buy a postal order, but never send it.

[Inaudible.]

Even if one gets a slip for sending it by registered post, it does not enable one to prove, when one has to appear in court, that it has been received.

I accept that the existing system is quite wrong and I can see no reason why the system should not be changed. Why should the police have to send a separate postal order for each amount they receive in the way of fines? They must receive a certain amount of money for a certain centre. Let us assume that they receive a certain amount of money today to be transmitted to Cape Town and that that is made up of three or four admissions of guilt fines. Surely they do not have to transmit this to Cape Town by way of a separate postal order for each amount? That may be the system today, but it is quite ridiculous that it should be. If it is the system, it is a thoroughly bad one and ought to be changed. It is not the law that ought to be changed, but the system. I think the hon. the Minister is being obstinate if he feels that he ought to persist with a thoroughly bad system to the inconvenience of the public, because this is what it amounts to. The change that he is making, is considerably to the inconvenience of the public. He ought to change an out-dated and completely cumbersome system of payment. That can be done quite easily. There are such things as telegraphic transfers to money. The police stations can transfer in bulk the various amounts they get during the course of the day. What is more, I am reminded by the hon. member for Pietermaritzburg South that the transfer can be made by way of an accounting procedure between the various centres. No money needs to pass hands at all. The hon. the Minister need not shake his head, because this is common practice. How do you think the banks transfer money to one another? Do you think that they transfer actual cash? They do not. They do it by way of an accounting transfer. Surely the State, with all its facilities, can do the same without the necessity for having to issue a separate postal order for each fine that has to be transferred to a different centre. I admit that it is quite a ridiculous system. The system ought to be changed and the public ought not to be inconvenienced.

Mr. Chairman, I should like to ask the hon. the Minister a question. I understand from the discussions that have taken place that it will be sufficient if I buy a postal order at a post office, put it in a registered envelope together with the summons, address it to the magistrate of the area where the offence was committed, and then hand it to the Postmaster who will give me a receipt for the registered letter. But how can that receipt I have received from the Postmaster be proof that I have put the total amount in the envelope and that I have not merely sent the summons back without any money? How can I prove that the postal order is received by the magistrate? The magistrate could very well say: “I received your letter and opened it, but there was no postal order in it.” What happens then?

Mr. Chairman, the hon. member for Rosettenville stands up and, like a barrister, pins me down with a question of law, saying that there might be nothing in the letter. I want to tell the hon. member that everyday thousands and thousands of people send money through the post in this way. The receiver at the other end, who receives a person’s postal order together with the summons, is not there to do that person in. He will not pinch it and then say he never received it. Postal orders are sent and received everyday. I said that if the sender of the postal order is a little bit worried, he should register it for the simple reason that if some clerk, by mistake, does not send the receipt quick enough, another summons might be received from the courts. If one sends it registered one can prove that the postal order was sent on such and such a day. The people concerned can then check their records immediately and apologize if they have made a mistake. After all, it is not a big crime that has been committed and nobody thinks it is a big crime. It happens everyday. All we are saying is that the police have other duties to perform and cannot spend their time making up all these packages, sending them this way and that, even transferring them and doing the required book-work as hon. members want them to do. All we want is that the police be left to get on with their police work. All I am asking is that, where people went to the police-station before, they, should now go to the post office. What is wrong with that? There is nothing wrong with the system at all.

Mr. Chairman, it is not merely a question of whether the money is received or not. We live in a big country. If I commit an offence in, for instance, Ingwavuma and receive a R2 parking fine …

Where is that?

The hon. member for Maitland wants to know where it is, and that is my point—it is a very long way away. I may dispatch, by registered post, four days beforehand …

You should dispatch it in time; that is the answer.

That is exactly what I wanted to ask the hon. the Minister: What is “in time”?

You must use your discretion. You should know when you get the summons and should pay it timeously. [Interjections.]

I happen to live on a farm and I very often receive summonses to appear in some city within three days.

Summonses for what?

I receive summonses for parking offence, inter alia. The summons states that one should appear in court in three days time. At present I know that, where I live, I can at least go to Nottingham Road police station, pay the fine and get a receipt. Then I know it is paid for and I am quite happy.

They know you well.

Yes, they know me very well. Whenever they bring them to my farm, I get a bunch of about six of them. If, however, I cannot get that receipt locally, I have to go a very long way—for example, to Durban—to pay. If one is an accused, one just does not know whether one’s payment is going to be received in time if one sends it by post.

Mr. Chairman, in actual fact the Department has already received the instruction that warrants of arrest are to be held back for 14 days. I think that that should satisfy the hon. member for Durban North in regard to this particular point. Even if the hon. member sends his money away on the very last day, it will not take longer than 14 days to get to Koekenaap or wherever he committed his offence.

Amendments moved by Mr. A. A. Venter agreed to.

Amendment moved by Mr. W. T. Webber negatived (Official Opposition dissenting).

Clause, as amended, agreed to.

Clause 60:

Mr. Chairman, just before I address the Committee, could I get some indication from the hon. the Minister as to what his attitude in regard to my proposed amendments is?

Mr. Chairman, I am prepared to accept the second amendment of the hon. member, but not the first one.

Mr. Chairman, may I say that I very much commend the hon. the Minister for accepting the second amendments as I think it is a very good course of action to take. I accordingly move that amendment, which reads as follows—

However, in regard to the first one, I do persist in regard to that amendment as well. The position at the present moment is that in terms of section 88 of Act 56 of 1955, in many cases the accused, after the preparatory examination, is entitled to bail as of right. It is now proposed that an accused person will only be entitled to ask for bail in the court in which he is going to be tried. However, it often happens that an accused is brought to a magistrate’s court in circumstances where virtually everybody knows that the charge is a trumped-up charge. I shall have to use a rather lurid example, but I can recall that certain prostitutes in Point Road who had not obtained payment, laid charges of rape. The police knew that it was a lot of nonsense and the prosecutor knew that as well but charges of rape were laid and the matter had to be proceeded with. In such a case, under this clause the accused will not be able to get bail in the magistrate’s court because it is most likely that that case will be heard in some other court. However, at that stage nobody knows which court it is going to he heard in.

He can get bail there.

He can get bail in the magistrate’s court?

