Mr. Speaker, I move—

Agreed to.

Mr. Speaker, next week the House will follow the Order Paper as printed for today, the only exception being that the hon. the Minister of Finance will deliver his Budget Speech on Wednesday.

Mr. Speaker, I regret to announce that a train accident took place at Keetmanshoop early this morning. A number of people were killed and others were injured.

At 02h25 this morning, there was a head-on collision between a goods train and a military train which was standing on the main line in the station at Keetmanshoop. According to first reports, five people have been killed and 48 injured. The injured are being treated in the hospital at Keetmanshoop. Two diesel locomotives were derailed and two passenger coaches destroyed in the incident.

On behalf of the Government I wish to convey my deepest sympathy to the relatives of those who were killed in the accident, and we trust that the injured will soon recover.

A board of senior officials has been appointed to investigate the accident.

Mr. Speaker, may I associate myself and other hon. members of the official Opposition with the sympathy expressed with the bereaved. May we also express our sincerest wishes for a speedy and a complete recovery of those who were injured in this, their second, tour of duty on the border in just over a year.

Mr. Speaker, we in these benches would also like to associate ourselves with the extension of sympathy to the next of kin of the bereaved, and also wish those who have been injured a speedy recovery. The lives of these young men are really precious to all of us, and whereas there are risks in war, risks which I believe our young men are prepared to take, and which we accept, we believe that every care must be taken to make sure that those risks are not extended unnecessarily by an event such as this. Therefore, we welcome the fact that a commission of inquiry will be appointed to ascertain the cause of the accident and to make sure that no unnecessary dangers are created to which these young men can be exposed.

Mr. Speaker, the announcement by the hon. the Minister of Transport has come as a very great shock to us in these benches, especially because a troop-train was involved. We should like to associate ourselves with the words of the hon. the Minister and to express our sympathy with the bereaved, while at the same time we hope that those who have been injured will make a speedy recovery.

Mr. Chairman, when the Committee reported progress yesterday I was dealing with my third amendment. The position is that our legislation undergoes an important change in terms of this clause. Whereas the State had to show that a confession was freely and voluntarily obtained, the position is now, in terms of the clause, that the onus is thrown upon the accused, and it is now presumed, in terms of the clause, that he made the confession freely and voluntarily. As I was saying yesterday, I can understand that there might well be room for an improvement in the law as it stands today. What that improvement should have been is that the accused should have been required, if he is disputing a confession, to give notice to the prosecution which witnesses he would like to have at the trial. The difficulty that otherwise arises is that the prosecution does not know against which policeman allegations are going to be made and therefore does not know which policeman to bring to the trial. If there had been such an amendment it would have been acceptable to us. However, in terms of the clause it is simply presumed that accused freely and voluntarily made a statement, unless he himself can show that he did not. Here the difficulty is that it puts an accused in an intolerable position because, by the very nature of the circumstances of a confession, the accused is the only person who is present on his side, as it were. When the accused makes a confession, he is invariably in a police station, in a police cell or in a gaol and all the people that are present are his captors. As has been pointed out he sometimes also makes his confession in a magistrate’s court, but the point is that he never makes it in a magistrate’s court unless the activities which cause him to make a confession have occurred earlier. Those are the activities that we are really concerned about. So the accused is on his own, and I cannot see how he is going to discharge the onus against, say, four or three policemen who testify that they did not induce, assault or put pressure of any kind on him. It puts the accused in an intolerable position.

Throughout the Western world we find the sort of provision which is in the present Act, i.e. that the State must prove that the statement was freely and voluntarily made. We always had that in South Africa, for a very good reason: because it is understood— not only in South Africa, but throughout the Western world—that policemen who are discharging their duty will tend to try to cause the accused to confess. They will tend to do that and in some cases they will even resort to torture. That has happened in America, England and any other country. I take it that the hon. the Minister will concede that safeguards are necessary, because if not, we might as well simply have a clause stating that policemen are entitled to torture. That way one can always get people found guilty. As the clause stands now, it does throw the onus onto the accused. That is why I moved my four amendments.

Mr. Chairman, it would seem that the amendment standing in the name of the hon. member for East London City is the same as the fourth amendment moved by the hon. member for Durban North, and therefore there is no point in my moving the amendment of the hon. member for East London City. It goes without saying that we support the fourth amendment of the hon. member for Durban North. I think it required to be said that there has always been a safeguard in our criminal procedure in regard to the eliciting of confessions and proving them in a court of law.

The reason for this is that it is so easy, when a prisoner is captive, for those who are in charge of him, in order to secure a conviction, to use influence, direct or indirect, on the prisoner to extract a confession and so secure a conviction. To prevent abuses of that kind, which, as the hon. member has said, are not only to be found in South Africa, but in any system of criminal justice anywhere in the world, we have always required proof from the State that the confession was freely and voluntarily given. For that reason we are particularly opposed to the presumption in clause 217(1)(b)(ii), the presumption that a confession has been freely and voluntarily made unless the contrary is proved. In an undefended case the effect of this presumption could easily be prejudicial to an accused person. Consequently we are opposed to it and would ourselves have moved that it be removed. As for the remainder of the amendments moved by the hon. member for Durban North, we shall support them, although I think most will agree that they are not as crucial as the fourth, the key point he made. We accordingly support all four amendments moved by the hon. member for Durban North.

Mr. Chairman, the hon. member for Durban North concedes that there is room for improvement in the relevant section of the Criminal Procedure Act, but he objects to the clause as it is printed in the Bill.

He objects to the fact that the onus will now be placed on the accused, and alleges that the accused will find it very difficult to discharge this onus and to prove the contrary of what is presumed. The hon. member wants to know how the accused will be able to prove, in the face of the testimony of two or three police officers, that the statement was not made voluntarily. However, let us suppose that the presumption does not exist, and the two or three police officers testify that the statement has in fact been made voluntarily. In this case the accused will be in exactly the same position. That is to say, with this evidence against him, how will he be able to persuade any court to doubt the testimony of the police officers? In other words, the allegation by the accused that his statement was not made voluntarily is not likely to be accepted in any event. Consequently I do not think that the objection to the shifting of the onus carries any weight.

Furthermore I want to point out that the presumption will only apply in respect of confessions made before a magistrate, and that, in other words, confessions before justices of the peace are specifically excluded.

For the rest, I really do not know why the hon. member now wishes to omit justices from the clause, when confessions before justices have been accepted in terms of the Criminal Procedure Act for all these years. In terms of this clause, the presumption to which the hon. member is objecting is in fact not applicable to confessions made before justices. As far as justices are concerned, therefore, the position remains exactly the same as in the past. The clause contains no new implication in respect of confessions before justices. Therefore I cannot see the motivation for the hon. member’s objection to confessions being made before justices, as provided for in the clause.

I do not think there is any justification for the amendments, and consequently they should not be supported.

Mr. Chairman, I should like to reply to the hon. member. In the first place I accept that as far as justices of the peace—“vrederegters”—are concerned, there is no change in the law. I made that point in my initial speech yesterday afternoon. I do not know if he was listening, but I also pointed out that I am relying on a judgment of the Supreme Court in Mofokeng’s case. In three or four pages Mr. Justice Colman—who is an eminent judge—dealt with the point that it was highly undesirable for the Brixton murder and robbery squad to allow confessions before justices. It is on that I rely. Secondly, in regard to the other point he made, the question he put: “Hoe gaan die beskuldigde die hof oortuig?”, I want to say that he is absolutely wrong. The accused does not have to persuade the court. As the position is at the moment, the State must satisfy the court beyond any doubt. The accused does not even have to give evidence. If the court is not satisfied that the State has persuaded it beyond any reasonable doubt, the accused has no duty to persuade the court in any way whatsoever. All one has to do, is to cross-examine the State and if the cross-examination proves to be sufficient one does not have to give evidence. As the clause reads now, the accused has to persuade the court. That is my answer to the hon. gentleman’s question: What is the difference? There is a world of difference; it is the precise opposite.

Mr. Chairman, I should just like to reply to the argument of the hon. member for Durban North. The fact remains that the court must decide on the basis of evidence submitted to it. This evidence may be—to use the words of the hon. member for Durban North—the evidence of two or three police officers on the one hand and the single evidence of the accused on the other hand.

Whether the onus rests on the State or on the accused, it is exactly the same evidence which will be submitted to the court. If the evidence given by those three police officers is acceptable—and the accused still has the opportunity to cross-examine them—the court is likely, in any case, to find beyond reasonable doubt that the confession was made voluntarily. Therefore, the conclusion to which the court will come will probably be exactly the same in any case, irrespective of whether the onus rests on the State or on the accused.

Mr. Chairman, I am not prepared to accept any of the amendments. The first three amendments are concerned with the deletion of the word “justice”. As hon. members know, this has been taken over unchanged from the existing Act, an Act we have been applying for many years and which has worked very well. The hon. member for Durban North bases his criticisms solely on Mofokeng’s case. I concede that it is not desirable for the policemen who are investigating the case also to approach their police officers as justices with a confession. But to throw out the baby with the bath water would not be desirable either. The hon. member will probably recall many cases where the magistrate was not available and a confession was then made to a responsible police officer. The safeguard for the accused lies in the fact that when a confession is made to a justice, the onus remains where it was. The State has to prove that the confession was made freely and voluntarily and without undue influencing. In the trial it is absolutely essential for that police officer, or whoever the justice—if it is a statutory justice—may be, to appear in the witness box himself, to give an account of the events and then to submit to cross-examination. On the basis of our experiences under the present Act and under the circumstances existing in our legal system, I do not think there is any person who can say that any injustice is being done to an accused when a justice goes into the witness box and relates exactly what happened between him and such an accused. For this reason I say that it has worked well over the years. We must not throw out the baby with the bath water at this stage. For that reason I am not prepared to accept the hon. member’s first two amendments.

The third amendment concerns the fact that if a confession has been made before a magistrate, it is accepted that the document says what it professes to say. All practitioners in this House will know that it is stated on the document and that the person is told that he need not make any confession, and that the confession has been made quite freely and voluntarily and without inducement. To the advocates in the House I want to say—and they will know this as well as I do, if not better—that in all my years of experience in regard to confessions I cannot remember ever having appeared in a trial where it was found or even alleged that the magistrate had brought undue influence to bear.

[Inaudible.]

The hon. member must just give me a chance to complete my argument. Then he can have his say. As I have said, I have never known a magistrate to be attacked on this point. The magistrate has nothing to do with the trial. The accused is taken to him and the confession is made before him entirely de novo. In the past we brought the magistrate to court, where he had formally to produce his documents and say a few words, for example, that there had been no question of remuneration or inducement. Such a formal statement has never been attacked by the defence, and all this Bill is now doing is to provide that it is therefore unnecessary for the magistrate to appear and to answer those few questions. In this provision we say that when the magistrate produces his document, it can simply be submitted. This means, of course, that the onus has to be shifted. What is the onus that is being shifted? It is simply an onus on probabilities. All the accused has to say in this case is: “I was unduly influenced before I came to a magistrate.” That is all he need say. He can outline the circumstances, and then the trial within the trial can take place again, as it always has. All that is really happening, therefore, is that the magistrate need no longer come to court to produce his document, etc. I do not think that anyone would disagree with me when I say that this is completely unnecessary. We cannot achieve this without shifting the onus, of course. If the onus were still to rest on the State in the case of magistrates, a magistrate would still have to go into the witness box to make those statements. If the onus were to rest on the State, the magistrate would still have to submit to cross-examination. This is absolutely essential. Since we all feel that it should not be necessary for a magistrate to do this, the onus has to be shifted, and the shifting of the onus is on probabilities. Therefore there can be no prejudice. The person involved need not prove beyond reasonable doubt that he has been unduly influenced. He must simply prove this on the probabilities, and that will be the end of the matter.

Furthermore, I want to say to the hon. member for Durban North that this new system and this wording of the clause will enable us to achieve many of the things which the hon. member would like us to achieve. It will make it much easier for the police to go to a magistrate rather than to expose their senior officers to cross-examination by an advocate. Under the new dispensation there will be a tendency for all confessions to move to the magistrates’ courts, because it will be common knowledge that there will be no further arguments about the aspect of undue influences when such cases appear before magistrates. What the hon. member would like to have, therefore, is in fact being achieved by means of the clause.

Mr. Chairman, I am not impressed by the arguments of either the hon. member for Mossel Bay or the hon. the Minister. I am referring particularly to the last point made by the hon. the Minister regarding the question of onus. I do not believe that there is any justification whatsoever for such a radical departure from the rule that the onus rests upon the State to prove the guilt of the accused beyond reasonable doubt. Only yesterday afternoon in this Committee the hon. the Minister conceded the point that nowhere in this legislation is there any intention to remove the onus of proof from the State. I believe it applies even here where we are dealing with confessions. I do not have to quote chapter and verse or cases to the hon. the Minister to show him that it has always been accepted in our courts that where there is a confession, there should be no presumptions at all.

What about the Botha Commission? This is one of its recommendations.

I believe the hon. member for Durban North gave sufficient proof by quoting from the commission’s report that Mr. Justice Botha did not suggest this particular proviso. At no place did he recommend this particular proviso. I say this with respect to the hon. the Minister. This particular proviso is the basis of the whole argument against the clause. Nowhere in our case history and nowhere in our law has it ever been accepted that there should be presumptions regarding a confession. In fact, a court looks upon a confession with the utmost suspicion. The onus has always rested upon the prosecution to prove beyond any reasonable doubt the three elements of the confession. The first of those three elements is that the accused must have given the confession freely and voluntarily. On this point it may be necessary for me to quote Hoffman in South African Law of Evidence where he says on page 169—

He goes on in a similar vein regarding all the elements of a confession. He says that the onus remains upon the State to prove beyond all reasonable doubt. However, what is the effect of this proviso? Its effect is that the onus is now placed upon the accused to prove that he was placed under duress to make such a confession. I believe this to be a radical departure from the fundamental principle that if the State wishes to rely upon a confession, the onus rests upon it to prove the grounds of admissibility beyond reasonable doubt. It is inherently subversive of the essential safeguard against the improper eliciting of confessions.

The hon. the Minister knows what happens. He knows that pressure is exerted on an accused person in one way or another, directly or indirectly, through questioning and through all sorts of things that happen. He knows that very often after the accused has been brought to a confessing state of mind, he is brought before the magistrate to make his confession. The hon. the Minister knows that this is happening. I do not believe it is any secret and the hon. the Minister knows it has been proved to be happening. It is because of that that I believe it is essential that we in this Committee have a duty to protect persons from this happening to them. It is not a case of protecting guilty people, not at all. I believe this has been built into our law for so many years that we have to continue to protect it.

An important element which must be borne in mind is that improper influences can bring an accused to that state of mind—the confessing state of mind that I referred to earlier. Those influences can continue and very often do continue even after the accused has been brought before the magistrate. The accused, because of the state of mind that he had been brought to, then proceeds to mislead the magistrate with an impression of spontaneity. The hon. the Minister cannot deny that this does happen. I believe that by accepting the second proviso, the hon. the Minister is going to open the door to even further abuses of the practice of eliciting a confession.

As the son of a detective who gave more than 40 years’ service to the detection of crime in this country, I want to say advisedly that many, many police cases rest on confessions where it has been impossible to obtain evidence. I know what is very often done to get a confession. I believe that the safeguards which are built into the law as it stands today, that the onus rests upon the State to prove the three elements which are necessary for a conviction, should be retained. I do not believe that any diminution of that responsibility of the State is going to further the ends of justice in this country. I believe, in fact, that they will go against the administration of justice. I am sure that the hon. the Minister will agree with me that it would be better if ten guilty persons should go free than that one innocent person should be convicted, especially that one innocent person should be convicted on a confession obtained under duress.

Sir, I wish to tell the hon. member who has just sat down that he apparently has not read the Botha Commission’s report on this particular matter. I would like to bring it to his notice. If he would look at paragraph 5.31.3 of that report he will find the following—

We have given full meaning to these recommendations in the Bill before us.

Mr. Chairman, I want to raise one point with the hon. the Minister. I am aware of what the commission said. The Botha Commission also said (paragraph 5.23)—

The point is, and in this I agree with the hon. the Minister, that never have I heard any suggestion that the magistrate has in any way induced an accused to make a confession. That is precisely what I thought the hon. the Minister wanted to achieve by this provision. I put it to him that what should have happened was that the accused should have been asked to give notice of who he alleges induced him to make such a confession. One would never find that he would allege that it was the magistrate. Therefore it would be quite unnecessary to call the magistrate. In fact, in Supreme Court trials, which are nearly always defended, the defence counsel will say every time: “I do not require the magistrate to be here.” He is not going to make any allegations against the magistrate. Therefore one can eliminate the presence of the magistrate. I suggest that that would have been the proper course. It would have met the difficulty the hon. the Minister pointed out, without placing the onus on the accused. As it is now phrased, the onus is placed on the accused and the position is that influences, which were operating on the mind of the accused beforehand, may still be operating when he is brought before the magistrate.

Amendment (1) negatived and amendment (2) dropped (Official Opposition and Progressive Reform Party dissenting).

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

Amendment (4) negatived (Official Opposition, Progressive Reform Party and Independent United Party dissenting).

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

Clause 276:

Order! Before I call upon an hon. member to address the Committee, I wish to point out that I regard this clause as a clause containing one of the principles which were accepted at Second Reading. We are dealing here with the nature of punishments. The clause lists the sentences that may be passed upon a person convicted of an offence. The sentences are, inter alia, the sentence of death, imprisonment, periodical imprisonment, declaration as a habitual criminal and whipping. The principle contained in the clause has been discussed on many occasions, not only in South Africa, but also in other parts of the world. Therefore I regard this clause as a clause containing one of the principles that has been accepted at Second Reading.

I know the hon. member for Houghton raised this matter during the Second Reading and I know that the hon. member for Vereeniging replied thereto. I also know that the hon. the Minister replied thereto in passing. But still I regard it as a principle, and I only want to give an indication that I am not going to accept the amendments which are standing in the name of the hon. member for Houghton on the Order Paper. However, I am prepared to give one member from each Opposition party an opportunity to put his or her party’s point of view on this clause and to allow the hon. the Minister to reply thereto.

Mr. Chairman, on a point of information: May I ask why it is not competent for me to move that part of the punishment proposed should be omitted from this clause? May I point out that there are seven different forms of punishment mentioned in the clause, and I wish to omit two of them. Surely, Sir, that is in order? Surely every one of these subsections has not been accepted as a principle? Surely what has been accepted is the principle that a person, having been convicted of an offence, shall be punished. The method of punishment is surely not a principle. If I may just pursue this argument further, I would like to point out that Parliament has hardly ever, in fact, discussed the question of capital punishment. To the best of my knowledge we have had exactly one proper debate on that, and that was when I moved a private member’s motion in 1969. It has simply not been discussed as such.

The Chairman has not said that you cannot move your amendments.

Yes, he has said that he is going to rule them out of order. Mr. Chairman, may I please ask you to reconsider your ruling? I am not asking that the entire clause be omitted, because, obviously, if a person has been sentenced, he has to be punished. It is the form of punishment which I wish to limit.

Order! I have given my ruling. The hon. member may, if she wishes to discuss the principle, do so during the Third Reading.

Mr. Chairman, I am sorry to argue with you, but I have never known of a clause with several legs to it which cannot be amended by the omission of part of it. That is all that I propose to do with my amendments.

The hon. member proposes to omit the essence of our penal system in South Africa, namely (a) the sentence of death and (g) a whipping. I have given my ruling.

Mr. Chairman, on a point of order: Although we do not intend doing so, I do feel that the hon. member is entitled to move the deletion of one or more of these different kinds of punishment. Are we forced to take the lot or nothing?

Order! I have given my ruling. Hon. members could have discussed that during the Second Reading. They could have raised their objection to that then, as they can still do in the Third Reading.

Mr. Chairman, does your ruling mean that we cannot amend this clause at all? For example, we may be against the sentence of death. If we wish to oppose that, does it mean that we have to oppose the whole clause, which includes all the other punishments as well?

Order! Say for example, the hon. member is against the seventh provision, he may vote accordingly and still discuss it in the Third Reading.

Sir, it is no good discussing it in the Third Reading if the clause has been accepted. We have to decide on the clause now. One either has to oppose the whole clause or one of the constituent elements of the clause.

Order! Yes, the hon. member may move an amendment affecting the detail of any clause, but not the principle.

