Mr. Speaker, I move—

Agreed to.

Mr. Speaker, before the House adjourned yesterday evening, I indicated that the legislation under discussion would be of a co-ordinating nature. In addition to that the legislation provides for the provision of financial and managerial assistance. Provision is also being made for the seconding of staff where necessary. Another important provision of the Bill is the provision whereby Whites are being authorized to hold shares in the said corporation.

Another function will be that of giving advice. Up to now there have not been many Black people in the homelands who have had the necessary knowledge to establish and manage businesses. In some cases the BIC and the XDC helped Black people to establish light industries such as furniture or cabinetmaking, etc. Apart from that smaller manufacturing units have been taken over by the Black people from the corporations. The development of the homelands is being handicapped at the moment by a shortage of suitable entrepreneurs from the ranks of the Bantu themselves. This is clearly illustrated by the fact that only 2% of the available business loans have been granted to prospective Black businessmen by the BIC during the past year.

Here I am referring to business loans for the establishment of manufacturing units. The business undertakings are mostly small and in the main they specialize with an eye to the demands of the local market. An exception in this case is the factory which manufactures cane furniture. The factory is situated at Themba and employs 200 Black workers. The trade and service sectors will play an important role in mobilizing buying power in future.

The establishment of larger shopping centres and chain stores require attention at the moment. In this regard attempts are being made to involve White experts. However, this is being done in such a way that the Black owners will profit directly from it. The threefold company which has existed up to now—the BIC, the White and the Black entrepreneurs—has great potential in this regard. Consequently there has been a considerable increase in the number of Black traders in the homelands. In 1961 there were only 3 900. In 1975 there were 9 000. The majority of the trading concerns in the homelands are in the hands of Black people at the moment. When we take all these things into consideration, it is clear that this legislation seeks to give more thrust to the economic development of the Bantu homelands. The various national corporations are also being given new momentum and in this way another milestone in the history of the Bantu homelands is being reached. This, Mr. Speaker, is my motivation for our support of this Bill.

Mr. Speaker, I should like to thank all hon. members who participated in the debate for their constructive contributions. In my modest opinion hon. members on the Government side naturally made better contributions than those on the Opposition side. [Interjections.] Nevertheless, I want to thank hon. members on the other side for their support of the Bill.

The hon. member for Newton Park wanted to know whether it was possible for the capital of the Whites to go to the homelands. The answer to this is “yes”. Even without the legislation under discussion it is now possible for White capital to go to the homelands. In fact, White capital has been flowing into the homelands for several years. The hon. member for Houghton intimated that she supported decentralization. She also said that she supported the development of under-developed areas. We are very pleased to hear this. However, as I said the other evening, I should like to see the evidence of the sincerity of that hon. member and her party in positive action being taken by them in this regard. I do think, however, that we have made some progress, especially when we take cognizance of the fact that they now express themselves as being in favour of decentralization.

The hon. member for Umhlatuzana intimated that there were two clauses which gave rise to problems for him. He referred to clauses 5 and 7. Clause 5 provides that the State President may by proclamation change the name of the Corporation for Economic Development, of a development corporation or a corporation and may even dissolve the corporation. The State President may also by means of proclamation regulate matters relating to the assets of a corporation so dissolved. The hon. member said the aspect that worried him was the fact that it was possible to do this by proclamation. I want to point out to the hon. member, however, that the development corporations and the Bantu Mining Corporation were established by proclamation. It is the existing procedure that a corporation may be established by proclamation. Secondly, I want to point out that in future we may establish new corporations by proclamation. If an existing corporation has developed in such a way that it wants to divide into two specialized corporations, the situation will arise where new corporations may be established by proclamation, but the existing corporation may not be dissolved by proclamation. Consequently Parliament will have to decide about the matter once again and pass legislation in terms of which something like this will be possible. The object of the provisions in this clause is to accelerate matters when circumstances of this kind arise.

Of course, it is not necessary to remind the hon. member that the State President does not act on his own, but that decisions are actually taken by the State President-in-Council. The proclamations are tabled here in this House, whereupon they are referred to the Select Committee. Therefore, there is an opportunity for discussing the dissolution of a corporation here in this House. Furthermore provision is being made in this clause for the Corporation for Economic Development as well as the development corporation or corporation concerned, to be consulted by means of discussions when a corporation is to be dissolved so that the matter may be clarified in this way. Therefore, the clause as it stands seeks to accelerate and streamline economic development in the homelands and the machinery which is to be created for such development.

The hon. member also objected to clause 7. The object of clause 7 is to define the functions of the various corporations and to prevent overlapping from taking place. I just want to give an example. The function of the Bantu Mining Corporation is the development of mining in all homelands in terms of the powers assigned to it by the trustee. When we refer to “in all homelands” it means that the Bantu Mining Corporation is responsible for mining development and its promotion and that the other corporations are excluded, unless the trustee decides otherwise. The fact is that the spheres are being delimited. There is a possibility that the need may arise in future for a corporation for developing, for example, the agricultural industry. The Corporation for Economic Development also has that function, however, and if the trustee assigns that function to a specific corporation which is established for that specific purpose, the Corporation for Economic Development is relieved of that function in the area concerned. Furthermore, it may also happen that a corporation may be established for a farming project on a specific farm, for instance, a citrus farm, and that it then has this as its specific function. The Corporation for Economic Development still has a function regarding agriculture in general, however, and in terms of clause 7 an arrangement may be made for the established project corporation to, and not the Corporation for Economic Development, manage agriculture on the specific estate. The Corporation for Economic Development may, however, perform other functions on the estate, for example, establish a shop or provide for any other requirement for economic development which may arise. That is why I am of the opinion that the present wording of the clause is correct and will carry into effect what we envisage, and that is to eliminate overlapping by delimiting the spheres of the various corporations.

In conclusion I want to come to the speech made by the hon. member for Edenvale. Yesterday evening the hon. member derived pleasure from referring to the fact that the Government had supposedly erred at the time when the report of the Tomlinson Commission was considered by not accepting the majority report but the minority report with regard to the utilization of White capital in the homelands. I have already pointed out to the hon. member before that the decision of the Government was the right one. I want to remind the hon. member that at the time when the Government accepted the minority report, White capital was already flowing into the homelands in the form of mining development. All mining development in progress at that time was being maintained by White capital. What is important, and what I have already told the hon. member before, is that had the Government accepted the majority report at the time, I believe there would have been much less development in the homelands than there is at present.

Why?

I shall tell hon. members why. We have to search for the reason in South Africa’s own history. There was a time in our history when there was an antipathy towards those who came from overseas to operate in South Africa as fortune-hunters. The Bantu regard the homelands as their asset and they see it as their primary right to have the benefits derived from development in the homelands going to the Black populations. We still experience this today. It is a delicate matter and the Black population want the assurance that White capital which goes to the homelands will in fact be to the promotion of the economic development of those populations and is not intended to exploit the Black populations. That is why it was and still is the standpoint of the Government that the employment opportunities and riches of the homelands are to be reserved for the Black population.

Mr. Speaker, in view of the fact that the Tomlinson Commission recommended that White capital should be used in industry on specified conditions and should not be freely available, is the argument which the hon. the Deputy Minister has just advanced, i.e. that foreigners would exploit the Bantu, really a valid one?

The Black population first had to see and experience the sincerity of the Whites in South Africa in the form of concrete evidence. That is why alternative arrangements were made at that time in order to continue with the development so as to create that confidence. Had this not been done, it could have happened that the Black people could have been antagonized. As a result of this a climate would have been created in which Whites would not have wanted to invest their capital in the countries and in that case development would have come to nought. We know this ourselves, in the light of our own history. We also know that a healthy climate prevails today and that the capital which is invested there by Whites is accepted by the homelands as assistance for promoting the development of the Black population. That is why progress is being made today. I am absolutely convinced that if that climate had not been created, and the majority report had been accepted at that time, we would not have had this development in the homelands which we do have today. This Bill is in the same spirit. If hon. members read the various clauses, they will see that they seek to promote the economic development of the populations and of the homelands.

I want to conclude by saying that this Bill also contains new possibilities for greater development. I believe that it will be to the advantage of the economic development of the homelands in the years ahead and that it will strongly advance such development.

Question agree to.

Bill read a Second Time.

Committee Stage

Clause 5:

Mr. Chairman, in this clause we have the provision whereby the State President may by proclamation in the Gazette, from a date to be fixed by him in the proclamation either change the name of the Corporation for Economic Development, Limited, or any other corporation, or, in the second place, dissolve a corporation after consultation with the holding corporation, i.e. Corporation for Economic Development. When that has been done, the Registrar of Companies is required to make the necessary changes in his register. I am worried by this clause because if one has a look at the Companies Act, which regulates corporate bodies at the present time—apart from those we are dealing with in this amending legislation—there are fairly comprehensive and elaborate provisions which have to be followed in order to change the name of a company or to bring about its demise.

The object of that legislation in respect of companies is to ensure that things are properly done, done in such a manner that the interests of those who have a financial interest in a company and those with whom the company might have been dealing, either by way of contracts or other obligations, by way of incurring debts, by trade arrangements and a variety of matters of that kind, are properly protected. The Companies Act lays down a form of procedure which has to be followed in order that those interests can be properly protected. One of its objects is to satisfy the Master of the Supreme Court, the Registrar of Companies—or both—that no one is prejudiced by the change of status of the company, by its dissolution or by its change of name. In so far as the public utility corporations, the State corporations, that we are here dealing with are concerned, that procedure is not required to be followed. It merely requires a decision by the department or by the Minister concerned, a reference to the executive—that is what the State President is—and then a notice appears. I do not suggest for one moment that the State President or the Minister concerned is going to attempt to do people out of their legitimate interest by this method. However, if these corporations are successful, there is going to be a wide network of publicly-owned or semi-public-owned corporations operating all over the homelands in South Africa. They will not be entirely State-owned; in many cases they will be corporations where a part of the interest is private interest. If they are successful, there could be a wide ramification of business interests involved, both in these corporations as well as in the sphere in which they are operating as business concerns. To me it seems undesirable that one should have a wide interest of corporations or companies—that is what they are in effect—and that one should have a wide sphere of operating companies which are to be dealt with differently from the ordinary private or public company in terms of the Companies Act. It also seems undesirable to me that all the protection which is given to the various people coming into contact with these corporations in the private sector, should not be required to be followed in so far as State companies are concerned. What we are doing is to bring into being a category of companies which, in a sense, have a privileged position where the ordinary statutory laws which are applicable to companies do not have to be followed in the case of a change of name or dissolution. I think it would be preferable if either the State President was required to have regard, in terms of this legislation, to the provisions of the Companies Act or, better still, that the ordinary procedure of the Companies Act should be followed. Accordingly I find myself unable to support clause 5 in its present form.

Mr. Chairman, I have taken note of what the hon. member said, but it seems as though we shall have to differ on this matter. The hon. Opposition is always accusing us of having too much red tape and of making it difficult, especially for the private sector, to invest and to develop. Our aim with this clause is specifically to expedite matters. If a new corporation has to be founded or an old corporation dissolved, we try to expedite the matter, precisely because the corporations deal with the private sector. Our experience is that if an investor is ready to invest, we must grasp the opportunity because he cannot wait for the next Parliamentary session so that the machinery can first be brought into readiness. One should be prepared for such circumstances. The hon. member suggests that we follow the normal procedure prescribed under the other Acts, inter alia, the Companies Act. To my mind, more provision is made in this regard for a safety valve than in the other legislation. Where the name of an ordinary company is changed, the matter does not go to the executive of the country to enable them to decide on it. Neither is it tabled here in Parliament by way of a proclamation which can be discussed by the House. The opportunity therefore exists, because the possibility for it is created here. Therefore it is in fact a safety measure. Moreover, not only the economic development corporations must be consulted in the case of such a dissolution, but the corporation concerned as well. Consequently both corporations must be consulted.

I wish to point out that the private investor does not own share capital in such a corporation. It is only the corporation for economic development or the trustee that owns share capital in a development corporation. Arrangements are made with the private investor so that he can retain his identity as a corporate body. He enters the field with his own company and he starts his business. He makes arrangements with the corporation, but he does not buy shares in the development corporation. As he retains his identity as a corporate body, the change of name or dissolution of the corporation does not affect the private investor at all. Other arrangements are made in his case.

Mr. Chairman, I am not satisfied, I regret to say, with the reply of the hon. the Deputy Minister. The Cabinet, with all its exalted status, has no idea of what is taking place in the business field of, for example, the Ciskei or Transkei because that does not fall within its sphere of interest.

Yes, but the board of directors knows.

No doubt, the board of directors does know what is going on because it has an interest in dissolving a particular corporation, but what about the creditors of that corporation?

The Minister also knows.

The Minister does not know who are the creditors of the corporation and it may be that the board of directors has an interest which makes it careless of the interest of the creditors of the corporation. It is for this very reason that the provisions of the Companies Act, such as they are, are there in order that notice should be given to the advantage of people such as creditors or people who have valid contracts with the corporation. They are entitled to know, for example, that a corporation is going to be dissolved. It means that the party with whom they have a contract is going to disappear. There may be a dispute as to whether a contract is in existence or not. The fact that particulars are laid upon the Table in Parliament is of no assistance to those creditors because none of us here knows who they are or what the corporation that is to be dissolved is doing. Neither the State President nor the Cabinet knows it. It may be a business venture whose interest may be local in a different part of the country. I believe it is that type of interest that should be protected and I am afraid it is not protected in this instance. The clause does provide that the State President may in his discretion regulate matters relating to the assets, liabilities, rights and obligations, but that is not to say that these matters will be brought to his notice. Indeed, there may be an interest which is not even known to the board of directors because there is a dispute between a lower official of the corporation concerned and the individuals who believe they have a contract or are creditors of the particular corporation. What the hon. the Deputy Minister has suggested as adequate protection seems to me not to be so.