He can get bail when the matter comes before the court.

Clause 60(1)(a) provides that “or, if the proceedings against the accused are pending in a superior court, to that court, …”

The hon. member must bear in mind that this refers to proceedings which are pending. When he comes before the magistrate’s court, he gets his first bail there. It is only afterwards, when the case has been referred to the Supreme Court, that he must go to the Supreme Court.

That would be quite satisfactory, but that is not really what the clause says. If the accused is brought to the magistrate’s court in terms of clause 50, he may even be required to plead there but the proceedings will be pending in another court. According to this section he will not have the right to apply for bail in that magistrate’s court and he will stay inside.

No, he can do that.

*Mr. Chairman, this clause was introduced specifically for the accused, so that he may request bail continuously wherever he may be and in whichever court he may find himself. When he appears for the first time in the magistrate’s court he can apply for bail there. When his case is transferred to the Supreme Court to be laid before that court, he can request his bail in the Supreme Court. Therefore the court which deals with that case is the court which grants him his bail. That is not an unfair provision, because it is in his favour.

Mr. Chairman, these words also disturbed me when I first read them, and to be perfectly frank with you and with the hon. the Minister, I am not quite certain, even now, what exactly they mean. If the hon. the Minister can assure us that the intention here is that when the accused against whom proceedings are pending in another court, appears in a lower court, he may then apply to another court for bail, then I would say that what the hon. the Minister has just said is correct and is utterly acceptable to us in these benches. Reading these words as they are, I first read them as saying that if the accused appears in a lower court when charges are pending against him in another court, he shall only apply for bail to that other court.

They can be pending at that stage.

Yes, they can be pending when he appears for remand. They can be pending when he appears in the lower court. If the hon. the Minister will confirm that the accused may apply to either court for such bail, then this clause is totally acceptable. Can the hon. the Minister confirm that?

Mr. Chairman, I can confirm that. It is clear from the wording, which reads: “An accused who is in custody in respect of any offence may at his first appearance in a lower court or at any stage after such appearance, apply to such court…”

… to such court ‘or’ …”

That is, he applies to the lower court. Any time after he has appeared and could not get bail when he applied for it, he comes back to the lower court and applies for bail. I quote further: “… or, if the proceedings against the accused are pending in a superior court, to that court”. That means that if they have already referred the matter to a superior court, the accused must then apply to the court which is hearing his case. The whole case of that accused is therefore heard in the particular court that is dealing with his case.

Mr. Chairman, I think that on this occasion, having heard the reply of the hon. the Minister to the question of the hon. member for Pietermaritzburg South, I tend to agree with the hon. the Minister. I read it in this way that in terms of the procedure in this Bill, the matter is not pending before the superior court until the processes in the inferior court are complete. Up to that stage the application for bail can still be made in the lower court. Once the relevant documents have been issued and the procedures started which make the matter then pending in a superior court, it seems proper that at that stage the court that is seized of the matter, which will then be the superior court, is the one which should deal with the question of bail. Although it may look odd in the light of current practice, if one looks at it in the light of practice within the terms of this Bill, one will see that it is not objectionable.

Mr. Chairman, may I just point out that clause 76 which deals with indictments, states that proceedings in a superior court can only start with an indictment. After the indictment, the case is referred to the superior court.

Mr. Chairman, I have looked at the Afrikaans text of this clause and it seems to be much clearer. The matter has been cleared up as far as I am concerned and I shall therefore not pursue it any further.

Mr. Chairman, while we are dealing with this clause, may I ask the hon. the Minister why it is that he has finally eliminated was that it led to tremendous 98, which, as he will remember, allowed a fresh application to the Supreme Court to be made in a case where an application to the lower court had failed. There are certain advantages which the provisions of the old section 98 allowed, and that is that a fresh court brought its mind to bear on the matter, it is a superior court, and it is a far better procedure than having to lodge an appeal against a decision. I may or may not move an amendment on this, depending on the Minister’s reply, but I would first like to know the reason for the dropping of that section.

Mr. Chairman, the reason why that section was eliminated was that it led to tremendous confusion. You will remember that the section stipulated that if a person could not obtain bail in an inferior court, he should apply to the Supreme Court. Provision has already been made in this Bill for appeal, but according to the old procedure, especially if one looks at case law, one will see that the Supreme Court could never determine whether it was an appeal or not. There was uncertainty about whether a record had been drawn up and whether action should be taken according to the record, or whether it was a new application for bail. The uncertainty is being eliminated with this new Bill. This new Bill provides that one applies for bail, and if the application is unsuccessful, one may appeal against it.

Mr. Chairman, I have heard what the hon. the Minister has had to say, but the position is that in terms of section 97 of the existing legislation, there is provision for an appeal to the Supreme Court. I know that it was always a question of whether there should be written reasons from the magistrate and so on, but then section 98 of the present legislation entitled people to make application for bail to the Supreme Court. This was not an appeal, and although the Natal courts always allowed it as a fresh application, certain other courts had their doubts about it. Nevertheless, it was very often used as an application to the Supreme Court. With respect, Sir, it was a very good section because it very often happened that one could bring fresh facts to the attention of the court in this application which one could not do in an appeal. I ask the hon. the Minister whether that should not still be allowed.

Mr. Chairman, I think the hon. member for Durban North will agree with me that it was juridically wrong to be able to by-pass a magistrate, as it were. That is to say, if one was not granted bail by the magistrate, one could have another bite at the cherry at the Supreme Court. This is what actually happened in Natal, is that not so? In law that should not be, because it means that in actual fact the judge says to the magistrate “you were simply wrong”. But he does not give his reasons. He does not take into account the facts which the magistrate took into account. He simply says: “I, with my particular discretion, grant bail, while you, with your particular discretion, did not grant bail.” All we are doing now is that we are saying to the Supreme Court: “Deal with this properly.” If a person is not satisfied with the outcome of his bail application, the records must be sent to the Supreme Court, which can look at the reasoning of the magistrate and then agree with him or overrule him. From a legal point of view, that is the correct procedure in every respect. That is how it should operate.