Mr. Chairman, without in any way challenging your ruling, I would very much like you to reconsider it for your ruling will in future be relevant to the work of this House during Committee Stage. The principle of this clause is that there should be various forms of punishment. In other words, the concept of punishment for a crime is implicit and cardinal to this clause. This clause sets out eight alternative forms of punishment. We have the situation where the House may wish to accept five of the forms of punishment, or it could well happen that the hon. the Minister might decide that he does not want, say, an individual to be declared an habitual criminal. In terms of this ruling it will henceforth be impossible for the House to reduce penalties or to eliminate certain of the types of punishment which have been detailed. Not only does it mean that we will not be able to reach consensus in this House, but it also means that from now on clauses like this will have to be accepted in toto or rejected in toto. I would ask you very seriously, Mr. Chairman, to reconsider this ruling, not only in relation to this clause, but also because of the very binding effect it is going to have on the work of this House in future.

This clause deals with the nature of different types of punishment, and I regard that as one of the principles of the Bill as already agreed to at Second Reading. I am not even going to allow the hon. the Minister to move an amendment to this clause.

Mr. Chairman, do I understand correctly that while your ruling is that in terms of this clause you will not allow further debate, because it merely stipulates categories of punishment that ruling will not apply to a clause such as clause 277, which actually deals with the precise punishment in each case? I take it you are ruling it out in this instance, because this clause merely sets out the types of sentence, but that since clause 277 deals with the sentence itself, you will allow discussion of that to take place?

Yes, but it all depends on what type of amendment the hon. member wants to move.

Mr. Chairman, may I suggest that we draw an analogy. Here we have a number of various types of punishment under the heading “Nature of punishments”. This is in general. It is proposed that the nature of punishments be limited by the amendment which the hon. member for Houghton proposes to move, an amendment which will have the effect of excluding certain categories of punishment. I suggest that we consider, just for guidance, that we have a Community Development Bill dealing with various categories of housing that could be built with Government funds—houses, maisonettes and flats. Say, for example, one sought to exclude the building of houses by way of an amendment at Committee Stage, because one believed that only flats and maisonettes should be the subject of expenditure of public moneys. With respect, I suggest that it would be permitted to modify a clause to exclude a category of housing which could be allowed. I suggest that the principle here is identical, and I believe accordingly that it would be a matter suitable for reconsideration by you, Mr. Chairman.

I regard that as a quite different matter.

Mr. Chairman, you have ruled that I cannot move the amendments. I definitely cannot see how I could possibly have got the sentence of death changed at Second Reading.

Order! The hon. member may indicate her party’s opposition and she may discuss that.

I would like to have two goes at this, because I have two amendments which I am not allowed to move. The one amendment deals with capital punishment and the other one deals with whipping. Those are two different forms of punishment. The one I want to deal with first, is the death penalty. I am glad that at least I have the opportunity of raising this matter, even if I cannot move the amendment. As I have pointed out by way of a point of order, this House has never really properly discussed the issue of capital punishment, except on the one occasion when there was a private member’s motion introduced by myself. That was in 1969. We have only had a Government commission that has ever really investigated the matter, however, very cursorily. That was the Lansdown Commission in 1947. That was 30 years ago. Unfortunately the Viljoen Commission of Inquiry into the Penal System in South Africa was specifically excluded by its terms of reference from discussing the death penalty. We now have a new Criminal Procedure Bill which is to function in South Africa and the death penalty is again introduced without any real discussion on this subject. I want to point out that South Africa is one of the very few Western countries that retains the death penalty. In Western Europe only France and Spain retain the death penalty and I might add that in France it is only de facto. I think that about four people have been executed over the last ten years. In Israel there is no death penalty except for Nazi war crimes and since the State of Israel was formed only one person has been executed, and that was Eichmann, who, for the benefit of the hon. the Minister, was not a Jew. Australia retains the death penalty in only one of her States, namely Western Australia, and that is de facto as well. Nobody has been executed in Australia since 1967. Canada and New Zealand have abolished the death penalty. In America the Supreme Court ruled that the death penalty was “cruel and unusual punishment”, but revised its findings last year and several of the states do still retain their former death penalty. The fate of some 600 men sitting in death row is yet unresolved. It is very unlikely that executions will be resumed in the United States, although one man was executed recently, at his own request. The United Kingdom suspended capital punishment in 1965 after a most exhaustive inquiry by a Royal Commission. It suspended the sentence for five years, but it has now been abolished.

I want to point out that two attempts in 1973 and 1974 in the British House of Commons to reintroduce the death penalty in order to try to combat IRA terrorism, both failed. The death penalty is still abolished in England, although it is retained for piracy and certain forms of treason.

While other Western countries have been abolishing the death penalty, South Africa has steadily added to the list of offences which can carry the capital punishment. It used to apply only to terrorism, murder and rape and was mandatory for murder until the ‘thirties when the extenuating circumstances provision was introduced. Today we have a much longer list of capital offences. I think the figures of the numbers of people executed in South Africa over the past ten years are interesting. The numbers reached an all-high in 1966, with 124 executions. Over the ten years from 1967 to 1976 a total of 701 people were hanged in South Africa. We have an average hanging rate of 70 per annum, and 67 executions is the figure for last year with which the hon. the Minister’s department kindly supplied me, although I have not yet received an answer to my question in the House.

There are many arguments which have been used over the years in favour of the retention of the death penalty. The first, of course, is that it is a unique deterrent to murder and other crimes. Murder, by the way, accounts for the vast majority of capital punishments in South Africa and elsewhere, where capital punishment is still retained. I want to point out that 95% of murders are not premeditated, and therefore the existence of the death penalty does not in fact act as a deterrent. It is true that nobody knows exactly how many more murders and other capital offences would be committed if the death penalty were abolished. It is impossible to guess this, but I doubt that there are dozens of would-be murderers just straining at the leash waiting to commit murder once the death penalty is removed. There have been some in-depth scientific inquiries, mainly in America and by the British Royal Commission, and they have found that there is no evidence whatever to prove that fewer murders are committed in states or countries retaining the death penalty than in those which have abolished it. Indeed, the British Royal Commission came to the conclusion that there was no evidence whatever that the death penalty was a deterrent superior to imprisonment. There is no clear evidence that the abolition of the death penalty has ever led to an increase in the rate of homicide or that its reintroduction has ever led to a decrease. There is of course the argument of retribution and here the old law of lex talionis, an eye for an eye and a tooth for a tooth, is often used, I must point out, erroneously, because a life for a life was never included in the lex talionis. I admit we have a violent society in South Africa, but I do not believe that the death penalty has made any difference to the rate of crime, and certainly not to the rate of murder South Africa. What we need to do, is to look at the causes which are underlying our violent society and try to do something about that. The Elliot Commission, as long ago as 1942, stated of South Africa: “Savage punishments are never an effective method of combating crime. It will be reduced only when the social maladjustments that produce it, are remedied. ’ ’

Finally, I want to point out that in advocating—as I would have done had I been allowed to—the abolition of capital punishment, I am not advocating that murderers and other criminals go unpunished. I may say that it would be interesting to see what support I would get on this in a free vote in the House. This is often the attitude adopted by people when one discusses the abolition of capital punishment. There are forms of punishment such as long-term punishment—life imprisonment, if necessary—which will indeed have to be imposed on people who commit violent crimes. There are indeed people who have to be locked up for life to protect society. It is interesting, however, that the person who is most dangerous to society, the insane murderer, is never executed under our law. Yet we have no hesitation in retaining capital punishment in South Africa and in extending the list of offences for which this punishment applies. We have as I have said, the highest rate of executions in the entire Western World, in fact, one might say, of all the countries combined that still retain capital punishment.

I want to emphasize that people like fanatical terrorists are not deterred by the death penalty, as has been found in many countries where capital punishment still applies. In the words of Roy Jenkins in the House of Commons—“To take the view that the death penalty is a helpful deterrent in cases of political terrorism, shows a grave misunderstanding of the motivation of those who commit such crimes”. They are fanatics and they will commit these crimes no matter what. I believe this is a punishment which should be abolished in South Africa.

Mr. Chairman, on a point of order: I have a difficulty concerning your ruling. Our party did not make a caucus decision relating to members’ attitudes on the death penalty as stipulated in this clause. It is a free vote in our caucus and the PRP. Accordingly, Mr. Chairman, your ruling that one member may speak for a party, causes some difficulty, because even as between members of this minority group the matter has not been caucused. The hon. member may or may not be speaking for other members of the caucus. Therefore, as a member of a party which has a free vote on this issue, I think that hon. members, as members of this House, should be entitled to state their attitude towards this particular clause.

I appreciate the very intelligent way in which the hon. member is trying to evade my ruling, but the same applies as far as the members on my right are concerned. I have given my ruling.

Mr. Chairman, before I discuss the subject matter of this clause, I want to mention in passing that in this particular instance it may well be that there are 11 individual parties which will wish to express their views in terms of your ruling on this clause. [Interjections.] However, Sir, that is between you and them.

I should like to address myself to the point raised by the hon. member for Houghton on the question of the death penalty. Mr. Chairman, the death penalty, as you have rightly said, is a matter of controversy and a great many views have been expressed on it. In so far as this party is concerned, we expressed our view in a private member’s motion in 1969, but I shall not go into that debate in detail. There was a place in our society for the death penalty in a proper case, that is to say the cases in the law as it stands at the present time and as set out in the Bill. I should like just briefly to motivate that point of view.

A great deal is said, and has been said by the hon. member for Houghton, that the death penalty is a violent punishment and that for that reason it is undesirable. It is also undesirable, it is said, because it does not constitute a deterrent. A great many countries in the Western world have, in fact, done away with the death penalty. Those statements are true so far as it goes, but there is also a strong body of opinion in Great Britain, for example, that believes the greatest mistake which the British made was in fact to do away with the death penalty. There are numerous expressions of opinions in authoritative bodies which indicate that the death penalty in a proper case has its place in society. I should like to quote briefly from the British Royal Commission which was referred to by a leading speaker from this side of the House in the debate I have referred to. I quote from Hansard, 1969, col. 2589—

There are cases that are so outrageous that the community is revulsed. I think only of the recent case where an individual who killed three people in one set of circumstances in order to achieve his own ends, was sentenced to death. In my view this is a proper case. There was another case where, in order to rob a person of R40 000, the robber deliberately killed. The court found that he deliberately killed. This is another case where the death penalty was properly used. The hon. member was quite right in saying that the great bulk of murder cases are found to be not premeditated, but equally in the great bulk of those cases—most of them, in my experience—the death penalty is not imposed because extenuating circumstances are found to exist in almost every one of the non-premeditated murder cases. It is in the premeditated case, the brutal case, that the death penalty is imposed in most cases and in my view not wrongly so.

The Royal Commission to which I have referred also said the following (Hansard, 1969, col. 2590)—

Both the sentiments which I have read earlier and the one that I have just read have particular reference to this country where a large part of our population—the greater part, I suppose—is unsophisticated and has strong views on this matter. It is a community with which, for the greater part of my life, I have had daily contact. My impression of that community is that they believe strongly in the views that I am seeking to express today. One must take into account in these matters the view of the community in which one lives.

Then there is a final point, a point which is also brought out in the Lansdown report. If one is to give protection to the police and the prison warders against violent criminals of this kind—and we are dealing with a particularly violent category of person—life imprisonment, which is the only other punishment that can be given in cases of this kind, provides no protection at all, because having killed one man deliberately, the individual is then subjected to life imprisonment. If, in order to escape that conviction, he thinks that he can escape by killing two more people, there is nothing to stop him doing it because whether he kills one person or five, his only punishment is life imprisonment, which he is going to get for the first killing. When it comes to arresting a person of this kind, who has killed one person deliberately, the lives of the police who are to effect that arrest, are pretty cheap if the individual knows that by killing two of them he may escape. By killing two of them he is not going to suffer any greater penalty in any event. The same applies to the prison warder who has to look after these people for the rest of their lives. If a prison warder is killed trying to prevent an escape by one of these persons, there is absolutely no deterrent at all as far as a life sentence is concerned. If, however, a man is subject to a sentence of imprisonment for murder with extenuating circumstances such as we apply in South Africa at the present time, he may think twice about killing a prison warder because he knows that were he to do that the death penalty would probably follow. Whilst there are undoubtedly difficulties which are sincerely held, both intellectual and emotional, on balance I believe that capital punishment has its place and it can be acceptable even to people who have a sensitive approach to matters of punishment. As far as we in these benches are concerned, we do not adopt the view expressed by the hon. member for Houghton on the subject of capital punishment.

Mr. Chairman, in a small party such as ours we are able to reach unanimity at a very rapid rate. I am able to speak on behalf of my colleagues when I say that we fully support the contention put forward by the hon. member for Umhlatuzana. Those in the country who raise the matter of the abolition of the death sentence usually quote the example of countries in the West to support their contention. They regard themselves and this country as part of the West.

We are part of the West but primarily we are part of Africa and if we have to quote countries that have abolished the death sentence, we should quote countries in Africa that have done just that. [Interjections.] However, I do not think there is one. I believe, in fact, that in most of the other countries in Africa the death sentence is done by way of public execution as it used to be in Britain not so very long ago. I have before me the death warrant of Charles I, who was executed on 30 January 1648. That is only 300-odd years ago. After saying that it shall be done “in the open street before Whitehall” between the hours of 10 o’clock and 5 o’clock, it ends in this way—

That is as it used to be not so long ago. As stated by the hon. member for Houghton, Britain has abolished the death sentence.

They want to reintroduce it.

The police of Britain are trying for its reintroduction.

That is not true. Here I have a document to prove that.

What is the date of that?

1974. The debates in the House of Commons.

You have not read the latest police report.

This is the police report.

The police of Britain would like to see it reintroduced in order to control the terrorism and the bombing going on there. There has also been a vast increase in violence and sex murders in Great Britain. There is a lot to be said if we had a completely utopian society where all people have reached an equal plane of intelligence and restraint. The human race, however, certainly in Africa, have not reached that stage and I believe that in many of these countries where it has been abolished, the human race has not reached that stage yet. We will always find the type of person who is going to be a murderer, it does not matter which way he was born or how intelligent he is. We in these benches believe that the death sentence is absolutely necessary in this country, both as a deterrent and as a formal punishment.

Mr. Chairman, I subscribe to the principle of the Bill and therefore, I naturally, agree with the hon. member for Umhlatuzana and also with the member for Albany. Knowing the hon. member for Houghton, I do not think I personally would be able to convince her of any view other than the view she has expressed just now. I think I must, for the record, give the Committee the benefit of an United Nations finding on this very matter. It is embodied in a United Nations report, dated 23 February 1973 and is a report of the Secretary-General on capital punishment. On this particular point, the point which the hon. member for Houghton mentioned, namely that there seems to be a tendency to abolish the death sentence, the following is stated in this report—

It goes on to deal—I think this is important—with the reasons for retaining the death sentence. On the question of whether or not it deters, he writes—

The hon. member says that the death sentence was abolished in Britain. That is, of course, not entirely correct. In England there is still a death sentence for high treason.

I said that.

There is also still a death sentence for certain misdeeds on the high seas.

Piracy. I said that too.

Mr. Chairman, I do not want to add to this debate. This is a principle of the Bill. Obviously we support the Bill as it stands and, what is more, we have indicated before that we have no intention of abolishing the death sentence.

Mr. Chairman, I should like to address you now on the second amendment which I have not been permitted to move. That concerns the sentence of whipping.

I have given my ruling on both of those.

But, Sir, I have not had an opportunity to …

Well, I have given my ruling on both of them and …

In view of your ruling, I shall not be moving it, but may I not address the House on the question of why I would otherwise have moved it?

No. The hon. member could have done that before, but…

When, Sir?

The hon. member could have done that in the 10 minutes she has already had to address the Committee, if she wished.

I did not have time to address you on both points at that stage. These are two very important issues.

The hon. member can discuss it at the Third Reading.

Sir, that would be too late, would it not?

Order! I have given my ruling.

Mr. Chairman, although I have been in this House many years, I must say I have never known a ruling like this at the Committee Stage, a ruling to the effect that one is not allowed to address the House or to move an amendment which will alter the contents of a clause. Which part of this clause is the principle?

I said I regard the whole clause as a principle.

Every single constituent part of the clause?

I said right at the commencement that I regard this whole clause as one of the principles of this Bill.

Can it not be altered in any way while retaining the major principle?

Order! I have given my ruling.

Mr. Chairman, if I may address you on the same point, I understood your ruling to mean that we would be allowed to address you once on each of these aspects on the nature of punishments. As we have only dealt with the sentence of death so far, would you not allow us also to address you on the question of corporal punishment, which is a different issue?

Order! Under these special circumstances I am going to allow the hon. member to do so.

Thank you very much—Sir, my thanks are mainly directed at the hon. member for Umhlatuzana. I have in the past made my views clear on corporal punishment which I feel is a medieval form of punishment and a brutalizing form of punishment. Even in the special circumstances of South Africa “belonging to Africa” and large sections of the community perhaps not being very educated, urbanized, civilized, or whatever word one wants to use, I still do not think that corporal punishment belongs to a country which purports nevertheless to be a modern industrial State belonging to the Western world. That is what we keep telling people we are. Therefore I think that our behaviour, particularly as far as punishment is concerned, should correlate with the image we like to hold up to the rest of the world.

The Lansdown Commission years ago discussed the whole question of corporal punishment and it did recommend the retention of corporal punishment, for juveniles particularly, but on a limited scale. The main reason it gave was that it did not find that there were any alternatives to this form of punishment at the time. That was 30 years ago. I would have hoped that since then our penal system would have developed sufficiently for us to find alternatives such as a parole system, suspended sentences and fines. These can be used as alternatives to corporal punishment. The Viljoen Commission also considered the question of whipping and I must say at once that that commission too, recommended the retention of this form of punishment. It also stated that it was not able to think of alternatives.

South Africa has at least improved in one respect, and that is that mandatory sentences of whipping for certain offences have been done away with. From 1965 onwards the discretion of the courts of law has been returned. There has been a fairly important change, therefore, in the whole attitude towards this form of punishment. However, I am afraid that a pattern of a sort of retributive corporal punishment did develop in South Africa during the 13 years when whipping was a mandatory sentence for certain offences. Although more constructive alternative means have been established by means of increased probation, etc., the use of corporal punishment in the juvenile courts has increased year after year despite repeated attempts by sociologists and other experts, and by judges, who have levelled very strong criticism against this form of punishment. An interesting article was written by Dr. Midgeley in one of the issues of the journal of Nicro, which is the rehabilitation organization which has done such excellent work, and he pointed out that several judges had delivered forceful arguments against the widespread use of corporal punishment. He also made it clear that the judges, Judge Fannin in particular in one of his findings, came to the conclusion that whipping had no real deterrent effect and that as a punishment whipping was brutal in its nature. Dr. Midgeley, who was formerly with the Department of Sociology at UCT, points out in this article in the October 1974 issue of the journal of Nicro that an analysis of recidivism of whipped offenders showed that in the five years between 1968 and 1973 49,3% of people who were reconvicted within that five-year period had been previously whipped for a previous offence. The majority of these were in fact second offenders within three years of the original punishment. Furthermore, he found that the reconviction rate among children who were cautioned, fined or given conditional sentences, was substantially lower. Recidivism was much lower among those children, the juveniles, who had been cautioned, fined or given conditional sentences. Dr. Midgeley also refers to the Cadogan Committee in England, which was responsible, eventually for the abolition of corporal punishment in England and concluded that whipping had very little deterrent effect. England, as I mentioned in the Second Reading, abolished whipping some 30 years ago. In South Africa, the latest figure I could get was for 1975. 2 910 persons were sentenced to whipping and over 15 000 strokes were inflicted on those persons. These statistics exclude juvenile whipping, which is punishment administrated with a light cane, although I have seen photographs of the results of the punishment administered with a light cane, and the flesh is cut open …

That was in the days when the buttocks were naked.

Yes, and I may say that it was the hon. the Minister’s predecessor, Mr. Pelser, with whom I had correspondence, who restored the covering of the buttocks when the strokes were administered. That, I must say, was an improvement. Nevertheless it is a pretty tough punishment. I have no idea of how much juvenile whipping goes on in this country, but I imagine that the figures are quite horrendous. Certainly we do know that during the recent unrest an enormous amount of corporal punishment was inflicted and in some cases, although not in many, on children under the age of 10. As I say, I think it is time we got rid of this form of punishment. There are other forms of punishment. Once again, I have to stress that I am not suggesting that people go unpunished, but more particularly in the case of juveniles, caution, a strong reprimand or a suspended sentence has much more deterrent effect than the brutalizing effects of whipping.

