Mr. Chairman, this clause is important because it seeks to amend those cases which are automatically subject to the scrutiny of the Attorney-General after inquests have been held. I think one should put cases of this kind in proper perspective. At the present time, under the law as it stands, where there is a suspicion or where there is prima facie evidence that death was not due to natural causes, that case becomes the subject of an inquest. I think one can go even further and put it the other way: Where it is not clear that death has resulted from natural causes, that death is the subject of an inquest. Furthermore, under the present law—in terms of section 17 of the Act as it stands—in all cases where an inquest has been held, the record of proceedings must necessarily be submitted to the Attorney-General, who scrutinizes what has taken place at the inquest proceedings. The reason why this clause is a matter of importance and requires some attention, is because the effect of the amendments ought to be brought in, is to limit the number and the type of inquest cases which are to be submitted for the surveillance of the Attorney-General.

This is not a matter in respect of which one ought to become emotional, but I believe it is a matter which should be subject to close scrutiny. I regret that I was not here during the Second Reading debate on this Bill. Therefore I am at a certain disadvantage in this regard. Nevertheless, the attitude of this side of the House is that all inquest cases should continue to go to the Attorney-General, particularly cases where death has occurred while the person concerned was subject to detention.

I wish to emphasize that that applies to all prisoners who are subject to detention, whether it is in respect of detention under security legislation or any other. The principle is quite clear. Normally, people who are in detention are subject to supervision and surveillance of prison or police authorities. Consequently they are protected from misadventure. The whole object of keeping them in detention is, after all, to extract information from them—I use the word “extract” in its proper sense—and therefore to keep them alive. Consequently, where there is a death of a person in detention, it is automatically something which should be investigated.

That there are a number of deaths of that nature is known, because in the Other Place questions were put to the hon. the Minister on 22 March by the hon. Senator Crook in regard to death of persons held in detention. I have a copy of those questions and I propose to read them out. The question was put to the hon. the Minister whether any detainees held in detention under any security law since January 1976, had died during detention, and if so, how many. I would ask hon. members to observe that the question covers the period from January 1976, which is over a year ago. The answer was: “Yes; eleven in number.” The hon. Senator then went on to ask for the name and the race of each of the deceased and what the cause of death was in each case. The names and the race of the various individuals were given in reply to the question, in the case of each of the eleven persons concerned. The cause of death of seven out of the eleven was given as suicide, while the cause of death of four of the eleven was given as death from natural causes.

It is prima facie unusual for persons in custody to die at all, and certainly unusual to die as a result of a suicide. I think it is fair to say that. However, what attracts one’s attention most in the answers to these questions, is the fact that in each of the seven cases of suicide no inquest has yet been concluded. The reply given was: “Inquest not yet concluded.” From that I infer that an inquest has commenced, but has not yet been concluded. It goes without saying that were the death from natural causes, no inquest would have commenced, and indeed, one sees from the reply that in respect of the four cases where death has resulted from natural causes no inquest has been held. The conclusion is inevitable. It is clear that inquests have been opened in each of these cases, either out of excessive caution by the authorities or because it is not certain that death was due to natural causes, to put it at its lowest. That is the level at which I was to argue the case. This is, I believe, a matter for concern, firstly because inquests are being held, and secondly, because, although some of these cases are, I presume, of the order of 12 months old, the inquests are not yet concluded.

I quoted these questions and answers to illustrate the importance of the case I am trying to make, namely that it is of the utmost importance, in the interest of the proper administration of justice and to allay fears which might arise in this regard amongst the public, that all cases of this kind in particular should be subject to automatic surveillance by the Attorney-General. To say that is not to cast a reflection on the magistrates who are undertaking the work of inquests, any more than allowing an appeal from an inferior court to a superior court or allowing for automatic review of the judgments of magistrates is reflection on the magistrate. It is an accepted fact in the court work of any country in the civilized world that appeals will lie and that there be review proceedings of some kind or another by a superior court, in order to correct errors, partly errors of judgment, partly errors which occur when inferior courts are operating under great pressure of work. It is the point of view of the official Opposition that the amendment sought to be introduced by this clause is not desirable. We regard it as a retrograde step. We would much prefer the existing law to remain or at least for the position to be brought about—which we cannot bring about by way of amendment because such amendments have already been ruled out of order—where all cases of persons who die while subject to detention be automatically submitted to the Attorney-General for review by him.

Mr. Chairman, the hon. member for Umhlatuzana concentrated only on detainees and based his argument only the question of detainees who died while in detention. During the Second Reading we in these benches made it perfectly clear what our attitude was and I shall therefore be very brief now. We dealt with other categories of people because there other categories of people who are also in the care of the State and I will deal with them in a moment. Basically, all we want to see in this clause is that inquest records be sent to the Attorneys-General where a person’s death occurs while the deceased was in the care or under the control of the State. For example, I refer to cases of people who are in orphanages, mental institutions, prisons and rehabilitation centres. I would like to draw the attention of the hon. member for Umhlatuzana to the fact that that is the reason why I say that we deal also with categories of people other than detainees. We believe that the hon. member for Umhlatuzana is limiting the field to detainees only. I would like to point out to the hon. the Minister that the expense entailed in our suggestion is absolutely minimal. The hon. the Minister said during the Second Reading that there are almost 20 000 cases where transcripts must be typed. We ask that the records of less than 1% of the people on whom inquests are performed be sent to the Attorney-General. The expense involved in this will be absolutely minimal. During the Second Reading we told the hon. the Minister that where he wants to eliminate procedures in order to save expense, we would in these inflationary times support any effort to limit expense. But we made it perfectly clear that there were certain categories of people who were in the care of the State and for whom the State was responsible. We believe that if the hon. the Minister cannot due to procedural difficulties, accept an amendment, he could introduce an amending Bill later this session which would assist in further enhancing the image of the Departments of Police and of Justice. At this particular point in time we would appeal to him to consider, if he cannot accept the amendment due to procedural difficulties, introducing a new amending Bill later on in the session. I now move the amendment printed in my name on the Order Paper, as follows—

Order! I regret that I am unable to accept the amendment moved by the hon. member as it seeks to extend the scope of the Bill as read a Second Time.

Mr. Chairman, as this clause embodies the whole crux of the Bill, which has been accepted at Second Reading, there is no point in attempting to move any amendment. We shall therefore simply vote against the clause, for the reasons which have already been stated at Second Reading, when the hon. member for Sandton and I both pointed out the inadvisability of introducing any changes at this particular time in the system of holding an inquest. I do not really think that the small economy and the saving in time which are effected by the changes, are worth it, considering the probable interpretations which might well be put upon the proposed changes. As the hon. the Minister knows very well, there has been a great deal of publicity, both here and overseas, about the whole question of deaths in detention. Like the hon. member for Umhlatuzana, I am not casting any aspersions on the magistrates in this regard, but I think it extremely unwise to introduce at this particular stage any such amendments to the procedures which have up to now been used and which have proved to be well-tried. For those reasons we will oppose this clause.

Mr. Chairman, in the Other Place I have already dealt fully with the death of people in custody. I have, in addition, held a full Press conference on the matter. I am just pointing this out as a preamble to my argument and so that I can come to what the hon. member for Umhlatuzana spoke about. I just want to tell him that I have, in any case, issued a full Press statement in that connection. I held a Press conference at which members of the local and foreign Press were present. I gave them written documents covering every person who died in custody. I gave the Press the full history of the events and said they themselves could determine, from the documents submitted to them, if there was anything suspicious. I also granted the foreign Press a hearing and invited them to ask any questions they wanted to. I did so to prevent any possible impression being created here in the House that we are not really concerned about people who die in custody. We discussed the matter quite openly, in public, with everybody.

It is a pity the hon. member for Umhlatuzana was not present when we discussed this matter in the Second Reading debate. I intimated that inquests arise in cases of death due to unnatural causes. The very first step is to open a police docket on the case. That docket then goes from the police straight to the Attorney-General. The Attorney-General can do one of two things: he can either prosecute someone on the strength of that police docket that was handed over to him or he can return it and order a further inquest. If the magistrate finds that someone is responsible for the death, in terms of this legislation that docket automatically goes back to the Attorney-General so that he can charge the person concerned in open court. I also told the hon. member for Griqualand East that I shall issue an instruction to all attorneys-general to the effect that if anything should come to light, during an inquest, which the prosecutor thinks should be brought to the attention of the Attorney-General, he should immediately ask that the record of the inquest be sent through to the Attorney-General. The instances we are excluding, in terms of this legislation, are those in which, after a full investigation by the magistrate, it is found that no one can be held responsible for the person’s death. I also previously gave a figure of 92%, i.e. of people who drowned in dams or were involved in accidents, for example driving into trees, etc. That is death due to unnatural causes and there is consequently an inquest involved. If it is found that it was no one’s fault, why must the record be sent back to the Attorney-General? The hon. member for Umhlatuzana must not forget that even if the record of the magistrate were not sent back to the Attorney-General, the Attorney-General would still have his own docket. His own docket comes back to his office and he can therefore go through it again, and if something is brought to his attention, he himself can request the police to investigate the matter further. If he is not satisfied with the report of the inquest, he can ask the police to investigate the matter further.

I want to repeat that we must not make too much of the Bill because the Bill merely wants to obviate a tremendous amount of typing, reams and reams of paperwork which, I am informed by my department, is only read by the attorneys-general and then simply returned to where it came from. That is completely unnecessary because no further information is thus obtained. The Attorney-General and the Police still have their dockets, and if anything goes wrong there will be a full investigation. I cannot take the matter any further than that.

The hon. member for Walmer referred to instances of people dying in mental institutions, for example. Such cases, he says, must automatically be referred to the Attorney-General. The Bill at present before the House, however, deals with inquests, and I do not know whether it is the hon. member for Walmer’s intention—he may indicate his intention to me from his bench—that even those instances where no inquest was held should be sent to the Attorney-General, or is that perhaps not his intention?

Only when there has been an inquest.

The only thing that can come from a case where there has been an inquest, is that the magistrate registers that nobody is responsible for the death, and in that case I cannot see why it should go back to the Attorney-General, because the case originated from the Attorney-General in any case. The first file that goes from the police goes to the Attorney-General. Therefore there is no sense in sending it back to him. He had it in the first instance. He perused it in the first instance. That is why he ordered an inquest. Therefore I do not think the amendment of the hon. member is valid, and the argument he used is also not valid. I do not think there are any provisions in the Bill that could make people uncertain.

Mr. Chairman, what the hon. the Minister has said in regard to the instructions which are given to public prosecutors, i.e. where there something untoward is suspected in the evidence he will be instructed to send the dossier to the Attorney-General, is welcome, but it does not go far enough. What are we doing at the present time? Here an inquest deals with the death of a person. Under the present law we require much less serious occurrences, presided over in a magistrate’s court, to be the subject of automatic review. In other words, comparatively trivial cases, where, for example, a sentence of four months’ imprisonment is entailed, a trivial matter therefore compared with a death, are required under the present law, prior to the recent amendment, to go on automatic review to the Supreme Court. If there is a need for such cases to go to the magistrate, how much more important and necessary is it not that an inquiry into a death should go before the Attorney-General for further consideration? Even under the amendments which the hon. the Minister is proposing to the review procedure at the present time, comparatively trifling cases will still necessarily have to go up for review to the Supreme Court, trifling as compared with the occurrence of a death. The second point is

Is your argument not destroyed by the fact that the Attorney-General institutes the proceedings in the first instance?

I do not think so. The Attorney-General orders an inquest, presumably on the basis of some prima facie information he has. Indeed, I should say that it very often starts at the level of the police and not at the level of the Attorney-General. But, Sir, it is the finding that is important. It is the finding that is the crucial thing, and that, of course, is not something which comes before the Attorney-General in terms of these amendments unless he specially asks for it. He does not know of the facts, Sir.

But the fact is that the docket goes back to him.

Not as I understand this amendment, Sir. I do not understand this amendment, if that is the procedure that is involved.

The docket goes back to the Attorney-General; not the proceedings, but the docket on which it is stated what the finding is.

Sir, let us assume that viva voce evidence is heard at the inquest. That is not in the docket. That is in the file of the proceedings.

Then the Attorney-General can ask that the matter be

That is the point, Sir. The necessary information is not necessarily in the hands of the Attorney-General. Who is going to bring it before him? Who is going to notify him that that is the case?

The prosecutor, under his direction.

That is the final point of criticism I was going to make. We are relying solely on the discretion allowed a junior official of the magistrate’s staff.

That is not true.

Yes, that is so, in terms of what the Minister has just proposed. The discretion is in the hands of the prosecutor, and those of us who have acted in the Magistrates’ Courts know that the prosecutor is very often not a senior official. Very often he is not a trained official. Very often he is a policeman who has had a short course in prosecuting. You cannot leave matters like these to the discretion of an official at that level.

Sir, let me come back to the question which I put to the hon. the Minister, and which he has not dealt with. Certain inquests in the case of suicide have apparently not been concluded in a period of 12 months. This in itself requires an investigation or an explanation. Who are the persons who can give evidence in these cases? The only persons who can give evidence in these cases are officials of the State and the district surgeon. Nobody else that I can think of can give evidence, because the persons concerned are subject to detention. They are either detained by prison officials or by police officials. Sir, all these are known; they are available, and yet the inquests have for some reason not been concluded within a period of 12 months in every single case. Unless the hon. the Minister can explain this—and so far he has not done so—I should say that this is the clearest possible support for the point of view that we advocate, i.e. that the existing law is preferable to the amendment which is being introduced.

Mr. Chairman, I should like to answer the hon. member’s last question first. What that has to do with this Bill I find it very difficult to understand. I find it very difficult to understand the point of the hon. member’s argument when he says there are a few inquests that have not yet been concluded. That, he says, is an argument in favour of the fact that the record should go from the magistrate back to the Attorney-General. I cannot in any way see why the non-conclusion of an inquest is any reason for that record eventually to be returned to the Attorney-General. I think the hon. gentleman will agree with me that that does not hold water. Sir, the hon. member asked me why it was taking so long. There are several reasons I can think of at the moment. If the hon. member thinks back to the well-known Timol case, he will know why an inquest takes so long. It may be that it is postponed in order to gather additional evidence.

From where?

For example, the police are told: “Information has been obtained from the family to the effect that such-and-such a person was involved. Go and investigate the matter further.” The inquest is therefore postponed.

But these people are under detention.

Sir, they are not under detention; they are dead.

Yes, but they were under detention.

Yes, they were under detention, but the hon. member is now asking me why inquests have not been concluded, and I am giving him a number of reasons. One of the possible reasons may be that additional witnesses have to be called by the State. The magistrate may say: “I want such-and-such a witness to come along.” The police then have to go and find him. What does he do then? He lets the case stand down for a month or two.

Does he send a runner with a cleft stick?

No, it is not a question of a cleft stick. If the hon. member had read the Timol case he would not ever criticize an inquest in this House. The Timol case is an adequate argument against any person suggesting that an inquest is not a full inquiry. It is the most complete inquiry that you possibly can get. The family of these people are entitled to go to the inquest and are entitled to have their own counsel, to cross-examine and to call witnesses. Now what more does one want? The hon. member says that a prosecutor may be a junior prosecutor. But it is not only he who is in that court with a police docket in front of him. The magistrate is also there. So there are two people who will decide whether that docket should go back to the Attorney-General or not. If the magistrate thinks that the record should go back to the Attorney-General, then it is the easiest thing in the world to make a finding that the matter should be investigated further. It is as simple as that.

Order! I want to point out to hon. members that, in the first instance, they may not anticipate the discussion of the hon. the Minister ’s Vote. In the second instance they must note that the principle contained in this clause has been accepted at the Second Reading and that I have given one speaker from each Opposition Party the opportunity to motivate his party’s opposition to the clause. Hon. members must therefore not discuss the principle any further.

Mr. Chairman, I wish to reply to the point which the hon. the Minister has just made. The hon. the Minister says, firstly, that the magistrate is present and that if he has doubts about the case, it is for him to order that the matter should go to the Attorney-General. Ex hypothesi that is not going to happen, because the cases which we are dealing with are cases where the magistrate has found that death was due to natural causes. If the magistrate finds that death was due to natural causes, he is not going to endorse that the case go to the Attorney-General. What we are concerned with, is that such a decision might be erroneous. In order to obviate cases of that kind we consider it necessary that these matters go to the Attorney-General. The Timol-type of case, which the hon. the Minister referred to and which I am not going to go into now, is an example of a case of the death of a person in detention. As I have tried to indicate earlier, without going into the details of the matter, it is in the very nature of things that if a person dies in detention the type of witness to be called is very limited indeed. It is not a question of people not being available, or not being found, or not knowing where they are. Everybody knows where the police are and where the prison officials are. So, consequently, that is no answer at all. So, I am not convinced by the case put up by the hon. the Minister and we shall therefore vote against this clause.

Mr. Chairman, obviously I am going to respect your ruling and not put forward arguments already used. I would, however, like to ask the hon. the Minister whether we understood him correctly and that is that the purpose of this clause is to bring about a saving of processing and typing 19 727 inquest records. I understood that to be the motivation of the hon. the Minister when he introduced this Bill in the first instance.

That is after the magistrate has found nobody was responsible for the death.

The point, however, is that the hon. the Minister wanted to bring about a saving in the transcribing and the processing of all these records. I find no difficulty with that.

It is a good argument.

My hon. friend says that is a good argument. Obviously it is a good argument because it is a cost-saving argument whereby procedures in the department will be streamlined. We have only put up a plea in relation to people in the care or the charge of the State on whom inquests are performed, and we have asked that those records be referred to the Attorney-General. We feel that it is less than 1% of all the cases, possibly less than 100 cases. What I would like to know from the hon. the Minister is what his difficulty is in having these, let us say 100 cases, processed and transcribed and sent to the Attorney-General. The cost involved is minimal. I cannot see the hon. the Minister’s difficulty in this particular case.

Mr. Chairman, in reply to the hon. member for Walmer, let me say that it is quite immaterial whether it applies to 1%, less than 100 or whatever the case may be. Every case upon which there is an inquest has a docket that will already have gone to the Attorney-General. What is the sense of me saying to a magistrate that, after he has come with the finding that nobody is responsible for the death, that record should be sent back to the Attorney-General when the original docket in any case goes to him? Only in the case where the finding is that nobody is responsible for the death, does that finding not go to the Attorney-General.

The finding may be wrong.

How can the finding be wrong? Does the hon. member want the Attorney-General to review the finding of the magistrate? Surely not. He cannot be serious.

As far as the other matter is concerned, I want to point out to the hon. member for Umhlatuzana firstly the power the magistrate has in the case of an inquest. Section 8(1) of the principal Act reads—

It is a complete trial, a complete inquest. He can even get himself assessors. What more can one expect from a person? If the hon. member looks at the Bill itself, he will see that the proposed new section 17(1) reads—

Section 16(2) provides that—

If the magistrate cannot make a finding on that, those papers go back to the Attorney-General so that a further and fuller investigation can be made.

What is the second thing the magistrate must do? The proposed new section 17(1)(b) provides that—

In other words, the first case hon. members must remember is the case where the person says: “I do not know what has happened here.” Such cases go back to the Attorney-General for further investigation. The second case is where he says: “Mr. A or Mr. B acted negligently or wilfully and may be responsible and the Attorney-General must look at it.” That case also goes back to the Attorney-General. Thirdly, as the proposed new paragraph (c) provides, the magistrate shall submit the record—

What cases are excluded here? Simply those cases where the magistrate, after a full inquiry, makes the definite finding that nobody is responsible. If he says he does not know, the matter goes to the Attorney-General, but if he says nobody is responsible, there is no sense in sending it back to the Attorney-General. The Attorney-General still gets his docket back and if somebody brings additional evidence to the notice of the Attorney-General, the docket is automatically opened.

Mr. Chairman, the hon. the Minister has not grasped our real opposition to this clause. He says the Attorney-General sends the docket to the mugistrate in the first instance and that the Attorney-General gets that docket back again no matter what this finding is. Nobody is disputing that. What the Attorney-General does not get, is the magistrate’s record and his finding.

But he can ask for that.

Yes, he can ask for it, but why should he ask for it? What is going to influence him to ask for it? He should get the record of every person who dies in detention to see what evidence the magistrate has before him. He may not agree with the magistrate’s finding. The hon. the Minister says that, if the magistrate has found that no one is responsible for the death there is no reason for the record to go back to the Attorney-General. However, the magistrate may be wrong. He may have found that the cause of death was misadventure in which case it does not go back to the Attorney-General. We say that where people die in custody in any circumstances, the record must be sent back to the Attorney-General who can then read the record of the proceedings himself. That would enable him to have seen, for instance, the Timol record and all the evidence produced in that case, which he would not have seen before it was sent to the magistrate for an inquest. He should get all that evidence before him so that he can decide whether a prosecution is necessary or not.

Mr. Chairman, I must admit that it is a bit difficult to deal with a Bill of this nature when we have a bite today and another bite next week, and a third bite again after a month. I see the hon. the Minister nods his head in agreement, and I sincerely hope that we are going to make some inroad into this Bill this afternoon. It is time we got somewhere with it. The last clause that was dealt with was clause 105. In that clause it is provided that a prosecutor is required to put a charge to the accused at his first appearance before a magistrate, or as soon as possible thereafter. The clause also provides that the accused is required forthwith to plead thereto, subject only to the two rights which he has, viz. to object to the charge or to apply for an adjournment.

Then we come to clause 106, the clause which is now being discussed. This clause deals with what happens when an accused pleads. In terms of this clause an accused may submit various pleas. Apart from the two well-known please of “guilty” or “not guilty”, in terms of subsection (1), an accused may plead that he has already been convicted of the offence for which he is charged, that he has already been acquitted of the offence with which he is charged, or that he has received a free pardon in terms of the relevant section of the Bill, or that the court has no jurisdiction to try him on the offence with which he has been charged, or that he has been discharged under the provisions of clause 204 of this Bill, with which we will deal a little later, or that the prosecutor has no title to prosecute. Therefore in addition to the two pleas of “guilty” or “not guilty”, there are six other pleas which will be competent for the accused to plead. However, at the stage of the case when he is asked to plead, he may be quite ignorant of his legal position, especially in the lower court where the accused generally are not represented. He may not have heard what the details of the charge against him are until he is actually required to plead to it.