Mr. Chairman, if I may just react to that: I have several difficulties with the hon. the Minister’s argument. The first is that in this case we are not dealing with an appeal against a conviction of any sort. In other words, it is not an appeal by a person who has been convicted; it is an appeal by a person who, while he has not yet been convicted of anything, is in fact in prison and awaiting trial. Therefore, I think that rather special circumstances apply here, circumstances different from those that apply where a person has in fact been convicted of an offence of any sort.

The second point is that an appeal takes a longer time than a fresh application, this being important particularly in view of the fact that we are dealing with people who have not yet been convicted. In the case of an appeal, one has to wait for the reasons after which, as I understand it—the hon. member for Durban North will know more about this than I do—one argues one’s case purely on the record and that which it contains. In the case of a fresh application to the Supreme Court, one is not limited in this way. Firstly, one can bring one’s application almost immediately; secondly, one can produce witnesses and argue the case on a far broader basis, using new facts. In the light of that, I should like to move as an amendment—

I may just point out that, by making that subject to the provisions of the proposed section 61, the rights of the Attorney-General are retained.

Clause 61 is going to be abolished anyway.

Mr. Chairman, let me just tell the hon. member for Sandton what he has now done. His amendment is in conflict with the amendment of his bench-mate, which I have accepted. The amendment that I have accepted has the effect that a person may return repeatedly to the magistrate’s court.

I want him to be able to go on application to the Supreme Court.

If a person has no success at all at the magistrate’s court, surely he can go on appeal to the Supreme Court. What else does he want to do?

An application to the Supreme Court.

The hon. the member is now bringing back the holy cow idea again.

No, that is not the holy cow.

I have given those hon. members all the concessions they can possibly expect from me. The concession I have given the hon. member for Durban North means that one can repeatedly reapply for bail to the magistrate.

The same magistrate?

Yes, the same magistrate.

Order! The hon. member must not keep on interjecting.

If the magistrate and the person concerned cannot see eye to eye, the latter can say: “I am taking you on appeal.”

Amendment moved by Mr. S. A. Pitman agreed to.

Amendment moved by Mr. D. J. Dalling negatived (Progressive Reform Party dissenting).

Clause, as amended, agreed to.

Clause 61:

Mr. Chairman, clause 61 provides for the Attorney-General, under certain circumstances, to issue a certificate which will preclude a magistrate from granting bail under certain circumstances. The circumstances, as provided for in this Bill, are that if the Attorney-General has information “which, in his opinion, cannot be disclosed without prejudice to the public interest or the administration of justice; and which, in his opinion, shows that the release of the accused on bail is likely to affect the administration of justice adversely or to constitute a threat to the safety of the public or the maintenance of the public order”, he may then issue such certificate to the magistrate who will then not be allowed to grant bail to an accused person.

There is a similar provision in the legislation as it stands today and there are other provisions, not only in this particular Bill, but also in other legislation which has passed through this House, which allow the Attorney-General similar powers. I believe that this particular provision constitutes an increase in the powers which he has under the present Act and I believe that such an increase is not necessary. It will be noted that this refers specifically to offences under Part III of schedule 2. We must look at those offences before we consider the merits of this particular clause.

The offences referred to under Part III are arson, murder, kidnapping, child-stealing, robbery, house-breaking, whether under the common law or a statutory provision, with intent to commit an offence, any conspiracy, incitement or attempt to commit any offence referred to in this Part. It will be noted that, with the exception of the last provision, viz. the incitement, no offences are listed here which can be construed as offences against the State or offences against the safety of the State, or offences against the safety of the public. For that reason I do not believe that it is necessary that the Attorney-General has these sort of powers in this particular Bill.

Where the safety of the State is concerned, where the safety of the public is concerned, the Attorney-General, the Minister, or certain judges already have powers in terms of existing legislation. I do not believe that it is necessary for the Attorney-General to have these particular powers in respect of these offences in this case.

At the moment, in terms of the present Act, if the Attorney-General considers it is necessary in the interests of the administration of justice, or the safety of the public, he may issue such a certificate. The effects of this amendment are that he will now be empowered to do so if he is merely in possession of information—the truth of which has not been tested and which in fact could be totally incorrect—which leads him to hold the opinion that the release of the accused is likely to affect the administration of justice adversely or to constitute a threat to the safety of the public or the maintenance of public order. In other words, no longer need the Attorney-General be satisfied that the detention of the accused is necessary for public interest or for the due administration of justice.

It will be sufficient if he holds an opinion that the accused is likely to do something which will affect the administration of justice adversely, or to endanger public safety or order. Again, I must draw to the attention of this Committee the nature of the offences for which the accused has been charged. This is not, I repeat, a case of offences which endanger the safety of the State or endanger public order. The basis on which the Attorney-General may decline to disclose information in his possession—i.e. that it will prejudice the public interest or the administration of justice—is so vaguely expressed as to be capable of bearing almost any meaning.

For those reasons I do not believe that we should approve this particular clause. The Attorney-General, as I have said, has powers under other provisions in this Bill and under provisions of other Acts as well to do just this where the safety of the State and of the public is involved. I believe also that this provision constitutes an infringement of the right of a court, and if this clause were to be omitted from the Bill, I do not believe that the administration of justice would in any way be prejudiced because a magistrate would still be in the position where he could decide not to grant bail on the basis of the evidence presented to him by the Attorney-General or by the prosecutor concerned. For that reason we in these benches will vote against this clause.

Mr. Chairman, the hon. member for Pietermaritzburg South has once again proved to me how confused the Opposition is. Have they forgotten that this whole issue was debated over and over again in 1965? He actually contradicted his party who accepted these amendments in 1965 and said that they were good amendments.

I should like to quote what the hon. member for Omaruru said in 1965, and I quote from the Hansard of that year, col. 7943—

That is virtually the same as that which we have before us now. I quote further—

The hon. member Mr. M. L. Mitchell, the then chief justice spokesman of that party, praised this new provision and said that provision should be made for the very reason that a new type of crime had developed, i.e. robbery. He said the following (Hansard, Vol. 15, col. 8089)—

The then Minister of Justice gave examples of the new type of crime that had developed. Here he admitted that this was true. He went on to say that the Minister had made out his case. Other hon. members on that side also said at that time that they accepted it. Therefore I do not know why hon. members of the Opposition are raising so many objections against it today.