There are a few changes which I welcome in this Bill. The maximum number of strokes in respect of minors and adults has been reduced from 10 to 7. The objective is apparently to see that more than five strokes are given. That is the argument that was advanced. I may say that the Viljoen Commission’s recommendation was for a maximum of five strokes for both juveniles and adults, but that has not been accepted. What the hon. the Minister has accepted and what I welcome, is the Viljoen Commission’s recommendation that the age limit of a person subject to punishment by whipping be reduced from 50 to 30 years. That, I think, is a very welcome change indeed and it is a big improvement. Then there is another recommendation, which has also been accepted, (also from the Viljoen Commission,) asking that no one should be subjected to a sentence of whipping more than twice. The recommendation that as far as inferior courts were concerned, whipping should only be imposed on minors after conviction on offences of violence against another person, or for having defied lawful authority, apparently, has been rejected by this hon. Minister.

I know that there are many hon. members in this House—no doubt, some of them are going to speak after me—who lay great store on corporal punishment and use arguments such as that it is swift and quickly finishes the case. The juvenile can then go home duly punished and chastized. However, I wonder whether we should not really be considering what the effects are on the people to whom such whippings have been administered, whether it does not have a brutalizing effect on them and tend to turn them against society for the rest of their lives. These are the suggestions I would like to put to this House. It is for that reason that I would like to have moved that whipping be struck from the list of punishments which might be imposed in South Africa.

Mr. Chairman, we are again dealing with a form of punishment which has been the subject of a great deal of talk and writing. That is to say, whether there should be corporal punishment, a punishment commonly referred to as whipping, or whether there should not be such a form of punishment. We in these benches believe that there is a place for corporal punishment, and I would like very briefly to give my views in this regard. In my experience corporal punishment is inflicted to a large extent in respect of two categories of persons. In the first place it is inflicted on young persons, and secondly on young persons who have com mitted a crime involving violence. I think one should for a moment investigate the type of case in order to see whether it has a proper place.

Being a male, I have had experiences in this sphere of life that I do not expect the hon. member for Houghton to have had. That is to say, I went to a boys’ school and I received from time to time corporal punishment.

It does not appear to have done you any good! [Interjections.]

Mr. Chairman, the hon. member for Houghton says it does not appear to have done me any good. But the hon. member did not know me before that! [Interjections.] I, and I am sure most of us in this House, can say from personal experience that amongst juveniles corporal punishment is a deterrent. In my experience it is a deterrent, while being kept in after school, or having to write lines, or having to work in the housemaster’s vegetable garden, seldom is. It is a greater deterrent, in my experience, than any of those things. That is why I regard it as a punishment for more serious offences than the type of punishment that I have just indicated. I do not believe that in the average school boy, for example, it warped one for life.

Mr. Chairman, let us now come to more serious matters. I tore out a sheet of newspaper for quite other reasons the other day—something to do with the Transkei. However, I noticed it had on the back of it something which, I believe, is pertinent to this debate. It bears a report from Springs, a report headed “Gang rapists get eight years”. The case reported is of four youths who were sentenced in the circuit court at Springs to eight years’ imprisonment and four cuts each after being found guilty of raping an eighteen-year-old girl nine times and of assaulting her boyfriend. These were four young men, aged between 19 and 21 years, who waylaid a girl and her boy friend who were on their way home after a dance in Springs. They were hitch-hiking and picked up by these four youths, taken to a nearby township where the boy friend was severely assaulted and the girl, who, the district surgeon testified, had been a virgin, was then raped nine times by the four young men. It is difficult to conceive of a more shocking case of violence.

In that case the sentence of the court was not only a term of imprisonment, but also corporal punishment to the extent of four cuts each. In my view corporal punishment in a case like that is entirely appropriate. Here presumably healthy young men were prepared to subject a girl to the greatest indignity and indeed physical violence of the worse kind. My experience of young men of this kind— thugs is what they are—is that there is one thing only that they are afraid of when it comes to punishment. They are probably not the sort of people who are in regular employment, so a period of imprisonment does not worry them particularly. The sort of imprisonment that one can impose for this sort of offence means that they will still come out of prison as young men with their whole lives before them. However, the one thing that they are afraid of, and which does have an effect, is corporal punishment, because— the hon. member for Houghton is quite correct—it is indeed a severe punishment even when properly administered. In a case like that, and there are many of these types of cases, I believe corporal punishment is appropriate. It is, indeed, not only appropriate, but there is no other adequate means whereby society can impress on people of this kind the error of their ways.

Mr. Chairman, may I ask the hon. member how people in other countries deal with the same type of violent crime the hon. member spoke of, without corporal punishment?

If they have our type of society, I do not believe that they can adequately deal with this sort of thing merely by terms of imprisonment or by any other conventional form of punishment.

Yet they all do.

I do not believe they do. In my view, violence is not decreasing in the world, but increasing.

And here?

Perhaps it is increasing here as well, but of course there are other factors involved in South Africa.

The other case which the hon. member for Houghton touched on, one which is real in my experience, is the desirability of the court very often having to punish a juvenile. I prefer to use the word “juvenile” rather than “child”.

They are children.

The hon. member can say that they are children, because technically they are, but usually it is the juvenile who is somewhat older and more responsible than a child, who we are dealing with. Nevertheless, I will not argue about that. It is a question of emphasis. The juvenile is so often the type of person who requires to be punished, but one whom one does not wish to incarcerate in a prison where he, for the first time, will have associations with hardened criminals. This is the view which is accepted and not only by judicial officers. How often does it not happen in Black communities, particularly in the rural areas, that the parents stand up in court and request that corporal punishment be inflicted where after the child is sent home rather than put in gaol for a period of months or weeks, as the case may be? This is not something which one invents, but a matter of personal experience. If the parents of the children themselves, and the court in these cases, feel, as they often do, that for the reasons I have given a whipping is a more appropriate punishment for a juvenile than a period of imprisonment, it seems to me that that is an added reason why it should be kept in our statute law. For those reasons it is the view of us in these benches that there is a place for corporal punishment. We do not, therefore, take the view which was presented by the hon. member for Houghton.

Mr. Chairman, once again I just rise to say that we in these benches unanimously support the view of the hon. member for Umhlatuzana.

Both of you?

We shall discuss these things when we are all together.

Corporal punishment has always been a matter raised by people with great idealism in regard to this sort of thing. I believe, however, that it is an excellent deterrent. I myself have experienced corporal punishment, not from the police, but from my father and my school teachers. I do believe it assisted me in my education. Some school teachers believe the only way to get something into the head of a child is by using a cane on his bottom. [Interjections.] The hon. member for Houghton raised a point here as to what happens to the minds of people after corporal punishment. Sometimes timeous corporal punishment can do a great deal of good. I want to mention a case which happened about 10 or 15 years ago. I cannot mention the name, but it is a case known to me.

Did the case involve hon. members here?

No, but I do not want to mention the names of those poor chaps. It was about two young men who were farmers. They were very wild young men, aged about 24, and they used to lead their wives quite a rough life. They went on a spree in Port Elizabeth one weekend and were caught red-handed pulling down traffic signs and loading them in the back of their bakkie. They were sentenced to six cuts each and I can assure the hon. member for Houghton that today those two men, who are now mature men, are the finest farmers and husbands in the district. I believe that that timeous action of giving them a good warming-up contributed a great deal to the formation of their characters. [Interjections.]

Mr. Chairman, I do not think that it is necessary to reply. The Lansdown and the Viljoen Commissions considered this very thoroughly and in both cases the commissions recommended that whipping be retained. The argument has been well illustrated here and I shall content myself by saying that we accept the arguments of the hon. members for Albany and Umhlatuzana.

Clause agreed to (Messrs. R. M. de Villiers, G. H. Waddell and Mrs. H. Suzman dissenting).

Clause 277:

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

1. (1) On page 184, in lines 33 and 34, to omit paragraph (a) and to substitute:
   1. (a) may be passed upon a person convicted of murder if the court finds aggravating circumstances to have been present;
2. (2) on page 184, in lines 46 and 47, to omit “or where the court, on convicting a person of murder, is of the opinion that there are extenuating circumstances,”.

I am now trying to reduce the number of occasions on which the death penalty will be imposed. Instead of the existing law which lays down a mandatory sentence of death in the case of murder without extenuating circumstances, I now wish it to be the other way and that is what my amendment is aimed at—in other words, that the death sentence may be passed if aggravating circumstances are found. That is briefly the import of my amendment. Since I have not been allowed to abolish the death penalty, I now want to reduce the number of occasions on which the death penalty will be imposed. As I pointed out, it used to be a mandatory death sentence for murder. That was changed in the thirties and became a mandatory sentence unless extenuating circumstances were found. I now want it changed so that the death sentence may be imposed by the courts if aggravating circumstances are found.

What is the difference?

There is a very big difference, because the emphasis is quite different. The guideline to the court is that the death sentence shall be passed in the case of murder, unless extenuating circumstances are found. Those are the guidelines to the court and I want the guidelines to be the other way around, i.e. that the death sentence may only be passed where aggravating circumstances …

What are aggravating circumstances?

Well, if it is a really violent crime, if it is premeditated and …

“Aggravating circumstances” means simply that there is a lack of extenuating circumstances.

Yes, but the hon. the Minister must bear in mind that this phrase is used in so far as house-breaking is concerned for instance. Therefore, it must mean something important. [Interjections.] I should like to know what aggravating circumstances the hon. the Minister is contemplating in the case of house-breaking. Presumably, if violence is used, it also means the death sentence is imposed as the hon. member for Durban North has pointed out My point is that there are aggravating circumstances where the murder may be far more violent, for instance, it might be accompanied by rape, it might be premeditated. There are many circumstances which can be considered aggravating, but I leave that to the discretion of the courts. I should like the hon. the Minister to give the matter his consideration.

Mr. Chairman, when I came across the hon. member for Houghton’s amendment on the Order Paper, I tried to do a little research to determine whether it had any juridical merit. I came to the conclusion that we have a case here in which the cobbler should rather stick to her last. I found a strong rejection of the hon. member’s idea in a book by an English QC who was in fact in favour of the abolition of the death penalty. After he had dealt with all the arguments for and against it, he discussed what the hon. member for Houghton has attempted to achieve with her amendment, in the chapter on “Minor Arguments”. He said, inter alia—

That erudite author who basically adopts the same standpoint on the death penalty as does the hon. member for Houghton, says the following about this type of grading of murder—

It is also the philosophy of the Viljoen Commission’s report—although the death penalty is not at issue there—that there should be high maximum sentences and that it ought to be left to the judge to use or not to use the maximum sentence, subject to the particular circumstances prevailing. The hon. member for Houghton now wants to reverse the whole essence of our law. Our point of departure in respect of all crimes, and also in respect of the death penalty, is that the judge has to determine whether or not the person is guilty of the crime. If he is, in fact, guilty, the judge has a maximum competence in respect of the sentence he may impose, but if he finds there are extenuating circumstances, he reduces it.

The hon. member for Houghton now wants to reverse the system and, unless she wants to do this by way of a first degree murder and a second degree murder, or something like that, there is no sense in it, because all that will happen is that our courts will be asked to lay down a whole new set of rules to indicate what aggravating circumstances are, whilst our law has at its disposal a beautifully worked out system to indicate what extenuating circumstances are. This has been built up over years of administration of justice so that no judge has any doubt about when there are extenuating circumstances and when there are not. The hon. member for Houghton now wants us to start from the beginning, simply to attain exactly the same goal. Or the hon. member for Houghton insists that she wants a first degree and second degree murder. I want to tell hon. members what happened to a commission in England. They proceeded from the specific point of departure that they were seeking definitions for “murder in the first degree”, “murder in the second degree”, etc. It was a Royal Commission and an erudite author had the following to say about it—

I want to suggest that the hon. member also abandon the matter and leave it to the lawyers to make intelligent decisions on it.

Mr. Chairman, the passage which the hon. member who has just spoken read out, in fact supports the hon. member for Houghton and not the contention of the other side. The position is that the amendment sought by the hon. member for Houghton would mean that the death sentence is not mandatory. That is what it is all about, namely that the death sentence is not mandatory on a finding of murder. It leaves intact the power of a judge to find that there were aggravating circumstances. It complies with what the hon. member has read out and it leaves the possibility of a maximum sentence, namely the sentence of death. That provision is retained, but the whole idea is that it should not be mandatory merely on a finding of murder.

The position is today that very often judges find that a person is guilty of murder and they are bound, unless they can find extenuating circumstances, to impose a sentence of death. They themselves are very often against it. They do not want to, but they are bound by it. What the hon. member for Houghton is proposing is that that should not be so.

The hon. member for Houghton has made the point that in this Committee we in this party have a free vote on this issue. While I do not favour the death sentence, I can envisage cases where it should be imposed. I can think for example of the sort of person who throws a bomb in a crowded concourse in an airport where he is killing people that he has never met and never bumped into in his life before. I can conceive that that category of offence ought to carry the death sentence. In fact, it should be imposed for that sort of case.

I think it is a very good amendment and I accordingly support it, namely that there should not be a mandatory death sentence unless there is some sort of aggravating circumstances. I want to reinforce the point already made that “aggravating circumstances” is a phrase which is used in the law already and it is used in precisely the same sort of issue because it is used in the case of housebreaking. It is that phrase only which entitles a judge to impose the sentence of death in a housebreaking case. It ought not to be a matter of great difficulty for a judge to decide what is aggravating circumstances.

Mr. Chairman, the existing procedure whereby the death penalty is mandatory in the case of murder, except where there are extenuating circumstances, is a field of law which is well defined and clear. The system which we have in South Africa of the ability of a court to find that, although there was a deliberate killing, there are circumstances which extenuate the seriousness of the crime, is greatly admired in many parts of the world, particularly in Great Britain as being an enlightened and proper way to approach the subject. Although the death penalty is technically speaking mandatory, there are cases—I would not say a great many—where the court nevertheless submits a report to the Executive for the exercise of its powers to commute a sentence in a proper case. This again is a field which is well-known and well-defined in South Africa. I would hesitate to interrupt that flow of practice which is well-established by something unless it was quite clear to me that it is an improvement. It is suggested here that the approach be changed and that one has a discretion to impose a death penalty in a case where there are aggravating circumstances. I would find it more difficult to assess aggravating circumstances, partly for the reasons in the book quoted by the hon. member for Vereeniging. What are aggravating circumstances when there has been a deliberate killing? It is not an easy concept at all. In my view, a finding with extenuating circumstances is a much easier concept to grasp. Yet even that concept is not an easy one, as anyone who has practised law will know. In my view the existing practice does give a measure of discretionary power to the court, at the level of extenuating circumstances, and to the executive, in the exercise of their power of mercy. I therefore do not find it possible to support the amendment moved by the hon. member for Houghton. In my view the existing practice is preferable.

I just want to tell the hon. member for Durban North that I appreciate his attempt to remain loyal to the hon. member for Houghton, but that I cannot appreciate the fact that he is prepared to throw his juridical mode of thought overboard in that attempt. The fact remains that whenever one approaches this matter from a legal point of view, the death of the person in the crime constitutes murder in the first degree. The most serious degree is when someone is killed deliberately. That is the most serious degree. The courts have to work back from this to try and establish whether there are any extenuating circumstances. Where does one start looking for aggravating circumstances? Surely this is not possible? One would then end up with the ridiculous system, a system that is no longer complied with anywhere, of first and second degree murders. Murder itself is the most serious degree of the crime. One has to work back from that. What are extenuating circumstances? In the State v. Robinson and Others, 1968, it is described as follows—

This is what the judges take into account. Even though the law states that the judge has no choice—in a case of murder where there are no extenuating circumstances, the death penalty must follow, because the death penalty is part of our law—he still has the discretion to look for extenuating circumstances. As long as he finds extenuating circumstances, and this is part of his approach, he may still impose the death penalty or decide not to do so.

You would have a hard time with the Cohen case.

That is where his discretion comes in, just for that hon. member’s benefit.

I listened very carefully to what the hon. the Minister said, and I hope that we shall argue this in an objective fashion this morning. I think the hon. the Minister will grant me that until the 1930s, the death sentence was mandatory for murder and that there was no question of extenuating circumstances, or anything like that. During the 1930s, because of pressure from the Bench, I should imagine, the provision for extenuating circumstances was introduced. A body of law precedents had to be built up thereafter, as there were no precedents on which to rely. From the 1930s onwards a body of precedents was built up, upon which judges then came to rely when they were seeking for extenuating conditions. Why cannot the same thing apply as far as aggravating circumstances are concerned?

They arrived at the same conclusion that you wish to arrive at through your amendment.

No, because it is mandatory unless extenuating circumstances are found, and I wish the death sentence to be mandatory only if aggravating circumstances are found. That is a very great difference, firstly in emphasis and, secondly, in the guidelines for the courts themselves. I can see no reason why, if Parliament accepted this provision today, a body of law could not be built up in 10 years’ time based on precedents on which judges could rely. I cannot see what difficulties the hon. member for Vereeniging has as regards this. I therefore wish to press my point and continue with my amendment.

Mr. Chairman, there is one very important point which the hon. member for Umhlatuzana also overlooked, as did the hon. the Minister of Justice. The position at the moment is that, unless the accused can show extenuating circumstances, he must in terms of the law be hanged. The difficulty arose crisply in the Cohen case. If, for example, an accused puts up the defence “I was not there” and the court finds that he was there and committed the murder, there is no possibility that he can put up extenuating circumstances. He cannot suddenly turn round and say: “I was there; now let me tell you what the extenuating circumstances are. ’ ’ It often happens that in a case the judge has a feeling about it or knows that the circumstances must be such that the accused was there and that, probably, there were extenuating circumstances. However, those extenuating circumstances will not be before the court. In that situation the law is unsatisfactory as it stands at present. It is true, of course, that the judge in the Cohen case found extenuating circumstances, but the hon. the Minister will know that that case has been bandied backwards and forwards in the courts as a highly unsatisfactory case as far as the ratio of the case was concerned. However, it is a most unfortunate situation which the present law does not cover. The matter will be far better covered by this amendment.

On amendment (1),

Question put: That the paragraph stand part of the Clause,

Upon which the Committee divided:

As fewer than fifteen members (viz. Messrs. D. J. Dalling, R. M. de Villiers, C. W. Eglin, R. J. Lorimer, S. A. Pitman, Dr. F. van Z. Slabbert, Mrs. H. Suzman and Messrs. H. E. J. van Rensburg and G. H. Waddell) appeared on one side,

Question declared affirmed and amendment, with amendment (2), dropped.

Clause agreed to.

Clause 292:

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

The object of this amendment is to reduce from seven to five the maximum number of strokes that may be inflicted. This, I may say, is a recommendation of the Viljoen Commission. I also wish to move the following amendment—

This will have the effect of not enabling the courts to impose a sentence of whipping more than once on any person.

Mr. Chairman, I wish to move the amendments standing in the name of the hon. member for Rosettenville on the Order Paper, as follows—

1. (5) A person who has been examined by a district surgeon or assistant district surgeon and is found to be in a fit state to receive a whipping, shall again be examined by that district surgeon or assistant district surgeon immediately after the whipping, and again after 24 hours, and the district surgeon or assistant district surgeon, as the case may be, shall submit a report to the Commissioner of Prisons.
2. (6) A whipping under this section shall not be inflicted unless a district surgeon or an assistant district surgeon has examined the person concerned and has certified that he is in a fit state of health to undergo the whipping.
3. (7) If a district surgeon or assistant district surgeon certifies that the person concerned is not in a fit state to receive the whipping or any part thereof, the person appointed by the court to execute the sentence shall forthwith submit the certificate to the court which passed the sentence or to a court having like jurisdiction, and such court may thereupon, if satisfied that the person concerned is not in a fit state to receive the whipping or any part thereof, amend the sentence as it deems fit.

The effect of these amendments is to require more frequent and closer examination by a district surgeon of a person who is to undergo corporal punishment. The effect of the amendment is that he should be examined before and after the whipping and again by the district surgeon after a period of 24 hours has elapsed, and the district surgeon should then submit a report to the Commissioner of Prisons.

The gravamen of the amendments in the name of the hon. member for Rosettenville is to ensure that a person who is to undergo or has had a whipping is physically fit for it and, in the case of a man who has had a whipping, to ensure that should he suffer any untoward turn as a result of this punishment, it will be detected and that the proper treatment will be administered. That is the effect of the amendments which I have moved.