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

Clause 7:

Mr. Chairman, I must say that what the hon. the Deputy Minister has said has, to some extent, lessened the criticism which I had when I spoke earlier about this clause. It seems that what the hon. the Deputy Minister has in mind is different from what I believed the intention to be. The intention appears to be, for example in the field of the development of agriculture, to have the power to delegate to a corporation the power of developing agriculture, a power which at the present time rests with the central body. Now, if that is all that is intended, the wording of this clause is, of course, adequate. However, if the hon. the Minister wants to delegate powers of a narrower kind, in other words if he wishes to delegate to a corporation the power to develop citrus orchards at a particular place—say the Transkei or the Ciskei—and he wishes to delegate similar powers, later on, to a different corporation to develop citrus orchards in the same territory, I believe he will be in difficulties. In terms of the wording as it stands, when once the first delegation of powers is made to a corporation, say in the eastern part of the Ciskei, in respect of the development of citrus orchards as a topic, the central corporation, the controlling body, can no longer exercise that power in respect of the whole of the Ciskei unless specific provision is made by the hon. the Minister in terms of the words “the Trustee otherwise determines.”

No, that is not correct.

That is as I read it. That was the difficulty I foresaw when I dealt with this matter during the Second Reading stage. However, if the hon. the Deputy Minister’s only intention is the broad delegation of powers, in terms of what he has said, I think this wording would be adequate.

Mr. Chairman, I want to tell the hon. member that what he has just said, is what we envisage. However, there is also the second aspect which he mentioned. Provision is being made for that here. Supposing we want to establish a corporation for the cultivation of citrus in the western part of the Ciskei. The Minister then states that the particular corporation is established for the cultivation of citrus in the particular district. In other words, it may not cultivate citrus in another district. In that case the Corporation for Economic Development may still cultivate citrus in the rest of the territory. In practice a corporation will probably not be established for a district. The corporation will be established specifically for certain farms, on which a project is being carried out. In the rest of the territory other corporations, with similar functions, may still function. We do make provision here for such eventualities. I should, however, add something. If people want to tackle such a project jointly, through two corporations, they have to approach the hon. the Minister and obtain his approval. They have to obtain permission to involve the Corporation for Economic Development in an area which has been allocated to a specific corporation by the hon. the Minister. That happens by way of approval.

Mr. Chairman, I also want to discuss the problems which were mentioned here by the hon. member for Umhlatuzana. I think the reply of the hon. the Deputy Minister did not take the problems into account. The instance mentioned of an agricultural project may possibly be covered by section 4(1)(d) of the principal Act. However, the hon. the Deputy Minister is aware of the fact that section 5(1) of the principal Act defines the function of a corporation—and that is what we are dealing with in clause 7. I quote—

1. (i) any industrial, commercial, financial, mining or other business undertaking in the Bantu homelands; or
2. (ii) any project referred to in section 4(1)(d) …

It seems to me that the points mentioned by the hon. the Deputy Minister may well be valid in respect of possible projects of the nature he has in mind. However, it does not cover the instance where individual financial or other business enterprises are run by such a corporation and which obviously does not necessarily exclude the enterprise run by another corporation in the same area. It may be a bank or another institution of which more than one may be allowed in the same town or area. Because the provision contained in clause 7 applies to an area only, it seems to me that it does not cover this type of case. I want to suggest that clause 7 be amended by the inclusion of the words “a business undertaking or a project”, as they appear in section 5 of the principal Act. If it is a project, the definition in section 4(1)(d) will indeed cover the point which the hon. the Deputy Minister has in mind.

Mr. Chairman, all the problems of the hon. member are covered by the present definition. Let us, in the first place, consider the practice. The hon. member referred to banks and similar institutions. Financing matters fall under the Corporation for Economic Development. In other words, if a bank wants to open a branch or a business in a certain town, it will have to approach the Corporation for Economic Development. All similar functions fall under the Corporation for Economic Development in terms of powers delegated or assigned to it. Therefore there are no problems in this regard.

The objectives of all the corporations are, in the main, similar. They have to promote economic development in the fields of industry and agriculture and all other fields. However, the same functions are not assigned to all of them. For example, the Mining Corporation is specifically charged with mining development. If an entrepreneur wants to undertake a mining project in the homelands, he must approach the Mining Corporation. The other corporations are then included, because the specific function has been assigned to the specific corporation by way of an agreement. In certain fields the Corporation for Economic Development may perform certain functions with regard to a specific type of enterprise while the national corporation performs functions in respect of a different kind of enterprise. So it may happen that one corporation performs one function while another corporation performs its function on different premises in the same town. The Bill provides for all similar cases.

Clause agreed to.

House Resumed:

Bill reported without amendment.

Bill read a Third Time.

LOWER COURTS AMENDMENT BILL (Second Reading)

Mr. Speaker, I move—

The Criminal Procedure Bill which was dealt with earlier this session, is closely connected with the Magistrates’ Courts Act, 1944, and a number of consequential amendments to the latter Act have therefore become necessary.

The amendments in clause 1 will have the effect that section 5 of the Magistrates’ Courts Act, which provides that courts may under certain circumstances sit in camera and that any person disturbing the peace or order in a court may be removed and detained, shall apply only in respect of civil proceedings. Clauses 153(1) and 178(2) of the Criminal Procedure Bill contain the necessary provisions in respect of criminal proceedings. Similarly, the criminal matters dealt with by section 5(4) are now provided for in clauses 152, 161 and 169 of the Criminal Procedure Bill and subsection (4) must consequently be repealed.

Clauses 153(2) and 154(1), (2)(a) and (3) of the Criminal Procedure Bill prohibit the disclosure or publication of certain information relating to criminal trials. Section 7 of the Magistrates’ Courts Act, however, gives the public an unlimited right of access to the records of a magistrate’s court. The matter is corrected by clause 2 of the Bill. The fees for the inspection of records are at present being prescribed by the Rules Board, established under section 25 of the Magistrates’ Courts Act. The board consists of three officials of the Department of Justice, one advocate and two attorneys. It cannot be convened at short notice or for a single matter at a time and usually sits only once a year. Increases of the prices of copies of records by the contractors must immediately be followed by an adjustment of the inspection fee, otherwise it will lead to a loss of State revenue. To deal effectively with this matter, clause 2 of the Bill provides that the fee must be prescribed by the Minister in consultation with the Minister of Finance.

Clauses 54(2)(b) and 180(2) of the Criminal Procedure Bill contain provisions similar to those in section 17 of the Magistrates’ Courts Act in respect of criminal proceedings, and section 17 is consequently limited to civil proceedings by clause 4 of this Bill.

Section 89(2) of the Magistrates’ Courts Act provides as follows—

The proviso to this subsection is now being deleted by clause 7 of this Bill. The result will be that an accused charged with rape in a regional court will no longer be entitled to demand that he shall be tried by a superior court.

The proviso was enacted in 1959, when regional courts were given jurisdiction in respect of charges of rape. The then Minister accepted an amendment by the Opposition to this effect as he felt at the time that the granting of this jurisdiction to regional courts was an innovation and that under the circumstances the amendment was a fair one, especially with a view to the transitional period. It is accepted today that regional courts are competent to handle cases of this nature, and therefore there is no justification for the retention of the provision. Accused very seldom make use of this right, but when they do court rolls are disrupted and witnesses inconvenienced as they have to attend the court a second time. This amendment was initiated by the Botha Commission.

Section 90(8) of the Magistrates’ Courts Act, which is being substituted by clause 8(b) of this Bill, reads as follows—

The Botha Commission was of the opinion that section 59(7) of the Criminal Procedure Act, 1955, a provision which in the past has proved to be a useful provision, should be retained in an amended form in the place of section 90(8). Section 59(7) provides as follows—

*In the past, the two sections were used for the same purpose, the one in the case of summary trials and the other in the case of preparatory examinations. The fact that the consent of the accused had to be obtained in the case of summary trials lessened the usefulness of the provision. The new provision holds the advantage, for the State as well as for the accused, that it will put an end to the present transferring of an accused from one district to another to be tried. The courts, too, have emphasized the desirability of having all the charges against an accused dealt with in one trial so that the court is able to form an overall impression of his offences and to pass an appropriate sentence. The provision under consideration will make this possible.

The substitution of clause 8(b) for section 90(8) is merely a consequential amendment, amendment.

The Criminal Procedure Bill, 1977, does not provide for the remittal of preparatory examinations on the same basis as is applicable at the moment. When, after a preparatory examination, an Attorney-General directs that the trial is to take place in the magistrate’s court, the procedures laid down in clauses 140 and 141 of the Criminal Procedure Bill, 1977, must be followed. The amendments in paragraphs (a) and (b) of clause 10 are consequential upon the new procedures provided for in the Criminal Procedure Bill.

Paragraph (c) of this clause brings the basis upon which assessors are compensated into line with the one applicable to assessors in the superior court (see clause 145(5) of the Criminal Procedure Bill).

The effect of clause 11 of the Bill is to restrict the provisions in the Magistrates’ Courts Act, 1944, relating to the taking of the oath, to civil proceedings, since the criminal aspect of the matter is regulated by clauses 162 and 165 of the Criminal Procedure Bill.

The amendments contained in clauses 3, 5, 6 and 8(a) are being effected with a view to the consolidation of the Magistrates’ Courts Act, 1944, which we hope to dispose of during the present session. It is not of a controversial nature.

The Commission of Inquiry into the Penal System of the Republic of South Africa—also known as the Viljoen Commission—recommended that the jurisdiction of magistrates’ courts be increased to R1 000 in respect of fines and to 12 months in respect of imprisonment. This amendment is contained in clause 9.

The commission also recommended that the jurisdiction of regional courts be increased to R10 000 in respect of fines or six years in respect of imprisonment—see paragraph 5.1.4.2.46 of the report. This recommendation was necessitated by the commission’s recommendation that certain compulsory sentences be abolished, otherwise the Supreme Court would be inundated with cases presently being heard in the regional courts.

In order to prevent disruption and in the interests of those awaiting trial, it is essential that the present balance between the courts be preserved. If the jurisdiction of the regional courts is restricted to six years, I believe that the balance would be upset to such an extent that the superior courts would be inundated with work. It must be borne in mind that the compulsory sentences of imprisonment for the prevention of crime, sentences of imprisonment for periods of five to eight years, and the declaration of persons to be habitual criminals, which entails a minimum of nine years’ imprisonment, are being abolished. Regional courts used to be able to impose these sentences, and we must guard against restricting their jurisdiction, for this could cause many problems in the Supreme Court.

In addition, there has been such an increase in the work of most Supreme Court divisions lately that they are hardly able to cope. In fact, it has frequently happened that accused awaiting trial have had to spend excessively long periods in prison before their cases could be dealt with in the Supreme Court. As far as civil cases are concerned, court rolls in some divisions are booked out for two years ahead. This causes great dissatisfaction on the part of the public. It is obvious that this state of affairs is causing embarrassment and is detracting from the prestige which our courts have acquired over the years.

The unlimited further expansion of the Supreme Court does not appear to be an acceptable solution. The appointment of so many judges would cheapen the office. In addition, it is an extremely expensive process, not only because of salaries, but also because of accommodation and other facilities associated with the appointment of judges.

As far as criminal trials are concerned, the only solution appears to be to make greater use of the regional courts. Regional courts have proved themselves over and over again, and it appears that the time is ripe to entrust greater responsibility to them.

Accordingly, provision is being made in clause 9 for the jurisdiction of regional courts to be increased to R10 000, or ten years, and clauses 14 to 16 grant jurisdiction to regional courts in respect of sabotage and terrorism trials. At present, these cases can only be tried by the Supreme Court.

If the legislation is passed, it will be possible for the regional courts to try many cases which now have to be tried by the Supreme Court, especially cases of sabotage and terrorism in which it is quite clear even before the commencement of the trials that the death penalty will not be imposed.

The penalties imposed by the Supreme Court in these cases often do not exceed the minimum prescribed period of five years’ imprisonment. It will be possible to deal with these cases much more rapidly and less expensively in the regional courts. However, all cases will still be referred to the Attorney-General concerned, and he will then be able to decide, on the basis of his experience, where the cases have to be tried.

A precedent has already been created in this connection, i.e. in respect of cases of rape, where the Supreme Court also has the discretionary power to impose the death penalty. However, the vast majority of cases of rape have been dealt with in the regional courts since 1959, without any problems whatsoever.

It need not be feared that the acceptance of the proposed legislation will cause the Supreme Court to be deprived of too many cases. The Attorneys-General, being dominus litis, have full control and are able to ensure, in consultation with judges-president, that that court is given a full work-load.

Furthermore, the Minister of Justice exercises control over Attorneys-General, so the Government is able to watch over the whole matter.

Mr. Speaker, from our point of view the legislation really falls into two parts. As the hon. the Minister has said, it is partly consequential upon the passing earlier this session of the Criminal Procedure Bill, which codifies and brings up to date criminal procedure in respect of all courts—magistrates’ courts, regional courts and the Supreme Court. There are a number of provisions which are indeed unexceptionable, some of which have our support, such as those in clauses 1, 2, 3, 4 and in a variety of other provisions of the Bill.

On the other side of the coin there are four clauses to which in particular we are opposed. These are the clauses dealing with the increase of the power of sentence of the regional courts, such as is referred to in clause 9. I have no objection to the increase in the jurisdiction to sentence in the magistrates’ courts from six months to 12 months and from R500 to R1 000. To me that seems in order, but it is the increase in the jurisdiction to sentence of the regional courts, more particularly read with clauses 14 to 16 of the Bill, clauses to which I shall refer in a moment, which makes the legislation objectionable. The proposal in so far as the regional courts are concerned, is to increase the power to fine from R1 500 to R10 000 and the power to sentence to imprisonment from three years to 10 years. It is quite clear, and indeed the hon. the Minister has not suggested otherwise, that if one looks at clauses 14, 15 and 16 it is the intention henceforth that a great many of the cases for offences arising out of the General Law Amendment Act, 1962, and the Terrorism Act, 1967—commonly known as the Sabotage Act and the Terrorism Act—are to be heard in the regional courts. That, I imagine, is the principal reason for the increase in the power to sentence from three to 10 years. The hon. the Minister says there is congestion in the Supreme Courts—I have no doubt that that is correct—and he infers that because of the number of criminal trials which the Supreme Court has to deal with, the civil cases in the Supreme Court are held up and that there is, in fact, a delay in some cases of up to two years. I am no longer in daily touch with the courts, but I have known in the past for a delay of that order to be experienced. I have thus no reason to doubt what the hon. Minister says.