Mr. Chairman, I support the attitude of the hon. member for Pietermaritzburg South. With respect, this is a matter which should be left to the courts. Here we are putting power in the hands of an official. I do not see the difficulty that the hon. member who has just spoken has. I do not see any difficulty with putting it up to a judge. If the Attorney-General wants to, he can by means of affidavit submit the previous convictions of an accused. There is no difficulty about that. He would not put up the previous convictions to a judge who is presiding at the trial, but there is no problem in putting them up in the case of bail application and it is very often done. In any event, the previous convictions themselves bear very little relevance to the question of bail. In fact, a lot of previous convictions usually suggest that the man is quite prepared to stand his trial since he has often done so before. [Interjections.] This is an argument which is often used in the courts. It is actually a very good argument and you do find that those people tend to stand their trial. They always think that they can get off. Perhaps there are many more times that they have got off than they have been convicted.

This measure, as the hon. member has just said, was first introduced in 1965 and I understand that at that stage hon. members on my right asked for it to be a temporary measure, but now, at any rate, it is quite clear that it is to be a permanent measure in this Bill and we oppose it.

Mr. Chairman, I rise just to make one point to the hon. member for Bloemfontein East. When he quotes from Hansard of 1965, he quotes the debate on the provisions which exist in the present Act, and, as I have tried to say, those provisions are not as wide as the provisions contained in this Bill. What we are objecting to, is the extension of the discretion which is given to the Attorney-General. That is what our objection is. The provisions of the present Act will accept. It is the provisions, however, which we consider to be an extension of the discretion given to the Attorney-General, that we oppose.

Clause put and the Committee divided:

Mr. Chairman, clause 69(1) provides that a person other than the accused person shall be allowed to pay bail money for the benefit of the accused. In clause 69(2) it is provided that such money shall be refunded only to the accused or to the depositor, as the case may be.

Then we come to clause 69(3). The first two subsections that I have mentioned, were included in the 1973 Bill, but subsection (3) is a new subsection. It is introduced into this Bill now for the first time. It provides that no person shall be allowed to deposit such bail money for the benefit of an accused person—

This, to me, is a little bit inexplicable. I really do not know what the intention behind this can be. I have tried to think of cases which might have brought about such provision. The only case I can think of, is the case of the witness who was arraigned before the Schlebusch Commission, and who was then kept in custody as a result of certain charges which arose out of that commission’s inquiry, and for whom bail was paid. Subsequently, she denied that anybody she knew of had paid the bail. I wonder if the hon. the Minister can tell us why he has introduced this provision and what exactly the intention is behind it. Surely, the object of bail is that the person shall be released pending a hearing, and I fail to understand the true implications of the question of the person facing the bail having been indemnified.

Mr. Chairman, the answer is that this in fact constitutes a safeguard for an accused. There are many bureaux for bail which demand an absolutely incredible amount for the financing of such bail. The clause has been introduced to stop them. They are people who pay an accused’s bail, but then demand twice the amount back.

†It is an unconscionable amount that they take to indemnify the bail bond.

Is there evidence that there is a racket?

Yes, very much so.

Clause agreed to.

Clause 73:

Mr. Chairman, the provisions of section 84(1) of the Criminal Code, which are still in existence, provide that—

The new provision says—

The first point which arises is the new word “assistance” which is inserted in the clause in the place of the word “access”. As far as I can find out, the word “assistance” has not, in fact, been tested in the courts, while “access” has. “Access” means that a legal adviser, or friends, in the case of the old law, will be entitled to see the accused, usually in a prison cell or an interviewing room. The word “assistance” does not necessarily imply that, and therefore we feel that it is doubtful whether it is a correct principle to drop the word “access” and substitute it with the word “assistance”.

Secondly, I am sure all of us that have been in law have had the experience of an accused person being arrested late at night on some or other charge, be it an offence involving an assault or an alleged drunken driving charge, or something like this and the accused is either in a strange town or in a town where he does not know any lawyers. He may not have any family, but may have a friend. He may ask the policeman whether he might contact his friend and whether his friend might come and see him either to bring bail money, advise him about a lawyer or some such matter relating to assisting him at an awkward moment when he has been arrested. Therefore, we feel that the clause should be amended to allow not only a legal adviser to be present, but also friends and legal advisers of the accused by putting the word “access”. We realize that this could be open to abuse. We realize that anybody could come in, as the hon. the Minister pointed out in the Second Reading when he said that the difficulty was that people would come in and concoct a story between themselves. The hon. the Minister said that malpractices could take place. I think, however, that on balance it is far better to have this protection for the person who has just been arrested than to omit it. Accordingly, I move the following amendment which stands in my name—

Mr. Chairman, at the outset I want to say that the hon. member for Sandton stated the motivation for the amendment far more moderately than the motivation given for it by the hon. member for Durban North in his Second Reading speech. To assist the hon. member for Sandton I want to reply, firstly, to his question in regard to the meaning of the word “assistance”. It so happens that I looked up the Afrikaans word “bystaan” in Die Handwoordeboek van die Afrikaanse Taal, and it is elucidated as “naby staan, teenwoordig wees, hulp verleen, met raad en daad bystaan” (stand close to, be present, help, assist with word and deed). The word “assistance” means “help” and “support”. In my humble opinion the Word in the clause is better and more appropriate than the word “access” which used to be there.

Another argument which the hon. member used was the example of a person who was arrested late at night by the police and who did not know a lawyer. Experience has shown very clearly that the first thing the police ask such a person is where they may find legal assistance for him. The clause effects a very important change in section 84 of the Act, one which was not there before. Now it is expressly stated here that the accused is entitled to the assistance of a legal adviser as from the time of his arrest. This was not so stated in section 84. The hon. member will probably concede that. That was precisely where the problem arose. I believe that although the word “friends” is being omitted, the fact that an accused is entitled to assistance from his legal advisers as from the time of his arrest is a very important extension. The argument of the hon. member and his party is that, as it is worded at present, an accused does not have the opportunity to prepare his defence for example. I maintain that he may do so through his legal adviser. If he wants to obtain evidence or wants documents, he may obtain them through his law adviser. He is not being cut off from any means; in fact, the position is a vast improvement for the problem which arose in practice was that the so-called friends to which reference has been made were frequently the accomplices, accessories or minions who wanted to hear, inter alia, what charges were going to be preferred against him, thus creating an impossible situation for the prison authorities and police. Clause 73 is specifically worded “subject to any law relating to the management of prisons” and it is my submission that there is always access as well, in terms of those regulations, for the friends and family of an accused. I do not believe for one moment that an accused is being deprived of any right. In fact, the first reaction of an accused is to want legal advice. In this respect no canal whatsoever is being closed to him; in fact, as the clause is now worded, it is a considerable improvement. In practice it is the situation that a lot of friends suddenly turn up who are, however, no friends at all, but who want access to him for other reasons.