Mr. Chairman, I am sympathetic towards the amendment moved by the hon. member for Umhlatuzana, but unfortunately, I cannot agree with him because the person who receives the punishment is given a thorough examination before the punishment is administered to establish whether he can stand up to it. To detain him for a day or two after the punishment has been administered to see whether there are any aftereffects is, in my opinion, completely unnecessary because he has already been examined and besides that, the punishment is administered in the presence of a district surgeon. He is examined again immediately afterwards. Other circumstances could arise, circumstances that have nothing to do with the punishment, that could have an effect on him later. Then it would be difficult to determine whether that condition was attributable to the punishment or whether it was a consequence of other circumstances. I do not believe the hon. the Minister can accept this amendment.

On amendment (1) moved by Mrs. H. Suzman,

Question put: That the word stand part of the Clause,

Upon which the Committee divided:

Ayes—91: Aronson, T.; Badenhorst, P. J.; Barnard, S. P.; Bodenstein, P.; Botha, G. F.; Botha, J. C. G.; Botha, M. C.; Botha, P. W.; Botma, M. C.; Brandt, J. W.; Clase, P. J.; Coetzee, S. F.; Conradie, F. D.; Cronje, P.; Deacon, W. H. D.; De Beer, S. J.; De Jager, A. M. van A.; De Klerk, F. W.; De Villiers, D. J.; De Villiers, J. D.; De Wet, M. W.; Du Plessis, B. J.; Du Plessis, G. F. C.; Du Plessis, G. C.; Du Plessis, P. T. C.; Du Toit, J. P.; Greeff, J. W.; Grobler, M. S. F.; Grobler, W. S. J.; Hefer, W. J.; Herman, F.; Hoon, J. H.; Janson, T. N. H.; Kotzé, G. J.; Kotzé, S. F.; Kotzé, W. D.; Krijnauw, P. H. J.; Kruger, J. T.; Le Grange, L.; Le Roux, F. J. (Brakpan); Le Roux, F. J. (Hercules); Ligthelm, C. J.; Lloyd, J. J.; Louw, E.; Malan, G. F.; Malan, J. J.; Malan, W. C.; Marais, P. S.; Meyer, P. H.; Mouton, C. J.; Nel, D. J. L.; Niemann, J. J.; Nothnagel, A. E.; Palm, P. D.; Raubenheimer, A. J.; Reyneke, J. P. A.; Rossouw, W. J. C.; Roux, P. C.; Schlebusch, A. L.; Scott, D. B.; Simkin, C. H. W.; Snyman, W. J.; Steyn, D. W.; Steyn, S. J. M.; Streicher, D. M.; Swanepoel, K. D.; Swiegers, J. G.; Terblanche, G. P. D.; Treurnicht, A. P.; Ungerer, J. H. B.; Uys, C.; Van den Berg, J. C.; Van der Merwe, H. D. K.; Van der Merwe, S. W.; Van der Spuy, S. J. H.; Van der Walt, A. T.; Van der Walt, H. J. D.; Van der Watt, L.; Van Rensburg, H. M. J.; Van Wyk, A. C.; Venter, A. A.; Viljoen, P. J. van B.; Vilonel, J. J.; Vorster, B. J.; Vosloo, W. L.; Wentzel, J. J. G.; Wiley, J. W. E.

Tellers: N. F. Treurnicht, A. van Breda, C. V. van der Merwe and W. L. van der Merwe.

Noes—32: Bartlett, G. S.; Basson, J. D. du P.; Baxter, D. D.; Bell, H. G. H.; Cadman, R. M.; De Villiers, I. F. A.; De Villiers, J. I.; De Villiers, R. M.; Hughes, T. G.; Jacobs, G. F.; Kingwill, W. G.; McIntosh, G. B. D.; Mills, G. W.; Murray, L. G.; Oldfield, G. N.; Olivier, N. J. J.; Page, B. W. B.; Pitman, S. A.; Pyper, P. A.; Slabbert, F. van Z.; Sutton, W. M.; Suzman, H.; Van Coller, C. A.; Van Hoogstraten, H. A.; Van Rensburg, H. E. J.; Von Keyserlingk, C. C.; Waddell, G. H.; Wainwright, C. J. S.; Webber, W. T.; Wood, L. F.

Tellers: D. J. Dalling and R. J. Lorimer.

Question affirmed and amendment dropped.

Amendment (2) moved by Mrs. H. Suzman negatived (Progressive Reform Party dissenting).

Amendment moved by Mr. R. M. Cadman put and the Committee divided:

Ayes—36: Aronson, T.; Bartlett, G. S.; Basson, J. D. du P.; Baxter, D. D.; Bell, H. G. H.; Cadman, R. M.; Dalling, D. J.; Deacon, W. H. D.; De Villiers, I. F. A.; De Villiers, J. I.; De Villiers, R. M.; Hughes, T. G.; Jacobs, G. F.; Lorimer, R. J.; McIntosh, G. B. D.; Mills, G. W.; Murray, L. G.; Oldfield, G. N.; Olivier, N. J. J.; Page, B. W. B.; Pitman, S. A.; Pyper, P. A.; Slabbert, F. van Z.; Streicher, D. M.; Suzman, H.; Van Coller, C. A.; Van Hoogstraten, H. A.; Van Rensburg, H. E. J.; Von Keyserlingk, C. C.; Waddell, G. H.; Wainwright, C. J. S.; Webber, W. T.; Wiley, J. W. E.; Wood, L. F.

Tellers: W. G. Kingwill and W. M. Sutton.

Noes—88: Albertyn, J. T.; Badenhorst, P. J.; Barnard, S. P.; Bodenstein, P.; Botha, G. F.; Botha, J. C. G.; Botha, M. C.; Botha, P. W.; Botma, M. C.; Brandt, J. W.; Clase, P. J.; Coetzee, S. F.; Conradie, F. D.; Cronje, P.; De Beer, S. J.; De Jager, A. M. van A.; De Klerk, F. W.; De Villiers, D. J.; De Villiers, J. D.; De Wet, M. W.; Du Plessis, B. J.; Du Plessis, G. F. C.; Du Plessis, G. C.; Du Plessis, P. T. C.; Du Toit, J. P.; Greeff, J. W.; Grobler, M. S. F.; Grobler, W. S. J.; Hefer, W. J.; Herman, F.; Hoon, J. H.; Janson, T. N. H.; Kotzé, G. J.; Kotzé, S. F.; Kotzé, W. D.; Krijnauw, P. H. J.; Kruger, J. T.; Le Grange, L.; Le Roux, F. J. (Brakpan); Le Roux, F. J. (Hercules); Ligthelm, C. J.; Lloyd, J. J.; Louw, E.; Malan, G. F.; Malan, J. J.; Malan, W. C.; Marais, P. S.; Meyer, P. H.; Mouton, C. J.; Nel, D. J. L.; Niemann, J. J.; Nothnagel, A. E.; Palm, P. D.; Raubenheimer, A. J.; Reyneke, J. P. A.; Rossouw, W. J. C.; Roux, P. C.; Schlebusch, A. L; Scott, D. B.; Simkin, C. H. W.; Snyman, W. J.; Steyn, D. W.; Steyn, S. J. M.; Swanepoel, K. D.; Swiegers, J. G.; Terblanche, G. P. D.; Treurnicht, A. P.; Ungerer, J. H. B.; Uys, C.; Van den Berg, J. C.; Van der Merwe, H. D. K; Van der Merwe, S. W.; Van der Spuy, S. J. H.; Van der Walt, A. T.; Van der Walt, H. J. D.; Van der Watt, L.; Van Rensburg, H. M. J.; Van Wyk, A. C.; Venter, A. A.; Viljoen, P. J. van B.; Vilonel, J. J.; Vorster, B. J.; Vosloo, W. L.; Wentzel, J. J. G.

Tellers: N. F. Treurnicht, A. van Breda, C. V. van der Merwe and W. L. van der Merwe.

Amendment negatived.

Clause agreed to (Official Opposition, Mr. R. J. Lorimer and Mrs. H. Suzman dissenting).

During the division:

Mr. Chairman, on a point of order: Five amendments to this particular clause have been moved. Only the movers of these amendments have addressed the Committee. In an attempt to conserve the time of the Committee, many of us held back from supporting the movers in these amendments until there had been an indication from the hon. the Minister whether or not he would accept these amendments. But while we were waiting upon the hon. Minister, you proceeded to put the amendments.

Nobody rose to speak.

I agree, Sir. The matter was confused further by the fact that it was time for the usual suspension of business, namely 12h45. I therefore ask you at this stage to suspend business to enable us, when we return at 14h15, to argue further on the amendments moved by the hon. member for Umhlatuzana. At this stage we have no indication of whether or not the hon. the Minister is prepared to accept these amendments.

The division on the amendments to this clause has already started and cannot be interrupted.

Business suspended at 12h58 and resumed at 14h15.

Afternoon Sitting

Clause 293:

In reality, Mr. Chairman, I did not want to say anything about clause 293. Nevertheless, perhaps I should just make use of this clause to explain to hon. members of the Opposition that I intended saying I could not accept the amendments to clause 292 and that I also intended saying why not. I am nevertheless of the opinion that the hon. member for Brentwood made the matter very clear. At that stage it was nearly a quarter to one already and I was under the impression that the House was about to adjourn. Mr. Chairman, you were naturally under the impression that I had nothing more to say. That is where the mistake crept in and I apologize to the hon. members opposite for this.

Clause agreed to.

Clause 294:

Mr. Chairman, the principle of whipping has been accepted in previous clauses, and therefore there is nothing I can do about that. Nevertheless, I would like to ask the hon. the Minister if he would not consider accepting an amendment which I am now going to move. It is an amendment which is in keeping with a recommendation made by the Viljoen Commission. That is that the maximum number of strokes which can be inflicted, shall be five and not seven. I moved this in a previous amendment, and it was rejected. However, that then applied to all persons who were subjected to whipping. Now, I am trying to limit it to the clause where a male person under the age of 21 years is subjected to whipping.

I would like, therefore, to move the following amendment—

It is simply a matter of decreasing the maximum number of strokes.

Mr. Chairman, unfortunately I am not prepared to accept that amendment either. We have given very thorough consideration to the number of strokes that ought to be permissible. The hon. member for Houghton will remember that the Lansdown Commission proposed eight strokes. The Viljoen Commission proposed five strokes. After thorough consideration, of medical opinions as well, the conclusion was reached that we ought to make the number of strokes no less and no more than seven. If more than seven strokes are administered, the punishment no longer has any real value for the person subjected to it. Up to seven strokes, we believe, will still have a deterrent value. For that reason, I am not prepared to accept the hon. member’s amendment.

Mr. Chairman, I am going to try for another amendment now. I wonder if the hon. the Minister would consider limiting the number of times that a sentence of whipping may be imposed on a male person under the age of 21 years. I want to move an amendment which will have the effect of limiting the number of times to one. I, therefore, move the following amendment—

This is in line with the recommendations, not of the Viljoen Commission, but of the Lansdown Commission.

Is it to be once for young persons?

Yes, once for young persons. The Viljoen Commission suggested the maximum should be twice.

Unfortunately, Mr. Chairman, I am not prepared to accent this amendment either. I should like to argue the matter with the hon. member. If I were to accept the amendment, it would mean that if an accused appears before the court after having received a whipping once before, he would most probably be sentenced to a term of imprisonment. I should like to keep juveniles out of prison. I think the parents of Black children in particular, and even the parents of White children would prefer it if there were a choice between imprisonment and corporal punishment. In such a case, and if the choice lay with them, I think the parents, and even the accused, would prefer a whipping. I think the hon. member for Houghton, too, would prefer the youths not to be sent to prison, because the effect of prison on the spirit of such a young person can be much more serious than the supposed disadvantages of corporal punishment to which the hon. member for Houghton referred.

There are other alternatives.

Yes, but there is a problem. The reason why we are making it only two, is that if two whippings have not helped a person, then the time has arrived to sentence him to imprisonment or to send him to a reformatory. The first two times, one still has hope that corporal punishment will be adequate and for that reason it is no good limiting time to one administration. Then such a youth would be sent to prison the second time.

Mr. Chairman, in regard to the first amendment of the hon. member for Houghton I want to say that we will wholeheartedly support it. Regarding the second amendment, I will leave it to the hon. member for East London City to address the Committee on that particular amendment. At this stage I wish to move the amendment printed in the name of the hon. member for Rosettenville on the Order Paper, as follows—

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

Mr. Chairman, I appreciate the undertaking by the hon. the Minister that he will accept the amendment and I will not press the matter any further.

Mr. Chairman, I want to support the second amendment moved by the hon. member for Houghton. The hon. member seems to be getting a lot of support this afternoon. I hope she is not blushing. [Interjections.] Nevertheless, we are serious when we say that we support this amendment because on reading through the report of the Viljoen Commission it appears perfectly clear that not only the Viljoen Commission, but also the Lansdown Commission supported the question of a maximum of two sentences being imposed for whipping on juveniles. There are some very interesting cases which have been discussed fully in our courts in relation to the question of imposing sentences of whipping on juveniles. The one is the case of the State v. Ruyters, S.A.L.R., 1975(3), which unfortunately is not available in the parliamentary Library at the moment. However, I am informed that in that case the learned judge who dealt with the matter was Mr. Justice Steyn who, as the hon. the Minister knows full well, has for years been committed to the organization known as Micro and has made a very deep and intensive study of the question of punishment and crime. I understand that in that case the judge himself indicated that if it were necessary to impose the sentence of whipping on more than two occasions on a juvenile, it would in all likelihood indicate that the sentence itself was not effective at all. After all, what we are dealing with here is not only the punitive side of punishment, but also the deterrent side. One of the cases I have here, which indicates how this can be misused, and how the imposition of a whipping on more than two occasions has no effect at all on the juvenile—I emphasize the fact that we are here dealing with juveniles—is the case of the State v. Mapatsi. This case was dealt with in 1976(4), S.A.L.R., at page 725, by the Chief Justice of the Republic. In that case the juvenile concerned was a young male 18 years of age. On looking through his record, it appeared that when he was 15 years old, he was charged with theft, convicted and sentenced to four cuts. When he was 17 years of age, he was charged and convicted of housebreaking and theft and sentenced to three months in gaol. When he was 18 years old, three things happened. The first was that he was convicted of assault with intend to commit grievous bodily harm and he was sentenced to eight cuts. Only a few months later he was again sentenced to five cuts for wilful damage to property. In the meantime it was discovered that prior to the last offence he had in fact committed murder and was subsequently convicted of murder. In that case the learned judge, Rumpff, C. J., said the following—

In other words, this had been noticed by the courts on many occasions—

I believe that this indicates, from the trend in our criminal courts at the moment, that the fact that cuts and corporal punishment are not an effective means of punishment for juveniles, has perhaps been lost sight of. In terms of the existing law, cuts may not be given on more than two occasions in regard to adults, and I believe the case is even stronger in regard to juveniles. We have also had the report of the Viljoen Commission, which has indicated in its recommendations that there should be alternative sentences to imprisonment, so that it does not necessarily mean that juveniles will be sent to prison, but that there are alternative sentences to imprisonment. These are set out—I am not going to deal with them in detail—on page 132 of the report. I believe that if we do this, we shall be complying with what those who are closely connected with the imposition of punishments on criminals, have recommended. I am referring not only to what the Lansdown or the Viljoen Commissions have recommended, but also to what the judges of our courts, even the Chief Justice of our highest court, have recommended.

Mr. Chairman, the hon. members of the Opposition are really chopping and changing now. When it suits them, they want the courts to be able to apply a discretion and then again, when it does not suit them, the courts’ discretion should be limited. It is of no avail our flinging commission reports in each other’s faces all the time. A commission is there to consider a matter thoroughly and on merit. There is yet another commission report that the hon. members have not mentioned and that is the report of the Botha Commission, which recommended that the number of strokes be reduced from ten to seven. This is now being done by way of the Bill. It is of no avail our playing off the Viljoen Commission against the Botha Commission and the Lansdown Commission. The fact remains that by reducing the number of strokes we are also complying with the spirit of the recommendations of the two other two commissions mentioned. It happens to be the number of strokes that was recommended by another commission, namely that of the Judge of Appeal Botha. The question of discretion of the courts is a sound procedure that ought to be adhered to in respect of the administration of punishment. We accept the whole spirit of all the recommendations of the Viljoen Commission in that, where at all possible, the discretion is left in the hands of the courts and a reasonably high maximum punishment is laid down; so that the courts have some leeway for using their own discretion, subject to the high maximum punishment. For that reason, I think all sorts of concepts are now being bandied about unnecessarily in this debate. A radical reduction is being implemented, most of the recommendations of the Viljoen Commission are being taken over just as they are in the clause in question and in other related clauses and, in my opinion, justice is being done to the thorough investigation the Viljoen Commission made in that regard.

Mr. Chairman, I am in full agreement with the hon. member for Vereeniging. The arguments of the hon. member for East London City are completely watertight and I fully agree with the basis of his argument. However, I cannot see why the courts, in their discretion, may not apply what the hon. member mentioned here.

It is a guideline.

Why may we not permit the courts to use a very wide measure of discretion as far as young people and children are concerned? Whether a court ordered strokes to be administered to a young person once, twice, three or four times would depend on many circumstances that it could take into consideration. The courts must be in a position to decide what sort of punishment the person is to receive. It is general knowledge that a whipping does a young person a lot of good. It is true that it can harm him, but I think it is generally accepted that the constitution of young people is strong enough to stand up to the strokes. It could therefore be considered as a good lesson. In those cases where a whipping does not help at all, the court may, in fact, consider and, if necessary, make use of the other possibilities. As far as children are concerned, then, I do not think we ought to take the discretion out of the hands of the courts.

On amendment (1) moved by Mrs. H. Suzman,

Question put: That the word stand part of the clause,

Upon which the Committee divided:

Ayes—90: Albertyn, J. T.; Aronson, T.; Badenhorst, P. J.; Barnard, S. P.; Bodenstein, P.; Botha, G. F.; Botha, J. C. G.; Botha, P. W.; Botma, M. C.; Brandt, J. W.; Clase, P. J.; Coetsee, H. J.; Coetzee, S. F.; Conradie, F. D.; Cronje, P.; De Beer, S. J.; De Jager, A. M. van A.; De Klerk, F. W.; De Villiers, D. J.; De Villiers, J. D.; De Wet, M. W.; Du Plessis, B. J.; Du Plessis, G. F. C.; Du Plessis, G. C.; Du Plessis, P. T. C.; Du Toit, J. P.; Greeff, J. W.; Grobler, M. S. F.; Grobler, W. S. J.; Hartzenberg, F.; Hefer, W. J.; Herman, F.; Hoon, J. H.; Kotzé, G. J.; Kotzé, S. F.; Kotzé, W. D.; Krijnauw, P. H. J.; Kruger, J. T.; Le Roux, F. J. (Brakpan); Le Roux, F. J. (Hercules); Ligthelm, C. J.; Louw, E.; Malan, G. F.; Malan, J. J.; Malan, W. C.; Marais, P. S.; Meyer, P. H.; Mouton, C. J.; Nel, D. J. L.; Niemann, J. J.; Nothnagel, A. E.; Palm, P. D.; Potgieter, J. E.; Raubenheimer, A. J.; Reyneke, J. P. A.; Roux, P. C.; Schoeman, H.; Scott, D. B.; Simkin, C. H. W.; Snyman, W. J.; Steyn, D. W.; Steyn, S. J. M.; Streicher, D. M.; Swanepoel, K. D.; Swiegers, J. G.; Terblanche, G. P. D.; Treurnicht, A. P.; Ungerer, J. H. B.; Uys, C.; Van den Berg, J. C.; Van der Merwe, H. D. K.; Van der Merwe, S. W.; Van der Spuy, S. J. H.; Van der Walt, A. T.; Van der Walt, H. J. D.; Van der Watt, L.; Van Rensburg, H. M. J.; Van Wyk, A. C.; Venter, A. A.; Viljoen, P. J. van B.; Vilonel, J. J.; Volker, V. A.; Vorster, B. J.; Vosloo, W. L.; Wentzel, J. J. G.; Wiley, J. W. E.

Tellers: N. F. Treurnicht, A. van Breda, C. V. van der Merwe and W. L. van der Merwe.

Noes—30: Basson, J. D. du P.; Bell, H. G. H.; Cadman, R. M.; De Villiers, I. F. A.; De Villiers, J. I.; De Villiers, R. M.; Eglin, C. W.; Hughes, T. G.; Jacobs, G. F.; King will, W. G.; McIntosh, G. B. D.; Miller, H.; Mills, G. W.; Murray, L. G.; Oldfield, G. N.; Page, B. W. B.; Pitman, S. A.; Pyper, P. A.; Slabbert, F. van Z.; Sutton, W. M.; Suzman, H.; Van Coller, C. A.; Van Hoogstraten, H. A.; Van Rensburg, H. E. J.; Von Keyserlingk, C. C.; Waddell, G. H.; Webber, W. T.; Wood, L. F.