There are a variety of ways of speeding up the procedure in the courts. One method we shall be advocating, is to increase the power of sentence in the regional courts to five years, for example, which will mean that a lot of assault cases and the less serious rape cases could be heard in the courts of the regional magistrates. I have in mind those many assault cases where the sentence which is imposed is less than five years and that class of case which I once heard a distinguished Judge describe as “the more friendly rapes”. There are a lot of cases of that kind and the sentences which are imposed in those cases, almost invariably of the order of three years or less, would indicate that it is the type of case that could reasonably be heard in a court of a regional magistrate.

However, when it comes to the cases under sabotage and terrorism provisions of the law, I think we are dealing with a different matter altogether. In my view these are cases which should be dealt with in a Supreme Court. This is the law at the present time. I say this for several reasons. In the instance one is dealing here with an important sphere of administration. One is not merely dealing with the private rights of an individual, but with the security of the State. It seems to me that when one is dealing with matters of that kind, one is dealing with matters that ought to be heard in a superior court. Secondly, most cases, in my experience of reading the Press and hearing about the cases rather than appearing in them, are almost invariably lengthy and difficult trials, very frequently involving what lawyers call “a trial within a trial”, dealing with confessions and matters of that kind. They are almost invariably the type of case at which the spotlight of the media and world opinion is directed. In almost all these cases a senior counsel—very often more than one—is engaged to defend and where a similarly senior advocate appears for the prosecution on behalf of the State. Everything about these cases: the care with which they are attended, the length and intricacy of the judgment very often delivered, as well as the factors I have already mentioned, indicate that they are particularly important cases in every respect and that they are cases which are of a type to be heard in the Supreme Court. In saying that, I am naturally not casting any aspersions or reflections on the ability of the courts of the regional magistrates. However, we do have a hierarchy of courts. That is a fact of life. We have the top courts—the Supreme Court—for handling the more difficult, serious and complicated cases.

That really sums up the principal objection those of us on these benches have to this Bill. There are one or two other matters which one should perhaps touch on, e.g. our acceptance of the amendment in clause 5 in terms of which the fine is increased for those who fail to attend court upon a subpoena being issued or to stay at court pursuant to a summons by the subpoena. With the fall in the value of money that seems an appropriate amendment. There is also a similar increase in the fine where a debtor seeks to incur further credit whilst not adequately disposing of his existing indebtedness. I accept, for the reasons I have already given, the proposed amendment in clause 7 which, as the hon. the Minister has indicated, removes the right of an accused person to claim, as of right in a rape case, that his case be tried in the Supreme Court. The hon. the Minister has not only said that that is a recommendation of the Botha Commission, but as I have indicated, as I know the Attorneys-General, they will indict serious rape cases in the Supreme Court as in the past. However, the numerous class of less serious cases, particularly if one were to increase the power of sentence in the court of the regional magistrate to five years, would appropriately meet the case.

I have one query in regard to clause 2, which deals with the ability of the public to have access to the records in the case of a magistrate’s court. I can understand the provisions of the Criminal Procedure Act which give the court power in certain proper cases, for example if an accused person or a witness is under the age of 18 or where it is in the public interest because of public morals, in the case of a case involving indecency, or where there is likely to be danger to a witness in a particular case, that the identity of the witness should, in those cases, not be made public or that in the case of a proper case, it be heard in camera or that part of it be heard in camera. This provision is not new and it has a proper place in our criminal procedure.

I can also understand the hon. the Minister wishing to prevent any circumvention of those provisions by having people search the record of evidence in a criminal case, leading subsequently to a publication or knowledge of those matters. There are, however, two categories of case which I want to suggest the hon. the Minister should look into, because in so far as I can tell, they are not adequately covered by the provision as it stands, unless there have been amendments to the rules of court—these are not available to us in an up to date form—in the court concerned, amendments which may cater for the matter, but I have not been able to get the information whether it does or not. Firstly, there is the need for an attorney acting for an accused person to have access to the records for the purpose of an appeal. I would imagine that this aspect is already dealt with, because, after all, he must have access to the records with a view to perusing it and taking a decision as to whether, upon the evidence, there is a prospect of success on appeal. This aspect is probably adequately dealt with in the rules.

There is, however, another category of legitimate inquiry which may not be dealt with, i.e. where an attorney, for example, is acting on behalf of a complainant in an assault case with the view to bringing a civil claim against the wrong-doer for damages. In a case where there has been a criminal trial preparatory to this in the magistrate’s court with the complainant giving evidence on behalf of the State upon which an accused person is brought to trial and probably convicted, there is probably evidence in such a case both from the complainant and from the accused. It was, and I imagine it still is, common practice for the legal adviser of the complainant to have access to the records with the view to assessing on the evidence whether a civil claim would lie in that case and whether it would be proper to advise his client to sue for damages. That is the type of case where access to the record should be made available to the legal adviser of the complainant. It is not clear to me that the amendment in clause 2 of the Bill would not inhibit an inquiry of that kind. Since the information is not available to me, I shall request the hon. the Minister to make inquiries in that regard at some stage if he believes that is a legitimate form of inquiry. I think that is all one need say.

All that remains for me to say is that because of the objections which we find to the proposed changes in respect of the regional courts, read with the amendments relating to offences under the provisions of the law relating to sabotage and terrorism, we shall oppose this measure at Second Reading.

Mr. Speaker, the hon. member for Umhlatuzana started off well when he said that he supported the measures which are consequential upon the Criminal Procedure Bill which was piloted through earlier this year. I should like to ask the hon. member for Umhlatuzana a question: If he objects to the regional court having jurisdiction in matters concerning terrorism and sabotage, why does he not object to the fact that such jurisdiction has been given to the regional courts in the case of trials under the legislation in connection with the suppression of communism? Many and very famous trials arising out of the provisions of the legislation in connection with the suppression of communism have taken place in the regional courts without appeal being made against the sentences passed by the regional courts. The accused still has the right to appeal.

I believe that the hon. the Minister stated the matter very clearly in the course of his introductory speech. I am of the opinion that there is a real problem in the sense that the Supreme Courts are overloaded with work. If the envisaged legislation can succeed in affording the necessary relief, that will surely be the desired effect. Indeed, we hear the criticism that there are many cases of people who are held in custody for a long time before they can be brought to trial. We hear criticism in this respect on the part of the Opposition in particular.

The hon. member said that his party supported clause 7. However, I also want to use it as an argument in connection with the question of the extension of jurisdiction as set out in clauses 14 to 16 with regard to the Terrorism Act and sabotage. If one considers clause 7, one must keep in mind that the choice of an accused in a rape case had to be heard in the Supreme Court, has now been abrogated. What I find especially important is that the regional courts have been trying rape cases since 1959 and that it happens very rarely that the accused prefers to be tried by the Supreme Court. What is especially important, is that regional courts have already furnished proof in this specific category of offence that they can handle trials of this nature, which are often very complicated, with perfect competence.

I therefore want to draw the analogy by saying that if they have tried cases of this nature over a long period without difficulty, there should be no problem with regard to the other two offences to which the hon. member for Umhlatuzana also referred.

Clause 9, one of the clauses which the hon. member and his party oppose, arises out of a recommendation by the Viljoen Commission that the jurisdiction of magistrate’s courts be increased from the imposition of fines not exceeding R500 to the imposition of fines not exceeding R1 000 and where the imposition of a sentence of imprisonment is concerned, from six months to 12 months. The recommendation of the Viljoen Commission with regard to the jurisdiction of the regional courts is not as in the planned legislation, and I quote (recommendation 5.1.4.2.46)—

Here we are extending the competence of the magistrate’s court to cover a fine of R1 000 or imprisonment for one year. If one accepts the recommendation of the Viljoen Commission for an amount of R10 000, the equivalent term of imprisonment is surely 10 years. There is, however, a further motivation which we have to take into account. In the latest Criminal Procedure Bill, certain compulsory sentences which regional courts had to pronounce, have been abolished. I am referring, for example, to the sentence with regard to the prevention of crime. The regional court had the competence and in terms of the provision concerned, a magistrate had to impose a sentence of five to eight years. There was the compulsory sentence with regard to a habitual criminal, and there the minimum sentence was a period of nine years. The maximum could be as much as 15 years.

In terms of the Criminal Procedure Act which was piloted through Parliament this year, the regional court still has the discretion to pronounce the sentence with regard to a habitual criminal. That is a sentence which can stretch from nine years to 15 years. Here the regional courts already have this jurisdiction but now the hon. member for Umhlatuzana and his party, according to an amendment on the Order Paper, want to restrict the sentence to a mere five years. Regional courts have had the competence to pronounce sentences of up to and including 15 years, for many years. I therefore cannot understand why the hon. member now wants to restrict to five years sentences which at present are longer than five years. I think it would be contradictory if this legislation were to restrict the jurisdiction of the regional court to five years, because the regional court still has the competence to impose sentences in respect of habitual criminals, and the minimum sentence in such a case is nine years.

Up to six years.

Even a period of six years, in accordance with the recommendations of the Viljoen Commission, would not be in order because the regional court already has the discretion to pronounce sentences of longer than six years. I think the limiting of the jurisdiction of regional courts would in fact create an untenable position with respect to trials in the Supreme Court. I am referring to aspects such as time, costs, etc. The court rolls are of course already overloaded. A very important factor is that the accused should be tried as soon as possible. I think that we are justified in saying that our regional courts have proved themselves and that they too can definitely carry greater responsibility. One can also motivate this by referring specifically to the rape cases which they have been handling since 1959. Other legislation comes into the picture too, as does the jurisdiction they have with regard to sentences which they may pronounce. In practice one finds very few appeals against their findings. I think it is right that regional courts should have jurisdiction with regard to charges of sabotage and also jurisdiction under the Terrorism Act, as envisaged in clauses 14, 15 and 16. In certain cases of this nature it is often clear beforehand that the death sentence will not be imposed. In a rape case the Supreme Court may pronounce a discretionary death sentence, and yet the regional courts already have jurisdiction in that regard. In such cases the regional court will be able to deal with the trials much more rapidly. It is important that the Attorney-General still has to decide where the trial should be held, as the hon. Minister made clear in his Second Reading speech. The regional courts can handle these matters and I believe that the regional courts will make an important contribution with regard to disposing of trials of this nature, the chief aim being to afford relief, because our court rolls are overloaded. I do not believe that this will be to the detriment of justice. As I said, the regional courts already try cases under the Suppression of Communism Act and apparently there is no objection to that. It is still important that the right of appeal against a sentence by the regional court remains.

The hon. member for Sandton was so obliging as to give notice of the speech he is going to hold today in the Rand Daily Mail of 25 April. I presume that the hon. member will make a contribution this afternoon, too, and that some of my colleagues will comment on it. In all humility I want to say that I have my doubts about the fact that the hon. member makes statements to the Press about legislation which has not yet been debated in the House. The hon. member for Sandton said—

I want to ask the hon. member whether he was quoted correctly in the newspaper.

Not quite.

I want to challenge the hon. member, when he addresses the House, to prove his statement with regard to the legislation before the House. Where in this legislation does he see the provision he referred to? I believe that we should set this matter right because the hon. member should surely stand by what he said. The Bill is related to the Criminal Procedure Bill which we debated earlier this year. Clause 112 of that Bill deals specifically with a plea of guilty. I want to quote the following words from that clause—

The following proviso appears below this—

This report in which the hon. member was quoted and against which we object in the strongest possible terms, appeared in a newspaper which is also distributed in places like Soweto. I therefore believe that it was also an attempt at arousing feeling with regard to the legislation being piloted through Parliament by the Government.

I do not want to quote the report in full, but according to the report the hon. member said with regard to this legislation—

I want to challenge the hon. member to tell us how this legislation can “tip the scales of justice away from the individual and heavily in favour of the State”.

I shall tell you.

In the report he is quoted in quotation marks. He continues—

The hon. member is casting a serious reflection.

Why do you not sit down and let me make my speech?

He makes two speeches: one in the House and one for the Rand Daily Mail.

I do not object to the hon. member speaking. In fact I am giving him something to base his speech on. The hon. member can get angry if he wants to. Just now I shall give him the opportunity to become friendly again. I want to ask the hon. member why he and his party always differentiate between some political crimes and other serious crimes against society. The hon. member and his party will never kick up a fuss about serious crimes against society, but when it comes to the so-called rights of the individual, the hon. member soon gets on his high horse and runs to certain people and says to them that the National Party government is committing an injustice, but he does not give the true facts. I do not know of a single magistrate who does not pronounce sentence fearlessly. The magistrates of this country do not look to the specific parties to see which party a person belongs to. They do not take into consideration the fact that they are in the service of the State. The magistrates pronounce fearless judgments and I want to reject the statement by the hon. member with contempt. Our magistrates administer justice in our courts completely independently. I take pleasure in supporting the legislation.

Mr. Speaker, I listened very carefully to the hon. member for Klerksdorp, who started off quite quietly and ended off somewhat noisily. If the hon. member says that one is casting aspersions on the judicial officers of the lower courts because one says that they should not deal with certain offences—that is the import of what he said and I shall come to the rest of it—why then do we not allow magistrates in South Africa to pass the death sentence? Why not, if they are the same as judges? Let us answer that question. There is obviously a difference. The first thing that we must acknowledge is that there is a difference between an ordinary magistrate and a senior regional magistrate. That is why one is an ordinary magistrate and one is a regional magistrate. There is a big difference between an ordinary magistrate and a judge. That is why certain offences go to the Supreme Court and certain offences go to the magistrate’s court. To draw attention to this difference does not in any way cast aspersions on the officers concerned.