I should like to refer to the one specific point which the hon. member for Durban North used as an argument in support of his statement, viz. that the clause in practice means that an accused does not even have access to an attorney. I think the hon. members are barking up the wrong tree if they want to give this kind of motivation to a clause which is really not open to the interpretation which was given to it this afternoon and in the Second Reading speech of the hon. member for Durban Point.

Mr. Chairman, the argument put up by the hon. member for Klerksdorp has two flaws. Firstly, this amendment by the hon. member for Sandton does not demand that if friends are allowed to see an arrested person they are to see him in private. If they are persons who are suspected to be undesirable, it is quite permissible that they can see the accused person in the presence of a policeman. In other words, the ultimate sanction that nothing untoward takes place between an arrested person and his so-called friends rests with the police. If the police suspect this type of thing, and I accept that it can happen, they can be present at the visit by the friends to the person concerned. As far as the attention of a lawyer is concerned, which is normally done in private, it would be normal for the lawyer to ask that he be left privately with the arrested person at the time of the visit with no police present. Then the police can ask the lawyer to visit the arrested person at a time when the friends are not present. The difficulties can therefore be quite easily overcome. Accordingly, we on these benches will support the amendment of the hon. member for Sandton. I take a similar view to the hon. member for Sandton that “access” has a more specific and better meaning than “assistance” in terms of the situation which we are here dealing with.

Mr. Chairman, I just briefly want to say that we will also support the amendment of the hon. member for Sandton. The hon. member for Klerksdorp actually only made one real point and that was that the people who were coming to see the accused, might have ulterior motives. The hon. member for Umhlatuzana has dealt with that matter fully and he has explained the fact that there is no reason why the accused should be seen on his own by his people and that the police can be present during the visit. I can therefore not see the reason for not allowing this amendment, because I think it is a perfectly reasonable one. I should like to ask the hon. the Minister to accept the amendment.

Mr. Chairman, in reality I replied to the arguments of the hon. members during the Second Reading yesterday afternoon already. I do not think I need repeat everything this afternoon. I want to content myself by saying that this is indeed in the existing Act. I concede that, but ample provision is still being made in the Prisons Act for people in prison.

But this is before they enter the prison.

No, this is in the prison.

It is in the police cell.

The police cells are covered by the Prisons Act. It belongs in that specific Act, and there are comprehensive regulations relating to the visits of friends and family to a prisoner. In all honesty I do not think there is a single attorney or advocate in this House this afternoon who has any objection to the word “assistance”. Surely the fact that it has not yet been defined and interpreted by the courts does not matter. Surely it cannot have been interpreted by the courts at this early stage. It is a better word, because it expresses what actually happens. When an attorney goes to the person in prison, he gives him assistance. I cannot understand how the hon. member could have any objection to it, unless he can tell me what attorneys arrive at a prison where they render no assistance. If there are such people, I should like to know about them, for one should prohibit such people in any case. In the clause, however, we are introducing an improved word with a better meaning. That is all that is happening here. There is nothing sinister in this at all.

Mr. Chairman, I regard this as something absolutely fundamental and very important. The hon. the Minister just laughs. The situation is that there are regulations under the Prisons Act. This House does not make those regulations. In the existing legislation we have certain rights. I want to refer to two sections, namely section 84(1) and 84(2). Section 84(2) is about legal assistance and I quote—

That corresponds to the Bill before the House, but what alarms me, is what has been totally left out of the Bill, which is this, as found in section 84(1)—

The proviso is reasonable, because one cannot just forget about the prison authorities because they have to decide upon the time and so on. The important thing, however, is that a prisoner awaiting trial must surely have more rights than a sentenced and convicted prisoner. Even a sentenced person has a right that people may see him, but surely a awaiting-trial prisoner who has not yet been convicted must have a legal right enshrined in our law—not just a prison regulation—that friends may visit him. [Interjections.] The very first and basic reason is that our law presumes that he is innocent until he has been proved guilty. In any event, many of them are innocent, because it very often happens that people are unfortunately and wrongfully charged by malicious complainants, by whom I do not mean the police.

I very often notice, for example, that a trial arising out of assault with intent to do grievous bodily harm at a Saturday night party in an Indian or African location in my area—many trials are as a result of these parties—does not take place for five, six or ten months because someone has been injured and has to go to hospital. Meanwhile the accused stays in gaol and when the trial does start a lawyer is sometimes not available and the trial is adjourned again and again, with the result that it takes about ten or eleven months until the completion of the trial. In that case no friends can visit that person for ten months in terms of our law. The answer the hon. the Minister gives, is that it is to be found in the regulations. I would be very much happier, however, if it was enshrined in our code, which is after all, as hon. members have said, a charter of human rights in South Africa. It is as close as one can get to a charter of human rights. I feel very worried that this House is in fact purposely taking those words out of our charter of human rights by saying that they are not applicable. I earnestly ask the hon. the Minister of Justice to accept the amendment. He can of course phrase it in the way it has been, i.e. subject to the provisions of any law relating to the management of prisons or gaols.” Naturally I accept that, but it should still be in our law.

In terms of what the hon. member for Umhlatuzana said, it is quite clear that whenever there are visitors at prisons—as those of us who practise law, have seen— they see the prisoner in the presence of the gaol authorities. I very earnestly ask the hon. the Minister to consider retaining that provision in the law.