I know that this does not pertain to the higher courts—the regional court and Supreme Court—where the charge has been formulated over a period of days or weeks and sometimes even of months and where the accused and his counsel have had ample time to study the charge, but in the minor court, the magistrate’s court, where the bulk of the trials take place, I submit that very often this is the condition. If the accused is not represented he may also not fully understand what the charge is all about. He may wrongly think that he is guilty of the offence alleged against him. He may, in fact, not know whether he is guilty or not until after the charge in all its detail is read to him in the court. We find that in terms of subsection (3) of the clause, if the accused decides that he wants to plead one of the other six pleas which are open to him apart from the plea of guilty or not guilty, he has to give reasonable notice of his intention. I believe that that is a bit unrealistic and that it is prejudicial to an accused person that he should be compelled to give notice if he intends to plead one of the other pleas. These pleas are provided for in this clause, and it is not as if he is pleading something which is not provided for. It is not as if he is going to spring a surprise on the prosecutor. It is nothing of the sort, and I do not believe that the State will be prejudiced in any way in its attempt to obtain a conviction against a person who has committed an offence if he is allowed to plead one of these pleas without first giving notice. As I have said, in the lower courts the particulars of a charge are often not made known to the accused until he actually appears in court. When he is called upon to plead he is hardly ever in a position to give reasonable notice to the prosecution of his intention to plead a plea other than the plea of guilty or not guilty, as subsection (3) requires. For that reason I intend to move the amendment printed in my name, to omit subsection (3). I repeat that I do not think that the State will be prejudiced in any way if the accused should not be forced to give notice that it is his intention to plead one of the other pleas, and I submit that if the prosecution is embarrassed in any way, it is a simple matter for the prosecution to apply for an adjournment. I do not find anywhere in the Bill any provision which states that the prosecution may not succeed with an application for an adjournment of the trial in order to consider the plea of the accused. I therefore move the following amendment, as printed in my name on the Order Paper—

Mr. Chairman, the whole purpose of the Bill before us is to make criminal procedure in South Africa more streamlined and, in so doing, to eliminate unnecessary time-wasting. Section 168 of the present Criminal Procedure Act contains the principle which is now being embodied in subsection (3) of clause 106, and that is that the defence must notify the State of certain pleas. This is manifestly done for the simple reason that the State must not be caught unawares if the defence comes up with certain pleas. Say the accused’s defence is a plea of autrefois acquit or autrefois convict. Of course it would be essential here—I am just mentioning these two examples—for the State to be notified in advance so that it can have the opportunity to examine the plea in order to determine its validity. It is easy to determine this, but sometimes it takes time to find the right files, and therefore if the State was prepared and had examined the plea beforehand, the court procedure would not have to be held up. The hon. member’s problem lies with the accused who is not defended, the person who appears in the lower courts, does not have a legal representative and is ignorant of the law. Sir, this is the position at the moment, too, and during the discussion of a previous clause I said that I did not know what the hon. member was worried about. I do not know of a single court which would pin down an unwitting accused to the letter of the law. If an unwitting accused appears before the court and pleads neither guilty nor not guilty, but pleads one of the other pleas in clause 106, and is therefore uninformed or needs advice and a postponement must be granted, the court will assist him and grant the necessary postponement. The prosecutor will not object to this, unless it is senseless or the accused is trying to gain time. Therefore, with the best will in the world I cannot understand how the hon. member’s amendment will contribute in any way towards speeding up and streamlining our criminal procedure. I consequently definitely cannot support the amendment.

Mr. Chairman, what the hon. member for Koedoespoort does not bear in mind is that quite a different situation will prevail under this Criminal Procedure Bill. As it is at present, a trial hardly ever takes place immediately after the arrest of the accused. Under the Bill, however, in terms of clauses 50, 75 and 105 it will happen very often. In fact, as the hon. member for Koedoespoort put it, the whole purpose of this Bill is to streamline the whole thing and to get it done quicker. A person who is arrested on a Monday night might now be brought to court on the Tuesday and be required to plead straightaway. That is very different from the situation obtaining now, where an accused is brought to trial on the 3rd, 4th or 5th remand after his arrest. There, of course, you can give notice, and that is why in the past, in terms of section 168, one gave notice. How is one going to give notice, however, when one is brought to court and is required to plead straightaway? How does a person know about a plea autrefois convict? Most people do not know about it. The difficulty with this Bill is that one has to give notice when one has to plead right away.

I know of no one who does not know that he has been convicted previously of one and the same offence.

Very few of those people have ever heard of autrefois acquit or autrefois convict.

Section 168 of this existing code has a similar wording, but it stipulates “Provided that the court may, on good cause shown, dispense with such notice …” I want to draw the attention of the hon. the Minister to the fact that that proviso has been used by the courts to come to the conclusion, and I quote from Judge Harcourt’s comment—

He goes on to cite Charlestown Town Board vs Vilakazi. If subsection (3) were to be left, it would meet the situation if a proviso like this were to be included. In the absence of such a proviso, however, the court might well say that this is not directory, but peremptory, and oblige the accused to plead immediately because the State has not received notice. There is this difficulty brought in view of the new procedure envisaged in terms of the Bill. For those reasons we on these benches support the amendment moved by the hon. member for Pietermaritzburg South.

Mr. Chairman, I was very interested listening to what the hon. member for Durban North had to say, but I confess that I was surprised that he did not move the suggestion he has just made. That is what I am now going to do, namely to move that that proviso be inserted in this clause. I therefore move as an amendment—

The hon. member for Koedoespoort rightly said that all of us are interested in streamlining our criminal procedure, but I think he is inclined to overlook the requirements of natural justice. In his speech just now, the hon. member said that they hoped that magistrates would give the accused person an opportunity to establish what his legal position is. However, the Bill as printed at the moment, does not give him any option, because it says: “An accused shall give reasonable notice,” and the court must abide by what the Bill states. Therefore, there is no opportunity for the accused, without the proviso, of a waiver of notice, of an opportunity of the court adjourning the proceedings in order to give him time to produce his notice, because the court is absolutely bound by the wording of the subsection as it stands at the moment. On these grounds it will not mean that there is going to be any considerable delay; it is only to cover those cases where there is no legal representation. It will be at the discretion of the courts to grant an extension and it will also be in the discretion of the prosecutor to waive the requirement for notice. I believe it is a reasonable amendment, and that the hon. the Minister will therefore not be causing any real upset to the Bill if he agrees to accept the amendment.

Mr. Chairman, I think the hon. member for Pietermaritzburg South will realize that I definitely cannot accept his amendment. In this regard, the matter at issue is simply the interpretation of the words “reasonable notice”. If I may use the hon. member for Durban Point’s example, I should like to refer to the person who is in prison and has to appear in court on the following day. What would be “reasonable notice”? No magistrate in the world would find that it is not “reasonable notice” if a person stands up in court and admits that he has previously been in prison for the same offence. Hon. members realize as well as I do that the issue here is the highly technical arguments of the lawyer who wants to impugn the charge-sheet. He wants to know certain things in advance and states specific points in limine, as it were. He comes to court and surprises the Public Prosecutor. All that this Bill now provides, to the advantage of the accused, is that the prosecutor cannot request postponement, but must receive reasonable notice of the intention to plead a specific plea. If the prosecutor has received notice that one is going to plead a certain plea, he can prepare himself for it by examining the police file and making sure that he does have an argument against such a plea. If he does not have an argument against the plea, he saves the accused further costs because then he will say immediately that he withdraws the case and that the accused does not even have to appear in court. If he does not say so, he is prepared to proceed with the argument at once on the day of trial, and after that to proceed with the case, if necessary. Therefore the provision is entirely in the accused’s favour. I do not think the amendment of the hon. member for East London City is unreasonable, but I think it is unnecessary because the Bill already makes the necessary provision for this. If there is a legal representative who alleges that he received his brief the previous day, that he held consultations that morning and that during the consultations it became apparent that he could submit one of the pleas, what magistrate on earth would then be able to say that was not reasonable notice? “Reasonable notice” means that all the specific circumstances must be taken into consideration. Let us take the case where a lawyer says the following to the court: “I have had this brief on my desk for a month now, but I looked at it for the first time this morning. I am sorry. I now want to submit this plea.” If he says this, postponement will most probably be granted in any event, but he will be the one running the risk. The State cannot be expected to keep on granting postponement on the grounds of negligence since this entails costs for both the State and the accused. I do not think it is an unreasonable clause. None of the commissions said a word about it. They all accepted it as it is. I therefore do not think I should spoil this clause with amendments.

Mr. Chairman, I must say that I am disappointed to hear the argument of the hon. the Minister.

That does not startle us!

Mr. Chairman, that hon. member should be sitting at the other end of the Chamber. He must have come here to brief the Minister. There is no need for him to try to be clever. I wonder whether he has even taken the trouble to read the Bill. The argument which the hon. the Minister now advances regarding a clever lawyer, as he puts it, is covered by clause 85 of the Bill.

I never mentioned a clever lawyer at all.

It does not matter whether he is a clever lawyer or an ordinary lawyer.

Now you are just sucking arguments from your thumb.

No, Sir, that is not so. What does the hon. the Minister say?

All lawyers are clever!

Oh, I beg your pardon. The hon. the Minister takes exception to that. I shall withdraw that and refer just to “a lawyer”. The hon. the Minister says that a lawyer will come with all sorts of clever arguments about the charge and about the technicalities of the charge. I believe that these questions are all covered by clause 85, where the legal representative of the accused will raise an objection to the charge before his client is allowed to plead. These are the points that the hon. the Minister raised. I do not think there is any need to waste the time of the Committee in going into the particular points which are provided for in clause 105, but those are the ones to which the hon. the Minister referred. I am referring to the case of an unsophisticated accused who, for instance, is charged with stealing Joe Soap’s chickens. When he comes before the court, he says: “But, my lord, I have already been convicted. I have already served three weeks in gaol because I stole those chickens.”

That is quite in order.

But, Sir, this provision says that he must give notice, “reasonable notice”. I want to ask the hon. the Minister whether he will consider an amendment along the lines of the one mentioned by the hon. member for East London City, just to show that he accepts that it must be reasonable and that the court will have the jurisdiction …

The hon. member has not even given me the wording of the amendment.

I am asking the hon. the Minister whether he will accept the principle of the amendment and consider it when he takes the Bill to the Other Place. This is something which we worked out because we were aware of the fact that the hon. the Minister would not accept my amendment. Mr. Chairman, I appreciate your giving the hon. the Minister a copy of the amendment.

It is not a copy; it is the only one.

If the hon. the Minister will undertake at least to consider some such amendment when he takes this Bill to the Other Place, I am prepared to withdraw my amendment, but I do believe that it is necessary that two things should happen. Firstly, the accused person should know that he will have the right to plead these other pleas, and secondly the court must know that it will have the jurisdiction to condone the accused, when he is asked to plead, saying: “I plead one of the other six alternatives which are open to me.” I know that the hon. the Minister will not be able to accept that word for word as it is now, but if he will accept that principle, we can proceed along those lines.

Mr. Chairman, just to show the hon. member for East London City that I have not shut my mind to possible amendments, I want to say that I have already conceded that this is a reasonable amendment. I nevertheless think it is quite unnecessary, though I shall accept it. I just want to draw hon. members’ attention to the fact that I shall, of course, also have to amend clause 85 accordingly in the Other Place. I shall do so.

Mr. Chairman, with the approval of the Committee, I withdraw my amendment.

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

Amendment moved by Mr. H. G. H. Bell agreed to.

Clause, as amended, agreed to.

Clause 111:

Mr. Chairman, this clause cuts completely across the traditional rules relating to jurisdiction and to the venue of the trial. There were in the past certain exceptions made. There was, for example, a radical departure from our traditional rules in section 4 of the Terrorism Act. This present clause, however, makes the departure from our traditional viewpoint a general departure. I know that this was first introduced into the code in terms of section 2 of Act 9 of 1968, but that does not justify it in any way. It is, with respect, important that a person be tried in the area where he has committed the offence, because moving a trial to some other place inconveniences him in the preparation of his defence. It makes it more difficult for him to call witnesses and it makes it more difficult for his relations to be present at the trial.

There is also another point. When an accused is found guilty, his fellow-citizens should see him brought to justice. If not, I suggest that justice becomes too remote from the citizens and it does not have its full impact.

Oh come on, Harry!

Mr. Chairman, this is another example of depriving the courts of their powers.

I also want to make one final point and this is that the clause talks about the “jurisdiction of the Attorney-General”. The Attorney-General has no jurisdiction. He only has an area of authority, but no jurisdiction. The very use of this phrase is an indication of how far our thinking has gone that officials have come to be accepted by this Government as having some kind of judicial power. I should like to ask the hon. the Minister what is the purpose of having a clause like this and in what way does it help? There must be very weighty reasons to have such a clause, because it has so many disadvantages for the accused. I should like to find out from him what the reasons are for such a clause.

Mr. Chairman, the clause before us now is already contained in the existing code. As the hon. member knows, it has been there since 1968.

That is what I said.

I can assure him that I was recently asked by the Attorney-General to try, under one jurisdiction, persons committing offences in any of the four provinces. There is the person who may start passing fraudulent cheques in Johannesburg. He then drives to Durban and cheats the hoteliers there with his cheques. Later on he drives to East London and elsewhere, where he committed similar offences. According to the hon. member, that swindler must be tried in each of those provinces. This means a court case for each instance. If one catches the person in Johannesburg, why can the Attorney-General not say that he has five cases throughout the length and breadth of the country against him, that he is obviously a swindler and must be tried there? One can also have the case of a person who is involved in an accident in Johannesburg and then also in Natal, or somebody who steals a car in Johannesburg and then steals one in Natal as well. What is wrong with asking the Minister for permission to hold one trial for all these cases in the place where he was caught? After all, there is nothing wrong with that.

Mr. Chairman, I do not go along with the hon. member for Durban North in his opposition to this clause, because I can think of other circumstances where it would be to the advantage of the accused to have a change of jurisdiction. Take for example the case where two families go on holiday from Natal to the Cape and where an offence is committed in the Cape while they are in fact all resident in Natal. The great preponderance of the witnesses in the case are the two families who are on holiday together.

It would be decidedly to the advantage of the accused and his family in a case like that that the jurisdiction be transferred and the case be heard in Natal rather than in the Cape where the offence was committed. The point made by the hon. member for Durban North was that the case ought to be heard where the offence was committed. The hon. the Minister has given one example and I believe that I have given another to show that the powers envisaged in this clause could usefully be used to the advantage of the State and to the advantage of the accused and his family. Accordingly, we shall not oppose this clause.

Mr. Chairman, if I might just add a word, I think there are several advantages in limiting a trial in accordance with the old concept of territoriality. Quite obvious advantages are the availability of witnesses, the possibility of in loco inspections and the convenience and expense to the accused, of getting witnesses. I also realize that in modern times the world appears to have grown smaller because travel has become so easy, and that therefore territoriality in the modern concept is not as vital as it was 30 or 40 years ago. I also concede that in continuing crimes and in crimes where more than one person with common intent are involved or where such crimes are spread over different boundaries, it may be necessary to choose a place for the trial which may not be the place where the crime was committed. However, as it has been put by my learned and hon. friend, the hon. member for Durban North, the problem is that the decision here is in the hands of the Attorney-General. It is not in the hands of the Minister or in the hands of the accused. It is not the accused who has a say in the matter. It is merely a direction made by the Minister.

The proposed subsection (5) provides that—

I would say that if there are advantages to the accused and it is permissible for a trial to be moved from one area to another, the accused should have the right, as in the old code, to make such application. Section 151 of the existing Act provides that—

What we are saying is that, taking into account the modern circumstances in which trials are held, we would not have a problem with the moving of a trial on good cause being shown for doing so, or where the accused or the Attorney-General has made application for the trial to be moved. In that case both the State and the accused are fairly dealt with. What we do object to, is the fact that here we have a power granted which gives only the Minister the right to make a decision without allowing the court’s mind to be brought to bear on the issue. In addition the Minister’s decision cannot be appealed against at all. We think that that is not in the interests of the administration of justice, and that is our objection to this clause.

Clause agreed to (Progressive Reform Party dissenting).

Clause 112:

Mr. Chairman, I do not intend to be long although I intend to argue this clause much more forcibly. The purpose of the amendment which appears in my name on the Order Paper is to eliminate the conviction of an accused on his own word only. In the magistrates’ court at present there must be evidence aliunde of the commission of the offence in respect of those crimes warrantying sentences set out in subsection (1)(b). That was, firstly, a safeguard for pressures being applied on an accused person to make admissions and, secondly, a safeguard for an ignorant or unlettered accused who perhaps wrongly thinks that he has committed an offence and pleads guilty. Many people find themselves in that situation where they think they have in fact committed an offence. Very often one hears African interpreters in courts saying to the accused, even on charges of murder or culpable homicide: “Did you intend to kill this person?” They may ask this in Zulu, and the accused replies: “Yes”, and the interpreter says to the court: “Die beskuldigde pleit skuldig.” The question of self-defence is never raised. There are many cases where people think they are guilty and accordingly plead guilty. The existing safeguard rests on the principle that the State should prove its case, except of course in those cases where the offences are of a very minor nature. But those are not affected by my amendment. I therefore move the amendment standing in my name on the Order Paper, as follows—

Mr. Chairman, what amazes me about this amendment is that the hon. member is putting nothing in the place of the present provision. In other words, the whole thing is simply being deleted. Those of us who applied the old section in practice, realize that this provision is actually a better one. In terms of this provision, the essentials of the offence are put clearly to the accused, in other words the magistrate must satisfy himself that the accused really is what he says he is. If he maintains that he is guilty, the magistrate is entitled to ask him why he says so. The accused is definitely not being placed at a disadvantage if he first said that he was guilty and the magistrate then wants to make sure what he actually means by “guilty” by questioning him personally. In the case where the magistrate feels that the accused is pleading guilty, but should have pleaded not guilty, he tells the accused that he must plead not guilty. Then he writes the words “not guilty” on the charge sheet. There is absolutely nothing wrong with this. It is the old aliunde rule. Hon. members will remember that the old aliunde rule resulted in many court cases while the matter could very easily have been settled by an examination. If someone pleads guilty, there is absolutely nothing wrong with asking him why he pleads guilty, so that the court can determine whether he may not perhaps be not guilty. Therefore I cannot accept the arguments of the hon. member for Durban North.

Mr. Chairman, once again I do not agree with the hon. member for Durban North, because as I understand it, his amendment does not improve the clause; it makes it worse. So far as this clause is concerned, it is no longer open to us to prefer the old procedure to the summary procedure which is envisaged here. This clause embodies the summary procedure, whether we like it or not. If one rules out subsection (1)(b) and subsection (2), as the amendment proposes, there is virtually nothing to guide the presiding officer in the trial when it comes to the question of sentence. There is nothing at all. It seems to me that if one is going to have a summary trial, in the sense that a man can be convicted merely on the plea of guilty, then in serious cases at least it is necessary that one has the ability to question the accused, and the other factors which are dealt with in subsection (1)(b). In other words, the portions which the amendment seeks to omit I read in a sense as a limitation, certainly an improvement on the mere averment of subsection (1). In other words, it enables some inquiry to be made into the correctness of the plea of guilty, and certainly some guidance to be given to the presiding officer as to what a proper sentence should be. Accordingly, whatever one thinks of the procedure—that is not open for discussion now—so far as amending it is concerned, I believe the existing wording is preferable to clause 112 with the amendment which has been proposed.

Mr. Chairman, maybe at this stage this clause operates in favour of the accused. In terms of this clause the presiding officer must be satisfied that the accused is guilty of the offence even if he has pleaded guilty. In our view that is a safeguard for the accused person, and in the circumstances we cannot support the amendment.

Mr. Chairman, you have heard the arguments of the hon. members who have spoken before me, including the reply by the hon. the Minister to the amendments moved by the hon. member for Durban North. I must agree with the hon. the Minister and with the hon. member for Umhlatuzana that, whilst the hon. member for Durban North might have a point in his argument, by simply omitting clause 112(1)(a)(ii) it would leave a tremendous gap in the legislation. What are we dealing with here? We are dealing with a clause which provides for what will happen when an accused pleads guilty. It is divided into two sections. The first section has to do with when an accused pleads guilty of a minor charge. That is a charge which merits a short term of imprisonment or the imposition of a fine of not more than R100. In that case provision is made that the presiding officer may convict the person concerned and impose a competent sentence. However, I emphasize that this is for minor offences, offences where a fine of not more than R100 will be imposed.

In clause 112(1)(b) we come to the more serious offences, including offences which would merit the death sentence. Here the provision is made for questioning and for all the other procedures which are stated. I believe that it would be wrong for the court to find a person guilty of these serious offences without having some corroborating evidence. I believe that in this respect the existing provisions of the Act are preferable to those which the hon. the Minister intends should now be accepted. I, accordingly, wish to move the following amendment—

Mr. Chairman, the effect of this, I believe, would not be to delay unnecessarily, or to delay for any lengthy period of time, the administration of justice in our courts. I believe that all that would be necessary, would be to produce one witness to prove that in fact the offence charged was committed, and to enable the accused to admit that he was the person who committed that particular offence. I do not believe that this will delay the administration of justice. I do not believe it will be adverse to the administration of justice. I do not believe the State will be prejudiced in any way. I believe that in this way the hon. the Minister would allow that there could be no miscarriage of justice.

Mr. Chairman, the hon. member for Pietermaritzburg South is bringing up the whole question of aliunde evidence once again. I thought that he would have followed the good advice of his leader, the hon. member for Umhlatuzana, and kept the clause as it is. I think it is tragic that the hon. member now wants the anomalies which we have experienced in our administration of justice over the years in respect of the whole matter of aliunde evidence, to be retained. With the aid of one or two examples I should just like to remind the hon. member briefly of the result of the stupid thing whereby an accused pleads guilty in court, but in spite of that walks out a free man due to this type of provision. I want to remind the hon. member of the decision in Natal in the case R. v. Kok (S.A. Law Reports 1960 (2), page 335). In this case the accused was charged with contravening section 164(a) of the Liquor Act, for having supposedly kept liquor to sell it, deal in it or dispose of it. The State’s case was based on the large quantities of liquor which she bought at various liquor stores, taking her financial position into account. She pleaded guilty and also handed in a document in which she admitted certain things, inter alia, the following—

This was the case which the State submitted. Mr. Justice Caney says the following on page 336 in this regard—

Hoffman reacts to this in his book The Law of Evidence. I want the hon. member for Durban Point to listen, because this links up with his argument on the question of the so-called “safeguards” in regard to illiterate people. Hoffman says the following in this regard—

That is section 258(1)(b) of the present Act— …

The problem also becomes evident from the fact that our courts lay down another requirement which is very well illustrated by the case of R. v. Fouche, S.A. Law Reports 1958 (3), page 767. This is a Transvaal decision and Mr. Justice Ramsbottom says—

This is said in spite of the fact that the Appeal Court decided, in the case of R. v. Cele, S.A. Law Reports, 1959 (1), page 245, that the “unsworn statement” of an accused “is evidence in the sense of material which the court or jury must take into consideration in determining the guilt or otherwise of the accused”. According to Mr. Justice Ramsbottom, evidence of this type is not sufficient to prove that the crime was committed, unless supported substantially by evidence that the crime was actually committed. This in turn is unnecessary if the accused’s evidence is given under oath, because then support in material respects alone is sufficient. I am afraid that one cannot follow this type of argument. Russel on Crime says the following—

This is a statement which has been quoted in our courts and in the Appeal Court too, in more than one regard. I want to tell the hon. member that the safety-valve is contained in clause 112(3). This is that in any case, if the slightest degree of doubt arises, the court can ask for evidence to be produced before it. That is not all: Apart from that, should the court question the accused in terms of clause 112 and should the accused try to lie to the court about his plea, the prosecutor still has the file in his hand. Therefore he is aware of the facts which are at the disposal of the State. In those circumstances the prosecutor can get up and say that the plea which the accused has advanced, is not the right one and he can ask for evidence to be produced before the court. Here we have safety-valves which operate in both directions. What is more: an accused’s plea is delivered in an open court before a judicial officer. This is the most important safety-valve we can have in this regard. That is why I believe that the hon. member has just confused the whole matter once again with his amendment.

Mr. Chairman, I am firstly prepared to withdraw my amendment and to support the amendment moved by the hon. member for Pietermaritzburg South. It is a better amendment and achieves better what I wanted to achieve.

The hon. member for Koedoespoort raised the example of the case of Rex v. Kok. What does Kok’s case show? All it shows, is that the judicial officer incorrectly assessed whether the evidence established the commission of the crime aliunde. As he says, the prosecutor can easily, if he is alive to the issues in the trial, lead evidence and prove the commission of the crime aliunde. All one has to prove, is the commission of the crime. One does not have to prove that the accused committed the crime, but one only has to prove the crime. What we are asking for, is that the present situation should be retained, namely, that it should be a requirement that it be proved.