There is a second point I wish to make with regard to what the hon. member for Klerksdorp said. He said he could not understand why legislation is commented upon in public by members of this House prior to its introduction in this House. This is common practice. It has been done by members over the years. In very many cases hon. Minister’s have explained their legislation to the newspapers and other media long before it has been debated in this House. On many occasions hon. members on this side of the House have in fact argued with hon. Ministers on the basis that hon. members on this side of the House have felt that they have been treated with contempt, because hon. Ministers have debated matters with the media before bringing them to this House. I think that is a ridiculous point to make.

Thirdly, the hon. member for Klerksdorp said that I had said that a matter could go forward and be heard in the magistrates’ courts and only be sent to the Supreme Courts for the death sentence. That is not exactly what I said. I used the words “severest sentence” and it was read in a different way. However, let me ask the hon. member whether that was in fact what was printed in the newspaper. That was not exactly what I said. That is not correct because if one looks at chapter 17 of the Criminal Procedure Bill, clause 112(1)(b), it says—

It may in fact in the end boil down to certain omissions of the accused being utilized and it may be that the most severe sentence could be imposed. I think this is a rare case and I think it is most probably a very unlikely one. I do say that the most severe sentences can be imposed as a result of the record of a hearing in a magistrate’s court being sent up to a superior court for sentence.

If I can move away from the comments which the hon. member for Klerksdorp made and make my own speech, I think it is quite clear that this Bill should not be read in isolation, but that it should be judged together with and in consequence of the Criminal Procedure Bill which came before us some weeks ago and which, as we all know, evoked a fairly long and contested debate. I think that this Bill, following closely on the Criminal Procedure Bill, which I believed then, and still believe, tipped the scales of justice away from the individual and heavily towards the State, could in fact be a measure affecting dangerously the proper administration of justice in South Africa. In what I have to say today I hope I shall be able to show why and how the high standard of the administration of justice could be detrimentally affected.

There are four clauses which cause concern and which my party will oppose, wholly or in part. The first of these is clause 2. This clause brings the magistrate’s court into line with the provisions of sections 153 and 154 of the new Criminal Procedure Act. Those provisions in the new Criminal Procedure Act provide that certain court proceedings may be heard in camera or behind closed doors, or before a very limited or specified set of spectators or observers. Clause 2 of this Bill states that the records of such proceedings may not be made available for public inspection. Prima facie this appears logical. It is in fact logical. Some of the circumstances quoted in the new Criminal Procedure Act, I believe, would warrant this step. What are these circumstances? Section 154(2) of the new Criminal Procedure Act covers the situation of a court finding that there is a likelihood that harm or danger may result to a person other than the accused if his identity is disclosed in a trial. In such a case the public may be excluded from the trial and the identity of such person may be protected. That is the first type of case.

The second type of case is dealt with in section 154(1), as read with section 153(3), which covers the protecting of persons who are complainants in charges relating to indecency, to indecent assaults and to extortion. Section 154(3) deals with the non-publication of the identity of offenders under the age of 18 years. I want to state immediately that it is quite correct that the court records relating to the above sort of matters, in prescribed and defined circumstances, should in fact not be made available for easy public scrutiny. I would, however, ask the hon. the Minister—I had meant to deal with it, but I will not do so now, because I think the hon. member for Umhlatuzana has done so—to deal with the queries relating to the limited access to those records.

It is quite clear why the general public should be excluded from obtaining those records. The very protection instituted in the criminal code, if this provision were not before us today, would otherwise be destroyed. However, I cannot say the same about the fourth type or category of cases mentioned in this Bill, and in this particular clause. I refer to the provisions of section 154(1) of the new Criminal Procedure Act, a section which must be read with section 153(1).

I refer hon. members to section 154(1), which reads as follows—

This refers to the following set of circumstances. It refers to a set of circumstances in which a court has sat as follows. I am now quoting section 153(1)—

The provisions of the Bill before the House are consequential upon what I have just read. If I may say so, I do not believe that sufficient attention was given to these sections, particularly section 153(1), when the Criminal Procedure Act was debated in the House. That is as much my fault as it was anybody else’s. The provision authorizes and regularizes the closing of the court records when the court closes its doors in a trial in which it is felt that a public trial would influence, or would be detrimental to, the interests of the security of the State, of the good order, or of public morals.

My argument is that these are very wide grounds and that they are extremely vaguely stated, and we all know that it does not take much at all to obtain a finding of that sort in a magistrate’s court. I remember well years ago in the Johannesburg city council adjudicating favourably on applications to hold what, in the view of the city council at that time, were perfectly legitimate, perfectly innocuous protest meetings, marches and demonstrations only to find, having made a full council decision, after taking all the factors into account, that our decision was reversed by the local magistrate on the ground that the planned event would not be in the interests of public order. This is a concept which is not only vague, but in the South African circumstances it is a concept which is subjective and very much, in my view, within the malleability of the prosecution and of the State. The passing of this clause could well allow of a situation where political trials are closed to the public eye and even to the scrutiny of interested parties, interested jurists and most certainly to the scrutiny of the watch-dog of the public, the Press. By no stretch of the imagination can a position such as this be a healthy one. It is basic to fundamental rules of law that criminal trials are held in public, that justice be seen to be done. If there is a case to be made out, as there may well be, for the closing to the glare of publicity of certain trials, then such cases should be clearly defined and not left to decisions to be made on vague and broad concepts such as “good order”, “public morals” and the like.

I would like to deal with one or two other clauses. The next clause that we believe should be opposed is the clause increasing the jurisdiction of the regional courts in terms of which regional courts may now exact fines of up to R10 000 and impose imprisonment of up to 10 years. In his speech the hon. member for Klerksdorp said that one of the reasons for making it 10 years and not six years was that the Viljoen Commission—I think he quoted from that report—recommended a fine of R10 000 or six years and that 10 years were, in fact, the equivalent of R10 000.

I do not think that is a very good argument at all. Over the years money has devalued to an extent where it is not worth 50% of what it was worth a few years ago, but time is something which has not changed. We still have the same time; the same minutes are still in the same hours. So, I think that to say that because there is an inequality in the money and the time factor, that is a reason for bringing the period of imprisonment up to 10 years is not really getting to the root of the matter at all. Let it be said that we at the outset are to be found to support the hon. the Minister in his efforts to ease congestion in the Supreme Court and that a marginal increase in the jurisdiction of the magistrates’ and regional courts will, we believe, serve that purpose. I think it would even be agreed to without debate in the House. However, despite the import of what the hon. the Minister said, we must still remember that the magistrates’ courts too are congested and that long delays are experienced in the magistrates’ courts throughout the country in bringing both civil and criminal matters to trial. This is particularly perturbing as the vast bulk of the cases heard in South Africa, even without this increase in jurisdiction, are in fact heard in the lower courts and not in the Supreme Court. Therefore, it seems to us that it is an erroneous move to attempt to ease the congestion in the Supreme Court by a measure which will palpably increase the congestion in the lower courts. We believe that is what this radical increase in jurisdiction will do.

However, there is another aspect of the matter to which the hon. member for Klerksdorp has already referred. That is that it is our view that offences carrying penalties of the severity of 10 years’ imprisonment should in any event as a matter of principle be heard in the Supreme Court and not in an inferior court. Trials of this nature drastically affect the lives of the accused and their families. I believe these people should have the right to have their cases heard in the highest and most qualified courts in the country. [Interjections.] The hon. the Minister may argue, and it has been argued by the hon. member for Klerksdorp, that I am reflecting upon the competence of the magistrates’ courts in putting forward this argument. However, the hon. the Minister himself will admit what was admitted in the most recent report of the Department of Justice. I quote page 1 of the report, paragraph 1.1—

Further down the paragraph it reads—

Taking the matter further, he answered a question I put to him last year. The question was in relation to the situation of prosecutors in magistrates’ courts. The hon. the Minister said this—

Then the hon. the Minister went on to deal with the various attempts to improve the situation. What I am saying, is that where a man stands a chance of being put behind bars for a period of 10 years where his case is being heard in a regional court or perhaps in a magistrates’ court from where he is referred to a regional court for sentence, or when he stands a chance of being financially ruined by a crippling fine of R10 000, I believe that that person should be entitled to a judgment given by the most highly qualified judge after his case has been heard and prosecuted by the most highly qualified prosecutors. I cannot state with certainty that this provision will lead to the maladministration of justice, but I do feel that the propensity to make a mistake, particularly taking into account the provisions in the criminal code relating to pleas of guilty, when independent evidence—that is evidence aliunde—is excluded, is far greater now than it was in the past, and taking into account the increase in jurisdiction of the magistrates’ courts and the regional courts, the consequence of such errors will have enormously detrimental effects on the individual. So we cannot support this aspect of the Bill.

I now want to come to two further contested clauses, i.e. clauses 14 and 15. Barely stated, clause 14 means that the charges brought under certain provisions of the General Law Amendment Act of 1962, charges relating to sabotage, need now no longer be heard in the Supreme Court and can be referred to an inferior court.

Clause 15, relating to terrorism, allows the same delegation of trials to an inferior court.

It is well known that convictions under the Terrorism Act carry a minimum penalty of five years, and further, that the sentence available to the court in terms of both sabotage and terrorism convictions, under both those two Acts, are of a pretty draconian nature. It is also common cause that charges for these offences are nearly always related to alleged political activities. Once again I face the hon. member for Klerksdorp four-square. He has run away from the debate, having said his little bit. He has left the chamber. I want to say to him—he can read it later—without wishing to cast aspersions on the administrators of justice in our courts, that I believe that trials of this nature should in fact only be heard in the Supreme Court, in the first instance, because of their political nature. That is why we differentiate this particular type of crime from a crime such as a crime of rape, as mentioned in clause 7 of the Bill. Judges of the Supreme Court, prior to being appointed to the Bench, have always been drawn from private practice. They are the most successful advocates, the most learned of men, they are not and they have never been bound to the State in any way. Their tenure of office—this is an important point—is secure once they are appointed. Magistrates have all their lives worked for the State and they are largely educated through the State and through the State’s machinery. They have been and they are today public servants in the employ of the State, judicial officers with their tenure subject to the State. I honestly believe, in all sincerity, that in the interests of justice and in the interests of the reputation of justice, these political matters should not come before the magistrates’ courts in South Africa. Secondly, we again come to the question of sentence. In terms of the procedures of the Criminal Code—I refer to chapter 19 of the Code in terms of which certain matters may be referred after trial to a superior court or to the Supreme Court merely for sentence—this obviously would apply to both sabotage and terrorist trials, in which case the most awesome sentences come into play. Therefore, I do not think it is a good principle that one court, having not heard the trial, but merely having the bald record before it which is in some cases a brief record containing only the plea of guilty and certain answers given to questions, would then be placed in the position of imposing what might be a very far-reaching sentence. For such cases, particularly if they are of a political nature, the court should have before it more than just the briefest of documentation. Therefore these two clauses cannot be supported by us on this side of the House.

In summing up, I want to say that it is clear that this Bill comes logically after the introduction of the Criminal Procedure Bill and it fits nicely into the pattern of the tightening up of legislation brought by the hon. the Minister this session. In the long run I believe that the interests of the individual will once again suffer. I am sorry to say that in the long term South Africa and its judicial procedures will be brought into question. Terrorism and sabotage trials have always been and should in the future be trials of exceptional moment and particularly close scrutiny. There should not even be the slightest suspicion that such trials are subjected to a sausage-factory type of justice in congested inferior courts. I do not say that this will happen, but I believe that that sort of suspicion should be cut off and avoided immediately. That is why I believe that the matter should stay with the Supreme Court. The pattern which is emerging this session is, in my view, not a happy pattern for the portfolio of the hon. the Minister. The pattern of the hon. the Minister’s legislation evidences a closing of the doors, a greater exclusion of the public, the further whittling away of the rights of the individual and of the Press in our judicial procedure. I think we would be failing in our duty if we did not ask the hon. the Minister seriously to reconsider the provisions of this Bill, particularly the ones that have been mentioned this afternoon. Failing that, we shall have to vote against the Bill.

Mr. Speaker, I am sorry that the hon. member for Klerksdorp is not here. I wanted to reply to him. I shall still do so. Before doing so, I should like to say that we on this side of the House agree in general with the remarks which the hon. member for Sandton has made. I think the hon. member for Klerksdorp mentioned the fact that the Viljoen Commission had made recommendations in regard to the extension of the jurisdiction of the regional courts. Did the hon. member find, anywhere in the recommendations of the Viljoen Commission, that contraventions of the sabotage provisions or the Terrorism Act should be dealt with in the regional courts? I do not think he will find it and neither will the hon. the Minister.

The Viljoen Commission did not deal with that aspect and I think this is a matter which has been utilized by the hon. the Minister in order to try to genuinely relieve the position of the courts and—as the hon. the Minister said—to try to preserve a balance between the courts. At the very beginning I should like to say that we on this side appreciate the fact that it is important to keep a balance between the courts. In other words, it is completely wrong for the proper administration of justice to find the inferior courts completely cluttered up while the superior courts have time on their hands, or vice versa. However, I believe that we must always remember that any balance which we intend keeping should not be at the expense of a fair and equitable administration of justice. I should like to say that what I shall try to do is to deal with clauses 14, 15 and 16 from a general point of view in regard to the general administration of justice in this land. I believe that these three clauses contain one of the main principles in the Bill and therefore I am going to concentrate upon them at this stage.

I believe that it is extremely difficult for anyone to assess the relative degree of importance of the nature of a crime, for if one analyses a particular type of crime, one can find good reasons for saying that the particular type of crime should be classified above another type in order of importance.