Mr. Chairman, I am astonished. I told those people that ample provision is made in the Prisons Act for safeguarding the right of a person’s friends to have access to him. Does the PRP now want us to make provision for this in every existing Act? Section 82 of the Prisons Act, 1959, provides expressly—I should just like the hon. member for Durban Point to listen, for then I can try to convince him—that those rights which he feels so perturbed about, are already safeguarded. I should like to repeat what is provided in section 82 of the Prisons Act, 1959. It provides that the unconvicted prisoner, subject to such provisions and restrictions as may be prescribed by the Commissioner, may receive visits. In addition, Prison Regulation 10(1) contains the following provision—

Prison Regulation 123(1) reads as follows—

Surely that is a full safeguard. Whatever one does it must surely be subject to the limitations of the Commissioner of Prisons. Surely, if a person is in prison, the attorney cannot demand from the Commissioner of Prisons that he be allowed to see that person at 1 o’clock in the morning. The commissioner will tell him to come at 9 o’clock in the morning because the person will not suddenly die overnight. In spite of what the hon. member for Houghton always says, he will still be there in the morning. Surely one can have no objections to that. The right which the hon. member for Durban North is seeking, is therefore in the Act.

Mr. Chairman, I want to ask the hon. the Minister a question. Is the hon. the Minister satisfied that persons who are detained in police cells, come under the prison regulations?

They definitely come under the Prisons Act, which makes provision for the regulations. The prison cells fall under the full regulations of the Prisons Act.

Do the police cells also fall under the Prisons Act?

Yes. The moment a man is arrested, he falls under the Prisons Act.

The regulations are presumably made on the authority of the hon. the Minister and are then published in the Gazette. They then become law. Those regulations, however, can be changed, as no doubt they are from time to time, without any reference to this House. That is an added reason which lends support to the argument of the hon. member for Durban North as to why it is advisable to retain the wording as it was in the 1955 legislation. If this has been in the Prisons Act and regulations all along, why was it necessary to retain it in the 1955 legislation? It has been taken out of the 1955 code and the Bill, as we now have it, does not have reference to these words. This is an added difficulty one has in accepting the point of view which the hon. the Minister advances.

Mr. Chairman, I do not think that is a difficulty, because the Prisons Act was passed after the old code had been passed.

But, it was in the previous Prisons Act!

It was there, but it is a section of the Act and therefore it cannot be changed by regulation. This particular right is contained in section 82 of the Act and gives a definite right to the attorney. “Hy kan besoek ontvang.”

*To tell the truth, he must be able to receive visitors.

Only the attorneys?

Yes, the legal advisers.

Not his friends?

His friends fall under the regulations. The hon. member will find it in section 82 and if there are any further problems as far as this matter is concerned, I shall give attention to them, for I am as concerned about this as the hon. member is.

Mr. Chairman, clause 75 provides that an accused shall be tried at a summary trial in the court having jurisdiction. I have placed an amendment on the Order Paper providing that the presiding magistrate shall advise the accused of certain rights which he has. I know that the clause already contains certain provisions which will apply to the accused before he is brought before the summary trial. However, you will notice that on the Order Paper we have not only placed an amendment to this effect to this clause, but a whole series of amendments to clauses in the Bill because we believe it should be written into the Bill that a magistrate or a presiding officer, as the case may be, shall be compelled to bring to the attention of the accused person what his rights precisely are. This is of course aimed particularly at the provisions which are contained in clause 115, but also because we believe it is in the best interest of the administration of justice that the accused, particularly when he is not represented, should be aware of his rights. We believe that when an accused is brought before a court for summary trial, he should be advised of his rights in terms of clause 73, i.e. that he is entitled to legal representation and, if he is a minor under the age of 18, that he is entitled to have his parents present at the trial.

Furthermore we believe that he should be appraised of the provisions of clause 105 which are that he will be asked to plead and that, again in terms of clause 105, he should be advised what pleas are open to him in terms of clause 106. You will notice, Sir, that I have an amendment to clause 105 on the Order Paper, and when we read this amendment pertaining to clause 75, I believe we should read it together with the amendment which is on the Order Paper in respect of that particular clause. I do not believe that the acceptance of this proposed subsection will in any way interfere with the smooth flow of justice, but will, in fact, enhance the old adage that justice shall be seen to be done and, in fact, justice will be done if the accused is advised of his rights by the magistrate. Mr. Chairman, I accordingly move the amendment printed in my name on the Order Paper, as follows—

Mr. Chairman, the hon. member for Pietermaritzburg South wants the court to advise the accused of the provisions of clauses 73 and 105. I wonder, however, whether this is going to be the case with a charge arising from a parking offence. Let us see what clause 73 provides. Clause 73 provides that an accused is entitled to be assisted by a legal adviser, in other words by an attorney or an advocate. In the first place this is an obvious right which an accused has. It has been built into our law over the years. It is also in accordance with the convention entered into in 1950 by 15 European States. This right is so obvious that it is completely tautological to repeat it.

The hon. member also wants the accused to be advised of the provisions of clause 105. Clause 105 refers in turn to clause 77 and clause 85. The magistrate will, in other words, be compelled to state the contents of clauses 77 and 85 to the accused. Clause 77 deals with the complex procedure when an accused is mentally ill and possibly not answerable in criminal law for his actions. Clause 85 deals with the various options which the accused has of, after the charge has been stated to him, objecting that the indictment is faulty, that the magistrate is not competent to try the case, that there is no jurisdiction, etc. The hon. member then says—

In order to do all these things, the magistrate will in each case, however minor the case may be, be compelled to spend about 10 minutes advising the accused of all his rights. I cannot therefore support this amendment.

Mr. Chairman, I want to support my hon. friend from Pietermaritzburg South and wish to suggest that the motivation for this amendment is quite an obvious one. Clause 115, in respect of which a certain principle has already been accepted in the course of the Second Reading, opens up a new situation entirely in our whole approach to legal matters in the courts as far as the accused is concerned. That is why he ventured to say that we propose to move amendments to various clauses in order to indicate the importance of advising an accused of the rights that he has in terms of these particular clauses.

I do not want to employ the rather facetious aside, which I heard a little while ago, that old lags always consistently pass on information to all and sundry so that there should be no difficulty for anyone to know what rights he has in regard to legal representation. I think this amendment would improve the law considerably. As my friend said, it would enable justice to be seen to be done—always remembering that justice is in fact done in our country. The accused will then at least realize that there is sufficient protection through the built-in safeguards, which we find are important, by virtue of the new system that is being introduced.