If the House wishes the law to be that a person can simply convict himself by saying that he is guilty and that that is the end of the matter, that, it is fine, but we oppose it. I recently cited a case where a man said that he was guilty of murder, but it was afterwards found that he was not even on the scene of the crime, but in gaol. I know that murder falls into a particular category, but as it illustrates the point I am making, I mention it. There are cases where people plead guilty when they are not guilty. It is a question of protection which we think should be there. If hon. members in this House say that it should not be there, then that will be the law, but we do not agree with that and we oppose it.

Amendment moved by Mr. S. A. Pitman, with leave, withdrawn.

Mr. Chairman, the hon. member for Durban North has withdrawn his amendment because, as he said, the hon. member for Pietermaritzburg South introduced a better amendment. It might be a better amendment, but we are opposed to that amendment as well, because it is nearly as bad as the first amendment. If one looks carefully at the clause, it is very clear that the presiding officer must be satisfied that the accused is guilty of an offence if the accused pleads guilty. The way I understand the amendment of the hon. member for Pietermaritzburg South, he insists that outside witnesses must be called to prove that the accused is guilty of the offence.

That an offence was committed.

In other words, even if a guilty person is accused, comes to court, wants to repent and pleads guilty, the hon. member for Pietermaritzburg South pleads that that guilty person must be let off scot-free, despite the fact that he is repentent, that he pleads guilty and that the presiding officer has satisfied himself that the accused has committed the offence. For that reason we cannot support the amendment of the hon. member for Pietermaritzburg South.

Mr. Chairman, I listened to the argument of the hon. member for Koedoespoort and I agree with him entirely. I also listened to the argument of the hon. member for Walmer and I agree with that too. I have already indicated that …

Just listen to that courting!

Well, after all you are not the only ones who can dish out sweets; we can do it too! I have already furnished my argument in connection with the clause and under the circumstances I am not prepared to accept the hon. member’s amendment.

Amendment (1) moved by Mr. W. T. Webber negatived and amendment (2) dropped.

Clause agreed to.

Clause 114:

Mr. Chairman, the amendment which appears in my name on the Order Paper is a smaller amendment than most of the others which I have moved, because it deals only with a small portion of clause 114. The purpose of the amendment is not to eliminate the standing of an accused’s admission and his plea. If my amendment were accepted, those admissions and the plea would still stand as part of the record. The purpose of the amendment is to prevent a situation where the accused can only challenge the recording of such plea and admission. So far as the admissions and the plea are concerned, I want to retain the status quo. An accused may want to go to the other court and he may want to say that he now wishes to change his plea, because he did not know certain things at the time he pleaded and that he did not know, for instance, that self-defence was a defence in a certain case. It may well be that the judicial officer did not ask him questions regarding those elements of the crime. At the present moment, in terms of a ruling in The State v. Britz, 1963, the accused has no onus on him to convince the court of the truthfulness of his explanation, if he wants to change his plea. That is the position as it stands at the moment. All the accused has to do, is to give the court a reasonable explanation. I should now like to suggest to the hon. the Minister of Justice that the plea and the admissions will still stand, but that the accused will not, in terms of my amendment, only be able to attack the incorrect recording. If I may, I would like to point out specifically to the hon. the Minister of Justice that in another clause of the Bill he follows the reasoning that I suggest. This is contained in clause 122 of the Bill, which deals with cases where there are pleas of not guilty, whereas clause 114 deals with cases where there are pleas of guilty. In cases where there are pleas of not guilty, I suggest that the clause is correct when it states—

In other words, there is no question that the recording is absolute proof of the facts and that you can only attack the recording. The point is that you can at any time say: “Well, there may be an admission recorded against me, but I want to withdraw that admission.” As the clause reads at the moment, however, you cannot say that you want to withdraw that admission. All you can say is that it was incorrectly recorded. Of course, if it was not incorrectly recorded and you made an admission mistakenly, then there is no way in which you can attack it. I suggest that that is a bad situation, and I accordingly move the amendment in my name on the Order Paper, as follows—

Mr. Chairman, I am not prepared to accept that amendment. When the hon. member compares this clause with clause 122, he loses sight of the fact that we are dealing with a plea of guilty here. Certain admissions are then made, and the hon. member will probably agree with me that in these circumstances, where there is a plea of guilty together with certain admissions, those admissions cannot simply be withdrawn, unless the person concerned can give a good reason why he wants to do so. One good reason could for instance, be that it was written down incorrectly. This is the only thing that can be wrong. Any admission which a person makes, is held against him in any case, as the hon. member himself will know. Here is a case where it is written down. Therefore the onus is upon him to say that the record is wrong, and he did not mean it, or whatever the case may be.

Amendment negatived.

Clause agreed to.

Clause 115:

Order! Before I put the clause, I should like to point out that it contains a principle of the Bill as read a Second Time. I am accordingly prepared to allow one member of each of the Opposition Parties in the House to reiterate his party’s opposition to the principle, and the Minister to reply thereto. Thereafter hon. members must confine themselves to the amendments proposed and to the details of the clause.

Mr. Chairman, before hon. members move their amendments and debate the clause, I want to point out that during the Second Reading debate I referred to what the standpoint of the General Council of the Bar was in relation to this clause. I said that the Bar was in favour of it, with the exception of subsections (3) and (4). My statement was based on a letter dated 31 January 1977 that I received from Adv. Gerald Friedman on behalf of the General Council of the Bar. This paragraph appears in it—

In other words, subsections (3) and (4) are the subsections that troubled the Council of the Bar, and I therefore accepted the fact that subsections (1) and (2) were acceptable to them. My supposition was further endorsed by a memorandum attached to this letter, a memorandum drawn up by a committee of the Council of the Bar. This committee had the following to say about clause 115—

This was a very clear indication that the Council of the Bar is in favour of section 115(1) and (2), but opposed to section 115(3) and (4), and I informed the House accordingly. The chairman of the Council of the Bar subsequently telephoned me, and what I shall now quote is a record the department compiled after this discussion with the chairman of the Council of the Bar—

Mr. Chairman, I shall leave it at that. I am just bringing it to the attention of hon. members.

Mr. Chairman, I was interested to hear …

The hon. member for Umhlatuzana must excuse me for continually interrupting him at the beginning of his speech. I just want to inform hon. members on the other side of the House that I do not intend proceeding with subsection (3) of clause 115. The subsection reads as follows—

In other words, I am prepared to accept an amendment, from one of those hon. members, proposing the deletion of that subsection.

Just for the sake of clarity, do I understand from the hon. the Minister that subsections (3) and (4) are to be omitted?

No, only subsection (3).

Mr. Chairman, I have not seen the representations made by the Bar Council, but I naturally accept what the hon. the Minister has told us in that regard. Nevertheless I am bound to say that I do not agree with the views of the Bar Council. I do not propose to go into detail, having regard to what you, Mr. Chairman, have ruled, on the whole field of what is involved in clause 115, other than to summarize it by saying that it is the hard core of the changes being made in the Bill and that it does seek to bring into our practice Continental procedures which are inappropriate in our type of criminal practice. That was our basic objection. I am bound to say that although the hon. the Minister is prepared to omit subsection (3), which is the subsection which allows an inference to be drawn from the silence of an accused—and of course it is an improvement—we are nevertheless opposed to this clause. I may say that, whilst we dislike the clause in its entirety, it is our function to try to improve it and amendments to this clause will be moved by two hon. members, namely myself and the hon. member for Durban North. The amendment which he is to move and that which I shall move follow similar lines except that the hon. member for Durban North goes further and proposes the complete deletion of subsection (2). I may say that we shall support that amendment of the hon. member for Durban North. However, if I judge the hon. the Minister aright, I do not think he will accept it and therefore I move the first amendment printed in my name on the Order Paper, as follows—

There may be some chance that the hon. the Minister will accept that even if he will not accept the amendment of the hon. member for Durban North. I may point out that there will be no inconsistency in supporting the two amendments. What do we seek to do here? So far as my amendment is concerned, we require that an obligation be imposed on the magistrate to inform the accused that he is not obliged to make any statement at all “save for objecting in terms of section 85, or pleading to the charge in terms of section 106”. That is important because it is the very essence of our whole criminal practice, viz. the fact that an accused person is not obliged to say anything until evidence has been led against him. The question whether or not an inference is to be drawn from the fact of silence is, to us, cardinal.

I now move the second amendment printed in my name on the Order Paper, as follows—

Because, in terms of the clause as it stands, the court is obliged to inquire from the accused “whether an allegation which is not placed in issue by the plea of not guilty, may be recorded as an admission by the accused of that allegation”, because the court is required to put these questions to the accused, we feel that this could bring about an injustice, whereas if it is merely discretionary on the part of the magistrate, knowing the magistracy and the traditions under which they operate, questions of this kind are likely to be put to an accused person only when something that is not clear requires to be clarified.

Further, I move the third amendment printed in my name on the Order Paper, as follows—

The hon. the Minister has already accepted the omission of subsection (3). Subsection (4) is also extremely undesirable in our view. What does it do? It allows the court to enquire from an accused person, who is represented by a legal adviser, whether what the lawyer has said on behalf of his client is acceptable to the accused or not. This undermines another feature of the very foundation of our legal system, viz. the relationship of trust and confidence that exist between a legal adviser and his client. So often, as anyone who practices will know, a lawyer on behalf of his client makes submissions which he does not have the time or opportunity to discuss with his client but which are to the client’s advantage, or submissions which the client would not understand or which would require a lengthy explanation but which are nevertheless to the advantage of the accused and to the advantage of the court and the public interest. It is going to undermine that relationship entirely if the magistrate can hereafter inquire of an accused person whether he agrees with what his lawyer has done. In many cases he will not understand why the lawyer has done it in any event. Likewise it may well be that a lawyer is not prepared to make admissions in the interests of his client’s case, and for very good reasons. Under pressure from the court the accused person may however be prepared to make admissions while not understanding the effect that will have on the proper handling of his case.

I can see no advantage, neither to the public interest nor to an accused person in the retention of subsection (4) and that is why in my amendment I ask for it to be omitted. That is why I moved the amendments standing in my name on the Order Paper.

Order! The hon. member for Umhlatuzana moves the three amendments as printed on the Order Paper, but for the convenience of hon. members I am going to split the third amendment into two parts, as follows—

Mr. Chairman, I do not want to repeat all the arguments the hon. member for Umhlatuzana has put forward. I agree with him almost entirely. However, we in these benches are totally opposed to this clause. In fact, it forms the major and most objectionable part of the Bill as far as we are concerned, because it provides for judicial interrogation. Whether one calls it “questions” or “interrogation”, it means the same thing. I must say that I am pleased that the hon. the Minister has agreed to withdraw subsection (3). The hon. Minister cited earlier to this House certain passages from the report of the English Law Revision Committee. I intended pointing out to the hon. the Minister that this was one of the things they said was an objectionable practice. I am pleased that he is going to amend this clause to that extent. I should just briefly like to point out that it is basic to our system that an accused person does not have to prove his innocence and, also, that he does not have to assist the State in discharging its onus to prove the accused’s guilt. Under our system there has never been any need for the accused to incriminate himself. Secondly, of course, there is also the element in this clause, not only of self-incrimination, but the fact that a judicial officer is taking a far more active part in the proceedings than he has ever taken in terms of our law as it stands today. Thirdly, the position is aggravated in a country such as South Africa where many ignorant and unlettered accused are unrepresented. They, of course, are less aware of their rights than an ordinary citizen in homogeneous societies such as Western Europe’s societies.

Another danger which exists in this clause is that it is no good suggesting that it will not happen, because it certainly will happen, that the prosecutors, through the magistrates, will be encouraged to go on fishing expeditions against the accused in order to try to establish an offence which has not been properly investigated. I know that the judicial officer is the person who asks the questions, but I suggest that there will be fishing expeditions where matters should have been properly investigated before the trial.

As I say, we in these benches are opposed to this clause, but it is our duty in the Committee Stage to try to mitigate the vigours. I therefore move the amendments standing in my name on the Order Paper, as follows—

I also wish to say that we in these benches will support the amendment moved by the hon. member for Umhlatuzana if ours is defeated, because it achieves much the same object which we set out to achieve.

Order! I regret that I am unable to accept amendment (2), as it is in conflict with a principle of the Bill as read a Second Time.

Mr. Chairman, the argument the hon. member for Durban North made for the amendments he has moved really made me think of a counsel who find himself at a loss for words whilst addressing the court; a counsel who is actually asking the judge to excuse him for wasting his court’s time but who nevertheless still wants to say his few words. I cannot understand how an hon. member who ought to know something about law and legal procedure can allege that this clause lends itself to abuse in that the prosecutor can make use of it for a so-called “fishing expedition”. Mr. Chairman, with all due respect …

Order! I just want to point out to the hon. member for Koedoespoort that I have ruled that inasmuch as this clause concerns one of the principles of the Bill as read a Second Time, I am prepared to give certain speakers of the Opposition parties the opportunity to motivate their opposition to it. I have also ruled that I shall give the hon. the Minister the opportunity to reply to this. However, I cannot allow other hon. members to discuss the said principle because this could lead to a repetition of the Second Reading debate.

As you please, Mr. Chairman. To begin with I want to point out that in its present form the clause is one which, in the first place, embodies benefits for the administration of justice in general and for the accused in particular. I want to argue that this clause, viewed as a whole, is more beneficial to an undefended accused than is the case at the moment. The hon. member for Durban North makes great issue of the fact that this clause does not afford the necessary protection to the undefended and the illiterate accused.

Order! Once again I must call the hon. member for Koedoespoort to order. I cannot allow him to discuss the principle of the clause again. This is a matter that was decided during the Second Reading debate. The hon. member may reply to the amendments that have been moved and may discuss the details of the clause, but not the principle. This is something I shall leave only to the hon. the Minister.

Thank you very much Mr. Chairman.

Mr. Chairman, I have listened very carefully to the hon. member for Koedoespoort. It may be due to the fact that his speech was interrupted—though he may tell me across the floor of the House—that, during the course of his speech I understood him to say that he was happy with the clause as it now stands. Apparently he did not even accept the hon. the Minister’s amendment to subsection (3). I wonder if I understand it correctly when I say that the hon. member for Koedoespoort does not agree with the hon. the Minister’s amendment … [Interjections.]

Order! The hon. member for Walmer may not refer to that, because I ruled the hon. member for Koedoespoort to be out of order on the same score.

Mr. Chairman, all I want to say is that we in these benches welcome the hon. the Minister’s amendment by deleting subsection (3). However, we in these benches feel that he has not gone far enough. I want to make it clear that we supported the Bill during its Second Reading and that we gave our reasons for our support of the Bill though we also said that we were unhappy with this particular clause. We have consulted with many legal practitioners. Those of them who were happy with this Bill were only unhappy with this particular clause. They have actually requested us to express the point of view that I am expressing now.

Do they not agree with the Bar Council?

Mr. Chairman, the hon. member for East London City wants to know whether they do not agree with the Bill. I said they do agree with the Bill.

With the Bar Council!

They do agree with the Bill, but it is this particular clause that they do not agree with. In order to satisfy the hon. members I want to say straight away that we in these benches agree with the amendments put on the Order Paper by the Opposition. We are quite happy with those amendments as they appear on the Order Paper. We feel that this clause seeks to introduce a new concept into our legislation, a new concept which makes it more onerous for an accused in court. I have always thought that silence is golden, but in this particular case if the accused remains silent, it is obvious that it may count against him.

I should like to deal with subsection (4), but before doing so, I should like to say that we on this side of the House agree with the arguments advanced by the hon. member for Umhlatuzana and I therefore do not feel it necessary to repeat those arguments. In regard to subsection (4) where a legal adviser replies on behalf of the accused, the subsection now requires the accused to declare whether he confirms such reply or not. I want to point out that the legal adviser has a mandate before he goes into court and is fully briefed to act on behalf of his client. This clause will have the effect of driving a wedge between the accused and his attorney. This subsection may have a detrimental effect on the relationship between attorney and client. I do not believe that the hon. the Minister wants that to happen and if he does not want that to happen, he obviously should agree to the deletion of subsection (4). I want to tell the hon. the Minister, as I have said earlier on, that we supported this particular Bill at Second Reading, but by accepting the amendments now proposed, he will be enhancing the system of justice in the country and the stand taken towards the courts. We ourselves feel that he should have no hesitation whatsoever in accepting these amendments as forwarded by the Opposition.

Mr. Chairman, apart from the amendment in relation to subsection (3) which, as I have already indicated, I shall accept, I am not prepared to accept the amendments. In reality, clause 115 is a very simple clause. In the first place, it does not imply pre-trial interrogation, as most people think it does. This, of course, is not the case. The old clause 119, discussed by the House in 1973, dealt with pre-trial interrogation. We tried to transfer the Continental system to the Anglo-South African system. This has been shelved completely, however. When does a court case begin? The court case begins after the accused has pleaded. After he has pleaded, the magistrate examines him but only in accordance with the provisions of clause 115(2)(b)—

In other words, if the accused has pleaded not guilty, the magistrate may not ask him a question that would suggest his guilt. The question of his innocence is now a question, and for that reason the magistrate may not ask the accused anything which would incriminate him. As the hon. members know, there is also another clause in the Bill that does not permit an accused to be made to reply to anything that incriminates him. Therefore he need not reply to anything that could suggest his guilt. However, the magistrate or judge can, in fact, ask the accused, who has pleaded not guilty, exactly what he bases his defence on and why he has pleaded not guilty. All the other facts not placed in dispute by the plea of not guilty can be determined by a normal question to the accused. The important thing, however, is that it is not a preliminary interrogation because it takes place in court; in other words, it is part of the court case. Everything is on record and if the public prosecutor were to concentrate on the questioning of the accused, the record could very easily be used for an appeal. The accused could win his case on appeal if the magistrate or a judge were to ask any questions that are improper questions in terms of the Bill. This is something completely innocent. All that is going to happen is that a tremendous amount of unnecessary loose evidence is going to be eliminated by a few simple questions to the accused or his legal representative. The court could perhaps ask the legal representative what the accused’s case is and what the accused denies or admits. Firstly the court case could be shortened by at least a third, and it is therefore to the benefit of the accused and the administration of justice in general that the question be asked.

Technical evidence can be eliminated. A sort of investigation is recognized and a person need not be called in. There is no need for a large number of State witnesses to be called because this is not at issue. How many times—there are many lawyers sitting here—have we not found that half of the State’s witnesses are called in and have had to sit around unnecessarily? At the end of the case, the witness who has had to come from Port Elizabeth to Johannesburg, asks why he had to come because his evidence was apparently not needed. Now an admission, or whatever, is forthcoming and all those things can be done at once. The evidence is concluded and the people can go home. This is not only a streamlining but also an improvement of the administration of justice. I now want to turn to subsection (4). I quote—

How many times have we not found—I think I have already said this in the Second Reading debate—that one advises an accused not to go into the witness-box. Then the first thing he does after he has been found guilty and when he is in prison, is to write a letter to the Chief Justice to say that he would have liked to have given testimony in his own favour but that his legal adviser advised him not to do so. All that subsection (4) entails is the protection of the lawyer; in other words, all that will happen when counsel stands up in court and says that his client is making certain admissions and submitting them in writing, is that the magistrate or the judge will ask the client whether it is correct that he gave such an instruction. He will ask this for a very simple reason. I want to point out an example. Halfway through a trial an accused runs out of money. The advocate’s brief is withdrawn, or some or other difficulty arises between him and the accused and his attorney tells him that his brief is being withdrawn. The first thing that accused will tell the next advocate is that he did not tell the previous advocate to submit those admissions and that it was done against his instructions. The second advocate is then faced with the problem that one of his colleagues has already made certain admissions on behalf of the client and that those admissions are being denied. In other words, the accused must immediately be asked whether he acknowledges the admissions the attorney has submitted, whether these are correct and whether those were his instructions. If the accused confirms this, another attorney may feel free to take over the case; the first attorney is protected. This is all that is meant by this provision. It also protects the attorney if the accused later receives a term of imprisonment because the accused will write a letter from prison in which he declares that he never instructed the advocate or attorney to make those statements in court, with the result that the lawyer finds himself in an embarrassing position. The provision therefore embodies protection of the lawyer. For that reason I do not accept the amendment.

Mr. Chairman, I regret very much indeed what I have heard in the hon. the Minister’s explanation as to why he was not prepared to accept the amendment pertaining to the elimination of subsection (4). What he has told us this afternoon, opens the door to a very dangerous procedure in so far as the relationship between client and attorney or between client and counsel is concerned. As the hon. member for Umhlatuzana has made clear, this goes to the very basis of the relationship between counsel and client. It almost opens a Pandora’s Box. If counsel and client are going to be placed in this extraordinary position where—as per example of the hon. the Minister—clients, depending on what circumstances may ensue, may deny the instructions they have given to their counsel, it is going to make the situation extremely intolerable and can lead to all sorts of situations. I cannot imagine any client writing on any extensive scale notes of this nature or making statements of this nature denying that he has ever instructed his counsel to follow a particular direction, unless it suits his purpose in some way or other. After all, the client is more concerned with his own freedom and his own exoneration in the case than with any other aspect. If the hon. the Minister maintains that this is a method whereby a great deal of time and embarrassment can be saved between the prosecuting counsel and the defending counsel, I think it is a very naive situation.

I do not think you understood what I meant.

I understood what the hon. the Minister said. He said that very often a person had written to the presiding judge to the effect that he never at any time conceded the answer which the counsel gave to a particular question when defending. Is that what the hon. the Minister meant?

He never instructed him to do so.

It is all the same, whether he admits it or not. The point is that he states he never instructed him to do so and that opens a Pandora’s box of troubles between counsel and the client. I do not think there is any doubt about it. The whole principle on which the confidence of a client in counsel is based and which, after all, runs like a golden thread through the whole criminal procedure, civil procedure and the whole relationship between attorney and client in this country can be placed in jeopardy. That is my view, the view of the Bar and also the view of any lawyer trained hitherto in the system of justice that we have practised over the centuries.

I now wish to deal with the other amendment which the hon. the Minister refuses to accept. The hon. member for Umhlatuzana has made our rejection of the whole principle that is involved in clause 115 quite clear and I shall not deal with it any further. I want the hon. the Minister to appreciate that a built-in safeguard is sought in the amendment. In my Second Reading speech I gave the hon. the Minister an example from the West German system which, after all, is based on the continental system of interrogation.

It is not based on the continental system.

It is based largely on the continental system of interrogation. I quoted to the hon. the Minister the view of Prof. Van Rooyen and I am sorry that he has not had a chance to pursue the matter further. Prof. Van Rooyen dealt with the West German Strafprozessordnung, which is the basis of their criminal law. He states the following—

That is one of the important aspects in this very system which the hon. the Minister is introducing into our criminal procedure at this stage. It is all very well for the hon. the Minister to suggest that by posing a few simple questions it will be able to avoid the calling of evidence. The very fact that the presiding officer is entitled to start examining the accused with regard to what factors are not in issue in his plea of not guilty, in itself opens the door to the whole issue and possibly places the accused in jeopardy. One never knows what passes through the mind of the accused when the magistrate puts certain questions to him, because he is obliged to inquire from the accused whether there is an allegation which is not placed at issue by the plea of not guilty. The magistrate may ask him if he has a statement to make, but he is obliged to ask him, when he pleads not guilty, whether he admits certain factors, and whether they are the issue or not. That is the very matter we are discussing, namely that it is a form of interrogation.