Tellers: D. J. Dalling and R. J. Lorimer.

Question affirmed and amendment dropped.

Amendment (2) moved by Mrs. H. Suzman negatived (Progressive Reform Party dissenting).

Amendment moved by Mr. W. T. Webber agreed to.

Clause, as amended, agreed to.

Clause 302:

Mr. Chairman, I would be prepared to have the whole clause substituted if the hon. member for Schweizer-Reneke would move the amendment printed in his name on the Order Paper.

Clause negatived.

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

That the following be a new clause to follow clause 301:

1. (i) which, in the case of imprisonment (including detention in a reform school as defined in section 1 of the Children’s Act, 1960 (Act 33 of I960)), exceeds a period of three months, if imposed by a judicial officer who has not held the substantive rank of magistrate or higher for a period of seven years, or which exceeds a period of six months, if imposed by a judicial officer who has held the substantive rank of magistrate or higher for a period of seven years or longer;
2. (ii) which, in the case of a fine, exceeds the amount of two hundred and fifty rand, if imposed by a judicial officer who has not held the substantive rank of magistrate or higher for a period of seven years, or which exceeds the amount of five hundred rand, if imposed by a judicial officer who has held the substantive rank of magistrate or higher for a period of seven years or longer;
3. (iii) which consists of a whipping, other than a whipping imposed under section 294,

1. (2) For the purposes of subsection (1)—
   1. (a) each sentence on a separate charge shall be regarded as a separate sentence, and the fact that the aggregate of sentences imposed on an accused in respect of more than one charge in the same proceedings exceeds the periods or amounts referred to in that subsection, shall not render those sentences subject to review in the ordinary course;
   2. (b) that part of a sentence which is suspended or a sentence of which the whole is suspended, shall not be taken into account.
2. (3) The provisions of subsection (1) shall only apply—
   1. (a) with reference to a sentence which is imposed in respect of an accused who was not assisted by a legal adviser;
   2. (b) where a fine is imposed, if a sentence of imprisonment is imposed in terms of section 287 as a punishment alternative to such fine, and such fine is not paid or if time is not given for the payment thereof before the person convicted is received into a prison.

It is not necessary, and in any case it is not in accordance with the rules of the House, that we have any discussions on the question of review at this stage. I do not believe there is anyone in this House—and I am also saying this for the benefit of the members on my side of the House—who would not like to see us retain the system of review throughout, if this is at all possible in practice. For several reasons, however, it has become necessary for us to look at this whole system of review. The hon. member for Umhlatuzana has amendments he will probably move at a later state—it has come to my attention that he also has amendments to his amendment—but I want to put it to hon. members that if we all agree, as far as the principle is concerned, that we should limit review as much as possible, it is unavoidable that we should take note of the fact that certain figures reveal certain things to us. We have had a specific situation. In our present system certain kinds of sentences, imposed by magistrates, are open to review. On that basis, as things stand at present, since 1972 we have had the following situation in respect of the percentages of cases in which judges of the Supreme Court have interfered with decisions by magistrates. In 1972 the figure was 1,02%; in 1973, 0,85%; in 1974, 0,86%; in 1975 it was a mere 0,65%.

This inevitably indicates that notwithstanding the volume of work referred to judges— this is according to the present system of automatic review—the judges have not been prepared to interfere with more than 1% of those decisions. On the other hand, a tremendous amount of administrative work has to be done to bring these matters before the judges for review.

I think it is common knowledge that the Viljoen Commission stated that we should retain review proceedings. I have already said that none of us would have any objection to this. I think that realism forces us to consider that it is senseless to go on retaining an overall situation when the judges of the Supreme Court are prepared to interfere with fewer than 1% of the decisions that come before them. For the moment let me leave the administrative problems experienced by the department in having these matters submitted to the judges so as to get the records completed on time, etc.

If we proceed from the standpoint that we are prepared for a decrease in the number of review cases, we immediately find it possible to disagree with one another, in fact we find ourselves in a position where each of us can tell the other on what basis he accepts that the decisions of magistrates can be taken on review. I concede as much. If we have to find a basis, on what grounds are we going to seek the best possible basis? The best possible basis will surely be that of the experience of magistrates. That is why my proposed clause contains a provision in respect of magistrates who must have at least seven years’ experience in their relevant positions. I want to remind the Committee that no advocates, or very few in the past, have been appointed to the Bench before having had 15 years’ service or more in their professions. We recommend a working basis of seven years but, as I have said, that basis is debatable. By way of an analogy, let me point out that if a person has 15 years’ experience of the Bar he can become a judge in the Supreme Court. Consequently we recommend that certain categories of sentences imposed by a magistrate need not necessarily be subject to review if the magistrate concerned has seven years’ experience in a magistrate’s court. He is entitled to that. I am aware of the fact that it will be argued that in the process we are, as it were, categorizing magistrates and that certain magistrates will be discriminated against. I immediately want to point out, however, that the present arrangement also embodies discrimination in the sense that magistrates who are very competent and have a very good grounding are treated the same as magistrates who do not have a good grounding and a good measure of experience. Consequently, in my opinion we have thus far also been discriminating. In my proposed clause provision is made for the fact that certain decisions will be subject to review while other decisions fall outside the jurisdiction of review.

There is only one further point I want to draw attention to. We can still argue this at great length. The hon. member for Umhlatuzana has notified me that he wants to introduce certain provisos by way of amendments to the proposed clause. I am prepared to accept those amendments as far as subsections (2) and (3) are concerned. However, I want to say that if we accept the proposed clause we shall definitely not, in the process, be abandoning the principle of review in South Africa because that is not the case. I think the hon. member for Umhlatuzana will agree with me when I say that all we are doing here is establishing certain categories of review. We can argue about the hon. member’s other amendments after he has moved them. We are, in actual fact, only being realistic about the amount of work that has to be done by our judges and presiding officers. Our whole object is to have any case, including reviews and appeals, concluded as quickly as possible and with the least possible red tape. This would therefore also be to the benefit of the so-called accused. The sword will be left dangling over his head for a shorter period of time; it would involve less expense for people who are compelled to make use of the courts, etc. Since we have already accepted the principle of limiting reviews, or at least handling them on such a basis that we do not load our courts with too much red tape, I am convinced that my proposed clause is the most acceptable, although I am prepared to accept that there can be other things involved. I say this in the light of the fact that the Viljoen Commission stated, in its recommendations, that it was not in favour of the abolition of review. At the same time, however, the Viljoen Commission recommended that the jurisdiction of the magistrate’s courts and the regional courts should be increased, something which would automatically bring about more review cases. [Time expired.]

Mr. Chairman, I am merely rising to give the hon. member for Schweizer-Reneke an opportunity to continue with his argument.

Mr. Chairman, I am grateful for an intelligent Chief Whip. Unfortunately, under this particular clause I cannot discuss that subject with the other parties. I would prefer to discuss the matter with them personally at a later stage. Bearing in mind that the Viljoen Commission was prepared to recommend— and I believe the hon. the Minister has previously indicated that he would be prepared to accept the recommendations—that the jurisdiction of the magistrate’s courts and regional courts be increased, we automatically find that if the status quo is maintained, we would be saddled with a greater volume of review cases.

The Magistrates’ Courts Act has not yet been amended. It can still be argued that at this stage, since we are dealing with the Criminal Procedure Bill, and specifically with this clause, this is not yet relevant. I think we would be short-sighted, particularly since the hon. the Minister has already indicated—and since all reports already accepted by the hon. the Minister have indicated—that we are going to have that situation, if we did not already plan and legislate in advance—if I may put it in those terms—for such a situation. I think it needs to be said that in South Africa at this stage, as far as the administrative work of the Department of Justice is concerned, and in particular this type of administrative work, the simple fact of the matter is that we cannot but open our eyes to those problems. We can no longer close our eyes to those problems. When the previous clauses were discussed, specific reference was made, at times, to South African conditions. We must not make the mistake of looking to specific South African conditions simply where jurisprudence is concerned. As far as administrative situations are concerned we must also look at the specific conditions in South Africa. I find it senseless that we persevere with an administrative programme that is costing us millions whilst the judges of the country are not prepared, at this stage, to have a say in more than ½% of the decisions and to change them. We must be realistic about this matter. I accept the fact that the hon. member for Umhlatuzana is going to move amendments on his own amendment, because I have problems with the present formulation of his amendments. Without discussing his amendments, which have not yet been moved, I just want to point out that it would be incorrect to omit only certain things, as he proposes to do.

Order! The hon. member must come back to his own amendment.

Very well, Sir. After consideration I am prepared to accept additions to subsections (2) and (3), since it is now the idea to add certain provisos. I am sure the hon. member for Umhlatuzana agrees with me about that. In doing so, we in no way detract from the right of review that applies with respect to certain categories of decisions. If the procedure, which is proposed here, is adopted, we are in no way violating the rule of law as it applies to the freedom of the individual. If this amendment is accepted, it would afford financial relief to the Department of Justice. It would also relieve the position of the already overworked magistrates and judges in our courts. For those reasons I believe that I can very confidently ask that my amendment be accepted.

Mr. Chairman, the amendment moved by the hon. member for Christiana, an amendment involving a replacement of clause 302, is a great improvement.

Schweizer-Reneke!

Pardon, the hon. member for Schweizer-Reneke.

Never mind! He changes his constituency every year.

Mr. Chairman, the amendment by the hon. member for Schweizer-Reneke is a great improvement on the Bill as it stands. The principle of a review by a superior court of the decisions of an inferior court, in respect of sentences above a certain level, is universally accepted. I think also that the distinction which is made in the amendment by the hon. member between a magistrate who has seven years’ seniority or more and the more junior magistrate is equally acceptable. It is quite in order. It is logical and appropriate in my view that one should say to a senior magistrate that it will only be in cases where a higher sentence has been imposed in his court that a case will go on review. However, in respect of more junior magistrates lesser sentences will be required to go on review. In principle, the amendment moved by the hon. member, in the light of the existing law, would be entirely acceptable. However, in the light of the fact that we have made changes in clause 115, changes in the fundamental nature of our proceedings, changes which are as yet untested, in the case of the more junior magistrates and in certain other respects which I shall refer to, one should lower the test so that there is greater access of cases to the Supreme Court.

In furtherance of those views I should like to move an amendment which is, as the hon. member correctly pointed out, different from the amendment that I circulated yesterday. I, therefore, move the following amendment—

This is an amendment to the new clause which is to be substituted by the hon. member for Schweizer-Reneke. Secondly, I move the following amendment—

The effect of that will be as follows in respect of the more junior magistrate. Instead of cases going on review only if a sentence of three months’ imprisonment or more is imposed, or a fine of R250 or more is imposed, I am suggesting, that we reduce the sentence to two months’ imprisonment and the fine to its equivalent, which is R200, in order to provide a greater safeguard, if you like, because of the changes which have been introduced in terms of clause 115, which we have already dealt with. I also move two other amendments—

I merely interpose that to say that this deals with suspended sentences which, in terms of the amendment of the hon. member, is not to be taken into account so far as review proceedings are concerned.

I have already agreed to that.

Mr. Chairman, the hon. member agrees with me there that it may be necessary. I will just read it into the record for those that do not have copies. My amendment is to add this proviso—

It means that when a suspended sentence is passed, the case is not subject to review. However, if, because of subsequent convictions, that suspended sentence comes into operation, the case automatically goes on review. The last amendment is to add a similar proviso to subsection (3)(b) which deals with the case when a fine is imposed with an alternative sentence of imprisonment.

If the fine is not paid and the person is received into a prison, the amendment seeks to provide that—

The effect of this amendment is the same as the one that I have just read in respect of a suspended sentence. With those amendments the clause, as proposed by the hon. member for Schweizer-Reneke, would be acceptable to us.

Mr. Chairman, for the purposes of the debate I just want to say that I am not prepared to accept—I shall motivate this at a later stage—the first and second amendments of the hon. member for Umhlatuzana, but I am quite prepared to accept the third and fourth amendments.

Mr. Chairman, the hon. member for Umhlatuzana will readily acknowledge that to date a sentence of three months or more is the kind of sentence which is subject to review. The hon. member is now arguing that as a result of the principle accepted in clause 115, we should take another look at this. The hon. member suggests that we should reduce the three months to two months and the R250 to R200. In the first place I want to say that I do not really think that this is an aspect one should argue very much about, except for the fact that the hon. member has now dragged in the principle accepted in clause 115. The hon. member now wants the Committee to believe that because we have accepted clause 115, and the possibility now exists that someone can be questioned at the commencement of the trial, in respect of the normal review proceedings, applicable to date, we must make a distinction and go back along the path by which we came. As far as I am concerned it is wrong for the hon. member to argue in this fashion. The mere fact that a magistrate or a presiding officer is entitled to put questions to an accused under certain circumstances—this is something we have now introduced into our legal system—ought not to influence his sentence. I do not want to put this in a nasty way, but I would say it is a kind of vote of no confidence by the hon. member in every magistrate or presiding officer. Thereby the hon. member actually wants to substantiate his opposition to clause 115. Where I come from I have defended many Tswanas. There are very few of them who plead guilty. If you ask them why they always plead not guilty, they say that an ox is never dead before it has given its last kick.

As far as this specific principle is concerned, it seems to me as if the hon. member wants to use these relevant provisions to get away from the principle of clause 115. Our object is to limit the number of review cases. We agreed about that in the Second Reading debate. I then conceded to the hon. member—I still do—that we could possibly disagree about the methods. However, we decided to reconsider the principle of review based on certain decisions that could be taken on review. Surely the hon. member cannot now ask us to accept another set of decisions for review. After all, we have already decided that issue and we now want to move forward, not back. For what it is worth, as far as the hon. member’s other two amendments are concerned I should like to compliment him on the fact that he thought a bit further than I did. For that reason I am prepared to concede that his third and fourth amendments—as the hon. the Minister indicated—are an improvement on mine.

Mr. Chairman, I do not propose to spend a long time on this. I should just like to tell the hon. member who has just spoken that this is not a question of principle, but merely a question of degree. The whole object of the review procedure is to correct errors. It is accepted that there is a field of criminal jurisdiction and a field of operation of the courts where errors may occur. Consequently one institutes a system of reviews by a superior court. At the present time the field has been limited, in all cases which come up for review, to three months’ imprisonment and the equivalent fine. That is the existing situation. As I have said, were we to retain the existing procedure of trial, I would regard that as quite adequate and be quite prepared to accept the differentiation of categories introduced by the hon. member. We have, however, introduced a new procedure in clause 115, a procedure which, to my thinking, increases the margin of error. It is a procedure which makes errors more likely, certainly in the initial stages, because it is an untried and unknown procedure. It seems reasonable to me that if one is going to increase the margin of error because one is changing the procedure in that direction, one must accordingly widen the sphere of cases which will be subject to review. That is all. As I have said, it is not a question of principle, but of degree. If I were satisfied that the changes we have made in our procedure at trials were not to widen the margin of error, but to narrow it, I would be prepared to limit the category of cases which should be subject to automatic review.

That is all I have tried to do with the first two amendments that I have moved, i.e. to slightly widen the category of cases which are subject to automatic review commensurate with what I regard as being a greater likelihood of error on the part of magistrates as a result of the changes we have made in the procedure.

Mr. Chairman, the practice of automatic review that we have had in South Africa, is one of the most outstanding practices that we have had in our legal system. As I understand the arguments from that side of the House, they argue that while it is desirable to have automatic review, circumstances are such that the judges simply are unable to cope, and therefore one has to limit it in some way or another. I understand that problem, but I want to make it quite clear that we are in favour of automatic review of all cases which involve prison sentences of more than three months, fines of more than R100 and a whipping, as the practice is at the moment. I want to point out, seeing that the Viljoen Commission and the Botha Commission have been referred to, that both commissioners said that automatic review should not be done away with. Judge Botha had the following to say in regard to the criteria put forward by the hon. member for Schweizer-Reneke …

I agreed to that.

Judge Botha said—

If we could possibly keep it, we should do so. I think we probably can, but, if not, I agree that the clause now suggested by the hon. member for Schweizer-Reneke is better than the one in the Bill. One of the points the hon. member made in his speech was that, in a sense, this was a trial run in the process of looking for suitable criteria. I want to suggest far better criteria would have been to say that all cases that are defended in magistrates’ courts, need not go on automatic review. That should have been the criteria in this respect. Presumably, the whole system of automatic review flowed out of the fact that so many people in a country like ours go before the courts undefended and so many people go before the courts ignorant and unlettered. Therefore we should say that all undefended cases should go for automatic review when the sentence is over a certain limit. I very often see defended cases go for automatic review and I know very well what the judges do. They look at the case and when they see “defence counsel” they throw it aside and do not look at it, because if counsel was there, he should have appealed if there was to be any merit in the whole question of review. I want to point out to the hon. the Minister that many of the cases which have to do for instance with the smoking of dagga—I am thinking of the Zulus in Natal in particular and the hon. the Minister will recall the leading cases—came before the court on automatic review. Those cases might well have been heard before a magistrate with seven or eight years’ experience, but the law was put into good shape by the judges on automatic review. Cases such as these would not go on automatic review in terms of the clause as it now stands.

Mr. Chairman, I should nevertheless like to take up the cudgels for our magistrates. One can see that the hon. member for Durban North was never a lawyer who had to sit in the magistrate’s court and wait for undefended cases to be concluded. The endless trouble that magistrates and prosecuters take to ensure that an undefended accused has a fair trial is quite admirable. I can therefore give the hon. member the assurance that special attention is given to the interests of the undefended accused in magistrates’ courts. Day in and day out one comes across this in the courts. I can therefore attest to the fact that the hon. member’s fears are unfounded. The example he quoted is a very poor example. He knows that the sentences in dagga cases, and in other cases where serious offences are committed, are much higher than the new minimum proposed by the hon. member for Schweizer-Reneke. It was the smaller cases that went on review, and now the category of cases that do not go on review is merely being slightly extended. Important cases, where the sentence exercises a great deal of influence, will still go on review, however.

Mr. Chairman …

Order! The hon. member has already spoken three times.

Mr. Chairman, we have listened to quite an interesting debate. I do not want to add much to what the hon. member for Schweizer-Reneke has already said. He and the hon. member for Vereeniging have dealt quite comprehensively with the matter. In reality, experience remains the basis of review. As far as I can see, the reason why the decisions and sentences of a judge of the Supreme Court are not taken on review is because the Judiciary is composed of people who have had at least ten years’ experience in the courts. The people who become judges have always been senior advocates. That is why it is unnecessary, because these people have experience of passing sentences, etc. As I have already said in the Second Reading debate, magistrates do not simply come to the Judiciary out of the blue. They are people who have had years of experience in the courts when they become magistrates. Provision is now also being made for the fact that if a person has been a magistrate for seven years, certain of his cases need not be taken on review. I think the principle is correct, and the hon. member for Umhlatuzana agrees with me. I can understand the hon. member wanting to make a small change, but I think his choice is slightly arbitrary because it is arbitrary to decrease the review jurisdiction of a sentence of imprisonment from three months to two months and of a fine of R250 to R200. With the present review jurisdiction there will be more than enough cases to serve as a guide in respect of clause 115. I do not think we must now try to go back as far as the jurisdiction is concerned. Let us rather maintain the status quo as far as more inexperienced magistrates are concerned, and when they become more experienced it will no longer be necessary for their decisions and sentences to be reviewed. I think we shall find that there will now be a proper percentage of reviews. This will bring about a reasonable decrease in the number of reviews referred to the Supreme Court and facilitate matters for the judges. However, this will not mean that the review system will have to forfeit any of its effectiveness, and we all agree that the review system is an excellent one.

Amendments (1) and (2) negatived.

Amendments (3) and (4) agreed to.

New Clause, as amended, agreed to.

Clause 315:

Mr. Chairman, I move the amendment standing in the name of the hon. member for Musgrave on the Order Paper, as follows—

The intention of this amendment is to give effect to the stated policy of this party, that in all cases where in a Supreme Court the death sentence has been imposed, there shall be an appeal as of right to the court of appeal. There is not a great deal to be said on this matter. Either one believes that this is an improvement or one does not. We believe that whilst it is necessary to maintain the ability of the court to pass a sentence of death in a proper case, the accused person ought nevertheless as of right, should he wish it, to be entitled to take his case to the highest court in the country, the court of appeal. That is the sole affect of the amendment I have moved.