Mr. Chairman, I am afraid I cannot accept this amendment. As was rightly pointed out by the hon. member for Brakpan, it means that the magistrate has to explain the provisions of clause 73 to the accused. After that, he has to refer to clause 105 and then go back to explain clause 77, and in addition he also has to explain clause 85. But worst of all, if this amendment becomes part of the legislation, it will mean that if the magistrate does not comply with this requirement, it will be possible to set aside that court case on appeal. I am afraid that no reasonable person can really expect a magistrate to explain all those provisions to every accused appearing before him, and if he does not do so, the accused may perhaps get off on appeal since the magistrate did not comply with that requirement. I think it is unfair to expect this of a magistrate. I see the hon. member is shaking his head; he wants the magistrate to explain all those provisions. What is the prisoner’s friend there for? Surely he can explain all those provisions to the accused? Surely he can tell the accused that he is entitled to a legal adviser.

I have never come across any person in South Africa—and I have probably been practising twice as long as that hon. member, if not three times as long—who has told me that he had not known that he was entitled to a legal adviser. The first thing that happens in prison is that such a person is told that he has to find himself an agent if he has the necessary money. He does not have far to seek either, for the agents are near at hand. They are virtually all around him. I really do not think that this amendment is necessary.

Mr. Chairman, I am sorry to hear the hon. the Minister talk like this. In the field in which I received my training the magistrate has more than just a duty to sit on the Bench and to adjudicate on the evidence that is presented to him. He has a duty to assist the accused to present his case. The hon. the Minister is, I am sure, aware that everyday magistrates are doing precisely the things I am asking him to write into the Bill.

Why should it then be written in?

Because it is happening and because it is the right thing and the proper thing to do. Why does the hon. member think that the magistrates are doing it today? They are doing it today because they believe that it is right and proper to advise the accused of his rights. It is all very well for the hon. the Minister to talk about the attorneys that are available, the legal aid that is available and the agents that are there for them to obtain. I accept that this applies in the large cities, but it does not apply in the rural areas. I believe that even there it is still incumbent on the court to make these things clear to the accused. Will the hon. the Minister accept an amendment to this clause to provide that, if the accused is not represented, this should happen?

I believe that it is necessary that it should happen and as I have said, at various points in the Bill we intend moving similar amendments which we will continue to press. I am afraid that I cannot withdraw this amendment.

Mr. Chairman, I appreciate what the hon. member is trying to do, but unfortunately, as he knows, it is in any case inherent in the duties of the magistrate to do this sort of thing. If the person needs advice then the magistrate will tell him. He will usually ask the magistrate about the particular advice which he is seeking and the magistrate will supply him with detailed advice. What the hon. member wants us to do is to lay it down by law. If a magistrate should happen to forget this or is not asked for it or has nothing whatsoever to do with the accused before him and he does not go through the whole gambit of informing him about all these provisions the case may be taken on appeal or on review. An accused who is in fact guilty may then go free. This is my argument against the hon. member’s amendment. I know that, when necessary, magistrate is doing this and I am not prepared to make it an absolute legal duty for them to do so.

Amendment negatived.

Clause agreed to.

Clause 77:

Mr. Chairman, I move the amendments printed in my name on the Order Paper, as follows—

1. (1) On page 62, in lines 21 and 22, to omit “or mental defect”;
2. (2) on page 62, in line 47, to omit “or a prison”;
3. (3) on page 62, in line 53, to omit “or a prison”.

I debated the reasons for these amendments in my Second Reading speech yesterday. I will, however, briefly refer to them again. It has been said that “mental defect” is covered by “mental illness” and is unnecessary here. If the hon. the Minister will at some stage look at his proposed legislation dealing with prisons, then he will see that he himself deleted the words “mental defect”.

In relation to the words “or a prison” the hon. the Minister knows that it is his intention not to use a prison to detain the people whom we are concerned with under this clause, but that he will detain them in a mental hospital. I would be prepared to withdraw the amendment relating to prisons if the hon. the Minister would give me the assurance that when he takes the Bill to the Other Place, it will be amended so that instead of referring to a prison, it will contain the words “prison hospitals”.

Mr. Chairman, I only want to indicate to the hon. member that it is impossible for me to accede to his request, although I have sympathy with him. Although most of these cases will in fact go to a hospital, there are cases—and I think the hon. member is aware of one particular case where the person concerned is in a prison at the moment—that cannot go to a hospital. If the clause were to be amended, they would have to go to a hospital. There are more cases of that sort that one will not be able to control in a hospital under any circumstances. There are people who are really dangerous and far beyond the limit of what can be controlled in a hospital and they can only be controlled in a prison. That is my problem. We will in fact accommodate in hospitals, if possible, the people envisaged here, but there will be cases where we must keep such a person in a prison.

Mr. Chairman, I was hoping that the hon. the Minister would make provision in a prison hospital so that such cases could be detained there separately and under close scrutiny if necessary and under all the precautions he wants. Instead of a prison, he will then have a prison hospital for this type of detention and observation. I know that such detention is necessary. I am only asking him to make that part of the prison hospital secure for this type of patient, while detained and observed.

Mr. Chairman, as the hon. member knows, we are busy building a special place for psychopaths and the like, and we shall probably have a cell available there for those who cannot be controlled. However, we certainly do not have enough space for all such people we have in prison at the moment and who have been referred there under the Act. This is a great difficulty I have. As I have said, there is a building programme, but at this precise point in time I certainly cannot give such an undertaking.

Mr. Chairman, this is my last appeal to the hon. the Minister to see whether or not he can draft some legislation to take away the stigma attached to the word “prison”.

I shall try my best.

What is happening is that, as the hon. the Minister and a few members in the House know, we are being told and the world is being told that we use our prisons to detain people suffering from mental illness. For those reasons, particularly, I ask him to think again when he uses those terms. I suggest that we rather use the term “prison hospital” and even designate from now on as a prison hospital that part of a prison which is used to house these people. I cannot put it any plainer than that.