However, if one looks at it from another angle, one can find that there is another type of crime which is perhaps of more importance than the one which one has thought the most important. I am thinking about the classification of crimes such as crimes against the State—crimes such as treason and sedition—crimes against lives—crimes such as murder or culpable homicide—and crimes against physical integrity—crimes such as assault, theft or fraud. Which one of these crimes is, relatively speaking, the most important? In my mind there is no doubt that in the public’s mind there is no greater crime than a crime against the safety of the State. In such a crime the complainant is, in fact, the people of the land. Traditionally the penalties for such crimes against the State are and have always been set at the very highest. In the recently debated Criminal Procedure Bill which became Act 51 of 1977, clause 277 provided that the ultimate sentence, namely that of death, could be passed in the court’s discretion only in respect of certain crimes amongst which was the crime of treason. I presume that in the approach of those who say that the punishment must fit the crime and in the yardstick that the punishment meted out must afford maintenance of our country’s safety, any crime which merits the death sentence is one of the few major crimes in our penal system. If one examines the sabotage clause and the Terrorism Act, one finds, as has been said here this afternoon, that in each case the crime is, for the purposes of penalty, to be dealt with on an equal footing with treason for which the death penalty is a valid provision.

I may mention that the hon. member for Klerksdorp has wondered why this side of the House does not consider it peculiar that while offences committed under the Suppression of Communism Act can be tried in the magistrate’s court, it objects to cases arising out of the sabotage or terrorism being heard before regional courts in our land. The difference is in the first instance that the Suppression of Communism Act was passed in 1950 while the legislation in connection with sabotage was passed in 1962 and the Terrorism Act was passed in 1967. In both the last mentioned statutes it was specifically stated that the jurisdiction in respect of criminal contraventions of the particular provisions was restricted to the superior courts. The fact that the Suppression of Communism Act does provide that contraventions in respect of its provisions can be tried in the magistrate’s court is really of no consequence and has no bearing on our approach to the matter at this stage.

In the case of the legislation regarding sabotage it is the position that if the death penalty is not imposed, the minimum sentence that can be imposed is imprisonment for five years without the option of a fine. In this connection I come back to the question which I think has been passed over slightly by the hon. the Minister. I refer to the fact that in the existing provisions of both the sabotage section of the General Laws Amendment Act and the Terrorism Act there is provision to the effect that the provisions of the Criminal Procedure Act in so far as they relate to the suspension of sentences are not applicable.

It does not seem as if these particular subsections are going to be dealt with by the hon. the Minister in this amending Bill of his. I am referring to section 5(g) of the Terrorism Act and section 21(4)(f) of the General Law Amendment Act. It seems to me peculiar that these aspects are not being dealt with at this stage but I believe that the hon. the Minister will be able to reply to me when he replies to this debate. Clearly the two crimes of sabotage and terrorism are considered to be two of the major crimes in the administration of our criminal justice. This being so, how can the hon. the Minister possibly consider that in certain cases a charge of such paramount importance can possibly be dealt with at the level of the inferior courts? Since time immemorial our system of justice, in the criminal sphere, has been dealt with by superior courts and by inferior courts, i.e. the Supreme Courts of the land and the Magistrates’ courts of the land. An entirely different method of the establishment of these courts, as was mentioned by the hon. member for Sandton, has been in existence since time immemorial. In terms of this, only certain persons with particularly high legal academic degrees are entitled to appear before superior courts, and the appointment of judicial officers to these courts is done by the Minister, on the advice of the Chief Justice, from the ranks of those highly qualified and experienced advocates. In the lower or inferior courts the legal training is more practical and less academic, being designed to deal with matters of a less intricate nature with less far-reaching effects on the persons involved in the crime or the litigation itself. I think that we are all aware of the fact that the superior courts of our country have inherent jurisdiction. In other words, unless prevented by statutory provisions, the superior courts can hear any matter which is placed before them. However, the magistrates’ courts are creatures of statute and the extent of their jurisdiction is defined exactly by statute.

In this regard it is of interest to remember that certain matters are excluded from the general jurisdiction of the magistrates’ courts. One example is the dissolution of marriages. Why is that? Why, over so many years, has it been thought necessary to exclude matters of this nature from the jurisdiction of magistrates’ courts? One must not forget that these are the same magistrates who are dealing with criminal matters. However, when it comes to civil matters, e.g. the dissolution of marriages, they are not to be dealt with by the inferior courts. A second example is the validity or interpretation of wills. This is also not to be dealt with by the inferior courts. A further example is status in respect of mental capacity. Again this is not to be dealt with by the inferior courts. Specific performance in certain cases was also excluded from their jurisdiction, as were decrees of perpetual silence. These are all matters of paramount importance. So what could have been the reasoning of our predecessors who decided that this should be so? Surely the reason is the relative weightiness and importance of the matters to be dealt with by either the superior courts or the inferior courts. The whole pattern of the administration of justice has always been to refer for adjudication, to each of the respective courts, those matters which, by a general yardstick of importance and monetary value in civil matters, and by a general yardstick of seriousness and monetary/statutory penalty in criminal matters, are set aside for that specific purpose. Clearly, therefore, offences of sabotage and contraventions of the Terrorism Act should only and can only be dealt with satisfactorily by the superior courts of our land. I have now dealt, in general terms, with the penalties.

However, I should now like to come to the intricacies of these particular Acts themselves. Let me say, in parenthesis, that both the crimes mentioned above are sui generis, and here I am referring to the crimes of sabotage and terrorism. I do not think the provisions of the Acts concerned are comparable with those of any of our other Statutes.

In the Act which deals with sabotage the definition of what comprises this crime is so wide that the relevant section has in some circles been called “the drag-net section”. Almost any subversive action can amount to sabotage in terms of that Act. Furthermore, actions which might amount to sabotage may at the same time constitute a number of other offences such as defeating the ends of justice, house-breaking or public violence. I do not think it is necessary for me to read out the provisions of this particular Act. I believe they are well-known and that the hon. the Minister will accept that what I say is valid.

In the provision relating to sabotage there is also the very peculiar subsection (2) which places an onus on the accused in respect of mens rea. The peculiar words are the words “objectively regarded” which somehow denote a reasonable man’s interpretation of the accused’s behaviour. I believe that the intricacies of that particular Act make it necessary that the relevant cases should be dealt with by persons who are placed at the top of our legal tree in order that a fair decision may be made in regard to the accused’s particular behaviour.

In regard to the Terrorism Act there are similar peculiar provisions which are also sui generis. I am referring to the use of the words: “Unless it is proved beyond reasonable doubt that he did not intend any of the results aforesaid.” The Act itself sets out what the crime is. It lists 12 results that can arise from certain steps that are taken. Then it comes with the peculiar provision to which I have just referred, viz. “Unless it is proved beyond reasonable doubt that he did not intend any of the results aforesaid.” That is a most peculiar provision which places a tremendous onus upon the accused when it comes to establishing his innocence.

To sum up, it appears clear that for the reasons I have mentioned—the very stem penalties which are laid down, the seriousness of the crimes themselves and the intricacies of the laws involved—it is completely unwise in regard to the administration of justice that the jurisdiction of the superior courts should be as contemplated in clauses 14, 15 and 16 of the Bill. I believe we are quite justified in voting against the Bill for that reason. I believe, too, that from a legal point of view the hon. the Minister will have difficulty in justifying the steps he intends taking in this Bill.

I next want to say a few words in connection with the question of the jurisdiction of the regional courts, which is to be increased in terms of clause 9 of the Bill. I believe that the arguments that have been put forward in this regard are valid ones. I refer to the fact that it would be unwise to increase the jurisdiction of the regional courts to imposing sentences of 10 years’ imprisonment or a fine of ten thousand rand. I believe that in any man’s language a ten year period of imprisonment is a considerable period of imprisonment. Anything over five years should be dealt with by superior courts and not by the regional courts.

I must say, too, that I personally doubt a little whether it is a wise move to delete the proviso to section 89(2), as provided for in clause 7 of the Bill. I believe that in a rape case it should be left to the discretion of the accused whether he would prefer to have his trial take place in the superior court or not. As the hon. the Minister has said, it appears that there are not many cases which in terms of section 89 of the principal Act are referred from the regional courts to the superior courts. Nevertheless that right should be retained.

Mr. Speaker, for the most part the hon. member for East London City and the hon. member for Sandton used mainly the same arguments. The hon. member for East London City will therefore excuse me if I do not refer to him specifically now, although during the course of my speech I shall also reply, as far as possible, to the arguments he advanced. First of all, I want to object to the snide remarks the hon. member for Sandton made in referring to the hon. member for Klerksdorp who, he alleged, ran away “after saying his little bit here”. I do not think it was a fitting remark for one hon. member of this House to make about another hon. member. The hon. member for Klerksdorp had to be elsewhere on urgent business and I therefore think the hon. member for Sandton owes the hon. member for Klerksdorp an apology. Furthermore, the hon. member for Sandton said in the course of his speech that he reserved the right to comment on the Bill at any time after its publication. We do not want to argue with him about that right. All we are asking, is that he state the correct facts when commenting on the matter. The hon. member and his party are champions of the public’s right to be informed, and all we ask, is that when they inform the public, they give the public balanced and correct information.

The hon. member also objected to the provision in clause 2 relating to trials in camera. He felt that we should draw a distinction here and that certain documents should still be placed at the disposal of the public and, as he said, the Press. But surely one cannot conduct a trial in camera and then place all the documents at the disposal of the Press and the general public? I think it is obvious that if a trial has taken place in camera the documents should also be confidential.

The hon. member also referred to the increased jurisdiction of the regional courts and in this connection he dragged the staff situation of the Department into it. From the report he had in front of him, it is apparent that the staff situation is indeed not good. I can give him the assurance, however, that only the very best magistrates and the very best prosecutors are used in our regional courts. In any case, since that report, the Department’s staff position has improved considerably and therefore he need have no doubt that the very best people will appear in the regional courts on the Bench and as prosecutors. Furthermore, in relation to clauses 14 to 16—dealing with the issue of the terrorism and sabotage trials that may now be held in regional courts—he said that as he saw it, magistrates were orientated in favour of the State. He said “that this was his honest opinion.” But it is also my honest conviction that magistrates are not orientated in favour of the State. We had better just differ from each other on that.

You must quote me correctly!

That is a reflection on our magistrates and that hon. member did not submit any evidence to this hon. House to substantiate that allegation of his.

I did!

I say that is untrue. If anyone is dissatisfied in this regard, he still has ample opportunity to appeal to the Supreme Court. The doors are open to him; the regional court cannot, for example, refuse to allow an appeal to the Supreme Court.

I want to make a few remarks about the Bill in a decidedly more positive vein. However I shall come back shortly to what the hon. member for Sandton said and also to the report he sent us by way of the Rand Daily Mail. As we have heard, the amendments to the Bill are largely consequential amendments, coming after the acceptance of the Criminal Procedure Bill earlier this year. We see this in clauses 1, 4, 10 11 et al in particular. There are no principles at issue here and we are therefore pleased that the official Opposition supports most of these clauses. As we heard this afternoon, certain other amendments are aimed at better and smoother administrative functioning of our courts and our administration of justice. It has already been said in this House, but I think we should re-emphasize it, that the hon. the Minister and his department are particularly concerned to streamline and make adjustments, where necessary, to the procedures regulating the operation of our courts. Let us take a brief look at this. Reference has already been made to clause 7, a clause in terms of which section 89 of the Magistrate’s Courts Act, 1944, is amended. What the amendment will mean is that regional courts will also be able to try people on charges of rape. The question arises as to whether there is any advantage in this. In my opinion, there are definite advantages in this. The hon. the Minister has already pointed out that it sometimes happens that when someone has been charged with rape, he goes to court—all the witnesses having been summoned and the court roll having been drawn up—and then refuses to be tried in that particular court. In that way, the court roll is upset completely. I believe it would be to everyone’s advantage for the person involved to know where he is to be tried and if such a case could duly be placed on the court roll.

For cases of the aforementioned nature to be heard by a regional court, is to the advantage of the accused as well. In the regional court a magistrate may impose a prescribed maximum punishment, whilst someone who is tried on a charge of rape in the Supreme Court could almost certainly expect a much heavier sentence. At the same time, the accused still reserves the right to appeal to the Supreme Court if he is not satisfied with the verdict of the regional court. If he had been found guilty in the Supreme Court, however, he would obviously not have had the right to appeal to the Appeal Court. In my opinion, this is an advantage we ought not to pass off lightly.

Next I want to refer to clause 8, in terms of which sections 90(8) and (9) of the Magistrate’s Courts Act are amended. Up to now, a great deal of money and time has been wasted whenever someone has been charged with fraud, for example, at various places in the country. If such accused did not wish to agree to a trial in a specific court, then for every alleged offence, he had to stand trial in a court in the magisterial district in which the alleged offence was committed. In terms of the new provision, the Attorney-General may direct that such an accused be charged in one specific magisterial court and therefore the trial could be held there as well. A great deal of time will be saved in this way, particularly the time of our courts and of witnesses; people who normally work elsewhere and who do not have the time to sit in court all day doing nothing. Money will also be saved in this way; the money of the tax-payers who have to pay for this. We gain all these advantages without detracting at all from our administration of justice in the process.

However, I now also want to refer to the very unpleasant and jarring note we heard here this afternoon. In fact, we heard those same jarring notes a while ago; they emanated from the ranks of the PRP, and were uttered by the hon. member for Sandton. The hon. member referred specifically to clauses 9, 10, 15 and 16. These clauses relate to rectification and to the extension of the jurisdiction of our magistrate’s courts from 6 to 12 months, as far as the imposition of imprisonment is concerned, and from R500 to R1 000 as far as the imposition of fines is concerned. In the case of regional courts, the aforementioned clauses stipulate that the maximum sentence of imprisonment that may be imposed in these particular courts, is to be extended from three years to ten years and that the maximum fines that may be imposed, are to be raised from R1 500 to R10 000. The vesting of the authority to try cases of suspected sabotage and terrorism in regional courts, was another matter on which the hon. member vented his spleen against members on the Government side.