Mr. Chairman, we on these benches support this amendment. It seems eminently right that a person should be entitled to appeal as of right when he is sentenced to death. One of the rather extraordinary things we have in our courts is the fact that a judge who sentences a person to death has to decide whether that person should have a right of appeal. But seeing that we are faced with what extraordinary situation, I suggest think is absolutely essential that a person who is sentenced to death ought to be able to have that right and therefore we support this amendment.

Mr. Chairman, naturally I am not prepared to accept this amendment because the S.A. Law Commission, which recently went into this question very thoroughly, rejected the motion. They pointed out that the present system was functioning very well in practice. At the moment, one has to obtain leave to appeal from the presiding judge who heard the case. If he refuses it, then one still has a chance in any event to make written representations, within six weeks, to the Chief Justice who, in turn, again goes into the case very thoroughly and decides whether or not the judge of the court was correct. The Law Commission points out that this is a system that functions very well. Moreover, I have discussed it with many lawyers and I see no reason why we ought to change the present system.

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

Clause agreed to.

Clause 316:

Mr. Chairman, here again I move the amendment printed in the name of the hon. member for Musgrave, as follows—

The effect of this amendment is the same as that of the amendment to the previous clause. That is to say, where there is a conviction and a sentence of death, there shall be an automatic right of appeal. I do not propose to repeat the argument, because the same argument applies, as I have already indicated.

Order! I regret that I am unable to accept this amendment as it is substantially the same as an amendment previously negatived by the Committee.

Clause agreed to.

Clause 335:

Mr. Chairman, the present criminal code provides that a person who made a statement to a peace officer in respect of which criminal proceedings were subsequently instituted was entitled to receive a copy of his statement on request, obviously to use it in a trial. This was a very widely drawn provision. It applied to witnesses as well as to accused persons. The clause under consideration limits the right to request a copy of a statement to the accused person only. The old provision, the one which it is sought to alter, has existed in our law since 1917. I believe that it has worked well over all these years. The right of a witness to refresh his memory from notes or to read depositions, which were made by him earlier and probably reasonably close in time to the events related and thereafter better remembered, can only help to obtain a true and correct story in a case and I believe it is very clearly in the interests of justice and in the interests of the administration of justice that this provision should not be restricted merely to an accused in a criminal case.

To give an example, let me take the case of a car accident in respect of which all sorts of details are relevant. Let us say that a witness to the accident makes a statement to the police and is called as a witness in the case. There may be such details of relevance as the time of day at which the accident took place, the speed of one or more of the vehicles involved, the actual point of collision in relation to a diagram, the dialogue immediately afterwards of the people concerned in the accident, perhaps the length of skid marks, the visibility, and similar details. All these details could easily fade from the memory over a period of months and, if wrongly attested at a trial, they can lead to lengthy wrangling over the credibility of a perfectly innocent but human witness. I can say that in the past I myself have had to give evidence at trials on one or two occasions. On one occasion I remember …

As an accused?

As a witness, Mr. Chairman.

How long was your skid mark?

On one occasion I gave evidence over 18 months after the commission of the alleged offence and 15 months after I had made a statement to the police. If at that time I had not had the benefit of being able to peruse the statement I had made some 15 months prior to giving evidence, I believe that even my evidence could easily have been less helpful than it was. I believe that the same applies to any member in this House, be he a lawyer or anybody else.

As I have said, it is a well known principle and practice in our criminal law to allow a witness to refresh his memory by reference to notes or statements made by him. There does not seem to me to be any good and explicable reason why this practice should be interfered with by altering the present section 380 which provides for this situation. I accordingly ask the hon. the Minister to consider seriously the amendments I am going to move, amendments which provide that statements made by persons in matters giving rise to criminal proceedings be made available in copy form not only to accused persons but to witnesses as well. I therefore move the amendments printed in my name on the Order Paper, as follows—

1. (1) On page 234, in line 33, to omit “against such person”;
2. (2) on page 234, in line 35, after “statement”, to insert “or his legal representative”.

Mr. Chairman, both these amendments have our support. I think the hon. gentleman has made out a reasonable case. I only wish to say to the hon. the Minister: How often has one not been involved in a situation oneself where somebody asks you whether you remember such and such an occasion. You say: “No, I do not have the slightest idea. I cannot remember what took place.” You are then shown a letter written by yourself relating the events of that occasion and as soon as you see your own letter, you say: “Yes, of course, Now it all comes back to me. I remember it quite clearly.” That is the point the hon. gentleman makes. Therefore that point and the available of the statement to the legal adviser, the second of his amendments, are reasonable and have our support.

Mr. Chairman, I am not prepared to accept the amendments.

Stonewall Jackson!

The effect of the clause as it stands is that a person who has in fact made a statement and against whom criminal proceedings are being instituted, is automatically entitled to his statement. This is completely correct. He generally gives that statement to his attorney or his advocate, so that it is not necessary to state in the legislation that his attorney or advocate is entitled to the statement. The advocate or attorney’s own client gives him the statement. For that reason, these two amendments that the hon. member for Sandton has moved, are completely unnecessary. In reality, witnesses are not entitled to their statements. I think it is in the interests of justice that the accused is not frequently shown his statement outside a court to refresh his memory. If an accused has forgotten something, he can go into court and when the questions are put to him, he can tell the court that he has forgotten. In that case, the attorney or advocate will say: “But here is a statement you made.” Then the accused may refresh his memory in front of the court by reading the statement because this gives the cross-examiners an opportunity to say that they also want to refer to the statement and cross-examine the witness on it. This is a much better procedure. If one has forgotten something, one has forgotten it. Then the court is entitled to know this. If statements are issued to people in the courts beforehand, however, their memories are refreshed and they appear in court as fresh as a daisy so that one would swear they had remembered everything that had happened previously, which is absolutely unnatural, and the court is actually entitled to know how much a person has forgotten and to what extent the court ought to accept his evidence. As far as we are concerned, this is a very important principle. Consequently, I am not prepared to accept the amendments. It is not because I am Stonewall Jackson. I am saying this to the hon. member who made that interjection.

Mr. Chairman, I think the hon. the Minister’s argument in relation to the second amendment is much stronger than his argument in relation to the first amendment. Let us look at one set of circumstances. Let us assume that we have a case in which the police acquire statements from numerous witnesses and then find that of four statements and four witnesses whom they have interviewed, they are only going to use the evidence of two witnesses, so they do not call two of the witnesses. Let us assume that the situation then arises that the defence decides that the third witness whom the police have not called, should in fact be a defence witness. The defence therefore calls that witness. That person did not have the advantage of studying a statement prior to the trial, a statement which he may well have made a year earlier. The stage is now reached where the trial commences, the defence puts its case and calls its witness, who originally was a police witness. Because of the lapse of time the police witness then differs in his evidence, perhaps not on material matters, but in detail, from the statement he made in writing to the police a year earlier. That leads the prosecutor to pull out the statement and tell the witness that he made the following statement, and then proceeds to attack the credibility of that particular witness, who in effect may well be an innocent witness. I submit that in the light of that sort of circumstance it is quite incorrect to keep from a person a statement which he himself made and which, as far as I can see, can cause no harm by letting him read it, in order that the court is supplied with the proper facts in any given case.

Mr. Chairman, I should just like to reply to the example the hon. member for Sandton gave me. The hon. member knows, or ought to know, that according to the rule of etiquette of the courts, the State has to make available to the defence certain witnesses that it is no longer able to use as State witnesses. The defence is entitled to request the list of names of State witnesses from the public prosecutor. When the defence is allowed to examine that list and there are also statements that have been obtained from other witnesses by the police, the defence is entitled to insist on calling such witnesses as witnesses for the defence. In cases of that nature, the statements are always made available to the defence. The State does not dismiss a witness without returning to him the statement he made. This is exactly how it happens in all cases.

Mr. Chairman, I agree absolutely with what the hon. member for Sandton has said. I want to refer the hon. the Minister to the case of the State v. Hassan. The Attorney-General of Natal, at the moment, has statements by State witnesses which he suddenly produced. We called them as defence witnesses. The Attorney-General produced the statements asking: “What about this statement? What about the one you made and which you never gave to us?” It is no good for the hon. the Minister to say that it always happens like that. If the hon. the Minister is prepared to go along with his reasoning, if he is prepared to issue a regulation in the department that State witnesses do not get shown their statements … I happen to know that almost every State witness in the country gets shown his statement outside the court. It happens every day. One goes to every witness saying: “Have you seen your statement?” He replies: “Yes, they showed it to me before court this morning. Of course, I have refreshed my memory.” It happens all the time. That is the practice. I can assure the hon. the Minister of that. If the hon. the Minister is prepared to give the assurance that his department will arrange it that witnesses do not get shown their statements—witnesses for the State—and secondly, that the State will make available to the defence all the statements made by witnesses who are not going to be called by the State, I shall be very happy and shall withdraw my objection to this clause as it stands. However, as it now stands, it is unfair. It is grossly unfair for one side to have statements of a witness which the other side wants to call, while forbidding the witness to see what he said. In terms of section 380 of the Act, the law has always provided that a statement could be had. A witness or a potential witness for the defence could always get his statement. This is something that has very often been exercised. Attorneys all over the country has made use of this and know section 380 very well. They simply ask for a statement if they want to call a witness in a civil matter.

The hon. the Minister must not forget that if a witness gives evidence of a motorcar collision, and he is not entitled to his police statement, he can give evidence for two minutes, and it can be said he has committed perjury. The other side may have access to a copy of his police statement and they might say: “You said in your statement it was 800 yards. Today you swear it was 600 yards. That is perjury, statutory perjury. No matter what your intention, it is statutory perjury. That is the end of the story. You have now committed a criminal offence.”

I, most earnestly, suggest to the hon. the Minister that there is no reason why the law should be changed now and exclude a witness from the right to see his statement, in many cases, he will have to give evidence, sometimes years later, or at least many months later. It can even happen that another court case results out of the original matter.

Mr. Chairman, I just want to react to the example the hon. member for Durban North gave here. In the first place, I want to give him the assurance that he may report to my department whenever cases occur in which the State can no longer use the witnesses and their statements are not returned to them. When he accordingly reports to me, I shall consider it. I am not prepared to give a decisive answer at this stage about the reality or otherwise of the case. The hon. member referred to statutory perjury. As far as I am concerned, I expect that whenever someone goes into the witness box and there testifies for example, that a distance was 600 yards, although he had said earlier in his statement that it was 300 yards, he must know whether it is 300 or 600 yards. He must not enter the witness box if his memory has failed him. If this happens, he must tell the court openly that he cannot remember. After all, he is then giving correct evidence. He must be honest and say that he cannot remember exactly. Surely he can say: “I know that I made a statement earlier in respect of the distance and I would be glad if you would give me that statement so that I may refresh my memory.” If he enters the witness box and tells untruths, however, then surely he can only expect to be charged with statutory perjury.

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

Clause agreed to.

Clause 341:

Mr. Chairman, I just want to indicate that I am prepared to accept the amendment printed on the Order Paper in the name of the hon. member for Walmer.

Mr. Chairman, I welcome the fact that the hon. the Minister is prepared to accept the amendment and therefore I will just formally move the amendment printed in my name on the Order Paper, as follows—

Amendment agreed to.

Clause, as amended, agreed to.

House Resumed:

Bill reported with amendments.

Mr. Speaker, at the outset may I through you, convey to the hon. the Minister the sincere apologies of my colleague, the hon. member for Rosettenville, for his inability to be here today to take part in the debate, due to circumstances beyond his control. As a commissioner, when the Health Commission of 1972 was appointed, I know that my colleague, Dr. Fisher, would have been most anxious to lead the debate on behalf of the official Opposition, so his apology is a very sincere one. I would also like to pay tribute to Mr. Gert Pieterse who acted in the capacity of an adviser to the commission during its many hearings.

The hon. the Minister indicated that the commission had an exceptionally difficult task. The hon. the Minister paid tribute to the chairman of the commission, the hon. member for Fauresmith, and I would like to associate myself with the remarks made by the hon. the Minister. I believe that the hon. member guided the commission in this difficult task with tact and courtesy and that at all times he afforded both the people who gave oral evidence before the commission and the members of the commission ample opportunity to express their points of view. I believe that he played a significant part in the smooth working of the commission and the Bill that is ultimately before us today.

There was a healthy understanding!

Yes, it was a healthy understanding. The official Opposition will naturally support the Bill, although we intend to move a few amendments of a minor nature in the Committee Stage which we believe will improve it as it stands at the moment. I, as a member of the Select Committee and of the commission, wish to say publicly that I am proud that I had the opportunity to have played some part in helping to reconcile what has been described as a diversity of interests and views which has existed in the three tiers of health matters throughout South Africa for almost 50 years.

I hope to be able to deal with some specific aspects. I commence by quoting from the Second Reading speech of the hon. the Minister. He said (Hansard, 8 March 1977, col. 3137)—

I now want to refer to clause 3 of the Bill, which details the functions of the Health Matters Advisory Committee. Amongst other things, it states—

That is clause 12 of the Bill. In clause 12 of the Bill we find set out the functions of the National Health Policy Council. I quote from clause 12—

That is the Health Matters Advisory Committee—

I believe that the proposed section 3 gives very broad scope in matters concerning health. Included in this clause is a reference which deals with the co-ordination of the provision of facilities for the training of medical practitioners, dentists, pharmacists, nurses, etc. At Second Reading the hon. the Minister referred to what he regarded as, or would have liked to see detailed in the Bill, a health charter. Due to the fact, however, that the legal advisers felt that there were certain problems in making direct reference to or in indicating the purpose of a health charter, such reference was deleted from the Bill. I do believe that the hon. the Minister virtually detailed in brief in his Second Reading speech what he regarded to be a main aspect of a health charter. I quote from Hansard of 8 March 1977, col. 3141—

I believe that is a very clear expression of intent with which nobody can possibly have any quarrel. I submit that this intention can only be brought about by the provision of sufficient trained and qualified professional personnel and also their effective distribution throughout the country. In my opinion there are two priorities in this respect.

The one priority is to provide more medical practitioners and dentists of all races. I ask the hon. the Minister whether he will be prepared, when the committee has been constituted, to refer this matter to the Health Matters Advisory Committee for their urgent consideration so that they can investigate the best use of training facilities to satisfy the need for the rapid training of more Bantu general practitioners and dentists in particular. I am aware that the planning for Medunsa is proceeding at pace in order to fulfil this need, but I do make an urgent appeal to the hon. the Minister to use his influence in the interests of health by seeing that there is continuous training of Bantu medical practitioners at the University of Natal and that that training continues indefinitely in view of the grave shortage which exists and which will persist for some years to come.

The second priority, as I see it, is that the committee should investigate the coordination of the training of pharmacists. I believe it is necessary to avoid the duplication of training institutions and to make the maximum use of highly qualified lecturing staff and expensive equipment and facilities.

I briefly want to detail the present position in regard to the training of pharmacists. At the moment there are 10 training institutions for pharmacists in South Africa. Last year these 10 training institutions were responsible for another 238 pharmacists being registered on the S.A. Pharmacy Board’s register. Of the 10 training institutions, there are five universities, two for Whites, one for Coloureds, one for Indians and one for Bantu. There are also five colleges for advanced technical education, which are all for Whites. If we examine the position in regard to the universities, we find that the three non-White universities last year produced 24 pharmacists, viz. 12 Indians pharmacists at the University of Durban-Westville, six Coloured pharmacists at the University of the Western Cape and six Bantu pharmacists at the University of the North. The two White universities enabled 118 graduates to register with the Pharmacy Board while the five colleges for advanced technical education produced a total of 96 persons, with diplomas, all White, who registered with the S.A. Pharmacy Board. I repeat: 238 pharmacists were produced by 10 institutions. I agree wholeheartedly with the hon. the Minister that we cannot continue as we have in the past, for the Republic simply cannot afford it any longer, either in money or in manpower. What is of further concern, is the disproportionate racial breakdown of qualified pharmacists. On the register of pharmacists there are more than 5 200 pharmacists, and of those more than 5 000 are White, while the population of Whites in South Africa is approximately 4,3 million. In the case of the non-White pharmacists there are 23 Coloureds—their population being 2,4 million; 27 Bantu—their population being 16,5 million; and 132 Indian pharmacists—their population being ¾ million. I believe that this uneven geography and racial distribution of medical practitioners, dentists and pharmacists, particularly in the Bantu and the rural areas, cannot continue. In so far as the Transkei is concerned, the latest report of the Department of Health indicates that 62 doctors, dentists and pharmacists have been seconded to the Transkei to assist with the newly independent State’s health services. In the other 6 homelands which are not yet independent, 210 doctors, dentists and pharmacists have been allocated to the homelands’ government services. However, I want to refer, without comment, to an apparent trend in the USA, the citadel of democracy, the citadel of free enterprise and the upholder of the freedom of the individual. I quote from the Encyclopaedia Britannica Book of the Year, of 1975, page 339, where it states—

I make no further comment on that.

In this connection I should also like to refer to a tour which was arranged by the hon. the Minister’s department during last August for members of Parliament—members of the Government and of the official Opposition took advantage of the offer—to visit various institutions in Natal and Zululand. One of the first points at which we stopped was the Umlazi township, one of the Bantu townships outside Durban. There we were shown a system of clinics and satellite clinics. As the hospital for the area will not be completed until the middle 1980s, the clinics are performing what I believe to be a very essential service in conjunction with King Edward VIII Hospital in Durban. The clinics and satellite clinics are being controlled by the superintendent, the medical practitioner in charge, who is an Indian and who is doing an outstanding job of work under very difficult circumstances. I believe that the question of making use of specialized personnel where it is needed, regardless of race, is something to which the hon. the Minister and his department must give much greater consideration. As a matter of interest, I want to point out from a purely practical expense point of view that it costs the State R13 200 to train one African pharmacist from matric stage to the stage where he has graduated from university. It has cost R417 000 up to the present time to enable 27 Bantu pharmacists to graduate. I think I have highlighted the need for the maximum co-ordination and the maximum use and deployment of all existing and all future personnel. I also believe that the training of doctors, dentists and pharmacists should take place at the same centres in towns or cities, though not necessarily at the same training institution. Let me make myself quite clear. I add that qualification simply because in certain instances doctors and dentists are trained at university while pharmacists are trained at colleges for advanced technical education.

I have referred to the health services in Bantu rural areas. In the Post Office debate which took place a few days ago, I highlighted the need for two-way radio communication between hospitals and satellite clinics. It is not my intention to refer in detail again to that aspect to appeal to the hon. the Minister to give consideration to this point and to use his considerable influence to see that the maximum use is made of medical services and to try, by the consideration of the introduction of two-way radio services, to elimate the unnecessary use of transport. I make an urgent plea to the hon. the Minister that the National Health Policy Council, when it is constituted, should liaise or act in consultation with both the Department of Posts and Telecommunications and also the Department of Bantu Administration, which, together with the Department of Health, are intimately concerned with the efficient provision of health services. This is necessary if one is to use the best methods of maintaining communication in areas where normal telephone communication does not and cannot supply an efficient service. I want to point out to the hon. the Minister that what I am asking is not unique. It is employed by the Natal Parks Board, by the S.A. Police and by the traffic police. I believe the Defence Force is developing a special system in this connection and we know that in Rhodesia “Agric-Alert” has proved an invaluable service in times of emergency and crisis. I believe that with our know-how and with the facilities at our disposal it should be possible in South Africa to provide some system whereby we can ensure an adequate and efficient coordination of health services and which can be used in times of emergency and crisis. I raise this matter with the hon. the Minister at this time because I believe that it is the function of his department and the purpose of this Bill to make the maximum use of manpower. It is of vital concern in the interests of the health of all of us. I believe, however, that the financial responsibility rests more with the Department of Bantu Administration and I wish to quote briefly from a speech which the hon. the Minister of Bantu Administration made when he opened the new Moroka hospital on 15 September 1973. He said—

Mr. Speaker, I believe that if the Department of Posts and Telecommunications is strongly enough motivated and suitably financed, possibly through the Department of Bantu Administration and Development, we will have no difficulty in supplying the country with a service which I believe is becoming increasingly essential.

I have already referred to the broad scope of the Bill in regard to the functions of the Health Matters Advisory Committee and also of the National Health Policy Council. The council’s functions include, inter alia, the promotion of the health of persons individually and generally, and also in clause 12, to which I have referred, there is a paragraph which refers to “any other matter relating to health services”.