Mr. Chairman, the hon. member has made a very good point. I concede the validity of that point. It is a point well made. The fact is that, as the hon. member is aware, we have certain prisoners at the moment whose state of mind is such that I simply cannot put them in a prison hospital. We are not holding people in prison as the world says we are. However, there are isolated cases we simply cannot at this stage put in hospital because we do not have that particular facility. However, I shall give my attention to that particular facility and try to have it expedited and then I shall try to bring as soon as possible the amendment the hon. member seeks.

Mr. Chairman, may I ask the hon. the Minister whether he will accept the deletion of “or mental defect”?

No, that I cannot do either.

*Allow me to explain. As I told the hon. member yesterday, he, as a doctor, knows much more about mental illnesses and mental defects than I do, but the expression “mental defect” did not initially appear in the Bill. It was inserted in consequence of representations made to us by the Association of Pschiatrists of South Africa in order to cover the whole field. “Illness” and “defect” do not necessarily have the same meaning. “Illness” implies a condition which did not always exist, while a “defect” is of a more permanent nature. A defect may be present from birth. The existing provision contained in section 28 of the Mental Disorders Act, 1916, also refers to “mentally disordered or defective”. Moreover, the words used in the Bill in fact correspond to the words in the report of the Rumpff Commission. If I remember correctly, the hon. member used the same argument in 1973.

I did.

We believe that that argument is not correct. If an expression used in an Act is not defined in that Act, as is the case in this Bill, such an expression is to be given its dictionary meaning. The definition of such an expression, as it appears in another Act, cannot be referred to. For this very reason the expression “mental defect” is used in this Bill, because “mental illness” does not include a mental defect. Moreover, there is another good reason why the Bill does not refer to the definition of “mental illness” in the Mental Health Act, 1973.

I say there is a good reason for us not referring to that definition in the Mental Health Act. As will appear from the definition of mental illness, the definition is so wide that somebody who appears to be reasonably normal may readily be classified in terms of that definition. The consequence of that will be that somebody who is in fact able to understand the proceedings against him, will time and again be declared a State President’s patient and will not be tried. The anomaly which presently exists and has been pointed out in various cases, inter alia, the Pratt case and the Tsafendas case, is now being rectified. In terms of this Bill only persons who are unable to understand the proceedings will be declared State President’s patients.

†I hope I have made myself clear in this respect.

Yes.

I have read this for the benefit of the hon. member, but it simply amounts to the fact that under our criminal law we cannot make use of something which was put in for another purpose altogether.

Mr. Chairman, there is just one point which I wish to raise. A lot of what the hon. the Minister has just said has covered what I intended to say, but if the words “or mental defect” are deleted, the scope of the provision will be narrowed and we are against the deletion of those words. I should just like to mention that Burchell and Hunt in their newest book on criminal law and procedure said the following—

For those reasons we would not like the words “or mental defect” deleted.

Amendments negatived.

Clause agreed to.

Clause 78:

Mr. Chairman, in view of the arguments put forward by the hon. the Minister, I do not see any object in my continuing with the amendments which I have placed on the Order Paper in respect of clause 78.

Clause agreed to.

Clause 79:

Mr. Chairman, I move the amendments standing in my name on the Order Paper, as follows—

1. (1) On page 66, in line 13, to omit all the words after “on” up to and including “imposed” in line 20 and to substitute “individually”;
2. (2) on page 66, in line 43, after “diagnosis” to insert “and a prognosis”.

The object of my moving these amendments is, as I said yesterday, to include all those people who are going to be classified in terms of clause 77 of this Bill and who have to be examined by psychiatrists, under one heading, and to ensure that they will all be examined by two psychiatrists. That is what I am asking the hon. the Minister to do. I told the hon. the Minister yesterday that I did not think that the classification of these people should be done on the grounds of the type of offence that they have committed, but rather that their state of health and mind should be examined irrespective of the type of crime they have or are supposed to have committed. I think the hon. the Minister understands this position. The hon. the Minister knows that for a person suffering from a mental disease to be committed, the opinion of two psychiatrists will first have to be obtained, and it is for those reasons that I ask him to accept my amendments. I shall not waste any further time on this matter.

Mr. Chairman, the proposed amendments will of course have the effect that all examinations will have to be done by a group of three psychiatrists. Every psychiatrist will submit his own report. I think the hon. member has advanced a very good argument; I must honestly admit that.

However, I have one problem, and the hon. member must help me in this, for he is better acquainted with people of this kind than I am. As far as the first amendment is concerned, it is pointed out that the Republic does not have enough psychiatrists and facilities to have a person examined by three psychiatrists in every case. In this connection, the commission of inquiry into the responsibility of mentally deranged persons and related matters—the Rumpff Commission—says the following, and I quote from paragraph 10.82 of the Rumpff Commission’s report, in which Mr. Justice Rumpff says the following—

The reason why a distinction is being drawn between the cases where the death penalty may be imposed and the others is obvious, of course.

This, in brief, is my argument as far as the psychiatrists are concerned. I sympathize with the hon. member. I had to be guided by the Rumpff Commission in drafting this legislation, and I could not provide that there were to be three psychiatrists if this would not be practicable under the circumstances.

Mr. Chairman, I am fully aware of the difficulties which the hon. the Minister is experiencing, but that does not mean to say that we must leave loopholes in the law because he has difficulties in providing personnel. I hope that this shortage will not be permanent. The point which I want to make is the following: We know what happened recently in a shooting case. The trial has just been completed. There was a difference of opinion by psychiatrists, but it is possible that these people could have been shot and yet lived. Would the hon. the Minister then have been satisfied, in such a case where there was an attempted murder and these people remained alive, to take the evidence of one doctor, knowing full well that one doctor disagreed with the other two doctors? I am very perturbed that in such serious cases where people are attacked by a person in a mania, where it is obvious that he is a maniac-depressive, and sometimes the victims are paralysed for life or seriously injured, the hon. the Minister is going to accept the evidence of one psychiatrist. I feel that we have got to do something better.

Mr. Chairman, if the hon. member can formulate an amendment which gives the court the discretion in a particular case to ask for more psychiatrists than one, then I think I shall be able to meet the hon. member.

Business interrupted in accordance with Standing Order No. 22.

House Resumed:

Progress reported and leave granted to sit again.