He is not obliged to answer the questions.

But the accused does not know that yet. The average accused is not aware at this stage whether he is obliged to answer or not. The law says that he is not obliged. I concede that the hon. the Minister has removed the other vital factor, viz. that there will be no specific inference if he does not answer. The law does not state that he is obliged to answer, but he himself is not aware that he is not obliged to answer. The psychological factor of the magistrate putting certain questions to him—which the magistrate is obliged to put—has an effect on him. There is no guideline to these questions and there is no specific guideline as to the direction which the questions should take. The questions will vary from presiding officer to presiding officer and we maintain that the accused will not have the built-in safeguard of a principle which is built, for example, into the law system of West Germany. There is a high regard for the basic law and basic criminal procedure as practised there, and I use that as the best example to give because they do not have all the more serious aspects of the continental system of interrogation. They have a system which in many senses is similar to the system the hon. the Minister wishes to introduce. All the amendment asks is merely the safeguard of advising the accused that he need not answer the question. I cannot see why the hon. the Minister finds that the clause can in any way be mutilated by a simple amendment of this nature. As the hon. the Minister knows, we cannot deal with the general principle which has already been accepted, but we are asking for a safeguard. It is a simple safeguard which is used in many respects. There are, in fact, many law cases which I can quote. I have not taken the trouble to go into this but I can quote them from this very article which I have here, where the accused is often told from time to time what he may and may not do and what he can and need not do and what his safeguards under the law generally are. It is all set out here and one does not want to delay the debate because it is not a very significant amendment which is being asked for. If it is in the interest of the accused, if it can help in the course of justice and if it can give assurance to the citizens of the country, I cannot understand why this is objected to. We are not dealing with the principle any more; we are dealing with a safeguard which is very simple in its presentation and should accordingly be an acceptable one.

Mr. Chairman, I wish merely to say that I appear to have misunderstood what the hon. the Minister said in his references to the Bar Council and this clause. The hon. the Minister will remember that he began by mentioning his previous understanding of the situation and he then went on to say that he had received a further letter which put a different complexion …

My understanding was correct right from the beginning.

Yes, but I did not hear the hon. the Minister. My attention was distracted. I thought that the Bar Council was supporting clause 115, upon which I said that I differed from them. However, it appears that the Bar Council and I hold the same view in this regard. I merely wish to make that correction.

Mr. Chairman, it is a matter for regret that the hon. the Minister has indicated that he will not accept either the first amendment moved by the hon. member for Umhlatuzana or the amendment moved by the hon. member for Durban North. We are dealing with a clause which provides for the questioning of an accused person when he pleads not guilty. The questioning will be done by an officer of the court of law and it will be very difficult for an accused person to remain silent in the face of questioning by the magistrate. There is a risk that this procedure can induce a feeling of compulsion in the mind of the accused and the effects may not be far removed from compelling an accused to reply to questions which may incriminate him and assist in the building up of the case against him, which is in conflict with the basic principles of our criminal justice, which provide that the onus of the proof of guilt beyond reasonable doubt rests throughout with the State. Even with this new Bill, let alone with the existing Act, I believe that the onus of proof still rests with the State. I think the hon. the Minister will agree with me that he is not in any way interfering with the basic concept of justice which is applied in this country. I note the hon. the Minister agrees with me. I am glad to have that assurance.

Let us now look at clause 81, which provides for the joinder of charges. In other words an accused can have any number of charges joined in respect of any one particular trial. I cannot see, except in the case where there is a very experienced judicial officer, that the situation cannot arise where a presiding officer will be asking questions on one charge and find the accused incriminating himself on another charge, or answering questions pertaining to another charge where there is a joinder of charges. When one looks at clause 83, one finds that where it is doubtful what offence has been committed the accused may be charged in the alternative with the commission of any number of such offences. I will admit that these are provisions which exist today. But the onus today rests upon the State to prove, conclusively, the guilt of the accused of one or other of those charges. But where the accused is charged in the alternative with possibly half a dozen offences—I am being extreme when I say half a dozen, but any number of offences—and then questioned on this or that charge, you will find confusion, unless you have a judicial officer of the very highest calibre and of the very highest experience.

There is another point which I am afraid must be recorded in this debate although I am on record as having paid tribute to the high calibre of judicial officers who administers justice in this country. That is that this procedure has inherent in it the risk of abuse by prosecuting authorities who may be tempted to resort to it in cases here the evidence against the accused is brief, and thereby getting the accused to be questioned by the magistrate and perhaps of incriminating himself. Another objection to this procedure is the danger of an accused making an erroneous, not necessarily false, admission of fact or an erroneous admission of a mixture of fact and of law. This danger is enhanced in the case of unrepresented ignorant and illiterate persons. It is enhanced even further when those illiterate, ignorant and unrepresented persons appear in the lower courts in South Africa, i.e. in the magistrates’ courts where, by the hon. the Minister’s own admission, there are on occasions inexperienced, not fully qualified, persons sitting on the Bench dispensing justice.

At the time of the Second Reading debate I quoted Mr. Justice Hiemstra where he said at a congress at the University of Cape Town in 1975 that he was anxious that a uniform procedure and uniform guidance emanating from the Supreme Courts all over the country should be established with regard to the application of this particular system. I also quoted, and I should like to do it again to remind this Committee, what the hon. the Minister said when he introduced the Second Reading of this Bill in this House. (Hansard 1977, col. 430.)—

I take the hon. the Minister at his word and take the hon. judge at his word. I believe that if this system is to be applied it should be applied primarily in the superior courts in South Africa, i.e. the Supreme Court and regional divisions of the Supreme Court where you have judicial officers with years of experience in the administration of justice, who will have before them generally more sophisticated accused, most of whom will be represented. I do not believe that many accused are tried at either of those levels without representation. In these courts a new system, such as the hon. the Minister wishes to introduce now for the first time, could be tested and tried under ideal circumstances for the testing of such a system. I believe that if this was allowed only those superior courts and not in magistrates’ courts, the possibility of injustice happening—and it can happen— would be ceduced to a probability. To this end I now move the following amendments—

The effect of this will be that subsection (1) of section 115 will read—

It will mean that the system suggested by the hon. the Minister will be limited only to the supreme court or a court of the regional division. The effect is also to make the provisions of subsection (2) apply only in respect of those courts.

As regards subsection (3), we understand that the hon. the Minister has accepted the amendment moved by the hon. member for Umhlatuzana to omit that subsection.

Subsection (4) we are still opposed to. We believe that it should be omitted. Sir, I move further—

This is to make provision for trials in a magistrate’s court because simply to omit the magistrate’s court would leave a vacuum. I believe we should put something in the place of it. The effect of this amendment will be to restore the status quo in the magistrate’s court. I know—the hon. member for Koedoespoort need not remind me again— that the intention and object of this Bill is to speed up the administration of justice. I accept that, but I do not believe that in the process we must risk a possible miscarriage of justice. [Time expired.]

Mr. Chairman, the basic objection to the new procedure which is introduced by this clause is, in a nutshell, that it opens the door to self-incrimination by an accused person. That basic objection exists whether the examination which is to take place under this clause is carried out before the accused is asked to plead—that is to say, strictly, pre-trial—or after he has pleaded but before any evidence is led.

Order! I have given a ruling at the commencement of this discussion and I hope the hon. member will abide by it. He must not repeat the Second Reading arguments.

Sir, what I am proposing to do at the moment is to question the hon. the Minister’s contention that, because the examination of the accused takes place not at a pre-trial stage but when the accused has pleaded not guilty, he is in some way less prejudiced. This seems to be the argument advanced by the hon. the Minister.

Before the magistrate or judge who is to preside at the hearing.

That is right. The hon. the Minister emphasizes that the examination is done by the judge who is to preside over the trial. I accept both those contentions, but the point I wish to make is that the accused is no less prejudiced by the fact that the examination takes place before the judge who is to hear the trial. He is as prejudiced as he would be if it was a different judge or a different magistrate who was doing the questioning at a stage before the accused was asked to plead. My submission is that it is the hon. the Minister’s intention …

Order! I cannot allow the hon. member to repeat the arguments which were advanced in the Second Reading. I have already allowed one member of each Opposition Party to reiterate his party’s opposition to the principle of the clause. The hon. member may now discuss only the details of the clause and the amendments.

Mr. Chairman, I obviously must abide by your ruling.

The hon. member may not reply to the arguments which were advanced by the hon. the Minister, because then we shall have a repetition of the whole Second Reading debate again.

That does limit us to the point where it is almost impossible to debate this clause effectively.

Order! The hon. member had that opportunity in the Second Reading.

That is so, Mr. Chairman; I accept that. In view of your ruling, the only point I would like to make at this stage is that I trust that the hon. the Minister, if he will accept no other amendment, will at least accept the amendment moved by the hon. member for Pietermaritzburg South, because that amendment is in line—and here I wish to speak in support of that amendment …

I hope the hon. member is not going to repeat all the arguments which the hon. member for Pietermaritzburg South has raised.

Mr. Chairman, if you will give me the opportunity of speaking perhaps you will see that I am in order. I hope the hon. the Minister will at least accept that amendment of the hon. member for Pietermaritzburg South.

That is what the hon. member himself asked.

Did he in fact say why he ought to accept that amendment? This is what I am coming to, Mr. Chairman. I am making the statement first of all that the hon. the Minister ought to accept the amendment and now I propose to say why I think he ought to accept the amendment. He ought to accept the amendment because it seems to be to be precisely in line with what the hon. the Minister submitted in his Second Reading speech. The effect of what he said in relation to this new prodecure was that it was not intended that our procedure would be revolutionized overnight. I think that that is a sound attitude to take towards the introduction …

I do not think the Bill revolutionizes the procedure.

The hon. the Minister says it does not revolutionize it overnight, but it will if it is to be applied to all the courts of our land. It is a new procedure which is to apply throughout. Having said that he did not think that the procedure ought to be revolutionized overnight, the hon. the Minister himself in his Second Reading speech said it will be possible to apply the system gradually and circumspectly. There is a lot to be said in favour of that. He then went on to say that the superior courts will be able to take the lead. That is simply not so. If this new procedure is to be made to apply to all the courts, magistrates’ courts and upwards, then the superior courts do not take the lead. They are merely one of the courts which will apply the law. The magistrates’ courts and the lower courts will in fact be required to apply the law, and it is in the lower courts where the accused is likely to be more prejudiced than elsewhere. If the hon. the Minister accepts the amendment moved by the hon. member for Pietermaritzburg South, he will then be limiting the new procedures to the regional courts and to the superior courts. The new procedure can then be tested in these upper courts and any changes which need to be made, can then be introduced before it is thrown open to the lower courts. I would urge the hon. the Minister to at least accept that amendment, if he will not accept the others.

Mr. Chairman, I want to raise a few issues here. I do agree entirely with the statement made by the hon. member for Musgrave. I believe that the amendment moved by the hon. member for Pietermaritzburg South has a great validity. I believe that the hon. the Minister is going to find difficulty in making sure that this procedure is introduced gradually. In fact, I understand that, at a recent seminar, Mr. Justice Hiemstra who was really the one who gave birth to this whole idea in South Africa, indicated that it may be possible to hold seminars of some sort, seminars of magistrates and of judges, in order to try to arrive at a procedure which will be acceptable to all. In other words, there is still a feeling that this pre-trial procedure is going to be applied in different ways by different magistrates and by different judges. I believe that the recommendation made by this amendment here, is a good one in that it will give an opportunity to the more experienced courts to put into practical effect a very new and—to us and to the Bar Council—an abhorrent type of procedure in our criminal law. I am surprised that the hon. the Minister is prepared to accept the recommendation of the Bar Council that subsection (3) of this clause should be deleted, but that he ignores their requests that the whole of this procedure should be shelved. The balance of the Bill is good. It does endeavour to speed up matters. There are improvements. However, they do not like this whole procedure. That, basically, is their objection. They object to this procedure because they do not like it. I want to put to the hon. the Minister just one practical effect of this particular clause. Where it says in subsection (2)(a) of the clause that the court may question the accused, there arises a practical difficulty which I want to put to the hon. the Minister. He probably has in the past appeared in cases where there has been a joinder of accused …

Order! The hon. member is now trying to evade my ruling. The hon. member may not discuss the principle of this clause.

Mr. Chairman, I appreciate the principle of this clause. What I am trying to do is to motivate the effect of the amendment moved by the hon. member for Umhlatuzana. He moved an amendment to the effect that the accused should be informed that he is not obliged to make any statement. I want to deal with the question of, for instance, 10 Blacks who are charged with public violence; charged without any legal representation. The accused are asked to plead, and they are asked seriatim: “Accused No. 1, what do you plead?” Accused No. 1 replies: “I plead not guilty.” He has been given no warning that he does not have to make a statement, but the presiding officer must ask him whether he wishes to make a statement. Now, what would be the effect on the other nine accused of this request to accused No. 1? Or does the presiding officer first of all establish who is going to plead guilty and who is going to plead not guilty? Is he going to go through each of the accused asking them whether they plead guilty or not guilty? Say, for instance, that they all plead guilty, not knowing that they are not obliged to make a statement, and that accused No. 1 then makes a statement. In the statement he may implicate accused No. 2, or accused No. 5 and I can promise the hon. the Minister that I, as a prosecutor, will in that case not call one single State witness, because my witnesses will in each case be the other nine. I believe that is not right. In terms of clause 157 which deals with the joinder of accused the only way that there can be a separation of trials is if the prosecutor asks for a separation. Believe you me, Sir, under those circumstances the prosecutor will not ask for a separation. The accused may also ask for a separation, but which of the Black accused, being unrepresented, are going to know that they have the right to ask for a separation of trial? I believe this is a practical difficulty and it is absolutely essential that the hon. the Minister should accept the amendments moved by the hon. member for Umhlatuzana in order to make sure that it is made clear to the accused that it is not necessary for them to make a statement. I believe that under those circumstances there could well be a miscarriage of justice because one’s mind can run riot as to what exactly the Black accused are going to say when they are involved in a case of public violence.

Mr. Chairman, I wonder whether it is worth even addressing the hon. the Minister of Justice, but I do want to repeat this in regard to the first…

It is your choice, not mine.

Well, I am going to try once more to see if I can talk reasonableness into the hon. the Minister of Justice. I want to talk about the first amendment which both I and the hon. member for Umhlatuzana moved in almost identical terms and which asks that the accused should be informed that he is not obliged to make a statement. In the law, as it stands at the moment, exactly the same phase is used in preparatory examination. In section 66 of the code it is stated that at the preparatory examination, the magistrate “must caution him that he is not obliged to make any statement”. It is not an extraordinary request we make and it is not a matter which is difficult to comply with. At the present moment it appears in our law as a provision which was inserted by the present Government. They must have favoured it then. That is at the preparatory examination stage, but how much more important it is, at the stage where the accused has pleaded and is going to be asked questions, that he should be cautioned that he is not obliged to make any statement? I ask this particularly since the hon. the Minister’s case is that not only is the purpose of the questioning not to incriminate the accused in any way, but also that the court is not even entitled to ask the accused any questions that will incriminate him. In those circumstances it is a very small request to make that the law should contain a provision that the judicial officer should tell him that he is not obliged to make any statement. In any event, I have an insuperable difficulty with the hon. the Minister’s reply. He gave a similar reply earlier in the debate. It surprises me. He says the judicial officer may not ask any questions which incriminate the accused in any way. I am now not talking about the principle, but of the type of questions he puts.

Order! The hon. member is repeating himself.

No, Mr. Chairman, that was a fresh point. The point I want to make now is that if the accused does make a statement and “it is not clear from the statement to what extent he denies or admits the issues …” and any question is asked on that aspect, as to whether he is denying or admitting any issue, then immediately he is incriminating himself. Immediately one asks the accused whether he admits or denies having been on the scene of the crime, his answer, if positive, will incriminate him. Any question as to whether he denies or admits issues in the trial, is a question which can potentially incriminate him. I do not think there is any substance in saying that he will not be asked any questions which will incriminate him, because any questions pertaining to those issues will incriminate him. I very strongly urge the hon. the Minister in these circumstances to consider the first amendment I moved. If the hon. the Minister will not accede to the amendments moved by the hon. member for Umhlatuzana and myself, we on these benches will support the amendments moved by the hon. member for Pietermaritzburg South.

Mr. Chairman, in the first place I am not prepared to accept the amendments of the hon. member for Pietermaritzburg South, for the very simple reason that I am not prepared to have one system in some of the courts and another system in others. [Interjections.] I never said that and I never had it in mind. When I said the superior courts would take the lead, I meant that the superior courts would give a lead on reviews and also on appeals and we would be able to see what the courts are doing with this in practice. I do not want to accept the first amendment moved by the hon. member for Umhlatuzana, for the simple reason that I do not want to affect the spontaneity of the questions or of the answers. The moment a judicial officer tells a man that he does not have to answer questions, he obviously is going to say that he will not answer any questions. One disrupts the spontaneity of the whole case. I am therefore not prepared to accept the amendment. I am prepared to allow the courts now to interpret this and I shall accept their findings. They will give indications as to how it should be done. If the courts say that in practice they feel that the magistrate should say that the accused does not have to answer any question—which is inherent in this clause—it suits me, but at this stage I am not going to add it to the clause. The clause as it stands, as far as I can see, is a good one. From now on I am prepared to allow the superior courts to indicate to the magistrates’ courts how it should be done by way of appeal, review and the Appellate Division giving a decision on this.

Mr. Chairman, may I ask the hon. the Minister what he meant with two passages in his Second Reading speech? The first one is: “Our procedure will not be revolutionized overnight,” and the second one: “It will be possible to apply the system gradually and circumspectly. ’ ’

The reason is that if I were a magistrate, I would not bash him by starting to ask all sorts of questions. We shall obviously move carefully forward. That is all I could possibly have meant. Once the magistrate has a law in front of him, he has something to work on. Knowing magistrates, I am sure they will be careful not to ask any questions. They will develop it and see how it goes and what the Supreme Court has to say about the matter. Because this is a new measure, this is obviously what is going to happen. They will approach the matter carefully, stage by stage.

I do not think there are any other points that I have not already replied to. In regard to the suggestion that there might be some compulsion, I think hon. members have lost sight of what the English Law Commission said about the matter.

Which commission?

The English Law Commission. The members of the commission were: the Rt. Hon. Lord Justice Edmund Davis, chairman; the Rt. Hon. Sir Frederick Sellers; Lord Justice Lawton; Sir Donald; Justice James; the Commons’ Sergeant, Mr. J. G. Griffiths-Jones; Prof. Rupert Cross and a host of other eminent people. The commission reported as follows—

It is a very eminent commission that says this. They continue—

I have already abandoned that part—

Then he quotes Bentham’s famous comment on the rule that suspects could not be judicially interrogated—

That was a very eminent commission and I agree with them.

*I should like to give the clause a chance first and I should like to see what guidance is provided by the Appeal Court, in the first place, and by the appeals to the Supreme Court. As far as I can see, the courts will in fact be able to decide on the matter for themselves by way of their rulings, and I shall leave it at that. I do not agree with hon. members who allege that the prosecutor will be able to use this in order to gain all kinds of illegitimate advantages in regard to the trial.

The hon. member for East London City mentioned the case of ten people. If those people incriminate themselves and if they are all guilty, does it matter? Does the hon. member want the guilty people to go free? Even today, when there are ten people in the witness box, they start to incriminate one another …

They do it in order to exculpate themselves.

They do it in court today. Where there is common intent, they do it, and where there is not, it is not taken into account. How does the hon. member think the courts will do this? The courts are quite sufficiently qualified to be able to handle more than one accused in a trial. If they are all charged together with a common intent offence, they are entitled to incriminate each other and they do that under cross-examination. Even if one does not ask them the questions before the trial, one is going to ask them the very questions under cross-examination in any case. They do not have to answer any questions in this regard.

I do not think there are any other questions I have to reply to.

Mr. Chairman, I think I speak on behalf of all members on this side of the House when I express our regret and our disappointment that the hon. the Minister cannot accept the amendments which have been proposed. I believe it is perfectly reasonable to ask of a magistrate that he shall tell an accused what his rights are. That is all that the hon. member for Umhlatuzana and the hon. member for Durban North have asked of the hon. the Minister. When the hon. the Minister rejects my amendment and says he does not believe he can apply two systems of justice in the country …

No.

The hon. the Minister shakes his head, saying “no”. But I ask him with tears in my eyes: What is going to happen when he applies the clause as it stands, in his own words in his own Bill? If we compare it with the Bill of 1973, we find that the magistrate has no choice or option, but is compelled to question the accused and to apply this system. Now there is no longer any compulsion on the magistrate or on the presiding officer. That is the point the hon. the Minister made in the Second Reading. When he made this statement, he said that our procedure will not be revolutionized overnight because the presiding officer has a choice. How can he now say that he cannot apply two systems when he himself is going to allow two systems to apply, one being an accusatorial system and one which will be an inquisitorial system? That is exactly what he is doing and therefore his argument that two systems cannot apply in the country does not hold water at all.

He also says that the superior court will give a lead by way of review and by way of appeal. Yes, that lead will eventually infiltrate down, but what is going to happen in the meantime? How many injustices are going to be perpetrated before those decisions get back to the lower courts? There is a possibility and the hon. the Minister cannot get away from the fact that such a possibility exists. Is the hon. the Minister prepared to run that risk for the sake of introducing a system—as he puts it—uniformly in all the courts in the country instead of accepting that two systems can apply? I fail to see why two systems cannot apply. There are also other provisions, which we will discuss later on in the Bill, in terms of which the hon. the Minister limits the number of cases which will go for review. He says, however, that when they are under review, this system will apply.

I must again draw the attention of the hon. the Minister to what Mr. Justice Hiemstra said at the seminar which was held at the University of Cape Town. I will not bore the Committee by reading it again, but I believe that the hon. the Minister should again have a look at that report to which I have drawn his attention. He can again take note of what the hon. judge has said and I believe that he should reconsider this matter when he takes it to the Other Place. In view of the attitude of the hon. the Minister and the fact that he is not prepared to accept these amendments, we have only one option and that is to vote against this clause.

Mr. Chairman, the amendment which stands in my name on the Order Paper is in similar vein to other amendments which we have moved earlier. Clause 119 is the clause where an accused is brought to court on a serious offence. He is brought to the magistrate’s court on a serious offence and is immediately made to plead by the prosecutor, if the Attorney-General has so instructed him. If it is a serious charge, this will be immediately required. Questions will be put to the accused; he will probably be unrepresented, and in those circumstances I suggest to the hon. the Minister he ought to be told his rights. The hon. the Minister made the point earlier that judges were not merely arbiters and that they were there also to see to it that justice is done. Therefore I want to suggest to him that there can be no objection to their explaining to the accused his rights, particularly in a case such as this where it is a serious crime in respect of which he is made to plead immediately. Again I must make the point in regard to this clause that there is a similar requirement in regard to serious crimes in the present Act, in section 66, in regard to preparatory examinations, which requires the magistrate to give the accused the same sort of caution regarding his rights. I therefore move the amendment standing in my name on the Order Paper, as follows—

Mr. Chairman, I shall be very brief. I wish merely to say that we shall support the amendment moved by the hon. member for Durban North for the reasons he has already given.