The long title of the Bill reads, inter alia, as follows—

I want to make an urgent appeal to the hon. the Minister this afternoon to establish the Health Matters Advisory Committee as soon as it is possible, as soon as the Bill has been passed, with the minimum of delay, and to request that committee to undertake an in-depth investigation into the hazards caused by cigarette smoking. I suggest that one of the terms of reference should be the incidence of lung cancer, heart disease, other respiratory cancers, bladder cancer, throat cancer, etc., and their connection with cigarette smoking. The hon. the Minister said in his Second Reading speech that 2% of the total expenditure on health services was allocated to preventive services. The hon. the Minister has highlighted this fact, and I believe we are both at one when we say that that amount of 2% for preventive services is totally and utterly inadequate, particularly in regard to the vast call on our skills and abilities to prevent rather than to treat.

Here I must introduce what I regard as a slightly reproving note. I am not referring especially to this particular Minister, but to his predecessor as well. I believe that both his predecessor’s and his attitude to this particular question of the hazards of cigarette smoking have been lukewarm. I get the impression that he does not seem to care if the health of the people goes up in smoke. It looks to me as if it is a case of the interest of health running second to the vested interests in this matter. I think the hon. the Minister must be aware of this state of affairs, but does he care sufficiently to impose his convictions as a medical man on some of his colleagues in the Cabinet, who may not share that conviction and who have other interests beside health, which is this hon. Minister’s prime concern? The hon. the Minister must realize that there is a great deal of incontrovertible evidence that what I have said is something that justifies such a form of examination. I want to quote the following facts—

Mr. Speaker, may I ask the hon. member whether he has discussed this problem with the hon. member for Durban Point?

Often, and he agrees—he simply lacks the will-power.

Sir, I have no quarrel with the hon. member for Durban Point at all. He is quite entitled to smoke himself stupid if he wants to. My point is that the State has a responsibility, and I believe it is a very grave responsibility, at least to educate the people and to show them unequivocally the dangers inherent in cigarette smoking.

Save Vause from himself.

That is right.

To carry on with my statistics, I may mention that it is claimed that 60% of the Bantu in Soweto are cigarette smokers. Sanca, which has been operating on a State grant of R200 per year for the last 25 years, has been campaigning since 1964, i.e. for the last 13 years, for restrictions—I repeat: restrictions—in cigarette advertising and also for the departments of Health and National Education to encourage anti-smoking programmes in schools, colleges and universities. The hon. the Minister Jias said that this is being done, but I do not believe that the hon. the Minister can honestly claim that enough is being done at the present moment in this regard.

I also want to refer the House to the fact that the Medical Research Council receives R4 million per annum from State funds. However, in reply to a question I tabled, I learnt that no direct allocation is made to the Medical Research Council for it to investigate the hazards of cigarette smoking. The hon. the Minister claims, and I accept his claim, that the Medical Research Council is kept informed through research findings of other centres in the world. I accept that it is perfectly logical that there should be no unnecessary duplication of research. However, it would appear that, although the council has been kept informed, the council has made no recommendations to the hon. the Minister of Health.

In order to substantiate my plea still further, I would refer the hon. the Minister to the Reader’s Digest of March this year. I think that that publication has produced an exceptionally objective, factual expose of the situation. Reference is made there to the fact that the Medical Association of South Africa in 1971 called for, firstly, a ban on TV advertisements for cigarettes. The association called for that ban long before TV was introduced and long before it was definitely known whether there would be commercial TV. Secondly, it called for a withdrawal of cigarette advertisements on the radio. That has not taken place. In fact, cigarette advertising has been expanded by the fact that so many sports grounds are sprinkled with such advertisements. Thirdly, the Medical Association of South Africa asked that all advertisements should include the following warning: “Smoking is dangerous to health.”

The hon. the Minister must be aware, I am sure, and I trust the chief spokesman on the Government benches, the hon. member for Fauresmith, is aware of the article which appeared in the British Medical Journal of December 1976. This survey was conducted over a period of 20 years on the observations on male British doctors and their smoking habits. Thirty-four thousand British doctors participated in the survey and the certified deaths of 10 000 were examined in order to assess the cause of death. The findings are literally frightening. I believe the hon. the Minister must have access to these facts and on these facts alone I am entitled to ask and appeal to him to institute some form of investigation by the committee, when it is constituted, particularly in regard to advertisements in State-controlled media and also in regard to the enforced publication of warning notices.

I have been specifically careful not to ask for or suggest a ban because I do not believe that would serve any purpose at all, but I do believe that we owe it to the youth of our country of all races to acquaint them with certain facts so that they may grow up to be healthy citizens and not end up eventually as a liability to our country.

The international union against cancer in Geneva has called for an end to all forms of cigarette promotion. I do not go as far as that. They also called for tougher measures including stronger warnings. We do not make the best use of warnings in this country. They also report that there has been a passing of anti-smoking laws in Finland, France, Italy, Norway, Poland and Sweden. I would very much like to see the name of South Africa added to that list of countries.

In the Minister’s Second Reading speech—and I want to make it quite clear that I am only referring to what he said in the strict context of the promulgation of regulations—he said—

It is claimed that the death rate from lung cancer among White and Coloured males is about 1 000% higher for cigarette smokers than for non-smokers. I suggest that if the hon. the Minister feels so strongly about having a single death on his conscience, he has an urgent appeal in this respect and should give serious consideration to my plea. I suggest that the hon. the Minister has powers already, if he were motivated to use them, under the Hazardous Substances Act which would enable him to control the advertising and the package labelling of cigarettes. I urge him to use those powers for health’s sake. Much of what I have said, if I may add this in parenthesis, would apply also to the advertising on State media of alcohol and spirituous beverages.

In conclusion, may I say that I join with my fellow-commissioners of the commission of 1972, in wishing the hon. the Minister and his department every success in the implementation of the Health Act of 1977.

Mr. Speaker, in the first place I should like to express my sincere thanks to the hon. the Minister and to the hon. member for Berea for the kind words of appreciation which they conveyed to me in regard to the activities of the commission. At this stage I think we should rather let the problems with which the commission had to contend rest. It would be best if we allowed them to pass into oblivion. Yet one is grateful that the activities of the commission did produce certain benefits. Although this is no longer the Bill drawn up by the commission the elements inserted in it by the commission are indisputably still there. This Bill contains legislation which has to regulate the functions of the Department of Health and health in general in South Africa. This is a living organism, something which is developing. Health lives and develops and grows. In precisely the same way the first Act by means of which health was controlled in South Africa was only established in 1919— that is, nine years after Union. Until 1919 there was only one section in the Constitution Act—section 84—by means of which the division of functions among provinces, the central Government and local authorities was controlled. That is all it amounted to.

When the commission of inquiry commenced its activities, one of the greatest problems it had to contend with was the problem that it was bound by the Constitution Act in terms of which certain functions were distributed in a manner which was not in the best interests of the health services of South Africa. Consequently the commission had to start from the very beginning. It therefore decided—wisely, I think—as is now being provided in this legislation, that a health advisory council should be established. This is the manner in which this co-ordination may be brought about and continuity and development may be assured. The advisory council has to advise the Minister and cooperate in the process of bringing about coherence between the central Government, the provinces and local authorities, and developing an effective and comprehensive health service. Section 84 of the Constitution Act was one of the major problems of the commission. The commission nevertheless decided to establish the advisory council.

There were already previously established councils— quite a number of them. Several attempts were made. It became conspicuously apparent, however, from all of the previous councils, that they were of such a comprehensive and cumbersome nature that, after the constitution of the councils, it was seldom possible to convene the members again so that they could deliberate on relevant matters. It was therefore quite clear that a council had to be created which would be able to do these things. But it was also clear that the council in question had to be constituted in such a way that it would be possible to convene the members of the council so that matters could be discussed. It was also clear that the members of the council had to be knowledgeable people. The council which was constituted by the commission, is not the same council which exists at present. In regard to the present council the department and the Minister adopted a policy which was directly in line with the question of the development of departments. They took as a basis a voluntary health services and hospital coordinating council which was established within the department, a council—perhaps the first council in the country—which carried out its functions by way of consensus, a council which consisted of representatives of the department, the provinces, the Department of Defence and other representatives as well. This co-ordinating council of the department did very good work over the years, good work in the sense that friction between provinces and the central Government was eliminated. However, the council was only able to do its work properly when the Minister and the head of the department began to take an interest in the council. Since the early fifties the council has been constituted with the Minister as Chairman. To my regret I have to say that the former Ministers did not appear to be very interested in the council. However, I am grateful to be able to say that the present Minister and his department understood the value of this council. The Minister regularly acted as chairman, and the people achieved a consensus. This was the origin and constitution of the advisory council. The council is made up of the Minister as chairman and the MECs charged with hospital services in the various provinces. Under the council there is a committee which consists of knowledgeable people; the Secretary for Health, the Directors of the Departments of Health of the provinces, Directors of Hospital Services, the Surgeon-General of the Defence Force, etc. These are people who are able to investigate and solve problems.

One could elaborate on the additional functions of the council for a long time. The pattern which has been followed, is that of the old Hospitals and Health Co-ordinating Council, a council which functioned by way of consensus, but the present council is being given some potency. Certain powers are being given to the Minister, so that he has the ultimate power to decide. To establish a comprehensive, co-ordinated health service, one has no alternative but to allow someone to take the final decisions on what has to be done.

However, I want to address a word of warning and a plea to the hon. the Minister and the Secretary. The council does not make use of private persons or bodies, in other words, private persons or bodies are not represented on the council. I do not think that this is necessary per se, but I do want to say that for many years South Africa’s private medical practitioners have co-operated with the department and the provinces to build up the health services in this country. These health services have been built up to such an extent that they are comparable to any service in the world, and need take second place to none. I shall find it regrettable if the services of private medical practitioners are not used in future and if co-operation with them is not sought. I want to make it clear that I am not alleging that the Department of Health and the Minister are not doing this. I am grateful to be able to say that they are in fact co-operating with private medical practitioners. However, it should be laid down in the policy of the Department of Health that there should be co-operation in all spheres with the private medical practitioner, otherwise we shall founder.

I am grateful to be able to say that the Bill has been properly arranged and drafted into chapters. The first chapter defines the duties of the Department of Health; the second, the duties of the provincial council, the third the duties of local authorities, etc. When we come to the chapter on the provincial councils, there are a few matters which I think ought to be considered. For the first time the functions of each division are being spelled out in legislation. Previously this did not exist. Section 84 of the Constitution Act regulated this aspect. The main function of the Department of Health is that of coordination. The Minister has the final decision and is able to issue and carry out instructions. The machinery for carrying out these instructions is being created in the Bill. To the provinces are now being allocated what they had before, viz. hospital services, but a comprehensive health service is also being allocated to them, a curative and personal health service. In other words it is the task of the provinces to treat diseases. To the duties of the provinces one duty is being added which they have never had before, viz. the treatment of acute mental illness. This is being done after negotiations were held recently.

Praise be, the problem of ambulance services in South Africa has finally been solved. All of us who once had practices know that if one picked up the telephone at night to call an ambulance for a very sick patient, the very first question was who would foot the bill. The municipal ambulance was not allowed to go beyond the boundary of the town, unless one paid almost through one’s neck. No provincial ambulance was allowed to go beyond the provincial boundaries. Everywhere in this Bill it is being provided that the provinces may help one another. This problem, which was a very thorny one for the public, the problem of ambulance services, has been solved and we are all happy and satisfied with it.

I should not like to discuss the entire Bill, but I must mention the particular task which has been conferred upon the Department of Health, viz. supervision over the provision of facilities for the training of medical practitioners, dentists, nurses and so on. It must be clearly understood that what is involved here is not syllabuses and courses, but facilities. It is absolutely necessary that this task be entrusted to the department. It has to be said that the provinces began competing with one another as to which was able to provide the best facilities possible, at vast expense. If the Cape Province started, the Transvaal followed suit, and in this way each province wanted the very best for itself. It is extremely necessary that the Department of Health is given the task of ensuring that the best facilities are provided at the lowest cost. It must be realized that we cannot afford luxuries and things that are unnecessary. The quality of the medical practice depends solely on the training of the medical practitioner. They must have the necessary facilities at their disposal.

One of the further tasks entrusted to the provinces are the establishment of outside clinics, in other words detached out-patient departments. Development in this regard has already occurred. Here I cannot but sound a word of warning, and I hope the hon. the Minister will reassure me. The establishment of out-patient clinics in the smaller country towns could lead to the district surgeon, who falls partially under the control of the provincial administration, having an out-patient clinic which is open to any patient, whether or not he pays or whether or not he belongs to a sick fund. I cannot but warn against this, and I should like to have the assurance of the hon. the Minister in this regard, for this fine development could lead, particularly if it continues uncontrolled, to private practice in this country diminishing, and in my opinion this is something we should guard against very scrupulously. We should not undermine the goodwill, the co-operation and the good faith of the private medical practitioner in South Africa.

A large portion of the legislation has been simplified, particularly the last chapters, for instead of drafting a law on each disease, the department is being empowered to make regulations pertaining to a large number of diseases. This is necessary, for conditions change from day to day. These days a patient with a contagious disease need no longer be isolated on a hill or on Robben Island for years. These days he remains among his own people, because we are able to administer different treatment to him than was previously the case. The methods of treatment have changed. Previously one had to amend the legislation, but now one need only amend the regulation to enable one to afford people the best possible treatment.

One can spend a long time discussing this legislation, but I want to content myself by once again expressing my thanks to the members of the commission who supported me, to the department, to Mr. Pieterse for his hard work as Secretary, and to the hon. the Minister for the drafting of the legislation. My very sincere thanks to all, and I wish them every success and all good wishes for the future. If we can help to make of this legislation a fine Act and perform a wonderful service for our country, then we do so gladly and with the staunchest support.

Mr. Speaker, this Bill will undoubtedly go down in this year’s parliamentary record as one of the best pieces of legislation that has passed through the House and as a piece of legislation which has the ability to do a great deal for all the people of South Africa in that it has the potential to make a major contribution to the improvement of the health of all the inhabitants of our country. As far as this party is concerned, we shall support the Bill. We have, however, a number of questions that we should like to put to the hon. the Minister in the course of the discussion both during the Second Reading and during the Committee Stage. We shall also be introducing some amendments during the Committee Stage.

Two of the major questions which arise when a Bill of this nature is placed before Parliament, a Bill which is of a theoretical nature—in other words, a plan, a programme, a philosophy which is being evolved—are how the measure will succeed in practice and what difficulties will be experienced in practice. What could be done to ensure that major difficulties will not arise when the Bill, as a theoretical piece of work, is put into practice? And the second question which arises concerns the responsibility of the Opposition to look at the Bill and to determine whether there are not some major weaknesses which can be brought to the notice of the Government—who is responsible for the drafting of the Bill—with the hope that the Government will take action in order to remove those weaknesses.

In that spirit we should like to discuss the Bill today. In the first place, I believe the Bill is an essential measure in that it replaces legislation which goes back many decades, legislation which, as has been pointed out, has been amended no less than 21 times in a major way since its original enactment; legislation which has been subject to extensive examination by no fewer than eight commissions and committees which investigated it during the last few decades.

Essentially the purpose of the Bill is to establish a programme for the provision of comprehensive health services to the population of South Africa; to provide for proper direction and control on a central basis; to provide for efficient management of all health services; to provide for the decentralization of responsibility in respect of these health services, and to suggest ways and means in which the services can be allocated between the various authorities in order to provide for the optimum utilization of our manpower and financial resources in providing a streamlined health service. In his speech the hon. the Minister said the following in regard to this requirement (Hansard, 8 March 1977, col. 3140)—

Those sentiments are laudable and one hopes that the Bill will succeed. One of the interesting things that was pointed out is that in South Africa at the moment only 2% of our total budget is spent on preventive health services. The hon. the Minister has indicated that he feels that a far larger percentage of our resources should go to preventive and promotive health services and to reduce the amount of money spent on curative health services and to reduce the number of people who find their way to hospitals. In other words, the aim should be to provide the necessary health services to all sections of the community in order to prevent disease and the necessity for hospitalization, i.e. the purpose should be to keep people out of hospital rather than to get people into a hospital. The World Health Organization defines health as complete physical, mental and social well-being. In clause 10 of this legislation this philosophy is expressed in the following words—

I want to emphasize that the words “every person” are used here. Health care is a fundamental, human right. I may add that people also have the right to be born healthy, so that the health of parents is vital in respect of the future health of their children. I would like, in the strongest possible terms, to support what the hon. member for Berea said as far as the use of tobacco and alcoholic beverages is concerned. I believe, whether it is an unpopular activity or not, that it is a fundamental responsibility of the Government to attend to all aspects of the health of a nation. They must therefore be prepared to carry out that responsibility whether it relates to aspects which make them popular or whether it is in respect of aspects which make them unpopular. It is the responsibility of the hon. the Minister to look at the effect of tobacco and alcohol on the health of a nation. This includes the man-hours lost, the disease and illness caused and the misery caused by these forms of pollution of the human body.

The target of comprehensive health care is to keep individuals adjusted to their environment as useful members of society or to readjust them when they have dropped out as a result of illness or disability. As I have said, the health of the unborn child is very important indeed. I would like to comment in this respect that the use of tobacco and alcohol by the parents, and particularly by the mothers of unborn children, prejudices the health of the unborn child. I believe that the Government is in those respects entitled to act—and it does not involve an assault on human rights—to protect the children of the future.

Another aspect I would like to mention very briefly is the fact that social services, which I believe are extremely closely aligned to health services, or should be closely aligned to such services, are unfortunately separated from them by many artificial barriers. I believe that this is something that should be looked at. You will find, Mr. Speaker, that when health services are rendered by the officers, employees, nurses and doctors of the various health agencies at local Government, provincial or national level, these people are in fact allying themselves closely with social services. Social services are rendered in communities in which malnutrition, bad sanitation, bad living conditions and deprivation are often the cause of the problems that exist there, and are equally the cause of health problems that arise there. It is therefore unfortunate that social services are not under the control of local authorities, which are the authorities that are in the front line of the provision of health services. I also believe that it is unfortunate that there is not a closer liaison between social services and health services. In fact, I feel that if possible, these services should be under the same department and that they should be rendered by the same people.

The other point that I wish to comment on is the unique circumstances existing in South Africa in the provision of health services, particularly because of the diversity of our population structure. We have people from the lowest to the highest levels of development. We have highly developed urban areas and we have rural areas in which development has not yet started. Because of the nature and composition of our society, we encounter many diseases occurring in many different variations. South Africa therefore presents an opportunity for medical research and for the development of community health services which a developed country like Britain or the United States does not present to the same extent. South Africa has made many contributions in this field. If there is one field in which South Africa can provide a service in the field of education and training, research and guidance, to the rest of Africa, it is particularly in the field of the development of health services. I wish to quote one example from the Health report, viz. that the virus cancer research unit is the only place in the world which has succeeded in growing cancer cells of two of the most dreaded cancers amongst the Black people, viz. hepatoma and oesophagus cancer. These cancers are common amongst the Blacks, and it may not be generally known, but I am told that the highest incidence of the oesophagus form of cancer appears amongst the people of Transkei. It means that we have in the Transkei an opportunity for research and for the development of cures for that form of cancer. The diversity of South African society presents unique opportunities for the development and extension of health services and the research that is required to produce the cures and the procedures that are needed.

The ideal of this legislation is not to centralize the detailed aspects of health services—in other words the practical aspects—but to centralize the control and the direction of these services; to co-ordinate health services and to establish what health services the local authorities and the provinces should provide, to motivate better health services and to fill gaps. There are many areas in the country that are not covered by local authorities and where it is necessary for the central health department to step in and to provide the necessary services. That department is also the authority that finances the health services of the country through subsidies and in other ways. The concept of centralized control is not to try and do the whole job yourself, but to provide that essential direction, control, motivation and co-ordination at the top.

I believe that there is one aspect that the central health department should take under its wing, and that is the large academic hospitals where complicated medical procedures take place and where important medical research is done. I believe that these hospitals belong under the direct control of the central health department and should operate in close association with the universities concerned.

I spoke about possible weaknesses that exist in the Bill. One of the aspects of the Bill that struck me as a possible weakness is the aspect concerning the position of the provinces in the health services of South Africa. When one reads the Bill and all the supporting documents, it is quite clear that there is a problem with regard to the peculiar position of the provinces. The provinces are determined to retain control over important aspects of health services in the country. If one looks at the constitutional structure of South Africa, one sees that the provinces were established at a time when the political necessity for their boundaries was the main consideration. However, in terms of providing services for the communities of South Africa and in terms of the planning and structuring of those services, it is clear that the delimitation and political structure of the provinces are an embarrassment rather than a help. It is clear that, when the Bill was drawn up and an attempt was made to fit a structure to the philosophy that is set out in the Bill, the provinces were a major embarrassment. I do not expect the hon. the Minister to admit this, but it is clear to me that the provinces proved a major embarrassment and that, unfortunately, in drawing up the Bill it was necessary to accommodate the provinces. In so doing, I think certain problems may have been written into this Bill.