I believe that in this respect too—and I should like to associate myself with what the hon. member for Klerksdorp had to say—he made irresponsible comments in the Rand Daily Mail of 25 April this year. As far as I am concerned, his actions and remarks were of a questionable nature, to put it as mildly as possible. I believe that in this way, the hon. member has brought the integrity of our legal system into disrepute and that he tried to place our legal system under suspicion by saying what he did. Apparently, mindful of the publicity he would receive, the hon. member had no scruples about making dangerous misrepresentations about the implications of this Bill and those of the new Criminal Procedure Act, which became law earlier this year.

I want to remind the hon. member for Sandton that he said earlier in this House that the interview as published in the Rand Daily Mail was correct. Therefore, he does not dispute the correctness of the rendition of his interview in the Rand Daily Mail. Under the prominent heading “Magistrate’s Bill Comes Under Fire” we read, inter alia, the following—

The report goes on to say—

In the interview he granted, the hon. member for Sandton said, “this emerged.” Surely this is not true? It is a misrepresentation of the facts because after all, the principles and the facts at issue here, are not before the House now. We are not debating them now. They were accepted earlier this year when the Criminal Procedure Act was passed. The Bill under discussion has nothing to do with that principle. Let us consider the other facts. Apart from the preliminary investigation procedure, the Criminal Procedure Act prescribes two other procedures that may be followed at the trial of an accused in the magistrate’s court. If the procedure prescribed in section 112 is followed, viz. where a man may be found guilty without evidence being led if he pleads guilty, then that case can in no way be referred to the Supreme Court, unless it is converted into a preliminary investigation. In other words, it has to be converted into a preliminary investigation and, as prescribed for a preliminary investigation, evidence must be led, evidence that must be submitted to the court and the Supreme Court. What is more, if the other procedure, as prescribed by section 119 of the Criminal Procedure Act, is followed, an accused may never be sentenced to death by the Supreme Court either without evidence being led, because apart from the provisions of section 112, which the hon. member for Klerksdorp has already quoted, a proviso to section 121(5)(b) reads as follows—

Therefore, I cannot understand how the hon. member came by the outrageous statement he made in the Rand Daily Mail that an accused may now be referred to the Supreme Court, appear before the judge and face the death sentence without any evidence having been led. I cannot understand it. It is a misrepresentation of the facts. What the hon. member told the newspaper, was therefore untrue. I think it was aimed at bringing our administration of justice into grave disrepute. To put it to him quite plainly; I think it is disgraceful and the hon. member ought to be ashamed of himself. It is not behaviour befitting an hon. member of this House. However, in his statement to the Rand Daily Mail the hon. member went on to say—

I want to state categorically that the aforementioned statement by the hon. member, is devoid of all truth. It is untrue, and I challenge the hon. member to show us where this is stated in the Act. The fact of the matter, and the Criminal Procedure Act stipulates this, is that the regional court must sentence an accused. The accused may lodge an appeal against that sentence and if the regional court does not sentence an accused, the trial must be converted into a preliminary investigation, in which case it goes to the Supreme Court anyway. I do not want to take up the House’s time unnecessarily, but I think this is a serious matter that the hon. member is using to embarrass us. For example, he went on to say in the report—

Does the hon. member realize what he has said? Who is responsible for the administration of justice in the country? It is the independent Bench. The hon. member said: “The administration of justice is going to suffer.” Magistrates and judges are the people who attend to the administration of justice in this country. The integrity of those people is unimpeachable and above suspicion and we have always accepted this. It is above all suspicion.

In that way, they administer justice to the people and public of South Africa. According to the hon. member, that administration of justice, as applied by our Bench, our judges and magistrates, is now being harmed. We on this side of the House have confidence in our Bench, whether it be the Supreme Court with its judges, the magistrate’s court or the regional court. In fact, we have so much confidence in these people that we are asking here today that their jurisdiction be extended in certain cases. The hon. member for Sandton and hon. members of his party are so obsessed with the desire to get at the NP, however, that they do not care in the least who they hurt in the process or who they slight. In this case it was our Bench. I think the hon. member was very arrogant in allowing such misrepresentations to be published in a newspaper. I really think he ought to be ashamed of this and that he ought to apologize to those people about whom he said these things. I trust that he will refrain from this sort of thing in future and that he will even go out of his way in the Committee Stage or during the Third Reading of this Bill to ensure that the misrepresentations he made—and he cannot deny them—are rectified in the same prominent manner, so that we shall not stand accused in the eyes of the Bench, for which we have great respect and appreciation, of permitting this type of thing not only to be bandied about the floor of this House, but also to be thrown in the teeth of these people in public, through the newspapers.

Objections were also raised to the extension of jurisdiction to provide for the authority to try so-called sabotage and terrorism cases. I just want to make a few remarks on this, because the hon. member for Klerksdorp already has dealt with it in full. In terms of section 3 of the Criminal Procedure Act, the Attorney-General is the man who decides in every case and under all circumstances, in which court a man is to be charged. If an Attorney-General saw that he was dealing with a serious case, one that could cause various types of problems, would he refer it to the lower court? He has the right to decide that such a case should rather be taken to the Supreme Court. In terms of the provisions of the Terrorism Act of 1976 and the General Law Amendment Act—to which the hon. member for East London City also referred—no charge of terrorism or sabotage can be tried in a court either without the permission and the express directive of the Attorney-General. A prosecutor cannot prosecute just anyone in such cases. The Attorney-General will be fully informed on the matter, and it is he who will decide where legal proceedings are to be instituted. After all, the Attorney-General would be very stupid if, realizing that he was dealing with a case for which there was no strong evidence, he referred that case to the regional court in the hope that the accused would perhaps be found guilty there. Besides, the accused persons in this sort of case are not idiots either. They normally have the best legal advice in the country. If the evidence submitted to a regional court is insufficient, those people will not hesitate for one moment to appeal. That door stands open for them and cannot be closed to them. The Attorney-General would not duplicate work unnecessarily either. He wants to dispose of the work. For that reason, if he sees that a case could entail difficulties and that he should therefore rather refer it to the Supreme Court, he will lay the case before the Supreme Court.

The hon. member for Klerksdorp also pointed out that the record of our regional courts in relation to judgments they have made in the past, compares very favourably; it is a record we can be very proud of. Earlier in the debate, it was pointed out that the regional courts already have the jurisdiction to hear political cases under the Suppression of Communism Act. The hon. member for East London City told us that this was an Act passed as long ago as 1950. What does it matter? I want to point out to the hon. member that we in this country have in the past had well-known people appearing before our regional courts. People like Bram Fischer, Nelson Mandela and Walter Sizulu were found guilty in the regional courts. What is more, no-one objected to them being found guilty there, nor did they appeal against the judgments that were passed there. In my opinion, the proposed amendment entails greater and essential flexibility for our legal system. It will enable our Attorneys-General to transfer cases from courts, whether it be the Supreme Court or the regional courts, without our legal system and the administration of justice in South Africa being endangered thereby in any way. Therefore, we can unhesitatingly support the Bill before the House.

Mr. Speaker, the hon. member for Verwoerdburg will pardon me if I do not react to his arguments. He devoted a large part of his speech to an attack on the Opposition. We are not going to oppose the Bill and I should also like to address a few words to my friends in the official Opposition.

†The hon. member for East London City said that he wanted a balanced approach, but I believe he will agree with me that his party certainly did not adopt a balanced approach in regard to the matter. The Bill will enable attorneys to appear in more serious matters in regional courts. Does the hon. member for East London City believe that his fellow practitioners do not have the competence to appear in these matters in the regional courts? This attitude on the part of the Opposition reflects a serious lack of confidence in the ability of their fellow legal practitioners and attorneys in general. This is a very unhappy state of affairs and I am sure that the hon. member for East London City, on reflection, will reconsider what he said and that he will allow one of the other speakers following him perhaps to make a correction on his behalf, because I am sure he did not intend to reflect on his fellow practitioners. Nevertheless that is the effect of his argument.

The other Opposition party has opposed the Bill. The Bill’s main features are to give magistrates certain discretions and greater punitive powers. At the same time the Bill also gives the regional magistrates greater powers. To oppose the Bill one has to be convinced that the magistrates as well as the regional magistrates do not have the competence, the experience or the ability to ensure that justice prevails with these greater powers. In other words, the other Opposition parties do not have sufficient confidence in the gentlemen who sit on the benches of our courts. We in these benches do not have the same reservations as the other hon. members in the Opposition parties. We believe that the magistrates can be entrusted with these additional responsibilities. There is also a safeguard which I shall mention a little later on. The official Opposition are not being consistent, because in terms of the Indemnity Bill they wanted the courts to have more powers and today they have adopted a reverse attitude by saying that the courts are getting too many powers. It is quite understandable and we must allow for it. They are having pangs of birth at the moment.

We in these benches feel that if justice is to prevail, it is an entitlement and a fundamental right that the court hearing takes place in a peaceful manner. Whenever one reads that disturbances take place at the hearing of a case, it creates the impression in one’s mind that the persons responsible for these tactics want to intimidate someone. If in the interests of good order or public morals the court directs that civil trials should take place with closed doors, it should certainly find a measure of favour with both the plaintiffs and with certain defendants who do not want their dirty linen washed in public. In certain cases it may even encourage plaintiffs who wish to shun publicity, to bring their cases before court. At present we know there are many cases where the plaintiffs do not come to court because they want to shun and avoid publicity.

The increase of punitive jurisdiction of the magistrates’ courts and of the regional courts is the only way in which the work-load can be transferred satisfactorily in order that the Supreme Court and the other courts can deal more expeditiously with court cases in general. The amendments to the General Law Amendment Act and to the Terrorism Act will extend the jurisdiction of courts to the regional divisions. These amendments will mean that cases can be heard at far less cost and far more expeditiously than in the past. I want any other hon. member to dispute that.

Why?

The hon. member for East London City asks me “why”? I want to tell him that a competent attorney such as he can appear in such a case and therefore it is not necessary to brief counsel. I should imagine that his charges are far less onerous than those of counsel.

In these cases the accused person has virtually an automatic right of appeal to the Supreme Court because regional magistrates have no right whatsoever to refuse an accused person the right of appeal. That is why in all these cases, if the accused wants to appeal, there are no doors closed. No regional magistrate can prevent any accused from lodging an appeal. This is the safeguard that remains. Of course, we know that in many cases the question of review arises.

As a member of the legal profession I considered it my duty to consult with certain parties in the legal profession as one would automatically consult with these parties. The result of the consultations I have had is that we should support the Bill. Therefore, we in these benches have no hesitation in supporting the Bill.

Mr. Speaker, I should like first to make some comments on what the hon. member for Verwoerdburg said in a very violent attack upon the hon. member for Sandton.

Totally unwarranted.

He first of all made the point that the article in the Rand Daily Mail was wrong factually. I just want to point out to that hon. member that the position in terms of the law as it will stand after this Bill has been passed and read in conjunction with the new Criminal Procedure Act is that the Supreme Court will be able to pass the sentence of death upon an accused if the guilt of the accused has been proved as if he has pleaded not guilty. Those words come from section 112 of the Act. Let me refer the hon. member to section 122 which deals with pleas of not guilty. Section 122(4) provides—

If he is asked questions in the lower court—I call it “the lower court” and not “the inferior court”—and he makes admissions, those admissions are proof in the Supreme Court and those may be sufficient proof for a sentence of death. That is the only point that is made in the article, viz. that with the increased jurisdiction the position is that the accused can be taken to the magistrate’s court where admissions from him can be obtained. If the Attorney-General is of the opinion that the matter is more serious than he has at first thought, the accused can be referred to the Supreme Court in terms of chapter 19 of the Act and there his admissions can be sufficient proof of the offence to justify the passing of the death sentence. It is an unusual position.

I should like to point out that we must look at the law as it is; we cannot look at the undertakings of hon. members on that side of the House and not even the undertakings of the hon. the Minister of Justice. If I say this, I am not casting any reflections on the present Minister, but I should like to point out that when the Terrorism Bill went through the House—it later became Act 83 of 1967—the whole argument on clause 6 centred around the question raised by this side of the House, “Why should a judge not see these people?” The other side of the House replied, “A judge cannot see these people because a judge will not be available there on the border.” The simple truth of the matter is that I do not know whether the Terrorism Act has ever been used on the borders of South Africa, but I know that it certainly has been used many, many times—in the vast majority of cases—in the cities of this country against people like french-Beytagh who was charged with inciting to armed revolution 200 old ladies of the Black Sash. That is certainly not terrorism on the borders. However, the undertaking at the time was that the powers were needed to deal with terrorists on the borders where judges would not be available. So we must look at the law as it stands. That is what my hon. colleague was putting forward in the newspapers. However, he was also attacked very vigorously on a second point by the hon. member for Verwoerdburg. The expression he used was, I think, “gal”, but in any event he said he was being derogatory about the judicial officers in the lower courts.

The answer given by the hon. member for Sandton in an interjection, or perhaps it was in his speech, was: Why can magistrates not pass the death sentence? There is, of course, a reason. One is not being derogatory when one denies magistrates the power to pass the death sentence. One is merely saying that it is not, in fact, suitable or right that people who are not as highly qualified, in general terms, as judges should be able to pass that sort of sentence. Before I deal with two clauses in this Bill, I want to make the following points. Even in China …

Connie’s place.

Yes, the hon. the Minister of the Interior’s favourite place. In China serious offences are tried by travelling judges of great learning. They travel round the country and try the serious cases. In China the idea is that one should not have local magistrates trying serious offences. I do not want to deal with that hon. member any further.

I now wish to deal with two points in the Bill. I want to deal with the provisions empowering magistrates—and I stress “magistrates”—to impose sentence of 10 years’ imprisonment and also the clauses which allow magistrates’ courts to try cases of sabotage and terrorism. I want to predict here and now that the clause empowering magistrates, in regional divisions, to impose sentences of up to 10 years’ imprisonment will eliminate, for all practical purposes, the Supreme Courts as courts with a criminal function. From now on I predict that the Supreme Court will be abrogated by disuse as a court with a criminal function and simply become a civil court used simply for civil litigation.