Mr. Chairman, I, too, just want to answer briefly. I have already furnished reasons in the Second Reading debate as to why I shall not accept such an amendment. If such an amendment were accepted, it would mean that the magistrate would be obliged to place on record all the explanations he furnishes to the accused. An appeal could later be made against him if he does not do this. I do not think this is the correct thing to do.

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

Clause agreed to.

Clause 121:

Mr. Chairman, this clause provides for the questioning of the accused on a plea of guilty. I want to point out to the hon. the Minister that in this clause it is peremptory. The word used is “shall”. The presiding magistrate “shall” question him in terms of these provisions.

The first amendment which stands in my name on the Order Paper is in line with the recommendation of the Botha Commission and also in line with the Chief Justice and with the majority of justices of appeal as they reported to the Botha Commission, namely that the accused should be given merely an opportunity to make a statement and that he should not be questioned. It is, as we have said so many times, one of our legal principles that an accused should not be asked to give evidence against himself. In terms of this clause, the accused is immediately upon arraignment questioned on a charge which the State has not yet even had time to investigate properly, as he may well have been brought to court 24 hours after he was apprehended. I suggest that it is quite unacceptable that a man should convict himself when the State has not yet even had the opportunity to investigate the crime properly.

My second, third and fourth amendments are all directed against the idea which is a new one in our law in terms of this Bill, namely that admissions by an accused are to be more than admissions. The admission is to be more than an admission. What the admission is to be in terms of this clause, is that the admission itself will be proof of an element of the crime; in other words, an admission per se proves an element. The admission, even if wrongly, inadvertently or mistakenly made, is final proof, and only the act of recording can be challenged. I just want to point out to the hon. the Minister that that can have absolutely ridiculous results. If a man is charged, for example, with statutory rape, and he is asked the question: “Did you have intercourse with the girl?” His reply may be in the affirmative, and that is taken as proof of the fact of intercourse. The next question put to him will be: “Was she under the age of 16?” If he replies in the affirmative again, that admission is proof of the fact that the girl was under 16. At a later stage evidence may in fact be led that she was 18, but that evidence cannot be challenged. According to the girl that is final proof.

He would be a fool to say “yes”.

The hon. member says he would be a fool to say “yes”. That is exactly the point I want to make. One tries to protect people against errors. One tries to protect fools against themselves, and one tries to protect people from things they do in error. We are not trying to protect the people who do not make any errors. There would be no need to do so.

Mr. Chairman, one can think of many examples. A person may be found in possession of some kind of prohibited substance. When asked whether he has a permit to possess that substance, he may say “No”. Well, that is proof, whereas in fact, unbeknown to him, his doctor’s prescription entitles him to have it. An admission should only be proof—at the very highest—of that admission itself, and one should be able to challenge more than merely the recording of an admission. One should be able to take up the whole issue of the admission to show at any later stage that the admission was wrongly made. As I have said before, that is the law at the present moment. One can challenge an admission at a later stage. All one has to do, is to give a reasonable explanation of why one has erroneously made an admission. As I have pointed out before, there is no onus one has to discharge. It is merely an explanation which is required in terms of the case I have referred to.

In the circumstances I move the amendments printed in my name on the Order Paper, as follows—

1. (2) on page 88, in line 42, to omit “allegation” and to substitute “admission”;
2. (3) on page 90, in line 7, to omit “recorded” and to substitute “made”;
3. (4) on page 90, in line 22, to omit “the recording of which” and to substitute “which”.

Mr. Chairman, I support the third and fourth amendments moved by the hon. member for Durban North, mainly for the reasons that he has given. I differ with him in respect of the first two amendments. I think the hon. member is under a misapprehension as to the import of this clause. The hon. member’s argument in respect of the first amendment, and indeed the wording of the amendment itself, would be appropriate if this were a case where the accused had pleaded not guilty. However, the case we are dealing with here, is a case in which the accused had pleaded guilty. Therefore, I think that, that being so, there is no object in putting to him the fact that he need make no statement. He has already pleaded guilty, and indeed any question put to him, or any further elucidation of the matter, cannot make the situation any worse. After all, he has pleaded guilty. It might, though, make it better. It might indicate to the court that he is under a misapprehension of some kind. It might even make it easier in so far as the passing of sentence is concerned.

I think that much the same applies to the second amendment moved by the hon. member for Durban North. For those reasons I do not support the first and second amendments moved, but I do support the third and fourth amendments which the hon. member has moved.

Mr.’ Chairman, I am afraid I cannot accept the amendments. This is actually what we have called the mini-preliminary investigation and refers to those Supreme Court cases that are brought to the inferior court, at the request of the Attorney-General, so that the accused can plead. In pleading exactly the same procedure is followed as in the case of a summary trial. Clause 121 deals with a plea of guilty and prescribes the same procedure as in clause 112 in respect of summary trials. With regard to clause 112, the hon. member for Durban North moved that the whole inherent procedure of questioning be deleted, and nothing has been proposed in its place. In respect of clause 121, which deals with a plea of guilty, the hon. member proposes the same procedure as he proposed for clause 115 which, in turn, deals with a plea of not guilty. The question that arises is why there should be a difference between clauses 121 and 115. Clause 121 is specifically aimed at obtaining an explanation from the accused in order to dispose of his case more quickly and more efficiently. Particularly in the event of his pleading guilty, it can do no harm. In my opinion the amendment can only hamper the procedure. It is not quite clear to me what the hon. member envisages with his second amendment. The aim of the privisos is that any admission, which is not disputed, must remain valid and serve as proof of the statements made in it. The hon. member gave an example but I cannot imagine any magistrate in South Africa asking an accused a question relating to the age of someone else and then using the answer against him, as an admission. That is something that has to be proved. In any event, it is something fundamental to the whole trial, not so? It is certainly fundamental to the statutory offence the hon. member spoke about, and that type of question is not asked. We have already thrashed out those points. In any event, I cannot imagine a magistrate asking an accused to admit that a specific person was under the age of 16.

Why not?

No, how can the accused admit it if he does not know how old that person is? After all, this is one of the fundamental elements of the crime and is not something that would be asked in the trial.

The hon. member’s third amendment envisages the replacement of “recorded” by “made” in clause 121(5)(b). Paragraph (b) of subsection (5) must be seen against the background of subsections (5) and (6). Paragraph (a) of subsection (5) provides that the record of the trial shall stand whilst paragraph (b) provides that if the accused agrees to the record, he can be found guilty and subsection (6) determines what will happen if the record is incorrect. If I understand it correctly, the hon. member’s amendment would disrupt that chain of events.

The fourth amendment envisages the substitution of “the recording of which” in clause 121(6) by “which”. This amendment would have exactly the same consequence as the previous one. The whole process would be disrupted.

Amendments (1) and (2) negatived (Progressive Reform Party dissenting).

Amendment (3) negatived and amendment (4) dropped (Official Opposition and Progressive Reform Party dissenting).

Clause agreed to.

Clause 122:

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

1. (1) On page 90, in lines 32 and 33, to omit “the court shall act in terms of section 115 and when that section has been complied with,”;
2. (2) on page 90, in line 44, to omit paragraph (iii).

The effect of these amendments is merely to exclude any reference to clause 115, which, as hon. members will know from the debate which has just taken place, we are opposed to. That is to say, in the case of a plea of not guilty we wish to exclude the recently introduced changes, changes which in our view might well be prejudicial to an accused person. That is really the sole effect of the amendments that I have introduced. It is to adopt an attitude in respect of clause 122 which is consistent with the line that we took in respect of clause 115.

Mr. Chairman, I shall accept the second amendment.

Amendment (1) negatived (Official Opposition dissenting).

Amendment (2) agreed to.

Clause, as amended, agreed to.

Clause 123:

Mr. Chairman, I very briefly want to say that we on these benches are against this clause. Had the hon. the Minister provided that there were statements by the witnesses, we would have supported this clause. It is not sufficient to have only a summary of the facts. I think it would be a good thing, however, to eliminate preparatory examinations as a general practice if one gave the defence the statements by the witnesses, as they do, as I said in my Second Reading speech, in England, Russia and elsewhere.

Clause agreed to (Progressive Reform Party dissenting).

Clause 132:

Mr. Chairman, I merely wish to say that this clause, which deals with a procedure after the plea, again introduces in subsection (2) the provisions of section 115 to which we object. We shall also record our objection to this clause.

Clause agreed to (Official Opposition, Progressive Reform Party and Independent United Party dissenting).

Clause 143.

Mr. Chairman, in this clause we deal with the right of an accused to inspect a preparatory examination record and with the fact that he is entitled to a copy of that record. It goes without saying that in our view in a case where a preparatory examination is held, an examination which in the nature of things is only being held in the case of a serious offence, the accused ought to be able to obtain that record as of right and not to have to pay money for it. The clause, as it stands, reads—

As far as a record of this kind is concerned, I want to concede straight away that where a man is being defended at the expense of the State or by the legal aid procedures, he gets the copies free, but a man who has just scraped enough money together to engage legal counsel, has to find the money for the record. If it is a lengthy case, the cost of the record can be very high and it might well be such that it limits his ability adequately to provide for his defence in a proper manner. Apart from that, if the State procedures demand, in principle, that a preparatory examination be held, then in our view he ought to be entitled—after all, it is part of the procedure—to a copy of the record, because it is part of the necessary procedure and I believe it should be given to him free. I now move the amendment which appears in my name on the Order Paper, as follows—

Mr. Chairman, I wish to support that amendment. There are, of course, numbers of decisions which say that the preparatory examination can, in effect, form part of the further particulars to the charge. The judges are entitled to have a look at the preparatory examination in regard to the particulars of the charge and therefore the preparatory examination is almost synonymous to the charge-sheet. It would be unthinkable for an accused to have to pay for the charge-sheet against him and, for those reasons, I support the amendment.

Mr. Chairman, I am not prepared to accept that amendment, because as the hon. member knows, it is only the pro Deo people that can obtain a record like that for free. If the hon. member looks at subsection (1), he will remember that he is entitled to inspect the record as much as he likes at the court, obviously free of charge. Therefore he can make all the notes he wishes to make and if he has managed to scrape just enough money together for counsel—as the hon. member pointed out—they can go along to have a look at the preparatory record. Normally, however, a person who can afford a defence, can also afford the reasonable fee which has to be paid for the record. We have now added to the advantages by giving the legal aid people the record free of charge, and we have also extended this to the people who are not legally represented. The hon. member will know that they constitute a very large number. Therefore, under the circumstances, I am not prepared to accept the amendment.

Mr. Chairman, I do not wish to prolong the debate on this matter, but I think the hon. the Minister will accept that the right of the accused and presumably the right of his legal adviser to go to the court to inspect the record, is not adequate. After all, it has to be studied in counsel’s chambers and it is held in counsel’s hands throughout the cross-examination of the witnesses. It is, therefore, essential that he has a copy of the record, and in a lengthy case it can be expensive. Therefore I persist in putting forward my amendment.

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

Clause agreed to.

Clause 144:

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

An accused can only appear in the superior court on an indictment. Clause 144(4)(a) requires that the indictment be served on the accused at least 10 days before the trial. This period naturally excludes Sundays and public holidays. The amendment merely envisages making it possible for the accused to request that the case be heard earlier. The reason for this is, in fact, obvious. Often an accused, for personal reasons, wants the case to be heard earlier so that it may be finalized earlier. This is especially the case in the seaports where, for instance, an accused has to wait for a ship. In such an instance he wants his case to be heard immediately. Therefore the amendment merely envisages accommodating the accused in this regard.

Mr. Chairman, I am prepared to accept the amendment of the hon. member.

Amendment agreed to.

Clause, as amended, agreed to.

Clause 148:

Mr. Chairman, may I inquire from the hon. the Minister what his attitude to my amendment on this clause is? I am under the impression that the hon. the Minister looks upon it with some favour.

I cannot say at this stage.

Mr. Chairman, may I ask the hon. the Minister whether he intends accepting this amendment, as it may save some time?

Order! The hon. member must first move his amendment.

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

Mr. Chairman, I am prepared to accept the amendment subject to a change being effected to the amendment. I do not know whether the hon. member has received any notes from my department, but I shall send them over to him now for him to have a look at them. The position is that the hon. member will have to change his amendment slightly. If he changes it slightly, I shall accept it. The amendment should read as follows—

1. (1) On page 106, in line 21, to omit all the words after “division” up to and including “unanimous” in line 22;
2. (2) on page 106, in lines 23 to 29, to omit paragraph (b) and to substitute:
   1. (b) The decision or finding of the majority of the members of the court shall be the decision or finding of the court.

Therefore, if the hon. member is prepared to accept that the majority of that court may make a decision, I am prepared to accept the amendment.

Order! The hon. member must first withdraw his amendment and then move the altered amendment to which the hon. the Minister referred. Then the hon. the Minister may say whether he accepts it.

Mr. Chairman, with the leave of the Committee I shall withdraw my amendment.

Amendment, with leave, withdrawn.

Mr. Chairman, I now move—

1. (1) On page 106, in line 21, to omit all the words after “division” up to and including “unanimous” in line 22;
2. (2) on page 106, in lines 23 to 29, to omit paragraph (b) and to substitute:
   1. (b) The decision or finding of the majority of the members of the court shall be the decision or finding of the court.

Mr. Chairman, I am prepared to accept these amendments.

Amendments agreed to.

Clause, as amended, agreed to.

Clause 151:

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

I do not want to address the Committee at length on this amendment. The words I use in the amendment are the same words which are contained in the Criminal Procedure Act at present. The position is that the clause before us provides that the accused shall give evidence first, unless he can show good cause why he should not. I am suggesting that he is being put in a disadvantageous position because he does not have the right to call his witnesses in whichever order he likes, as is the case with the State. He now has to show good cause, and it now becomes a discretionary power in the hands of the judicial officer and no longer a right of the accused. We on these benches prefer the existing situation to remain, namely that the defence is in exactly the same position as the State. As the State can call its witnesses in whatever order it likes, we would like the defence to be able to call the witnesses in whichever order they like, as they are entitled to do at this moment.

I just want to point out that the sort of situation we will get is that a trial will run to 15h30; at that stage the State’s case is finished, but the accused has a doctor who has come from some distance to give evidence, so the accused wants to call that doctor in the last half-hour of court sitting that day so that he could get him away. He has no right to do that under the clause as it stands at the moment. What he has to do is to ask the court to exercise its discretion in his favour and allow him to call a witness out of order, i.e. before he himself gives evidence. That is one example. There are many other examples one could give. I gave one in the Second Reading, when I pointed out that an accused would have to guess whether a witness is going to be accepted by the court when he, the accused, decides that he is not going to give evidence now, but to call the witness immediately. I know what answer the hon. the Minister of Justice gave in the Second Reading, i.e. that the accused can still show good cause for being entitled to call a witness before he himself gives evidence. From these benches we submit that there is no reason why the accused should have to rely upon a discretion of the judicial officer. There is no reason why he should have no right to call witnesses in whatever order he likes. It is a right an accused has always had and that parties have always had in similar matters as well. I therefore earnestly ask the hon. the Minister to consider the amendment which I have moved.

Mr. Chairman, we do not support the amendment moved by the hon. member. In our view there is a great deal to be said for the change which the Bill makes, viz. requiring, except in special circumstances, an accused person to give his evidence first. How often have those of us who have been in legal practice been given a statement by an accused person only to find, after he has heard the evidence of defence witnesses and when put in the box, that he gives evidence totally at variance with the statement that he previously gave you. I can see no disadvantage from the requirement that an accused person should give his evidence first. The type of case which the hon. member for Durban North has referred to, where there is, for example, a doctor whom you want to call late in the afternoon so that he can get back to a distant place where he lives, can be met, because you can show good cause in that circumstance. I am quite sure that the judicial officer concerned would hear his evidence before the accused is required to give evidence.

The only other thing I wish to say in regard to this clause—and I do not propose to move an amendment—is this: I would like to draw the hon. the Minister’s attention to line 41 of the English text, which at present reads—

May I suggest that in another place that be changed to read: “He shall read out the relevant document.” I think it would be an improvement in language. I may say that this type of usage, e.g. “He shall read the relevant document out” I have to listen to painfully almost daily to over the SABC!

Mr. Chairman, I am surprised by the argument of the hon. member for Umhlatuzana. Judicial officers in my experience have never had any difficulty about saying: “Well, it is quite clear the accused has now changed his story.” This is one of the facts judicial officers use against accused people when they give evidence. In a criminal case one is supposed to put one’s case in cross-examination to the same witnesses. That is one’s duty. One has to put one’s case to the State witnesses and do so fairly clearly. Then, by the end of the State’s case one will have put one’s case.

In broad outline only.

Yes, in broad outline. If the argument of the hon. member for Umhlatuzana has any validity, how often do State witnesses not suddenly change their version after a short adjournment, no doubt as a result of what some other State witness had said before they went into the witness box. Nobody suggests that the State, for example, should be told that they should put their witnesses in the box in any specific or predetermined order. It is merely a question of retaining the same rights for both the State and the defence. I submit that that should not be interfered with unless good cause is shown.

Mr. Chairman, I told the hon. member for Durban North at the Second Reading why I am not prepared to accept such an amendment. This was one of his arguments when he discussed the principles of the Bill at the Second Reading.

As far as the hon. member for Umhlatuzana is concerned, I shall bring the point that he has made to the attention of the law advisers and, if necessary, we shall introduce the necessary amendment in the Other Place.

Amendment negatived (Progressive Reform Party dissenting).

Clause agreed to.

Chairman directed to report progress and ask leave to sit again to enable the Prime Minister to make a statement.

House Resumed:

Progress reported and leave granted to sit again.

Mr. Speaker, with your leave, Sir, I wish to make the following statement:

In response to appeals from the Newspaper Press Union, and at its request, the Government has decided to give the Newspaper Press Union one year to discipline itself effectively under its own Press Council and Code. At the suggestion of the Newspaper Press Union, the Government has also decided to institute a Press Secretariat, attached to the Department of the Prime Minister, for liaison with the Press and to deal with Press matters and complaints.

The Bill now before the House will, under the circumstances, not be proceeded with. Full details of the Press Code and Council of the NPU and other related information will be published fully in the near future, including the address of the office where and the manner in which complaints can be lodged.

*Furthermore, I may inform this House that this statement as I have read it, has been cleared with the NPU in its entirety.

Mr. Chairman, this is one of the most important clauses of the Bill and one of the major reasons why we in these benches opposed the Second Reading as vigorously as we did. This clause was originally introduced in 1965 and falls within that group of laws which have undermined the rule of law in South Africa, and which have undermined habeas corpus, which is one of the most treasured rights of the individual against the might of the State. Originally this clause was introduced with the statement of the then Minister of Justice that the objective was to protect witnesses who were going to be called in cases concerning mainly the security of the State, although of course the provision could be used against persons who were accused of several other crimes which were listed in the schedules to the Criminal Procedure Act. I argued at the time, and the arguments still hold, that detention without trial for 180 days runs contrary to all the accepted concepts of the rule of law and we still, of course, hold that point of view. I stated in the Second Reading that there had been a tendency on the part of the hon. the Minister and his predecessor to use this provision on an ever-diminishing scale. Whereas originally this provision was used fairly widely, as the years went by, the use of this provision has in fact diminished and I think the last time that I inquired from the hon. the Minister as to how many persons had been held under the 180-day clause, the answer was 14. That was round about 1971. The reason for that, of course, is obvious, namely that the hon. the Minister subsequently introduced section 6 of the Terrorism Act in 1967.

It is much easier to detain people without trial, without any conditions attached thereto. It is a far more stringent clause and therefore the police have found it necessary to make a great deal of use of the 180-day law. It was argued originally when this clause was introduced that witnesses would not necessarily be held incommunicado and that they would be able to see relatives. The then Minister promised of course that witnesses would be very gently treated. Subsequently we found that this was not so. Many witnesses were in fact held incommunicado for the full 180 days. As far as I can make out there is nothing in the law to prevent the hon. the Minister from releasing the detainee after 180 days and re-arresting him thereafter. For all the reasons which apply to our objections to the abrogation of the rule of law, we are adamantly opposed to retaining this measure on our Statute Book and we are therefore going to vote against this clause.

I want to add that the clause has a certain degree of cynicism attached to it, because the reason given for the detention of witnesses is that this is being done for their own protection. As we have pointed out before from these benches, it is extraordinary that the State should care about protecting witnesses up until the time they give evidence for the State, and that after they have given evidence, they are no longer given protection. The hon. the Minister did state by way of interjection, if I remember correctly, that they are protected thereafter. How on earth he goes on protecting witnesses for the rest of their lives when they have become marked men …

Did I say for the rest of their lives?

No, but I am asking the hon. the Minister …

You are just adding something to what I said.

The hon. the Minister must not get ratty about this. He certainly gave me the impression that witnesses were protected thereafter.

Not for the rest of their lives.

Well then, for how long? For one week, for one month, for one year? For how long?

That is a silly argument.

I am not being silly, the hon. the Minister is being silly. If a man is a marked man as a result of having given evidence in favour of the State, he is a marked man for life and therefore there is no point in protecting him for the 24 hours after he leaves gaol, for one month or even for one year. He is either given protection or he is not. I say that it is impossible for the hon. the Minister to give that protection and it is therefore pure cynicism to use the excuse that in order to protect witnesses they have to be kept in gaol out of harm’s way.

For all the reasons I have given and because I do not believe that this clause, anyway during the time that it was widely used, was used for only those reasons, we in these benches are going to vote against it.

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

1. (1) On page 126, after line 11, to insert:
   1. (b) On receipt of such information the judge shall afford the detainee an opportunity of submitting to him reasons why he should not be detained and shall if the detainee submits such reasons afford the Attorney-General an opportunity of replying thereto.
2. (2) on page 126, after line 23, to insert:
   1. (c) The provisions of section 73 shall mutatis mutandis apply to a person detained by order of the Attorney-General under paragraph (b) until such time as the final decision of a judge under subsection (2) is issued.
3. (3) on page 126, in line 36, to omit “by the Attorney-General”;
4. (4) on page 128, in lines 1 to 5, to omit subsection (5);
5. (5) on page 128, in lines 16 and 17, to omit “or the refusal of the consent required under subsection (5) or any condition referred to in subsection (5)”.

In the first instance, I would like to say that we on this side of the House support the amendment moved by the hon. member for Houghton.

I have just negatived the clause.

All right, the hon. member has not moved an amendment then. We will also vote against the clause, but on the assumption that the hon. the Minister is not going to accept the objection to the clause, I have moved the amendments which stand in my name. These amendments are more technical than they are political. The first one deals with the question of whether the witness himself should be entitled to appearing before the judge to whom the Attorney-General has applied for the right to detain him. It will be seen from the amendment that we say that—

Mr. Chairman, I know that the commission’s report indicated that the commission did not feel that this would be a reasonable requirement, in view of the fact that the clause is merely directed towards the protection of a witness from interference by other parties, and that it may well be difficult for the witness himself to understand the danger to which he may be submitted. I do not believe that this is reasonable because, in any event, the onus of satisfying the judge that it is necessary, lies with the Attorney-General himself. Therefore, there is no onus at all on the witness to prove a state of affairs. He simply will have the right to state his case to the judge, and there may well be occasions when it is necessary for such a witness to state his case to a judge and, perhaps, to bring to the judge’s notice certain aspects of the allegations made by the Attorney-General, allegations of which the judge can take cognizance, and all allegations which may well lead to the judge deciding that it would not be necessary for such a person to be detained. This is a basic right. The audi alteram partem rule applies here. I believe it is a rule of law that a person who may be placed in custody should have the right to have a say to the court or to the official who has the right to place him in custody. I believe that my first amendment is a reasonable one.