One finds that the Bill provides that the central health department must often liaise directly with local authorities. That department must discuss and agree directly with local authorities in respect of responsibilities and financing. Sometimes the department works through the provinces. In his Second Reading speech the hon. the Minister said the following (Hansard, 8 March 1977, col. 3144)—

It is clear from that particular paragraph that the hon. the Minister has difficulty in setting out clear-cut guidelines as to how this should take place.

There are many anomalies in this particular case. So, for instance, it is detrimental to the question of public health that hospital services, curative services, midwifery services and district nursing services, which fall under the provincial administration, are in this way artifically separated from the promotive and preventive health services of the Department of Health and of local authorities. It is unfortunate that these health services, which would fit in far more effectively with the local authorities, viz. curative services, services in respect of minor ailments, midwifery services and district nursing services, fall under the provinces. I think it is also wrong that for instance medical services for schools should fall under the provinces. These services, as also geriatric services, child-guidance services and mental health services, could be provided far more effectively if they were under the control of the local authorities instead of the province.

If this Bill is to operate effectively in the field, it will be the local authorities that will make it work. They are on the spot. They are in day-to-day contact with their communities. A community responsibility can best be developed by local authorities. The local authorities of Johannesburg and others have developed health services to a high degree of efficiency. Obviously, there are other local authorities which are far behind in this regard. However, the so-called one-step health centres which have been developed by some local authorities and the use of highly trained nurse practitioners, both as public health visitors and as nurses at local authority health centres, have proved the success that can be achieved by the full utilization of the potential of local authorities.

The aim should be that local authorities, that are in direct contact with their communities, should provide all those health services which it is capable of providing and where it is not necessary to bring in the province or the central government—the whole spectrum of health services, including minor curative services. If this is done, it will assist in keeping people out of hospital and a comprehensive health service will be provided from the initial contact, the diagnosis, the identifying of the problems of the people concerned, to minor curative services and to the rehabilitative services which have to follow. I believe that if there is one area on which it is essential that the hon. the Minister and his department should concentrate, it is the extent to which the local authorities are entrusted with, encouraged, financed and assisted to provide the full spectrum of health services, including child health services, mental health services, midwifery services, geriatric services, preventive, promotive, curative and rehabilitative services. Only when the local authority cannot provide those services, should a patient go to a provincial hospital or an academic hospital if it is a very complicated case.

I would just like to make mention of the fact that one of the things which the hon. the Minister will have to look at is the financial straits in which local authorities are finding themselves and the difficulties which they are experiencing in providing efficient health services. This applies particularly to the poorer and smaller local authorities. The main reason for their difficulties in providing the full spectrum of health services is a financial one and I believe that the proposals contained in the Bill will not meet the financial difficulties of the local authorities. I would therefore like to suggest that it may be possible to evolve a formula which is based on the number of persons for which a local authority is responsible. A factor for the socio-economic level of a particular community may have to be included. It would be more effective than the provisions of this Bill, which are based on the central health department carrying part of the costs and the salaries of the health personnel of a particular local authority. I also believe that the distribution of funds available as far as the Coloured group, the Indian group and the non-independent homelands are concerned, requires a further examination, because it is clear that at the moment the distribution is just not satisfactory.

It is clear that far greater use can be made of free enterprise in the provision of health services on a broad scale, and that the only criterion which must apply is whether private enterprise can provide a service as efficiently or more efficiently and as cheaply or more cheaply than a particular authority. If that can be done, private enterprise should be encouraged to provide health services, obviously complying with the strict standards which are laid down by the Government and by the various authorities operating in terms of this Bill.

The last point with which I would like to deal is in respect of the two bodies which the Bill will establish. The Bill provides for an advisory committee, which is in fact a body consisting of the professionals, viz. the health officials from the central department, from the provinces and from local authorities. It will be served by a large number of subcommittees, and its job will be to examine and make proposals with regard to all matters that affect health services, medicines and hospitals in South Africa. Those proposals, after being considered by the provinces, will go to the National Health Policy Council, of which the hon. the Minister is chairman, and from that point on their proposals may or may not become policy, and they may or may not become part of the health services.

I think there is a glaring shortcoming in this Bill. On both advisory committee and the policy council provision is not made for the Black, Coloured or Indian communities of South Africa. Surely, it is clear that although one can differentiate or discriminate between segregate or separate people and activities on a basis of colour—I know we should not do so but we do—in many other spheres, as far as medicine and health services are concerned it is unwise to attempt to separate services and activities on the basis of race. Germs know no colour bar. There is no such thing as disease which is colour conscious. Disease, germs and infection treat all people alike. This is particularly true in South Africa, which has an integrated economy in which the different groups come into contact with one another. In the case of the underdeveloped and underprivileged groups where malnutrition, social deprivation and poor living conditions give rise to higher incidences of disease, it is essential that in the planning and the extension of health services apartheid should not apply.

I would like to make the most urgent representations to the hon. the Minister that both on the advisory committee and on the policy council the homelands, the urban Blacks, the Coloureds and the Indians, who have a primary and a fundamental interest in the activities of those bodies, should be represented. They must be present there in order to represent the interests of their communities and in order to ensure the co-operation of the people they represent. In order, in fact, to make this Bill work it is essential that the hon. the Minister provides, that all communities are represented on these two bodies. I would go so far as to say that if the hon. the Minister makes the advisory committee and the policy council all-White bodies, he will in fact at the outset be offending the other race groups in South Africa, because health is as important a consideration to them as it is to the Whites.

If the hon. the Minister is not prepared to include the Blacks from the homelands, the urban Blacks, the Coloureds and the Indians in the entire spectrum of processes, including the making of policy, the making of regulations, the extension of services, the control and the co-ordination which is required, I am sorry to say that the hon. the Minister is building into this Bill a very good possibility that it will fail to meet the idealistic aims which are set out in it. I would like to make a very urgent plea to the hon. the Minister to reconsider this aspect of the Bill and to make it a Bill which will lead to a system providing health services for all South Africans, by all South Africans, and with the full co-operation of all South Africans at all levels.

Mr. Speaker, I believe there is one further omission in this Bill. That is as far as the National Health Policy Council is concerned. I have already said that I see local authorities as being the most vital level of responsibility and activity on which the success of this Bill depends. I see the large number of local authorities in South Africa as the front-line troops in ensuring that the provisions of this Bill are effectively carried out. In fact, unless local authorities operate successfully and happily in terms of the provisions of this Bill it will not succeed. It is no use having generals only. One also needs the soldiers who will carry out the work. I am very sorry that the hon. the Minister has not included representatives from local authorities in the policy council. I am very sorry indeed that the most important aspect of the entire structure that is being created in order to make this Bill work in practice is not effectively represented in the policy council. Once again I want to appeal to the hon. the Minister to reconsider the legislation in that respect and to make provision for the realistic and effective representation of local authorities on the policy council to ensure, that there is co-operation and that the communication and liaison with them is effective and also to ensure, that the Bill has the maximum possible chance of working effectively.

Mr. Speaker, the hon. member for Bryanston spoke for a half hour, and I do not want to cross swords with him this afternoon, except on a few matters. Two things become very clearly apparent from what he said. After he had devoted his first 20 minutes to ideological matters and the problems which would result from the practical application of the legislation, it became evident that the hon. member had not read chapter 1 of the Bill. The hon. member spoke about the practicability of the Bill and about what could happen and what could be done. That is primarily why the Advisory Committee and the Health Policy Council are being established. This is the framework of all the matters which they will have to investigate in order to present the hon. the Minister with a policy which he will then be able to consider.

The saddest aspect of all—I shall not put it any stronger—was the last portion of the hon. member’s speech in which he peered through a magnifying glass and again saw some colour variations somewhere. It was clearly evident that the hon. member did not have the faintest idea of the history of this legislation or of the problems with which we have to contend. The hon. member also referred to the right of the individual to be healthy. However, one cannot always expect the State to look after one’s health. The individual also has a liability in this regard, a responsibility of his own. It is not always the State which should be held responsible for this. For example it is not the responsibility of the State to see to it that the hon. member for Durban Point does not smoke. Nor is it the duty of the State to say that any of the hon. members eat or drink too much. I do not think that I need conduct a vendetta with the hon. members for Berea and Bryanston on the question of smoking and cigarettes. The State is doing its duty by disseminating information, providing guidance and drafting measures within a certain framework with a view to keeping us away from certain things.

I should like to return to this legislation and begin at the very beginning. It is interesting to know that the legislation we are now discussing on this quiet Friday afternoon, is a consequence of legislation which has been introduced during the course of the past 93 years. Measures that have been introduced from 1884 to 1976 will be repealed as soon as the Bill has been passed. Twenty-six Acts dating from 1884 to 1976 are being repealed in their entirety, and in addition there are eight other laws which are being repealed in part.

Perhaps we should consider the history of health matters for a while so that the hon. member for Bryanston and others may see what progress we have made. There are 11 specific laws which are still in force and which, in their entirety, or in part, deal with a disease which none of us have any knowledge of any more, and which we do not observe at all, i.e. leprosy. In 1884 the first law on leprosy was proclaimed in the Cape Province. Natal followed with legislation on leprosy, in 1890, the Transvaal in 1904 and Natal in 1909. That is why I agree with the hon. member for Berea that it is a pity that we could not have had a preamble to this Bill. The preamble could have been a fine credo, something which expressed our feelings in respect of the health of our people. I should like to ask the hon. the Minister why we cannot write above this Bill “to keep healthy is to build a nation” and “healing may not be neglected”. These are built into the entire concept of this Bill.

We have two main objects which find expression in this entire Bill, and these are to keep people healthy, which is important, and to heal people, which is also important. A balance has to be struck between these two aspects. The preventive science must not dominate the curative science. I could refer to an example. We can spend R2 million on an institution for performing a heart transplant on one person. I concede that it is essential to save that man’s life, but we can spend R500 000 on prevention so that ten other people need not have a heart transplant. It is in this spirit that an attempt is being made to maintain this equilibrium.

In regard to the Bill there are a few ideas which I want to emphasize, inter alia, the duties in respect of family planning which are being accepted by the State. I have received representations from the family planning association. In that framework which the State is constructing, which is completely in accordance with the idea of the hon. member for Bryanston of co-operation in the sphere of sociological problems and health problems, they say that in family planning—and this is what the world does not understand correctly—what is involved is not always prophylaxis but also that for which responsibility has to be accepted. One has to accept responsibility if one has brought five or ten children into the world. One also has to accept responsibility if one goes to live in a certain environment or accepts a certain position. That is why family planning, which will be the task of the central Government, is so comprehensive.

It is of fundamental importance to convey to the community that in the context of community development use should be made of all available existing services such as education, agriculture, health, economic and social services in order, firstly, to indicate the relationship between population and development, and then to offer family planning as a possible solution. In this regard I should like to ask the hon. the Minister whether, since the provision relating to family planning occurs in the legislation, he does not want to add a provision pertaining to health guidance. These two facets of the health service are in my opinion completely intertwined. Family planning does not refer only to the planning of small families under similar circumstances but is also directly linked to health guidance. The preventive aspect should also be emphasized to a greater extent from the point of view of health services and it will be possible to achieve this object by such an amendment.

The hon. member for Fauresmith referred to ambulance services and to mental illness, but another aspect which is of great importance is that our people should make greater use of the services of the existing day hospitals, as well as of those which are still going to be established, for this will enable us to render a better service over a wider field. Particularly in view of the present economic situation we shall be better able to treat a person closer to his environment and to treat the patient sooner. In that way it would be possible to save many manhours.

In conclusion I want to express my gratitude for having had the privilege of being able to serve on the Select Committee. I want to associate myself with the hon. member for Berea—one does not always have an opportunity to congratulate a member of an Opposition party—by making it clear that if there has ever been a person who always cooperated well and never tried to score party political debating points off one on health matters, it is the hon. member for Rosettenville who unfortunately is not present in the House at the moment. I should like to mention this in the House.

Mr. Speaker, I want to associate myself with the hon. member for Brentwood who reprimanded the hon. member for Bryanston for extraneously dragging a political ideology into the discussion of this legislation. I want to add that if the hon. member for Bryanston thinks that diseases or pathoses or germs do not know the difference between the various races, he knows nothing about medicine. But I do not want to play politics with this legislation.

This health legislation is indeed one of the most important milestones on the road of comprehensive health care in South Africa, and certainly meets the long-felt need to regulate and co-ordinate the concept of community health services by way of legislation and to recognize as the highest priority the physical and spiritual welfare of every inhabitant of South Africa in every respect. I want to congratulate the hon. the Minister of Health this afternoon on the honour having befallen him of being able to place this legislation on the Statute Book.

It is indeed the most important health legislation which has been piloted through this House over the past 50 years. If we ask ourselves what the concept “health” embraces, we must define it as a state of total physical, mental and social welfare and not merely as the absence of illness or debility. The highest priority in the achievement of this ideal is therefore not situated in the dramatic and effective treatment of the consequences of disease, but in the effective combating and prevention of pathoses by education, knowledge and preventive measures. The old saying: “Prevention is better than cure,” is especially applicable in this regard. The individual has to live in an environment which exercises a major influence over him, and despite of the great measure of adaptability in respect of his environment, there are certain environmental factors which lead irrevocably to the destruction of life and health. The air we breathe has to be clean. It has to be free of fumes and smoke and has to be free of the smoke of the 20 000 million cigarettes which South Africans inhale annually in this beautiful country of ours, where the air is still clean and free of contamination. In this regard I want to associate myself with what the hon. member for Berea said. The food we eat should be free of toxins, the wrong proportions and excesses. The water which we drink should be unpolluted and free of alcohol, other toxins and so on.

To protect humans against this onslaught, requires co-ordinated action from all three levels of Government. The fragmented and unco-ordinated method of health control in South Africa owed its historical development to the fact that health problems had to be dealt with as they cropped up and by means of short-term planning in the most effective way possible. In this regard I want to refer to the great influenza epidemic of 1918. Act 36 of 1919, which is still on our Statute Book today, was in fact a result of that influenza epidemic which afflicted our country.

When the world was still wild and empty, short-term planning was an accepted method of protecting our health. Now that overpopulation, and as a result of that the environment in which one has to live, has drastically changed the world, long-term and strategic planning is of the utmost importance in modern times. If we were to place the emphasis only on the dramatic curative, or healing, aspect of health, we would not only be unable to solve the problem, but as a result of the tremendous cost involved, we would be putting it within reach of an ever-dwindling sector of our population. Therefore, if we were to spend all our money on beautiful super-luxury hospitals, and all our time on this aspect of health care, we would undoubtedly be doing the overall population of this country an injustice.

In this legislation we read the signs that our health authorities are unmistakably moving away fragmented and divided control of health to a balanced, comprehensive approach in which the healing, preventive, health promotional and rehabilitative services are being accorded their rightful place, in the interests of the entire population of South Africa. In this country we place a high premium on the thorough knowledge, diagnosis and therapy of disease. In fact, the standards of our healing health services are among the highest in the world. In the sphere of a comprehensive community service the understanding of the population of health and illness is equally important. The motivation of the population to take preventive and health promotional steps on a voluntary basis therefore remains of the utmost importance. To achieve this object team work on a co-ordinated basis, as is being envisaged in the Bill before us, will be required of every existing organization or discipline dealing with health.

Fragmented control over health results not only in the duplication of services in certain spheres, but also causes deficiencies or faulty service in other spheres. I want to mention the example, to which the hon. member for Fauresmith also referred, of our ambulance services. Under the present dispensation there is in reality no centrally controlled ambulance service available for paying private patients outside the municipal areas. More than one medical practitioner has experienced this to his regret when he wanted to send a patient living on a remote farm to hospital by ambulance. The provincial authorities only provide ambulance services between provincial hospitals. The local authorities, quite rightly so, only provide ambulance services within their municipal areas. The State, i.e. the district surgeon, usually has an ambulance available only for traditional district surgeon patients. I note that the commission of inquiry into this Bill recommended accordingly, and that it has been included in the Bill.

Let me furnish another example. There is the divided control which existed in respect of hospitals for contagious diseases. Those hospitals were the property of local authorities, while the staff fell under the control of the provincial authorities and the financial implications of those institutions were the responsibility of the central authority. This was an absolutely untenable situation as far as the effective management of such an institution was concerned. The importance of the prospect of meaningful planning, which is being held out with the establishment of the National Health Policy Council I find pre-eminently illustrated by the policy adjustments of the Department of Health in recent times in regard to the treatment of tuberculosis. As far as this is concerned, we have achieved a meaningfully co-ordinated planning in which preventive measures and methods of treatment have been co-ordinated to make a vast difference to the combating of this disease as a whole.

Over the years many millions of rands and a great deal of time have in fact been wasted, since attention was focused more specifically on the treatment and the tracing of contacts. In addition there were long periods of hospitalization and treatment with less effective remedies. Large hospitals were built and millions of rand were invested in this. Today we realize that the BCG vaccine which was developed as long ago as 1921 by Calmette and Guerin and which is administered during the first six months of a person’s life, is of incalculable value. In addition there are the modern remedies which can cause the contagiousness of most cases to disappear within two weeks, and which can cause the lives of these once doomed patients to return to normal within a reasonable period of time. Therefore we can expect that the pattern and incidence of this disease will change drastically in future. It is important if we take into consideration that today there are approximately 10 million people in the world who are suffering from this disease and who will therefore continue to spread this disease. In South Africa alone 57 830 cases of tuberculosis were reported in 1974. If we compare this with other notifiable diseases that are under control, we see that in the same year there were 496 cases of diphtheria, 243 of tetanus or lock-jaw, 490 of poliomyelitis and one of small-pox. If any doubt still exists as to the danger of this disease to the health of the community let us consider the number of deaths caused by these diseases in 1974. In that year there were no fewer than 2 677 deaths as a result of tuberculosis, 40 as a result of diphtheria, 59 as a result of tetanus or lock-jaw, nine as a result of poliomyelitis and none as a result of small-pox.

It is clear therefore that in respect of planning and co-ordinated action we still have a long way to go in order to combat the dangers of this treacherous disease. The optimum results will only be achieved by short- and long-term planning. The problem has to be identified by means of investigation and statistics. From time to time priorities have to be determined. Health programmes should be implemented only after thorough study, and must be subject to periodic evaluation. Only then will we be able to lay claim to a successful community health service.

In the Health Bill a redistribution of functions among the three levels of authority controlling health is being envisaged. While the provincial administration will primarily be responsible for all personal health services, the local authorities will be able to make a major contribution in respect of the preventive, health-promotive and rehabilitative services. In addition local authorities will be held responsible for environmental services, while the State will fulfil an overarching or co-ordinating function. The fact that the handing over services such as ambulance services, the district surgeon services and services in respect of contagious diseases to provincial authorities is also being envisaged, should be welcomed by all medical practitioners in this country. This is really a step forward in the direction of high quality community health services in South Africa. With this, therefore, I want to give my wholehearted support to the Second Reading of this Health Bill.

Mr. Speaker, I am very pleased indeed that the hon. member for Pietersburg has drawn attention to the question of tuberculosis, which is something I shall deal with in the course of what I have to say.

In the first place, I should like to congratulate the hon. the Minister on his very excellent presentation of the Bill when he introduced the Second Reading. I think the very extensive ground he covered was indicative of the work that confronted the commission over the many months it sat when dealing with the previous Bill which, after it had been referred to a Select Committee, was later considered by this commission. It covered very extensive ground and it was quite clear from what the hon. the Minister said that every possible facet of the field of health in South Africa was fully covered. Furthermore, one must look at this Bill in the context of the experience which South Africa has gained over the last 50 years in the development of its health legislation, because I think it is against the background of the extensive health legislation that this Bill has been framed. Thus we find that the first chapter deals with the policy structure, the planning structure and the necessity for co-ordination of all tiers of administration and service in respect of the health requirements of the country. In the second place it deals with the activities of the various tiers and, finally, with the mechanics represented by regulations for which provision has been made to ensure that the pattern which is now being elucidated in the various chapters of the Bill will be effective. It is with that view in mind that I should like to approach this particular Bill, which is very comprehensive indeed.