Surely that is not true!

I shall tell hon. members why. I doubt whether a 10-year sentence of imprisonment is passed in 10% of Supreme Court cases. In fact, I doubt whether such sentences are passed in 5% of Supreme Court cases. However, I am fairly certain that in not more than 10% of Supreme Court cases are sentences of 10 years’ imprisonment passed. What cases will therefore go to the Supreme Court? The Attorney-General will decide and send nearly all his cases to the regional courts. The Supreme Court will then be eliminated. [Interjections.] That is the point. One wants to know why this legislation is being proposed in this House. [Interjections.] I am coming to that. The point is that 10 years’ imprisonment is a very long period of imprisonment. Magistrates are, as has been correctly stated by the hon. member for Sandton, civil servants. That is not a derogatory statement. It is a statement of fact. They are civil servants. We have nothing against civil servants, but we in South Africa have always followed a judicial system which has regarded it as important to have, as the basis of one’s judiciary, independent judges, people who are independent of the Government function. We have always regarded that as important. However, I predict that in terms of this Bill we are now going to move into an entirely new system of criminal function. As I have said, we have always had the idea that judges should be independent. I now want to put a question to the hon. member for Verwoerdburg. Was that a ridiculous idea? Was it a bad idea to have independent judges?

What about magistrates?

Let me answer that hon. gentleman. Magistrates are not independent, simply because they do, in fact, work for the Government. They are paid by the Government. They are in fact part of the Executive in South Africa.

Who pays the judges?

The judges are certainly independent. Let me say that I have nothing against regional magistrates. It is, however, quite amusing that a regional magistrate in Natal—actually it was not amusing as such, but it is amusing to notice that it concerns a regional magistrate—imposed a whipping of many strokes upon a Swedish seaman for a breach of the Immorality Act. This was probably the only case in the history of South Africa that was actually raised in the Security Council. I do not think such a case would ever have arisen in the Supreme Court.

Surely we can also quote examples like that.

We can also quote examples of stupid advocates in the UNO.

Yes, on all sides of the House, too.

†The other clauses I want to mention are the clauses relating to sabotage and terrorism. In terms of this Bill such crimes can in future be tried in regional courts. That side of the House maintains that sabotage and terrorism are very serious crimes, and we accept that. These, particularly—I do not want to talk of political crimes—are crimes, I would say, where the security of the State is at stake. Particularly in these cases the independence of the judiciary is vital because in these cases there is a direct confrontation between the State and the accused. Therefore, regardless even of the sentence that is likely to be imposed, a judge should try those cases in particular. The next point I want to make is that up to now in cases of sabotage and terrorism, in which the death sentence is a possibility, a pro Deo counsel is normally allocated to the accused. The point has been made in the House this afternoon that cases of sabotage and terrorism, by virtue of the very long and involved definitions of those crimes, often involve difficult points of law as a result of which it is important that a pro Deo counsel be appointed. However, I imagine that that practice will not continue if persons so accused are simply tried in a magistrate’s court.

The hon. member for Umhlatuzana made the point, with which I agree, that these trials are often long trials and are often under the spotlight of the media. They often have senior counsel and, in addition, they often have representatives of the International Commission of Jurists and other people attending them in this country. I have on occasion met representatives of the International Commission of Jurists. At one trial in Pietermaritzburg involving the Terrorism Act a representative of the International Commission of Jurists, who happened to be an American law professor, watched the case for two weeks. Just before he left, the various counsel met him, and I was interested in the comments he made. He said he was very impressed by the court, the judge and the procedure. He said he was also impressed by the objective fairness of the judicial officer. The only things that horrified him were the terms of the Terrorism Act itself. I think it is a good thing that we are able to project that kind of image and that we are able to show to people that in those cases where the security of the State is at stake, we have top-class courts to deal with them. Our Supreme Courts really are top-class courts. However, a very different situation would pertain if these people came to regional courts which are among courts involved with the hurly-burly of the petty cases. With all the other magistrates’ courts around, there is not at all the same atmosphere as one finds in the Supreme Court.

I have heard the hon. the Minister say that in cases involving sabotage and terrorism people often have to wait for a long time for the cases involved to come up. My experience, gained from reading about such cases and from personal experience around the country, is that, as soon as the investigations are complete, the judge presidents are always able to provide the necessary judges. In fact, my experience is that there have not been delays because of a lack of judges. Somebody—I think it was the hon. member for Sandton—made the point here that in respect of the magistrates’ courts there is a far greater shortage of staff and, in fact, a backlog.

Finally, I refer to clause 2 and associate myself with the remarks of the hon. member for Umhlatuzana. I support his view that there are many cases where the accused or complainant is going to be engaged in civil litigation later, and clearly there should be some sort of provision allowing them to look at the record. As the law now stands, in terms of the proposed amendments, they will have no right to the evidence they have given in a criminal matter. I also earnestly entreat the hon. the Minister to consider that matter and to see whether he would be receptive to an amendment to the clause allowing the parties concerned to look at the record in cases like this.

Mr. Speaker, the hon. member for Durban North very clearly acted as the advocate for the hon. member for Sandton and tried to defend his case before the House. However, I want to tell the hon. member for Sandton that one can get the finest advocate in the world—and I do not think the hon. member for Durban North is a bad advocate—but if one has a poor case, even the finest advocate cannot get one out of trouble. I shall come back to what the hon. member for Durban North had to say in due course. In general I think it is necessary when considering this legislation that we bear in mind that to a large extent, this legislation derives from the Criminal Procedure Act which we passed earlier this session. That Criminal Procedure Act was based on the investigations of two judicial commissions, namely the Botha Commission and the Viljoen Commission. During the debate on that Bill we discussed the implications of the reports of those two commissions in full. I do not think it would be appropriate to discuss them again on this occasion. As far as this legislation is concerned we are still, in essence, dealing with the effect of the reports of those two commissions. Hon. members opposite are justified in saying that the only submission at present before the House which is not contained in either of those two commissions, is the proposed clause 15 in terms of which the jurisdiction of the regional court is increased to ten years. The Viljoen Commission referred to an increase of up to six years. We had two things in mind in appointing those two commissions: in the first place the reform of the penal system in South Africa, and in the second place, a full investigation into sentences in South Africa.

As a result of the investigation into the penal system we had the important recommendation that court procedures should be abridged as much as possible, inter alia, to cut down on costs; in the second place, that detainees should be brought before a court as soon as possible and, in the third place, to expedite the legal procedure in general as much as possible. The first two aspects I mentioned, namely the cost of court cases and the bringing before the court of accused persons are matters about which we have had appeals from that side of the House over the years. This, in essence, is what the report of the Botha Commission did. At the same time, in the report of the Botha Commission, the procedures of the Supreme Court are brought into line with the procedures in the magistrates courts. No-one is objecting to that. Then we had the report of the Viljoen Commission. The point of departure of the report of the Viljoen Commission was, in the first place, that sentences should as far as possible be made to fit the specific crime in a scientific way and, in the second place, that there should be as few detainees and condemned persons in our gaols as possible. Some of those recommendations are still outstanding. In his Second Reading speech on the Criminal Procedure Act, the hon. the Minister indicated that those recommendations were being dealt with by other departments. Both of those aspects also concern matters in regard to which representations have frequently been made to the Government by the hon. Opposition over the years. All that the hon. the Minister envisages with the present Bill is to give effect to the points of departure—which have already been accepted by way of the acceptance of the new Criminal Procedure Act—contained in the most important recommendations of the two commissions mentioned, and which have also been incorporated in the Criminal Procedure Act. That is why this Bill is before the House today. The six hon. members of the Independent UP were sensible enough to support us in this, and I believe that they acted very sensibly. The hon. member for Walmer did not even need an advocate to assist him in this case. He went ahead and handled his case alone.

The objections to the Bill raised by the hon. Opposition concern two matters in chief. I think that the hon. member for Umhlatuzana should play along a little as far as this matter is concerned. His main objection concerns the extending of the jurisdiction of the regional courts. As we might have expected, hon. members of the PRP concentrated on the matters of sabotage and terrorism to which reference is made in the Bill. They dragged these matters into the discussion. However, we have already accepted certain things in principle. One of them is the abridgement of the court procedure. Then, too, we accepted the abolition of compulsory sentences. This is something which hon. members opposite have always advocated. The Viljoen Commission also recommended the abolition of compulsory sentences. In that respect it was this very Viljoen Commission which found itself in the dilemma that if it were to recommend that reviews and compulsory sentences should be abolished, the situation would occur that the Supreme Court would be saddled with too much work. This is what this amounted to. The Viljoen Commission realized that something had to be done about that. This is why the Viljoen Commission recommended in principle extending the jurisdiction of both magistrate’s and regional courts. The commission made this recommendation because it foresaw that if this were not done, the result would be an overloading of the Supreme Court roll. I shall refer later to the hon. member’s allegation that the Supreme Court would then become merely a civil court.

Hon. members on this side argued with regard to the amendments to clause 302 of the Criminal Procedure Bill—and the hon. member for Umhlatuzana will have to concede this—that magistrates could be divided into certain categories. At the time the hon. member agreed with this. It was also argued at that time that the sentences imposed by certain magistrates could be reviewed. The hon. member agreed with that, too. He only differed with me in respect of two aspects of the amendment I moved.

This means that the hon. member ought not to object today to extending the jurisdiction of the magistrates courts. At the time, the hon. member conceded that it was possible to differentiate between magistrates. The hon. member also said that he had no objection to extending the jurisdiction of any ordinary magistrate’s court. Nor did the hon. member object to the new provision relating to fines. However, he objected to the envisaged jurisdiction of a magistrate enabling him to impose a maximum sentence of ten years. As far as I am concerned, this is the most artificial method possible of seeking a point of difference.

He is afraid of the Progs.

I agree. However, it is not merely a question of being afraid of the Progs. At the same time, however, the hon. member is simultaneously adopting two different standpoints here. He maintains that as far as money and fines are concerned, the jurisdiction of the regional court can be increased, but not as far as imprisonment is concerned. It is an acknowledged fact in our criminal procedure that these two aspects go hand in hand. In the old days we referred to £150 or 150 days. These are things which went hand in hand. This is exactly what is happening here, too. Hon. members—and I address this warning very sincerely to the hon. member for Sandton in particular—should be very careful not to attack the image of the judicial officers in the country. We have never had anything but good reports in this connection in the past. This very afternoon the hon. member for Durban North testified to what foreigners have said about our judicial officers. The hon. member for Sandton managed to get Prof. Dugard to say something too, or perhaps he commented on his own accord, and said that the regional court and other magistrates were only Government officials.

The hon. members did not advance arguments today as to why they differ. They said that because they were officers of the Government and were paid by the Government, it was wrong that the magistrates should be given this extended jurisdiction. The hon. members did not advance any other argument. I just want to say to the hon. member for Sandton that one should not come along with such threadbare arguments. The judges’ remuneration does not grow on trees; their salaries, too, are paid by the State. [Interjections.] As far as the question of increased jurisdiction is concerned, I want to add that the regional courts have been in operation in South Africa from as far back as 1959 and we have never had anything but very good results from the regional courts. This very year the hon. member for Houghton put a question to the hon. the Minister of Justice concerning the number of people awaiting trial who are being held in prisons, on charges of terrorism and other similar charges. The hon. the Minister replied that at that stage more than 300 people who had not yet been charged were being held in the prisons. Now it is these hon. members who say that we should bring these people before the courts more quickly, and we now want to give the regional courts extended jurisdiction to enable them to deal with these cases under specific circumstances. What are those specific circumstances? They are that the Attorney-General has to decide whether or not this should be dealt with through the regional court. I want to state categorically that some of the best legal brains in the country are undoubtedly the Attorneys-General of the various divisions of the Supreme Court. I cannot imagine anyone …

What about members of the House of Assembly?

That hon. member reminds me of a frog! [Interjections.] Can anyone in this House maintain that an Attorney-General like Dr. Percy Yutar—I could mention others, too, but I do not wish to refer to people who are still occupying that post—is not a man who is fully capable of deciding whether a matter should go to the Supreme Court or to the regional court? There is a minimum sentence to be imposed for each of these offences.

We have seen that in their judgments over the years, judges have not necessarily imposed the maximum sentence. In many cases, cases which I would perhaps have regarded as serious ones, the accused was given two, three or five years’ imprisonment. On what grounds must the whole machinery of the Supreme Court be set in operation if there is a possibility that the accused may be given such a sentence, whereas the accused may also be brought before the regional court with far less delay? There are undoubtedly hon. members on that side of the House who know, as I do—and I am speaking from personal experience because I have appeared before regional magistrates before—that some of our best men are sitting on that bench. There are people with doctors’ degrees in law sitting on the regional court benches. We cannot argue along the lines that the hon. gentlemen on that side of the House are doing without calling the ability of those people into question. These hon. gentlemen want to have their cake and eat it. They want the accused persons to be brought before the courts without delay and at the same time they want the lightest possible sentence to be imposed upon these people. Here we are affording the accused persons the opportunity to go to the regional court, where the maximum penalty of 10 years can be imposed on them, and in the light of the thinking of those hon. members and their tendency to regard these offences merely as a crime against the Government and not really against South Africa, I cannot see why those hon. members are so fussy about the matter. I have said that it is essential that we should extend the jurisdiction of the regional courts and the magistrates’ courts. It must be borne in mind—and this is one of the arguments which the hon. the Minister and we on this side of the House advanced—that we acceded to the request that compulsory sentences could be done away with, as the Viljoen Commission recommended. We acceded to that request. In terms of the provisions of the previous Criminal Procedure Act, certain magistrates had no choice but to impose a certain sentence if they found a person guilty of a certain crime. Surely it would be absolutely ridiculous at this point, since formerly we worked on a basis of minimum sentences and have now abolished them, to allow the ordinary jurisdiction of the magistrate in the regional court and the magistrates court to suffice. If we were to comply with this request it would mean that in fact we should be reducing the jurisdiction of the regional court and the magistrates court. This would be the net effect. I cannot see, therefore, how hon. members can argue along these lines.