The second amendment which I have moved provides that the provisions of section 73 of the Act—that is the provision which relates to the right of an accused person to have a legal adviser—

Section 73 of the Act goes a little further and simply allows the accused person to have legal advice at the hearing of his trial. It goes on to say—

And also that—

I believe it is only right that a witness who is possibly to be subjected to imprisonment, should be entitled to legal advice and I believe that the hon. the Minister will agree that this is merely a reasonable request. My amendment that on page 126, line 36, “by the Attorney-General” be omitted is simply consequential to the first amendment which I have moved relating to the rights given to a witness to appear before a judge and to make submissions.

My fourth amendment is also consequential because subsection (5) states—

We believe that that subsection need not be there at all. As I have said, we have asked for legal advice and a legal adviser to be available to a witness. To me it seems rather peculiar that a witness should not be entitled, for instance, to have people visiting him without the consent of the Attorney-General from whom it may well be very difficult to get the necessary consent. I believe that the subsection is not necessary and that the ordinary prison rules should apply to a person who is being detained. After all, the person is being detained in custody in terms of this clause and I believe that this subsection should not apply at all.

My fifth amendment is, in fact, also consequential upon our request that subsection (5) be deleted.

Generally speaking, we do not believe in this clause at all. We believe that it is not necessary. It has not been proved necessary and we believe that there are other methods of protecting witnesses when they have been threatened. In any event, there is an opportunity for witnesses who have been threatened, etc. to apply to the Police for protection. To subject a witness who is, presumably in the first instance a willing witness, to detention against his will, even though it might be said that the witness does not realize the danger in which he is placed, is in our opinion contrary to our normal principles, the rule of law and the rules of justice. We believe that the accused himself, being an unwilling detainee, will do everything in his power to find relief from his detention and this may well tend to make him amend the evidence that he might well have given had be been a free person, in order perhaps to obtain release from his detention in terms of this particular clause. There are some other arguments that we can produce as well. We believe that the whole clause can well be done away with without disturbing the tenor of the Bill which, as I have said previously, is a good one.

Business suspended at 18h30 and resumed at 20h00.

Evening Sitting

Mr. Chairman, I was just beginning to think that we had heard the last of this cliché of the rule of law being undermined or abrogated, when the hon. members for Houghton and East London City again advanced this argument. I want to state categorically that I do not think that this clause has anything whatsoever to do with the rule of law. It is very obvious that the two hon. members of the Opposition who have spoken on this clause do not have the faintest idea of what the rule of law actually means. I need only refer to what the hon. member for East London North has said in this regard. It is evident that this hon. member equates the rule of law with rules of law and justice. That is exactly what he has said. He said that he opposed this clause because it was contrary to the rules of law and of justice.

Natural justice.

Justice or natural justice. It is the same whichever way he puts it. The point is that the rule of law has nothing to do with rules of law.

It is not the hon. member for East London North who said that.

It is the hon. member for East London North. If the hon. member reads the Hansard, he will find it.

It is the member for East London City.

I am sorry, it is indeed the hon. member for East London City. I do not want to take the House’s time by proceeding with the argument about the rule of law. I content myself by referring hon. members to a certain speech which was delivered in this House in the course of the last session. I refer them to Hansard, col. 6571 and the following columns. If they read that, perhaps they will understand what the rule of law really is all about.

What volume was that?

Volume 62.

*Mr. Chairman, I want to return to the provisions of the clause. The hon. member for Houghton also referred to “detention without trial” for a period of 180 days, or however long the period may be. Apparently she does not understand that we are not dealing here with offenders or suspected offenders, but with witnesses. This is a fundamental and cardinal difference. The same applies to her reference to the Terrorism Act—a reference which has nothing to do with the clause at present under discussion.

As far as the hon. member for East London City and his amendments are concerned, it is very clear to me that since the hon. members of the Opposition did not get their own way as far as the principle of the clause was concerned, they are now coming forward with amendments which will affect the entire essence of this clause. If we were to accept these amendments, the entire effect of the clause would be removed.

Nonsense.

It is not nonsense. It is a fact. If one were first to allow a mini-trial to take place to determine whether a witness should be detained on the ground of the considerations as stated in the clause, one is defeating the entire object of the clause, for then one would of necessity have to disclose certain things—things which ought not to be revealed at that stage—for how will the detained person be able to reply to the considerations in regard to his detention if he does not know what they are? In other words, one would have to disclose to him what information the Attorney-General has at his disposal. In other words, the State will have to show its hand.

The next amendment is even worse in this sense that it is expected that the detainee may receive visits from his legal representative, friends and all kinds of other people. If one were to allow this, one would enable him to tell those people what reasons the Attorney-General had disclosed to him for his detention, and they could then use or abuse this information.

Do you, as a lawyer, agree with that system?

I am in full agreement with it, for what is involved here, basically, is that the principles of law and justice will be maintained and that no loop-holes will be created for offenders to evade the net which the law has cast around them. Nor do we want the right of access to State witnesses to be abused. The considerations which are stated in this clause are also in the interests of the witness himself. If we were to allow all and sundry to visit witnesses in detention, I should imagine that, while they are being detained for their own protection, they will be threatened and intimidated by the people visiting them. I repeat that the proposed amendments cannot be accepted because they will defeat the entire object of the clause.

Mr. Chairman, I listened very carefully to what the hon. member for Mossel Bay had to say. As the hon. member is aware, we supported the Second Reading of the Bill, but I certainly cannot subscribe to the attack that he has made on the hon. member for East London City. I think the hon. member has gone overboard in his attack on the hon. member for East London City and, in fact, he compels me to defend the hon. member for East London City and I am quite happy to do that. In so far as the hon. member’s attack on the hon. member for Houghton is concerned, I can assure him that I am not going to defend the hon. member for Houghton, because we certainly do not agree with her viewpoint in regard to the particular clause.

We feel that the amendments which the hon. member for East London City has moved are reasonable. He has rationalized them well, he has argued them well and we find that the amendments are acceptable to us and therefore we support them. We are, however, not going to support the amendment which the hon. member for Houghton has moved and I am not going to deal with her amendment at all.

But I am voting against the clause.

The hon. member for Houghton says that she is voting against the clause, but we know that, as usual, she votes against anything that is in the interests of South Africa.

We urge the hon. the Minister to accept the amendments of the hon. member for East London City. We in these benches have adopted a reasonable attitude in regard to the Bill and we should like to ask the hon. the Minister to adopt a reasonable attitude in regard to the amendments which the hon. member for East London City has moved. In terms of these amendments a judge is afforded an opportunity of hearing a detainee. It also affords the judge the opportunity of hearing the reply from the Attorney-General. The hon. the Minister of Justice has had vast legal experience. Surely the concept that was put before him by the hon. member for East London City should appeal to him. It provides that the detainee can be heard by the judge and that the Attorney-General’s reply can also be heard. The hon. the Minister should not reject that concept. I believe that if the hon. the Minister of Justice were to accept these amendments it would enhance the legal system of South Africa. In our view these amendments are worth accepting. I do not believe that we should labour the matter further and I once again urge the hon. the Minister of Justice to accept the amendments as put on the Order Paper by the hon. member for East London City.

Mr. Chairman, I, in turn, have carefully listened to the hon. member for Walmer and despite his qualifications, I think he must just plead guilty. He really does not go against this clause. All he does is that he simply says: You will make it better if you allow audi alteram partem. The real position is, however, that this clause still retains the old 180-day provision. That is what it does and it does it in respect of witnesses. In order to clothe the whole thing with respectability it provides that one can go first of all to a judge in chambers and that he will make the order. What is the value of that, however, if only one party can put up affidavits before the judge? It has no value whatsoever. The position is that witnesses are now going to be held as they have been in the past although we were totally against it. These witnesses are going to be held for periods of 180 days and for periods after that of 180 days, with no rights whatsoever. For what reason are they going to be held? The clause sets out what the reasons are, viz. if the Attorney-General is of the opinion that their personal safety is in danger, that they may abscond, that they may be tampered with or intimidated. If those are the only reasons why a witness can be held, why then should he not be entitled to legal representation? Why should he not be entitled to a visit from a lawyer? Not one of those reasons should prevent him from being able to see a lawyer. I want to tell the hon. the Minister of Justice that people overseas in the Western world are horrified by the thought that even an accused person cannot see a legal representative, let alone a witness in the case.

I once had occasion in New York to address post-graduate legal students. On that occasion I spent about an hour defending our legal situation in South Africa. After they had asked various questions I told these people that they must not think of South Africa as some kind of colonial hick place where they do not understand the law. I said that in South Africa we have a great respect for the law, and that even in regard to simple things such as an innkeeper or hotelier’s rights over his guests baggage, we go back 2 000 or 3 000 years when we cite cases even in a magistrate’s court. They were quite impressed by that, but when I told them that witnesses, let alone accused people, were not allowed to see legal advisers they were horrified. I can see no reason why a person whose safety is being preserved in a gaol or a person who may abscond may not see a legal representative. I submit that it is gross interference with the rights of people and it is gross interference with the rights of totally innocent people in the case of witnesses. We are totally against this whole clause, but if the hon. the Minister is not prepared to eliminate this clause, we will then say it is of some value that the witness should be able to reply to the contentions of the Attorney-General on affidavit and he must be entitled to do so. One could take one set of facts and draw affidavits and place them before a judge. One could colour the affidavits without any dishonesty because an affidavit is something in writing and it is not something that is going to be tested in cross-examination in a case like this. If one therefore phrases it in a way that looks more damaging to a witness the net result will be that that is all the judge will see and that he will hold the witness in prison.

That is a very unfair situation and it is not accepted in any other branch of our law that anybody ex parte can obtain an order against another person, thereby affecting his liberty. That person should be allowed to reply. There is no question, as the hon. member for Mossel Bay seems to imply, that this is now going to become some kind of long “miniverhoor”, as he put it. The person who is clapped in gaol, in terms of the amendment is given notice, he is given the affidavits and he is asked whether he wishes to reply to them. Perhaps there are two sets of affidavits, but he should be entitled to reply to the allegations of the Attorney-General. Those are some of the reasons why we are violently opposed to this clause.

Mr. Chairman, the hon. member for Durban North criticized me for pleading the audi alteram partem rule, which is the rule that the other side should be heard. This is one of the most important principles in our law and we in these benches have no regrets that we made this plea that the other side should be heard. We feel that by supporting the amendments of the hon. member for East London City, we are showing that we are standing strongly on the principle of the audi alteram partem rule. For those reasons as well, we ask the hon. the Minister to accept the amendments.

Mr. Chairman, I have listened to the various arguments on this aspect, an aspect which was placed on the Statute Book as long ago as 1965. If hon. members were to look up the 1965 debates they would see that this aspect was debated at that early date. The hon. member for Walmer has asked me to be reasonable as far as the amendments are concerned. If the hon. member would give me his attention I could tell him that I do not think he can accuse me of not having been reasonable in respect of this Bill as far as amendments go. Right at the outset I said that if amendments would really serve to strengthen the Bill, I would accept them immediately. I am still prepared to do so now. But when we come to an important clause such as this one I want to remind hon. members that during last debates on this provision our present Prime Minister who was Minister of Justice at that time pointed out that in those years at least six witnesses had been murdered, at least 12 had fled the country before they had given evidence and at least 43 had refused, as a result of being influenced, to give evidence. What did the Botha Commission say in respect of this clause which is now being attacked to such an extent by hon. members? I am quoting from paragraph 11.20.4 of the report, as follows—

The judicial control is being incorporated in this clause. We have acted upon the proposal by the Botha Commission that there should be judicial control, and we have included this in the clause. Hon. members must bear in mind that the vast majority of witnesses who are detained are accessories who would have been detained in any case. The circumstances under which we detain a witness who is not an accessory differ vastly from the circumstances under which an accessory is detained as a witness. The hon. members themselves may well understand that the State would not get very far if it detained witnesses as though they were prisoners. Consequently we detain them under conditions under which a witness ought to be detained. It is very clear that this clause will never be used against anyone who has realized what his civil duty is and has acted accordingly, unless his life is in danger or unless he himself asks for the necessary protection. Surely there is no sense in bringing down on oneself the hostility of a witness. Of what avail is it for the State to detain a person if he becomes hostile? What would his evidence mean? We only detain the witnesses who really have to be protected and who are aware that they have to be protected.

On the other hand we must not forget that there are criminals—the hon. member for Houghton in particular should remember this, for there are at present such cases in progress—who will eliminate anything standing in their way in order to achieve their object. These are the Mafia-type gangs. The Black Power gangs of today are such organizations. These gangs are formed, and are capable of defeating the ends of justice. Members of these gangs or organizations who are arrested and released on bail are hidden, or are helped to leave the country. Witnesses are intimidated, even murdered. This provision has been inserted in order to cope with these things. Since this was done this provision has become one of the most effective weapons for fighting serious crime.

Let me furnish a few recent examples of what the police have to contend with. On 13 May 1976 an eight-year old Coloured girl was first raped and then murdered. Two attempts were made to murder an eyewitness. The police were compelled to hide that witness for approximately six months. Here is another example. On 16 June 1976 a Bantu male was murdered with a fire-arm. A threat was made on the lives of the witnesses and because the police were unable to protect them, they disappeared and are still missing to this day. The case failed. On 16 June 1976 Dr. Edelstein was murdered during the riots in Soweto. A prominent eyewitness disappeared, after he had made a statement. Threats were made on his life. This case also failed. The hon. member is aware of it. I should like to see the signs of displeasure which usually appear on her face, appearing there now. [Interjections.] On 22 August 1976 two Bantu males were shot and killed in their home. The police were unable to protect the only eyewitness and this witness was shot and killed shortly afterwards. On 11 May 1976 an Indian male was murdered. There was one eyewitness, but he disappeared. It is feared that he was also murdered.

From a single police file, i.e. Dunnottar R.A.A. 123/1/77, I quote the following charges: Eight cases of armed robbery; three cases of attempted armed robbery; two attempted murders; one murder; seven cases of housebreaking and theft; one case of possession of an unlicensed fire-arm; and one case of possession of ammunition. The following witnesses were intimidated and injured: Paul Remofokeng, a 34-year-old Bantu, was wounded on 1 June 1976 in Soweto with a fire-arm and was shot and killed in the Natalspruit hospital on 4 June 1976. He was shot to death inside the hospital. [Interjections.] Yes, these are not victories. These are defeats. We shall still come to that. I want to go further. On 6 December 1976 a Bantu constable Maseko received a threatening letter stating that he would be shot or killed with a petrol-bomb. The threatening letter was worded as follows—

Those are Helen’s pals.

Here is another example. The lives of the family of Jessie Ramakatana, who was being detained as a witness, were threatened, and on 20 February 1977, of this year, his brother was stabbed to death in a street in Soweto by an unknown Bantu male.

Let me furnish another example. Vincent Nzama, Peter Mncumu, Jafta Nkosi, Mike Dikobe and Bantu constable Z. Xaba were all threatened personally by an accused who said that they would be killed if they gave evidence or furnished any information.

In an automobile theft case in Benoni—one of the police dossiers—a witness Paulus Phore was threatened and told that he would be killed if he gave evidence, and during July 1976 he was assaulted with a knife.

Now the hon. member states that I should delete the entire clause. Does she still insist that I do so, in the face of this thuggery which is taking place and as a result of which we have to protect the witnesses? Does the hon. member still want me to delete the clause? If I were to do everything which she proposes, South Africa would already have been in ruins. A communist or terrorist government would already have been established here. [Interjections.]

The second amendment envisaged that a witness who is to be detained, should be afforded an opportunity of replying to the information submitted by the Attorney-General to the judge. This matter was specifically considered by the Botha Commission, and it was concluded that the Government should do what we are in fact doing in this legislation. We cannot tell these people what the State’s case is. They are witnesses, and they may be accessories whom we are detaining.

I wonder how you managed before 1965?

The commission pointed out, quite correctly, that all these things may or may not occur in future and as such are not susceptible to reference to one side or the other. It is mere speculation. We submit that affidavit to a judge, and what more can we do? Does the hon. member for Durban North wish to suggest in all earnest that if an affidavit is drawn up in such a way that it is totally prejudiced, the judge will not be able to see through such a statement? Is that his standpoint? Surely that was his argument. When the Attorney-General appears before a judge with this affidavit, the judge will make very certain that it is essential that a specific witness be detained.

Under those circumstances I am afraid that many of the amendments are of a consequential nature. I am not prepared to accept any amendment to this clause, and I want to tell the UP members with great appreciation that I know that they stand for law and order in South Africa. I regret that it is necessary for us to have to protect witnesses by detaining them. I really regret this. Those hon. members must think twice, however, before voting against this clause. Hon. members need only read the newspapers of the day before yesterday to see how a State witness changed his story and quite a number of people who had participated in riots in urban areas were released. I am not blaming the courts; there was no evidence, because the witnesses had been intimidated. We are making an attempt to cause law and order to triumph in South Africa. Consequently the UP must think twice before they vote against this clause. I am warning the UP at this early stage already that I am going to chase them with this amendment at the next election. If they vote against this clause, we shall chase them with it.

You will never get to it.

We shall never get to it?

Is that a threat?

The hon. member for Durban Point is asking whether it is a threat. I shall now tell him what kind of threat it is. It is a threat of the same nature as the one we have chased them with at every election, with the blunders which they made. It is high time the hon. members of the UP adopted a definite standpoint on law and order in South Africa. They must cease paying lip-service to it by pretending to agree with us, while in reality they are opposed to us. We are tired of this, and the people are tired of it as well.

You are more interested in votes than in principles.

I shall cut your point off if you are not careful! [Interjections.]

Order!

One of the amendments moved by the hon. members entails that no person, except an officer in the service of the State, has access to a detained person unless the Attorney-General has consented to this. The right of a detained person to receive visitors is determined by regulation 2 of Government Notice R. 1396 of 10 September 1965. In terms of this regulation the Prisons Act, 1959, and the regulations made in terms of it in so far as they are applicable to uncondemned prisoners are mutatis mutandis applicable to such a detained person. Section 82 of the Prisons Act provides that an uncondemned prisoner may receive visits, subject to such provisions and conditions as may be prescribed by the commissioner of prisons. In other words, in spite of the amendment, provision is already being made in terms of this clause for the prison regulations to be applicable to visitors. If a detained person may receive visitors, and if the prison authorities feel that he is entitled to receive visitors, he is allowed to do so. However, what certainly cannot be allowed is that those specific people by whom he was intimidated should visit such a detained person and then show him a knife, a fist or their bared teeth, or something of that nature, through the bars. Such incidents do in fact occur.

In conclusion, I want to tell the hon. members that I am not prepared to accept any amendments in regard to this clause. This is a well-considered clause and is absolutely necessary for South Africa. The hon. member for Durban North told me of his experience in New York. I can also tell the hon. member of my experiences there. Every time I made a speech in New York, people asked me why no one had ever told them how good South Africa was. After I had spoken to them for half an hour, they expressed their appreciation of my country. Now the hon. member for Durban North wants to tell me how he failed in his attempt to defend South Africa. He made an attempt to defend South Africa, but I can quite honestly tell him that I can well imagine what kind of attempt he made to defend South Africa. [Interjections.] All things considered, Mr. Chairman, I am not prepared to accept any amendments to this clause. I am sorry if hon. members feel that they do not agree with me in this regard. [Interjections.]

Order!

Mr. Chairman, if the hon. the Minister of Justice on his last visit to New York made the sort of speech that I have listened to here for the last 20 minutes, I am not surprised that we have the reputation abroad that we indeed have. [Interjections.] Let us set aside for the moment the merits of why this side of the House is opposed to this particular clause. I want to address myself to the amendment moved by the hon. member for East London City, because, with all the tirade from the hon. the Minister, that is what we were dealing with. It is an amendment which, if I may say so, has the support of the hon. member for Durban North and the support of the hon. member for Walmer. What are we dealing with? We are not dealing with an accused person or with a convicted person. We are dealing here with a witness, a witness who is detained in terms of the opinion of the Attorney-General that he may either abscond or that the personal safety of his person is in danger or that he may be tampered with or that he may be intimidated. The hon. the Minister himself found it necessary to introduce the requirement of evidence being placed before a judge in chambers. Once the hon. the Minister found it necessary to take that step the whole of the arguments which he has just presented to us fall to the ground. Why was it necessary for the hon. the Minister to introduce the judicial presence into this clause at all? Why was it necessary to introduce the decision of a judge at all?

[Inaudible.]

Right. Why did the hon. the Minister not find it sufficient for the Attorney-General of his own volition to order the detention of a witness in a case like this?

I told the hon. member that we wanted to bring in a judge to try to satisfy the acceptance of the Botha Commission’s proposal.

The hon. the Minister found it necessary to bring in the judge because he wants people to be satisfied that it is a proper detention of the witness in question.

That is right, we need a judge to know if there are any affidavits.

Yes, in other words, the judicial presence is brought in a case like this to show that there is fair play and to show that an independent mind is being brought to bear on the subject.

Why do you want a trial before there is a trial?

I do not want a trial, but the hon. the Minister has made the concessions which are sufficient for my purpose. Now that the judge has been brought in—and the hon. the Minister cannot go back on that because in that regard he has made the point clear—the Attorney-General is required to place affidavits before the judge indicating why the person should be detained. These affidavits are not those of the Attorney-General himself, but those of the officials upon whose evidence the Attorney-General relies for the application to the judge. I refer to police officials and witnesses of this and that kind. That evidence is placed before the judge in chambers to warrant an order for the detention of the witness up to 180 days, if necessary. At that stage the witness is a person who is innocent of accusations of any kind against him. What the hon. the Minister has not done, is to give any valid reason at all why the judge, whom he regards as essential in the scheme of things, should be required to give a decision without the full facts being placed before him. In other words, in advance he is going to fetter the proper exercise of his discretion by the judge in question. If the hon. the Minister is going to be consistent in his point of view, he should delete all reference to the judge in this clause altogether. The hon. the Minister should make it upon the dictate of the Attorney-General that these witnesses are detained. However, once he brings in the judicial officer and has affidavits on oath, statements on oath, placed before that judicial officer, he is, in terms of his own case, bound to have the detained person’s point of view placed before that judge as well.

For every motion you place an affidavit.

Of course you place affidavits from one side ex parte before the judge, but if the other side requires its point of view to be heard, the judge will immediately have that point of view heard as well. [Interjections.] I quite concede that there may be cases where a witness may abscond or may be intimidated, etc. The hon. the Minister has given examples of those cases, but likewise there will be persons detained because the one-sided evidence of persons to whom the Attorney-General alone has access is erroneous. It is based on facts which are not correct and the judge cannot come to a correct conclusion on the basis of that evidence unless statements on oath, affidavits, from the person whose detention is sought are placed before him as well.

What does the Bill say? The Bill deals with that.

But the Bill does not deal with that. If it did, the Chairman would have ruled these amendments out of order. All we seek in these amendments is not to undermine the judicial process of South Africa, but to enable a judge whom the Minister himself regards as essential in these proceedings, properly to decide on the matter. If it is not right for a person, who is not an accused person, who is not a convicted criminal, but is merely detained in order to further the interests of justice, to have his point of view heard as well by the judge, then I do not know what the judicial process is.

The other point, which relates to the second amendment moved by the hon. member for East London City, is that a person placed in this position—that is to say, detained as a witness—should have the same rights in regard to visits by his relatives and as to his access to legal advice as an accused person in an ordinary criminal case. Who can tell me why a witness detained in order to give evidence in a criminal trial—I repeat he is a person against whom there is no charge of any kind and in many cases a person who is not even suspected of committing any offence—should be placed in a less advantageous position than an accused person who is ultimately probably to be convicted of an offence? That is the gravamen of the case advanced in the amendments of the hon. member for East London City. I was very sorry indeed to hear from the hon. the Minister the sort of speech to which we have had to listen for half an hour before and after the adjournment of the House.

Mr. Chairman, the hon. member for Umhlatuzana has dealt very lucidly with most of the points raised by the hon. the Minister. In what I have to say, however, I shall not be quite as polite as the hon. member for Umhlatuzana was. [Interjections.] The hon. the Minister boasts that the attitude of the Opposition is the sort of attitude the Government will use in years to come in elections and that because of the attitude of the Opposition, the Government will win elections in future. The hon. the Minister must remember that he is a representative of a Government which represents some 10% of the people of South Africa. [Interjections.]

Order! I appeal to hon. members to discuss the clause and to leave other considerations aside.

Mr. Chairman, I accept your ruling, but I should like to say that as far as I am concerned, your injunction would have been much more effective had you put it at the time the hon. the Minister was speaking. You have allowed him to make an attack on this side of the House …

Order! Does the hon. member accept my ruling? I allowed the hon. the Minister to reply to the standpoints of the various Opposition parties—I appeal to hon. members henceforth to confine themselves to the contents of this clause.

Mr. Chairman, on a point of order: The hon. the Minister made a statement which at that stage was unrelated to the debate in that he said he was going to chase a certain party at election time with how they were going to vote tonight. That was a new statement which was unrelated to anything which had been said, and accordingly I submit it can be replied to.

I request hon. members once again to confine themselves to the contents of this clause.

Mr. Chairman, when the hon. the Minister talked about the attitude of this 10% Government, he tackled the hon. member for Durban North. [Interjections.] Mr. Chairman, I should be most grateful if you could ask those hon. members to keep quiet. With your assistance I shall continue. The hon. the Minister attacked my hon. colleague for Durban North because in all good faith he reported on a speech he made in New York, a speech based on the legal system of South Africa and upon the question of habeas corpus, which is very much written out of this clause. The hon. the Minister said that if he were in New York, he would have made a different speech. I want to ask the hon. the Minister …

Order! Hon. members must now please confine their remarks to the contents of the clause.

Sit down!

Mr. Chairman, I just want to tell you—also for the benefit of members opposite—that there is no way by which I am going to sit down of my own accord. [Interjections.]

Order! Hon. members must please be silent.

Mr. Chairman, the hon. the Minister mentioned several incidents in support of his argument that witnesses should be detained at the will of the Minister or of the Attorney-General.

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

No, Sir, I have absolutely no desire to communicate with that hon. member.

Order! If hon. members will not be silent, I shall have to ask them to make no further interjections.

I would be grateful if the hon. member would not ask me any more questions. The hon. the Minister quoted certain incidents where he said that certain witnesses had vanished, had in fact been shot or had been hurt in some way because they were about to give evidence on behalf of the State. He quoted certain incidents which, to my mind, would be serious for the administration of justice in any country. This is an indictment not on our legal system, but on the police and the protection they should have offered to witnesses who, in fact, were to appear in a trial. Mr. Chairman, if we have reached a stage in this country where the only way in which we can protect witnesses is to put them in prison indefinitely, I think South Africa has come to a very bad and sad pass. Because of these few incidents which the hon. the Minister, representing his 10% Government, has put before us tonight, he and the Government are prepared to throw overboard the liberty of the individual and the rule of law. [Interjections.] The hon. member for Mossel Bay referred to the rule of law. What does the rule of law say? It says that no man shall be punished or imprisoned unless he has been convicted of a specific crime. The witnesses are being punished and are being put in prison for crimes which they have never committed and the crime is the fact that they are witnesses. While they are in prison—let us not bluff ourselves—they are treated as prisoners and nothing else. The Government is prepared, because of these few incidents and because of the lack of police protection, to countenance the incarceration of individuals indefinitely, they are prepared to throw overboard South Africa’s good name and the very fine legal system that has endured in the country over many years and they are prepared to throw overboard the principle which is to be found in every democratic State in the entire Western World, namely the principle of habeas corpus. Once a judge has made a decision, no court can release the person who is thus incarcerated no matter how good the cause that is shown. One can try to bring an application to the Supreme Court, but there is absolutely no possibility that one can reverse the decision of a judge taken on the affidavits presented only by the State. That principle effectively throws overboard the principle of habeas corpus in South Africa. In nine cases out of ten the people who are being protected in terms of the clause, are being protected against their own will, and then they are not allowed access, except at the will of the Attorney-General, to any family, friends or legal representatives.

It is all very well having procedures like this pre-trial, but what is the hon. the Minister of Justice prepared to do and to enshrine in this law in order to look after those people after they have given evidence? What protection will the police and the Department of Justice offer to these people once they have given evidence? This is a bad situation for South Africa and it is not in the interests of justice to have it. I believe it gets rid of habeas corpus in South Africa and I think that the hon. the Minister must know that we in this party can never support this measure.

Order! The principles contained in this clause were discussed at great length during the Second Reading. In addition the hon. the Minister furnished a special reply to them in his reply to the Second Reading debate. All parties have once again been afforded an opportunity of stating their standpoint again, and I therefore request hon. members now to refrain from discussing the principle any further, since it was accepted at the Second Reading. Hon. members must now confine themselves to the particulars of the clause.

Mr. Chairman, I simply want to ask the hon. the Minister a question. He says, and I quote his translated words: “That this provision was absolutely necessary for South Africa.” I wonder if I could have the hon. the Minister’s attention for a moment because I want to ask him a question. Do I have the hon. the Minister’s attention? How lucky I am!

You are not so important.

No, but I happen to have the floor, do I not? That is the important thing. The hon. the Minister said that this provision was absolutely necessary for South Africa. I would like to ask the hon. the Minister on how many occasions he has used this provision over the last, say, five years in South Africa. The last figure that I have is for 1971, and during that year he used this provision in 14 cases. This was a very big drop from 1966 when he used it in 230 cases. I would like the hon. the Minister to tell us, if he can, how many times he has had recourse to this particular section over the last five years. Then we can perhaps judge for ourselves how “absolutely necessary” this is for South Africa. It is my contention that this provision has been used less and less frequently because the hon. the Minister has at his disposal a much more convenient provision, one that requires even less procedural detail than this particular provision. That, of course, is section 6 of the Terrorism Act, which he is using to an enormous extent, more particularly over the last year or two. Could the hon. the Minister give us this information?

Mr. Chairman, I shall reply to the hon. member for Houghton first. Naturally I do not have the statistics available this evening, but the hon. member is entitled to place the question on the Order Paper and I shall furnish her with the reply to this matter. However we use this provision quite extensively, and we shall most probably have to use it frequently during the next few months.

I should like to remind the hon. member for Umhlatuzana of what Mr. Justice Botha said. We must never forget that Mr. Justice Botha, the chairman, was a Judge of Appeal.

You have not accepted all the recommendations.

What did he say about this specific aspect which the hon. member for East London City submitted to me, the aspect in regard to the audi alteram partem rule, and so on? He said the following (Botha Report, paragraph 11.20.12)—

That is why I told the hon. member for Sandton by way of an interjection that he wanted a trial within a trial. I should like to point out to the hon. member for Umhlatuzana that clause 185(2)(a) and (b) provide clearly—

1. (i) that there is a danger that the personal safety of the person concerned may be threatened or that he may abscond or that he may be tampered with or that he may be intimidated; or
2. (ii) that it would be in the interests of the person concerned or of the administration of justice that he be detained in custody,

issue a warrant for the detention of such a person.

It is very clear that when the Attorney-General submits his affidavit to the judge and that affidavit does not satisfy the judge, he will not allow the witness to be detained. It is very clear. The judge will only allow the witness to be detained when he is in fact completely satisfied that that witness has to be detained for his own safety, or to prevent him from absconding, or to prevent him from being intimidated.

But he has not heard the other side.

But how can he hear the other side? Judge Botha told us exactly what the other side would say. What would the other side say? It is allegations about a court case in which he is only a witness, not an accused. How would he know all those things?

Mr. Chairman, I want to deal with two specific issues. The first is the argument of the hon. the Minister in regard to the so-called “trial within a trial”. With great respect to the hon. the Minister, he knows full well that there are lots of examples in our law of trials within trials on a specific issue. Let me remind him of only one. The issue of the admissibility of evidence is dealt with quite separately from the trial as such. But that is within the trial in question. Here the difference fundamentally is that we are dealing with a completely different issue. We are not dealing with the issue of the guilt of the person we are seeking to incarcerate for a period of 180 days. We are not dealing with that issue at all, but with the issue as to whether or not he should be incarcerated because he is a witness, because, in terms of this Bill, this Act as it will be, either there is the question of the personal safety of the individual, or that he may abscond, or that he may be tampered with, or that he may be intimidated, or that it is in the interest of the administration of justice that he be detained. In other words, it has nothing whatsoever to do with a criminal trial. It is a completely different issue.

It is extraneous.

It is extraneous, as the hon. member for Umhlatuzana says. It is completely and utterly a separate issue. Sir, let me put a very simple example to you. Let me assume for the moment that the allegation of the State is that the man’s life is in danger. In other words, it is the personal danger to the individual which is at issue. He may well disagree and may well say: “I do not want to be protected, I am quite happy to take the chance on it,” because he does not believe that his life is in danger. He is entitled to decide whether he should spend 180 days locked up because his life is in danger. If the allegations were different, it would be another matter. We may have reason to believe that he may abscond, but there might be perfectly valid reasons that an accused could advance in a bail application as to why he is not likely to abscond. What we are doing effectively is that we are gagging this man. We are gagging him so that he is unable to say to anybody why he should not be locked up for a 180 days.

The second matter I should like to address myself to is the amendments moved by the hon. member for East London City, specifically the amendment dealing with the question of access. The hon. the Minister advanced a long argument as to why there should not be access. He said knives could be shown, threats could be made, that, in fact, all sorts of things could be done. But how does that apply to the man who himself decides that he would like to engage his own lawyer? Is he not then entitled to say: “I would like to see my lawyer to get advice from him”? How could the arguments advanced by the hon. the Minister have the slightest substance in that kind of situation. Let us take another example. Let us take the next of kin. He may want to see people that he is quite satisfied to see, where there is no danger to him. Why should he not be allowed to do it? Let me ask another question. If he is a witness, and if he is precious to the State, why must he then be detained in prison conditions?

Not prison conditions.

You say he is not? Sir, the conditions in which a man is detained if he is a witness should be reasonable conditions. He should be able to live a normal life. His life should not be prejudiced as the result of this situation.

He does not even have the privileges of prisoners awaiting trial.

Why should he be in such circumstances? After all, he is only a witness. What is happening, is that a witness is being put in a situation where he must, in his own mind, regard his incarceration as a form of punishment. That, with great respect, cannot possibly be in accordance with the fundamental principles of justice in which we in these benches believe.

Mr. Chairman, the hon. member for Yeoville alleged that “We are gagging the witness”.

†I want to state emphatically that the whole purpose of this clause is to prevent a witness from being gagged by people who do not want him to testify in court. That is the whole purpose of this clause.

*The hon. member for Yeoville argued further that we wanted to detain the witnesses in conditions of “incarceration”.

What are you doing then?

Can the hon. member imagine that the State will deliberately detain a witness, whose evidence the State wishes to use, if it is not absolutely necessary? The hon. members of the Opposition are implying that what is being envisaged is the detention of all State witnesses. Surely that is not the intention. In the civil law process the provision for subpoenaing witnesses has existed for many years. In my practice, however, I soon discovered—and I believe that colleagues of mine had the same experience—that if one had to subpoena a witness to compel him to appear in court, one had an unwilling witness—a witness who meant relatively little to you. If you could get him to court without a subpoena, so much the better. I believe that the same principle applies here, namely that if the State does not have to detain a witness in order to get him to court, so much the better. But there are cases—and the hon. the Minister mentioned numerous examples—where it is in fact essential to detain witnesses.

Now the hon. member for Umhlatuzana has argued that the witness must be able to oppose the statements submitted by the Attorney-General to the judge. I wonder on what grounds he will be able to oppose those statements. Probably he does not possess all the relevant facts, for as the hon. member for Yeoville correctly indicated, what is involved is not a hearing of the case. What is involved is simply the question of whether or not the witness should be detained. For example if the Attorney-General has information to the effect that the life of the witness is in danger—information which the witness does not himself have—how can the witness be better able to decide what is essential for his safety than the Attorney-General, who does have more information?

Is it essential for his own safety that he cannot have an attorney?

I have already asked the question before, and I want to repeat this: Is it then expected that the Attorney-General should uncover his confidential information to the witness, so that he may react to it, and should the witness then be put in a position where he is able to convey this information to people who come to visit him—to his attorney or to whoever it may be? Surely it then means that the most confidential information which the State has at its disposal is, directly or indirectly, made available to those very people against whom this evidence has to be used. Surely that would be nonsensical conduct. A case would fail in advance if this procedure were followed.

I want to accept, and I believe this is true, that the authorization envisaged in this clause will be used with the greatest circumspection and responsibility. We have the added protection—as the hon. the Minister has already indicated—that a judge must really be convinced of the fact on which the application for the detention of this witness rests. That is why I think there are sufficient guarantees in this clause to ensure that this authorization will not be abused. To accept the proposed amendments, or to make any arrangements in terms of which the witness has to co-operate to bring about his detention, would be to defeat the entire object of this clause.

Mr. Chairman, the more I listen to the arguments from the other side of the House, the more transparent nonsense emerges. The main point at the moment of the hon. member for Mossel Bay is how can one divulge this confidential information. Does he not know that an affidavit which is filed in the Supreme Court is public property and that anybody can look at it? Or is he suggesting, and is the hon. the Minister suggesting that these affidavits must be secretly filed? Is he suggesting that they are filed in some little secret book in the Supreme Court and that it does not go through the Supreme Court? What utter nonsense! If it is filed as an affidavit of the Supreme Court of South Africa it is public property and anybody can look at it. The problem is that they do not want to serve it on the witness. The hon. the Minister’s big point is that he asks the hon. member for Umhlatuzana whether he does not know about motion courts. I can assure the hon. the Minister that the hon. member for Umhlatuzana knows more about the motion court than he does. The whole point about the motion court—and I have seen that hon. member in the motion court for years and years—is that one will never get an order in the motion court, unless one has served affidavits on the other side and unless they have had an opportunity of replying. That is the first duty of any judge in South Africa.

It can be put before a judge in chambers.

A judge in chambers makes no difference whatsoever. One will never get an ex parte order against anybody in South Africa affecting his rights, unless that other party has been served, or unless it is an urgent order, in which case-they will make it a rule nisi to give the other party an opportunity of replying. It is absolute nonsense to suggest that the motion is some kind of example of the operation of this clause. This clause is sui generis. It is unique in South African history. It is unique in the Western World.

I want to ask the hon. the Minister what the criteria are which are laid down in this clause for detaining a witness. I shall tell him what the criteria are in this clause. They are personal safety, absconding, tampering with and intimidating. Let me say at once that as far as absconding is concerned, if that is the criterion, what is clause 184 about? The side note to clause 184 states “witness about to abscond and witness evading service of summons”. If this clause is to deal with absconding witnesses then clause 184 should be dropped. Let me ask the hon. the Minister the following question. He has not attempted to answer why a lawyer should not see this witness in gaol. He must remember that lawyers are officers of the court. They are not, as the hon. the Minister so often tries to make out, clever little lawyers who are trying to get away with the law, who are trying to cheat the law. Officers of the court, that is what they are. Does the hon. the Minister of Justice suggest… [Interjections.]

Order!

Does the hon. the Minister of Justice suggest that the lawyer is first of all going to endanger the personal safety of the witness? Is that what he suggests? Or is the hon. the Minister suggesting that the lawyer is going to help the witness abscond? Thirdly, is the hon. the Minister suggesting that the lawyer, this officer of the court, is going to tamper with the witness? His own lawyer, who is not appearing for the accused, is he going to tamper with this witness? Is that what the hon. the Minister suggests? Is his own lawyer perhaps going to intimidate him?

Yes!

An hon. member over there says “yes”. I think he must be a farmer. [Interjections.]

He has a doctorate in law.

Mr. Chairman, another big point made by the hon. the Minister and also by, I think, the hon. member for Mossel Bay, is how the judge is going to satisfy himself on two sets of affidavits, as if he is going to satisfy himself better on one set of affidavits. How is he going to satisfy himself on two sets of affidavits? The hon. the Minister knows very well that it is laid down in all pendenti lite matrimonial affairs that there should be only two sets of affidavits, and no oral evidence. It is laid down in the rules under the Supreme Court Act that the judge has to satisfy himself on two sets of affidavits—one from the applicant and one from the respondent. That is how he must satisfy himself. [Interjections.]

Mr. Chairman, I have not heard an argument from the other side of any merit whatsoever. [Interjections.]

Mr. Chairman, listening to the hon. the Minister’s reply one can hardly believe that he is a trained lawyer. [Interjections.] He seems to have departed from all the principles accepted by the Bar and the Side Bar as to what should apply under the ethics of the legal profession. I want to ask the hon. the Minister why an innocent witness should find himself in a position worse off than a criminal. After all, if a criminal is arrested he is entitled, in terms of the law, to apply for bail. He goes before a magistrate or a judge and he applies for bail. He sets out his case as to why he should be granted bail, why he should be allowed to go free. The Attorney-General is given the opportunity of opposing bail. The Attorney-General is not told by the court that he cannot be heard and that only one man is going to be heard. The accused, the criminal, can put his case before the court, but an innocent witness is not allowed to appear before a judge and to put his case as to why he should be freed. Surely, the hon. member for Mossel Bay, as a lawyer, should appreciate that this is not just. Why should an innocent man … [Interjections.]

There is a basic difference.

I want to ask the hon. member for Mossel Bay what is the difference.

I have told you already.

I want to ask the hon. the Minister and the hon. member for Mossel Bay who supports the family of the witness while he is being detained. Who supports his family? He gets witness fees, but witness fees are only paid after the case has been heard, after he has given his evidence. Who supports his family in the meantime? What about the man who has a private business? What if he is a contractor and has a contract subject to a penalty clause? Why can he not be allowed to appear before the judge and put his case before the judge? Why can he not tell him what his position is? Why must an innocent witness be much worse off than a criminal? I am surprised that the hon. the Minister cannot see this. Why cannot the hon. the Minister accept the amendment moved by the hon. member for East London City? What is involved? All it says is that the witness, that innocent man, must be given an opportunity to put his case before the judge who is hearing the application. What is wrong with that? The hon. the Minister says that the Attorney-General will put all the facts before the judge and that if the judge is not satisfied and refuses to lock the witness up, the Attorney-General can put further facts before the judge. However, the judge will only have what the Attorney-General says, on the affidavit, and it may seem a genuine case. But surely the training of the hon. the Minister should tell him that the other party should be heard and that the witness must be given an opportunity to gainsay what is contained in the affidavit. He must be given an opportunity and I appeal to the hon. the Minister; let him keep his clause if he must but, for heaven’s sake, allow the amendment which has been proposed by the hon. member for East London City merely to allow an innocent witness the opportunity to put his case before the judge.

Mr. Chairman, I want to mention just one factor, namely that I believe, after listening to the hon. the Minister and hearing the debate, that this whole clause has been inserted as a political clause and not as a legal clause. The hon. the Minister need not smile at me so benignly. I believe very seriously that this is a political and not a legal clause. We are arguing the merits of a Criminal Procedure Bill, and I believe we are all trying to create a better Act than the present one, and we find in it something which is abhorrent to us. It is not only abhorrent to us on this side of the House, but it is also abhorrent to the Bar Council. I just want finally to quote from the memorandum which the Bar Council put out with regard to this matter. The matter is in the hon. the Minister’s hands now to decide whether he feels that this is going to be a justifiable law or whether it is going to be a political law. This is what the Bar Council said …

Order! I have made a special request for the principle not to be discussed any further.

Mr. Chairman, may I address you on that aspect please? Mr. Chairman, you will realize that I have moved five amendments. I am talking about the first amendment, which is aimed at an opportunity being given to the witness to appear before the judge and to give his side of the case. This is what the Bar Council says in this regard—

This is what the Bar Council says. Is this going to be a criminal law Bill or is it going to be a political law Bill?

The same can be said on the other aspect in respect of which I have moved an amendment, namely the question as to whether the witness should be entitled to give evidence. The Bar Council says as follows—

I would ask the hon. the Minister of Justice if he would be prepared to answer me as to whether this is a political or a legal clause.

Mr. Chairman, I thought that the hon. the Minister would stand up and reply to some of the questions. [Interjections.] I would like to ask him again … [Interjections.] Mr. Chairman, may I put three questions to the hon. the Minister, questions which he must please answer clearly and concisely. I shall not make a long speech, and the people in the kitchen must not worry. Firstly, why is access not allowed as a right, particularly of legal representatives? The hon. the Minister must give us a clear answer to this. Secondly: Why, after a decision has been made by a judge on an ex parte application, can the court, on good cause shown, not interfere in that decision? Thirdly: Why is the audi alteram partem rule not applied? I ask the hon. the Minister to answer these three questions honestly.

Mr. Chairman, if the hon. member had listened to my Second Reading speech, he would not even have asked his questions. I made it very clear that these detentions occur in terms of the regulations of the Prisons Service. The Prisons Service makes provision for legal representatives to visit these people. What does the hon. member for Yeoville have to say now? Did he not read it, or did he not know about it?

I am aware of it.

The hon. member for Yeoville is now saying that this person may say: “I do not want to be protected.” So what? Should we simply release him, simply because he says he does not wish to be protected? Should we throw him to the wolves now? Should he be allowed to spoil the court case by going out and getting shot? I am asking the hon. member for Yeoville these things. He wants to give that person the right to say that he does now wish to be protected.

It is his life.

It is his life, but it is our court case. It is law and justice which has to triumph. Does the hon. member for Yeoville want to say in all earnest that we should allow a man to be released, and that justice should not be done because he has the right to say that it is his own life? [Interjections.]

The hon. member for Sandton asked me why we are no longer applying the audi alteram partem rule. The Botha Commission provided the answer to that question. I quoted it a moment ago. Was the hon. member not listening or is he unable to understand Afrikaans. The Botha Commission said that there need not be any audi alteram partem rule, and gave reasons for this. The former judge, Mr. Justice Botha, was a Judge of Appeal.

You have not accepted everything he said.

I did not accept everything, but I am now offering this as an argument, and I am asking the hon. member to offer a counter-argument.

Mr. Chairman, I cannot understand the hon. the Minister’s statement. He says that the hon. member for Yeoville did not understand this provision.

He also said that there were prison regulations which would apply to people being held in terms of clause 185. I gather that I am correct in saying that. I wonder if the hon. the Minister can tell me whether I am correct in what I have been saying so far.

[Inaudible.]

Will the hon. the Minister tell me then what subsection (5) of clause 185 means if it does not mean that no access shall be given to the person who is detained as a witness? It reads—

Are those ordinary prison conditions? Surely those are not ordinary prison conditions? Nobody interpreted that as meaning under ordinary prison conditions.

These people are not even held under conditions as favourable as those for awaiting trial prisoners, who are allowed to see their lawyers or are allowed to have family visiting them at certain intervals. These are not ordinary prison regulations at all. It is not the hon. member for Yeoville who does not understand the law, but the hon. the Minister, who is introducing this legislation.

Mr. Chairman, this clause relates to the attendance of witnesses at criminal proceedings and correctly provides for the punishment of persons who fail to attend or to remain in attendance at such proceedings after being subpoenaed and without being released by the court. In existing legislation such person will only be guilty of an offence if the court finds him to have been absent “without reasonable excuse”. In the legislation before us such absentee is peremptorily guilty of an offence whether or not a good reason for his non-attendance was present. The phrase “without reasonable excuse” has over the years been the subject of judicial scrutiny and, I believe, of judicial interpretation. Since the early 1900s objective and settled criteria have applied to the adjudication on this point. Where there was an absence of wilful disobedience and, objectively considered, it appeared to the court that the witness’s absence was excusable and did not constitute a contempt of the court, the court had the power to take no action against the accused. In fact, it had the power to find that no offence had been committed. This discretion seems to be abolished and unauthorized absence, no matter what the reason nor how valid the reason, seems to involve an offence which may or may not be punishable. If one looks at clause 188(2), one sees that it reads—

If one then looks at the proposed section 170(2) one finds that, once the offence has been committed, the court can levy a fine unless the accused satisfies the court that his failure to appear was not due to any fault on his part. The distinction is a fine one because there is still the element that the court, having found that an offence had been committed, in effect might decide not to fine or penalize the person concerned if the court found that the failure to appear was not due to any fault on his side. However, I suggest that, in view of past practice and the many years of South African interpretation of the present wording of existing legislation, we should revert to the use of the words “without reasonable excuse”. Therefore I move the amendment printed in my name on the Order Paper, as follows—

Sir, before you put the amendment, may I quote one or two cases where the proposed section 170(2) might not rescue a person whereas the insertion of the words “without reasonable excuse” will.

[Inaudible.]

Mr. Chairman, that hon. member is very noisy. I wish to read what Swift’s well-known book, Law of Criminal Procedure, says about the words “reasonable excuse”—

As regards the word “fault” in the phrase “due to no fault on his part”, I believe that such a person would in fact have been found guilty incorrectly. I think that to deviate from the usage of the words “without reasonable excuse” will be to change the whole procedure which has been built up over the years, which has enjoyed judicial interpretation and is in fact settled law. I prefer to stay with the settled law rather than to move to a new branch of law which might evolve a new set of circumstances and decisions. I therefore ask that this amendment be accepted.

Mr. Chairman, I do not agree with the statement by the hon. member for Sandton that a “reasonable excuse” is different to “without fault on his part”. I can really see no difference. It is already “without fault on his part” and I therefore do not know what the hon. member is getting at.

If you ask me, I can answer.

The hon. member has posed an example to me, and I listened very carefully to that example. I have applied the test “without fault on his part” and I am quite sure that the learned judge in that particular case, if this wording was there in those days, would have made exactly the same finding. How can there be fault on a man’s part if he is illiterate?

He may have forgotten.

This is a very normal occurrence and it can happen. So it can hardly be fault on his part. I think the two things are synonymous to each other and I do not think it is necessary to have the amendment.

May I ask the hon. the Minister a question?

Order! No, the hon. the Minister has already resumed his seat.

No, Mr. Chairman, the hon. the Minister was in the process of sitting down when I asked permission to put a question to him.

The hon. member for Sandton may put his question.

Thank you, Mr. Chairman. The only question which I wish to ask the hon. the Minister is why he found it necessary to bring in the new wording and what is the reason …

In the first instance, nobody objected to clause 170(2). It went through this House without any trouble at all. In that clause we used the words “not due to fault on his part”, so why must we change the words in this clause? This is the hon. member’s difficulty. We have already passed that clause unanimously and now that it has been passed unanimously the hon. member wants to change it.

That was not the question at all. In the first instance, whether or not I moved an amendment to clause 170(2) is a point which can be debated. Perhaps I did not notice it until recently. However, what I do want to ask is why did the hon. the Minister change the wording. What is the motivation for the change in the wording? That is really what I want to know.

The legal advisers put in this wording and this is the modern type of wording which is used. That is all I can say about this matter.

Mr. Chairman, with respect, I believe that that can be put more concisely. It is not a question of wording; it is not a question of ancient or modern; it is a question of the wording of clause 188 as it stands, and of whether or not there is a reasonable excuse if a man commits an offence, if he does not attend at the trial at the time he is required to attend. Clause 170(2) states that if there is a reasonable excuse or if there is no fault—I have no quarrel with either of that form of wording—and if he has an answer—i.e. he has an excuse—then no penalty is applied to him in terms of clause 170(2). He has nevertheless committed an offence. In other words, without the amendment proposed by the hon. member for Sandton, which I support, he can be entirely free of blame but he nevertheless commits an offence. The only remedy he has, is to appear before the court in terms of clause 170, to give his explanation and to have the satisfaction of the court saying to him: Although you have committed an offence and are guilty of an offence, you have a reasonable excuse and we are not going to punish you. That is wrong. When it is a question of deciding his guilt a man is not allowed to offer any explanation. He is allowed to offer his explanation only at the time when it comes to the question of sentence, after he has been found guilty in effect. The amendment of the hon. member for Sandton will allow that decision to be taken by the court at an earlier stage. In other words, the court will not say: I have no option but to say that you are guilty of an offence, but I will not sentence you to anything because you have a reasonable excuse. If his amendment is accepted, at an earlier stage the court will say: “I am not going to find you guilty of an offence, because you have a reasonable excuse”. That is far more logical and in accordance with common sense, and I would hope that the hon. the Minister would consider it again and accept the amendment moved by the hon. member for Sandton.

Mr. Chairman, I think what the hon. member for Umhlatuzana is really trying to say, supports our view, because in actual fact the words “without fault on his part” bring in wilfulness and bring in mens rea, whereas “without a reasonable excuse” is simply the excuse. The argument which the hon. member has now raised, actually does apply when a person does something without a reasonable excuse. In actual fact, the offence is committed and a reasonable excuse is a mitigating factor, whereas the moment we put in “without fault on his part” the offence itself is being nullified.

Mr. Chairman, in order to help the hon. the Minister and in order to allow him to be “konsekwent”, as they say, I will withdraw my amendment, if I may.

Amendment, with leave, withdrawn.

Mr. Chairman, I now move—

This means that we will insert the wording described by the hon. the Minister as the more modern wording. In other words, if a court finds that his absence was due to no fault on the part of the person concerned, that person need not be found guilty of an offence. In the light of what he said, I would ask the hon. the Minister to accept this. It is his own wording.

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

Amendment agreed to.

Clause, as amended, agreed to.

Clause 189:

Mr. Chairman, I just want to move the following small amendment—

The effect of the amendment is that, instead of two years’ imprisonment for a witness who does not want to give evidence, it should be eight days but, of course, renewable. The difficulty that I want to point out to the hon. the Minister is this. It happened in fact in Durban, not so long ago, that there was a trial under security legislation. In that case there was an acting judge and all the accused had been imprisoned for some time. There were two witnesses who did not want to give evidence. The hon. the Minister knows that this sort of phenomenon occurs more often nowadays than it used to. It is an unhappy situation but that is what happens. These two witnesses did not want to give evidence and the judge had to decide for how long he was going to imprison them. As the hon. the Minister of Justice knows, there is no provision in the code for the adjournment of a criminal trial sine die. This means that we have the difficulty that if the judge gives them two years imprisonment, he cannot say that he is going to adjourn the case for three years, or for two and a half years, or for two years or for one month. In any case, it is not reasonable to keep the accused in prison for that period while the witness is making up his mind. This is one of the difficulties this creates. The section of a few years ago said eight days and the judge could keep on imprisoning. I want to point out to the hon. the Minister—he probably knows—that if one imprisons a witness who would not give evidence for eight days, it always happens, as happened in this particular case, that within a day or two the witness decides to give evidence, particularly because they know that the imprisonment can be renewed from time to time. It seems to me that it is better to have the old provision of a recurring eight days sentence, or any short period of time, rather than have a two year penalty. The purpose of the imprisonment is really not to punish, but to make sure that the witness gives evidence at that particular trial. That is why I moved the amendment as printed in my name on the Order Paper.

Mr. Chairman, I am afraid that I cannot exchange the period of two years for a mere eight days. In any event, two years is a maximum sentence. In other words, if the judge wants to impose a sentence of eight days, he can do so. It does not matter to me. However, the judge must also be authorized to impose a sentence of two years for the very reason which the hon. member for Durban North gave, namely that these days, with the terrorist trials, it is found that the witness often refuses point blank to give evidence. In these circumstances the judge must be in a position to sentence him to two years imprisonment. In this specific type of trial it would be ridiculous if the judge were confined to imposing a sentence of eight days only.

Amendment negatived (Progressive Reform Party dissenting).

Clause agreed to.

Clause 195:

Mr. Chairman, with the permission of the Committee I should like to withdraw the amendment as printed in my name on the Order Paper and in its place move another amendment, which entails no material change. It reads as follows—

Order! The hon. member need not withdraw his original amendment because he has not yet moved it.

As motivation for the amendment I wish to point out that as far as the Bantu are concerned, there are in essence two kinds of marriage which are recognized. They are referred to by different names, namely a “gebruiklike verbinding” or “customary union”, and a “marriage”.

A “customary union” is defined in the Bantu Administration Act as—

A “marriage” means the union of one man with one woman in accordance with any law for the time being in force in any Province governing marriages. It was essential to draw a distinction between a “customary union”, or whatever term we use for marriage in Bantu law, and an ordinary common law marriage, because there are other legal consequences attached to these two types of marriage. Our legislators saw fit to use the term “customary union” in the case of a marriage in Bantu law. The amendment in clause 195 is in connection with an amendment I wish to move later in clause 198. It seems to me to be essential to introduce the term “customary union” into this clause.

The motivation advanced, inter alia, by the Botha commission, as a reason why a husband and wife under Bantu law should not enjoy the same exemption as in the case of common law spouses, is to be found on page 44 of the report. The commission states that—

The commission then goes further in motivating this statement. The commission argues that representations were made to it to change this legal provision in the case of marriages under Bantu law, but it then comes to the conclusion that (Report of the Commission of Inquiry into Criminal Procedure and Evidence, paragraph 11.09.3)—

Therefore the commission rejects the proposed amendment. If, firstly, we look at the ratio stated by the commission, namely that it is a consequence of the basic unit of the marriage, it seems quite inconceivable that that factor should not be equally valid in the case of polygamous marriages as in the case of monogamous marriages. It goes without saying that marriage, whether monogamous or polygamous, whether solemnized in accordance with Mohammedan law, Bantu law or common law, is still in essence a marriage, as experienced and recognized by the people themselves in the society concerned. For that reason alone it seems to me that as far as administration of criminal law is concerned, we have no valid reason to distinguish between our treatment of a Bantu spouse married in terms of Bantu law and our treatment of a spouse whose marriage was solemnized in terms of common law. In the final instance it will mean that we are simply refusing to acknowledge their own culture and the demands of society in terms of their own standards and values.

We are faced with the sober fact that the objection raised by the commission is really a theoretical one, because the facts show that the vast majority of marriages under Bantu law at the moment are monogamous in any event. The percentage of polygamous marriages at present entered into by Bantu under Bantu law are very much in the minority. The argument advanced here by the commission can therefore no longer be regarded as valid.

Furthermore, we have the situation that a monogamous customary union can at any time be converted into a common law marriage. All that the parties concerned have to do is to go to a clergyman or marriage officer who can confirm them in a common law marriage. Surely it is very clear that the marriage as such is not changed thereby. Nor does this cause any change in the relationship between the two parties to that marriage. One moment they are married under Bantu law, and the next under common law. Not to include Bantu law marriages in that exemption is therefore, to my way of thinking, entirely unjustified. In view of the cultural framework in which the Bantu lives, the character of the Bantu marriage and the relationship between spouses does not differ in essence from that in a Western or monogamous marriage. If, as the commission maintains, the ratio is the protection of the family as the basic unit of society, then, as we all know, the Bantu marriage in fact has stronger built-in guarantees than our own common law marriages have. We must bear in mind in particular that in the case of a marriage under Bantu law, in the normal sense of the word it is not possible—I include widowers, widows and divorced persons—to enter into a marriage without the permission of the bride’s parents.

Secondly, the marriage cannot be dissolved merely by way of an agreement, of whatever nature, between the two parties. In other words, the permission of the parents of both parties, particularly those of the wife, are essential for the purpose of bringing about the dissolution of the marriage. In view of these circumstances it seems to me that there is every reason for us to extend the exemption in respect of spouses herein contained to a common law marriage with the aim of including spouses married under Bantu law as well. I should be very grateful if the hon. the Minister would give the amendment favourable consideration.

Mr. Chairman, I have looked at the hon. member’s amendment and I do not think that the words “customary union” could be defined as a Bantu marriage as such.

They do use the words “customary union”.

The hon. member quite probably has a sound argument. I listened carefully to the hon. member’s argument and I think that the basis of his argument is correct. I myself also read the arguments advanced by the judge who served on the Botha commission, and I am not terribly impressed by his argument. It seems to me as if the hon. judge did not give much attention to this aspect. It seems to me that he simply looked up what the position had been in the past and maintained that it was a polygamous marriage. As far as he was concerned, that was the end of the matter. However, I do not think that I can accept such a drastic amendment at this stage. What I shall do, however is to bring the whole matter to the attention of the Law Commission with the request that they should consider reviewing the clause when it has become law in view of the modern trends among the Bantu people. I shall also bring to their attention the arguments raised this evening by the hon. member. I shall assign it to them as a study so that they can give an indication of what the precise position ought to be at this stage.

Mr. Chairman, I am grateful for the assurance that the hon. the Minister will give the matter serious consideration and in the light of this I should like to withdraw my amendment. The term “customary union” is the legal term used in the Bantu Administration Act. Furthermore, the term is described as the accepted term in the legislation in question.

Amendment, with leave, withdrawn.

Clause agreed to.

Clause 196:

Mr. Chairman, I do not want to address the Committee at length on this clause. I dealt with this matter in the Second Reading. There are two amendments I wish to move. The first one arises, as I said then—and the hon. the Minister acknowledged it—out of the Groesbeek case, and concerns a husband and wife giving evidence against each other. The point I made then was that it should only happen where they are charged with acting together with a common purpose. If they are merely charged together, without an allegation of common purpose, it looks as though—and eminent legal people have made this point—one is merely charging them together in order to use the one against the other. I take it that the hon. the Minister is in agreement with us that it is not something that one likes to do, to get evidence from one spouse against the other in a criminal matter. As I pointed out in the Second Reading, a great American jurist said that there was a natural repugnance in every fair-minded person about compelling a wife or husband to be the means of the other’s conviction. I can understand it, of course, in cases where there is a common purpose, and I suggest that that is really what the clause should be used for.

The second amendment provides that an accused person should be able to make an unsworn statement at his trial. I would like to ask the hon. the Minister why this right, which exists at the moment, is being eliminated. He may have a valid reason for doing so, but I want to point out that one sometimes gets cases where there are a great number of accused such as, for example, in faction fights in Natal. One may get 198 accused and each accused may, in view of the State case, have to give some sort of answer. The judicial officer will ask why they have not given any answer at all. In a case like that one calls accused No. 1 and he gives evidence and then you call upon the others who just give unsworn statements from the dock. If you eliminate that right you have to have evidence from 198 people and you are going to be there for a very long time, wasting the money of the State.

Some of them make political speeches!

If that is the reason, perhaps the hon. the Minister will mention it. If that is the reason, it is always within the power of a judge to say—as the hon. the Minister well knows not infrequently happens—that he is not prepared to listen to that because it is not relevant to the issue as it is a political speech and he will then stop it, as happened in a celebrated trial recently.

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

1. (1) On page 134, in line 12, after “not” to insert:
   in cases where the accused are charged with acting together with a common purpose,
2. (2) on page 134, in lines 15 to 17, to omit subsection (3).

Mr. Chairman, I want to support the first amendment moved by the hon. member for Durban North. The reasons given by the hon. member I believe are right, and he has made an exception in the case of persons who are acting together with a common purpose. That is a valid exception to the repugnance which he correctly states is felt in respect of a husband or wife giving evidence which will convict one or the other. As far as his second amendment regarding the omission of subsection (3) is concerned, I do not support that amendment. I do not think there is value in making an unsworn statement. I have little time for an accused person who wishes to make a statement from the dock but who is not prepared to have that statement tested either by the court by questions being asked or by counsel for the State by means of cross-examination. My own experience is that the court gives almost no credence to an unsworn statement made from the dock as far as the guilt or innocence of an accused person is concerned. It is very often used only for the purpose of getting publicity for a point of view which has little or nothing to do with the trial in question. As far as the point made by the hon. member in respect of faction fights is concerned, I do not go along with that point of view. Whether one has 20 statements made by way of unsworn statement from dock or whether one has 20 statements made by the same people under oath in the witness-box, the process takes the same amount of time. In addition to that, time will only be consumed if evidence by the accused person has relevance to the extent that it needs to be tested by cross-examination. If it has relevance, then time is not wasted. But the testing of the evidence is necessary for a proper verdict at the trial as to whether the accused person is guilty or not. If there is nothing more to the statement, as the hon. member for Durban North rather suggested—and I accept that there are such cases—than that the accused person requires it to be known that he made a statement and gave his evidence, the court, the judge or counsel for the State will not find it necessary to cross-examine him at all. Whether he then gives his statement from the dock or whether he gives it from the witness-box is not going to take any additional time. As far as subsection (3) is concerned, I think that the Bill is such that it should be supported. Whilst I support the first amendment of the hon. member for Durban North, I do not support the second.

I am afraid that both these amendments are unacceptable. The second amendment is unacceptable for the reasons advanced by the hon. member for Umhlatuzana. I subscribe to those arguments and have told the hon. member for Durban North that I think it is correct that there is no sense in a person making a simple statement from the dock unless he wants to make it under oath and must then submit himself to cross-examination to enable the true value of the evidence to be established. As far as the first amendment is concerned, I think that the hon. member’s amendment would have the effect of curtailing this clause far too much. There may be cases where a wife may be an accessory after the fact. There may be no common purpose. She is still socius criminis and they are jointly charged. I have already given one example to the hon. member to indicate that a common purpose as such is actually too confined as far as this clause is concerned. There are other cases where people are jointly charged and where things may occur in sequence and one of the people being actually charged committed something after or even before the actual happening itself, the actual actus reus. I am afraid that I cannot, in those circumstances, accept these amendments.

Would the hon. the Minister consider any limiting of it, either, perhaps, as socius criminis or, perhaps, by including “acting as accessories before or after the fact”? Does he not think it to be advisable that we should not have as a general law in South Africa that husband and wife can incriminate each other?

This is an absolute rule in our law, as the hon. member rightly indicated. We find it distasteful that a woman should testify against her husband and that such evidence should be acceptable. I cannot imagine that the Attorney-General would really charge people jointly in the same hearing, unless it was one of those cases which I put to the hon. member and unless she was actually part of the whole pattern of the action concerned. I think we can safely leave it at that. The Attorneys-General are very much aware that to us it is almost contra bonos mores to set a woman’s evidence against her husband’s. They will only charge the people in cases in which something which justifies a joint charge has in fact happened.

Amendment (1) negatived (Official Opposition and Progressive Reform Party dissenting).

Amendment (2) negatived (Progressive Reform Party dissenting).

Clause agreed to.

Clause 197:

Mr. Chairman, I just want to ask the hon. the Minister a few questions on clause 197. This clause deals with the privileges of an accused giving evidence. It reads—

Then it gives various requirements. I want to relate this clause to clause 115. I want to ask the hon. the Minister to tell us very clearly firstly whether the evidence referred to in this clause can be considered as being relevant to the statements made by an accused person to the magistrate on inquiry after he has pleaded not guilty. In other words, are the statements by an accused to the magistrate regarded as evidence for the purpose of this clause, because if this is so, I believe we have taken a great step forward. This is the sort of protection we believe the accused should have in terms of clause 115. If one looks at paragraph (b), one sees that it provides that the accused shall not be required to answer any questions unless—

That is in fact the same issue I raised when I spoke earlier on clause 115. I believe the accused should be protected against having to make statements which must be considered as evidence and which may tend to incriminate him or tend to show “that he has committed or has been convicted of or has been charged with any offence”. If the hon. the Minister can satisfy me that this applies to clause 115, I believe we shall have come a long way.

Mr. Chairman, I am of the opinion that questions cannot in fact be put to a person under clause 115 which could incriminate him directly. It is not the intention to ask the man in advance the direct question whether he is guilty if he has pleaded not guilty.

What about another offence?

In any event he will not be asked about another offence. Why should they ask him about another offence? They cannot ask about other offences because in the first instance that is not relevant.

†It only becomes relevant if there are facts of a similar kind in terms of this sort of provision. In other words, it is only when there is a series of related events concerning which knowledge or intent is to be shown that evidence can be led in respect of previous convictions. This actually applies to an accused giving evidence under oath. One is not allowed to ask questions which tend to show that the person has a propensity to do something. In terms of clause 115 the magistrate will also avoid questions relating to his character, questions such as: “Are you a person who is always drunk?” if the accused should be facing a charge of drunken driving. One cannot say to a person: “We hear that you are normally drunk. Is this the position?’ ’ That will certainly not be allowed. Whether or not this clause actually covers that eventuality, I do not think the questions which could be put in terms of clause 115 would contravene the sort of rule contained in clause 197. I am nearly certain of that.

Clause agreed to.

Clause 198:

Mr. Chairman, I rise merely to ask the hon. the Minister whether he will also consider extending the privilege contained in clause 198 in the case of clause 195 as he indicated he would do.

Yes. I include clause 198 with the previous clause and I shall amend both as proposed.

Clause agreed to.

Clause 205:

Mr. Chairman, I should like to move the amendment printed in the name of the hon. member for Barberton, as follows—

The clause provides that a magistrate may require the attendance before him, for examination by the Public Prosecutor, of any person who can give material information as to any alleged offence. This provision is usually applied when people refuse to make statements to the police. What the amendment envisages is that it should also be possible to use the clause where a person can furnish “relevant” information. Section 83 of the Criminal Procedure Act, No. 56 of 1955, refers to “ter sake dienende getuienis” and “material evidence” in English. The word “material” is also used in the English text of clause 205, but it has been translated by “wesenlike”, which is of course a more correct translation. However, the Attorney-General of the Transvaal has pointed out that “wesenlike” is a relative concept and that in many cases it is difficult to determine whether information can be described as such or not.

Order! The hon. member need not go into the matter any further. His amendment is clear enough.

Amendment agreed to.

Clause, as amended, agreed to.

Clause 208:

Mr. Chairman, in the spirit in which it appears we are now dealing with this matter, I wish to inform the Committee that I have decided not to move the amendment which stands in my name on the Order Paper. I want the Committee to understand that this does not mean that we on this side of the House do not agree with the cautionary rules. We believe that the cautionary rules are good, that they should be applied and that they will be applied in the future in terms of our system of stare decisis, but we believe it is not necessary, and in fact is a valid criticism that in point of fact, previously, where it was necessary to have these words in the code, it is now not necessary to have these words in the code and that these words should therefore not be included. We have considered this matter very carefully and we believe it is not necessary to move this particular amendment. We believe that the clause, as it stands at the moment, is in order.

Clause agreed to.

Business interrupted in accordance with Standing Order No. 22.

House Resumed:

Progress reported and leave granted to sit again.