I want to refer to another matter. The hon. member for Durban North apologized for having to leave. However, I want to point out that since we are dealing with sabotage and terrorism trials before regional courts, I challenge any member on that side of the House to show me where such people have ever appeared before a court in South Africa without having had the finest legal representation. I include the hon. member for Durban North in this because he has defended some of these people in the past. I do not take it amiss of him. I regard him as a good lawyer. Those people have always had the finest legal representation. There cannot therefore be any possibility of these people’s case being prejudiced simply because we are now giving the regional court jurisdiction.

The right to appear in the regional court is not limited solely to the appearance of attorneys. Any South African advocate can also appear in the magistrate’s court. There is no restriction on the ability and the brains which those people can obtain to defend them in any of the courts. After all, that is not excluded. What, then, are the hon. members worried about? If the hon. members are concerned about anything, they should tell us frankly that they question the ability of a magistrate sitting in the regional court. If this is the case, the hon. member for Umhlatuzana cannot stand up in this House and express such misgivings because he agreed with us that we can draw distinctions by saying that the findings of certain magistrates may be reviewed whereas the findings of other magistrates need not be subjected to review. We accepted the principle. The criminal procedure legislation has been duly and fully debated in this House and every hon. member was afforded the fullest opportunity to discuss it. The legislation at present before the House derives from the work done by two commissions, and in my opinion it is unnecessary for hon. members to make such a fuss about the matter today that the hon. the Minister has to sit and wait to have the Second Reading of the legislation agreed to. Not even the hon. member for Durban North, if he and I were to be standing and talking in the lobby, would have any objection to the 10 year jurisdiction of the regional court. I know that the hon. member will not differ with me, because we have discussed the matter before. When the Criminal Procedure Act was being discussed, the hon. member intimated that the jurisdiction should be substantially increased. The hon. member for Sandton also said so. Why, then, do the hon. members raise these arguments all of a sudden?

At least hon. members of the PRP are consistent in the standpoint they adopt against extending the jurisdiction, but the hon. member for Umhlatuzana is not at all consistent because he wants six of the one and half a dozen of the other. The hon. member simply wanted the fines to be increased; that is in order and people can pay. But if they have to go to gaol, the hon. member does not want them to sit for ten years. He is therefore totally inconsistent in this regard.

The legislation at present before the House is a piece of consequential legislation in so far as as it follows on the Criminal Procedure Act which we have already passed, and it is vital if we wish to implement the Criminal Procedure Act in South Africa fully in all respects. I therefore hope that hon. members will reconsider their standpoint and agree with us as soon as possible that the legislation is essential and that we should pass the Second Reading unanimously. I think that the hon. member for Umhlatuzana in particular will gladly agree.

Mr. Speaker, the debate seems to have taken a strange turn. It would appear that instead of dealing with the premise which the hon. member for Umhlatuzana introduced with regard to his view of the gravity of the change in the light of the gravity of the offence, the debate now seems to have turned on the question as to whether there is any doubt about the capability of regional magistrates, whether they are doing a good job of work and whether there is doubt as to the disadvantage the accused may suffer because his case might come before a regional court, whereas he has always, according to precedent, enjoyed the advantage of the best legal brains in the country …

Who introduced those aspects?

This is what the hon. member for Schweizer-Reneke has just told us. He rejected the assumption that there might be a disadvantage to the accused. In fact, he suggested that it may have been alleged that it was so. The hon. member also dealt with the capabilities of regional magistrates and regional courts. None of these questions have been put in issue by hon. members in these benches. They have dealt with the Bill as they see it and from an entirely different and objective point of view. Therefore there is not a great deal that I can say in response to what the hon. member for Schweizer-Reneke has said. Apart from the fact that he feels that the Bill is consequential in many respects and that it follows on the spirit of the changes which have been brought about by the new Criminal Procedure Act, he had very little to say indeed to answer the arguments put up by the hon. member for Umhlatuzana. I shall deal with some of his arguments a little later.

I also want to refer to the hon. member for Walmer who, to my mind, has introduced the most puerile argument that we have heard during the debate. The hon. member’s conclusion is that one of the most important advantages and consequences that flow from the legislation before us—he showed no hesitation in supporting it—is that the legal profession in the Side Bar will now have an opportunity to handle these cases on a much more extensive scale, that they will be able to appear personally instead of briefing counsel and that as a result they will be much better off financially. I must say that it may be that from his own point of view he sees some advantages. However, an argument of that nature to support legislation of this kind is, if I may say so with the utmost courtesy to him—he was after all a colleague of mine in this party some time ago and I have a high regard for him personally—a very puerile argument.

Is the hon. member perhaps not becoming senile?

The hon. member has even gone further. He has consulted other members of the profession. Well, I do not know. We have also consulted members of the legal profession, but we have come to a different conclusion.

The hon. member for Klerksdorp said that under the Suppression of Communism Act cases did come before the lower courts. I think he based the fact that cases did appear before those courts on the fact that while certain of the offences in terms of the Suppression of Communism Act are subject to a penalty of three years and others are subject to a penalty of only one year, there are also offences for which the penalty is merely a fine or imprisonment for a period not exceeding one year. There can therefore be instances where cases are heard before the regional courts in terms of that Act. Since regional courts have the jurisdiction to impose imprisonment for periods not exceeding three years, it can happen that those cases are heard before the regional courts.

However, we base our case mainly on the fact that the Supreme Court is the court to which cases of this nature are being assigned in terms of the statutes of 1962 and 1967. In terms of the two statutes the penalties applicable to offences under the two Acts are equated with offences for treason. As has been correctly pointed out, treason is probably the highest form of crime that one can conceive, particularly since it not only affects the State, but also undermines the entire society in which we live. It is equivalent to the well-known term of laesa majestas and it is punishable by death for that reason. In cases where it is not so punishable, the minimum penalty which can be imposed is a compulsory penalty of imprisonment for five years. This is the yardstick by which a crime in terms of the sabotage legislation and a crime in terms of the Terrorism Act is measured. We therefore regard these crimes as very serious indeed.

From a point of view of the image of our country and in so far as our courts are concerned, I think there is no better way to illustrate the seriousness with which we regard these crimes than to provide that cases in connection with such crimes are to be heard in the Supreme Court. Should we provide that such cases are to be heard in the Supreme Court, we would underline the importance which the public should attach to these crimes and such provision would also serve as a deterrent to the commission of crimes of this nature.

One of the other arguments of which hon. members have made use is that the Supreme Court in particular is very heavily inundated with work and that its rolls are very full. I can draw the hon. the Minister’s attention to many other matters which congest the rolls of the Supreme Court.

The difference is that the people affected in those cases do not sit in gaol waiting to be heard.

I shall deal with that in a moment. I know that the hon. the Minister thinks purely of civil matters because he thinks that civil matters do not keep people in gaol. However, the position is that if we do not have sufficient judges, we must appoint more. [Interjections.] We must take into account that our population has increased considerably. The courts do not deal with a limited section of our community. They deal with the affairs of upwards of 15 million or 16 million people living within the Republic of South Africa. The population increase over the past decade has been quite considerable and will be even more considerable over the next two or three decades. Therefore it is essential that we make preparation, as in other countries, to increase the various divisions of our Supreme Court and to provide for sufficient personnel. If, as the hon. the Minister says, they cannot be found amongst members of the Bar, he must make the profession of a judge a much more attractive one and offer bursaries and other forms of inducement for people to qualify in the legal profession, thereby increasing the number of people wishing to practice in the Supreme Courts so as to have a pool from which he can appoint judges. I say this because even the magistrates’ courts have suffered for years from a shortage of magistrates. The regional courts do not have a superabundance of magistrates either.

Therefore the regional courts, which already have had a considerable amount of work diverted to them, in terms of the present Criminal Procedure Act, should, we agree, have their jurisdiction increased to cover sentences of five years so that they can deal with many more cases. That would relieve the congestion in the Supreme Courts. Furthermore, there are numbers of civil matters which can now be taken away from the Supreme Courts and referred to regional courts, irrespective of the fact that they are not criminal matters. I say this because the objective is to decrease the pressure on the Supreme Courts. In my opinion the hon. the Minister can find ways and means of bringing that about. It has been suggested that this Bill has been motivated, to a great extent, by the Viljoen Commission report and the Botha Commission report—particularly, as one hon. member has stated, by the Viljoen Commission report because it recommended that regional court jurisdiction be extended to cover sentences of six years; that is an indication of the importance that is attached to increasing the jurisdiction of the regional courts. Irrespective of what these commissions have recommended, however, it is important for us to ascertain what is the wisest approach we should adopt in the type of cases we send to regional courts. In this Bill we find ourselves dealing with matters of extreme severity and importance. We must remember, of course, that there is not a superabundance of such cases. The hon. the Minister cannot, for example, point to the fact that there are hundreds upon hundreds of such cases every year. There are a fair number, it is true, and they do last a long time, but there are not hundreds upon hundreds of cases, covered by the aforementioned two Statutes, which have to appear before the courts. These cases are always intricate and complicated. Security Police have to give evidence in these matters. There are also numerous avenues of evidence that have to be explored in order to justify a prosecution or conviction if that can eventually be obtained. Such cases need a considerable amount of careful handling. Therefore I feel that such cases should go before the Supreme Court and not before the regional courts.

Are the magistrates not competent?

There is, of course, the other fact to consider. This Bill will only apply to cases in respect of which the Attorney-General is of the opinion that the sentence will not exceed ten years. I know that it has been argued that the Attorney-General has a discretion. He does not necessarily divert every matter to the regional courts, but he has the discretion to refer them to the regional courts if he so wishes. However, I believe that none of such cases should go to the regional courts. The stand we make is based on the fact that it is the seriousness of the crime that warrants its being heard before a judge in the Supreme Court and not in the regional courts at all.

We oppose the provision to increase sentences to 10 years’ imprisonment or a fine of R10 000. We suggest that, in view of the fact that there has been an increase of jurisdiction in respect of the lower courts, the courts of the regional division should have their jurisdiction increased to the imposing of a fine of R5 000 or five years’ imprisonment. That is in any event a very severe sentence. A number of fraud cases, for instance, can in future be heard by regional magistrates. Cases involving other serious crimes can also be heard by them and if our suggestion is accepted, I believe the magistrates will have sufficient jurisdiction and that it is not necessary—I say this respectfully to the hon. the Minister—to bend the provisions of the law, which, he believes, will assist him in relieving the congestion of the courts.

As regards the question of the records dealt with in clause 2, let me say that the only concern we have with this clause are the facts that were pointed out by the hon. member for Umhlatuzana. A case may be held in camera for various reasons and as a result no one will really know what has happened. The family of the accused, who may have been sentenced, will want to know whether they can appeal. Will they be able to consult the record or appoint a lawyer to study it and to advise them whether an appeal is possible? Will they even be allowed to see the record to establish what has occurred? I would have imagined that there must be some such provision somewhere. I hope the hon. the Minister can explain the position to us because we have not been able to find any such provision. On the face of it, the clause is prohibitive. It does not seem to make allowance for any exceptions. I hope the hon. the Minister will be able to explain if there are any exceptions and what his reasons are for making the clause as prohibitive and severe as it is.

Finally, let me say that I do think that the approach of the hon. members on the Government side and of the hon. member of the IUP, all of whom supported the hon. the Minister, is not a sound approach. I do not think the approach should be to justify the Bill on the grounds that it has been introduced into the House. I think the objective should be to justify the motivation for the Bill and the purpose it is to achieve. I do not believe that anything has been said this afternoon which justifies that situation. I think we should rather leave the situation as it is. We must take into account the gravity with which this issue was faced when it originally came before the House and was incorporated into our statutes. We should maintain the spirit of gravity which should apply and we should leave such matters to the highest court of the land which, after all, has always been our mirror of the careful and sound administration of justice. I appeal to the hon. the Minister to give some thought to that.

Mr. Speaker, I have listened very attentively to the debate on this Bill, which is really consequential upon the Criminal Procedure Act which was piloted through this House earlier this year. Firstly, I want to thank the hon. member for Walmer for his and his party’s support of the Bill. I found his speech interesting and I think he was right in supporting us in this matter. I should also like to thank the hon. members for Klerksdorp, Verwoerdburg and Schweizer-Reneke for their very informative speeches, which were of a very high quality. I need not tell the House in what respect they were of a high quality, because anyone who listened to their speeches would have noticed that those hon. members had made a very thorough study of the Bill and knew what they were talking about. I think the hon. member for Verwoerdburg taught the hon. member for Sandton a lesson this afternoon which he ought really to take to heart.

As I was listening to all the arguments, it became clear to me that the objections of the Opposition really boiled down to just a few points. The first point, which is not the most important one, concerns clause 2, which denies the public access to the records under certain circumstances. I do not think we differ about the circumstances. There are circumstances under which the court rules that a case shall be heard in camera and that the public will therefore not be allowed into the court. For this reason, no publicity may be given to these cases either. Now the question arises of whether, when the record has been prepared, the public is entitled to inspect it. The hon. member for Umhlatuzana did not quarrel with me on this specific point, but he wanted to know: What about the attorney who wants to lodge an appeal and who needs the record or who wants to handle a civil claim on behalf of his client under certain circumstances and needs the court record for that purpose? When one reads clause 2, one sees that the record is withheld from members of the public. The word “public” appears in the clause, if the hon. member would care to look at it. In our opinion “members of the public” does not include the legal representative, attorney or advocate. The hon. member will agree with me that it is well-known—it says so in the law—that an attorney or an advocate is actually an official of the court; in other words, they are not members of the public; they are actually members of the administration. For that reason, they are entitled to inspect the record. I think that is the reply. But in all fairness to the hon. member, I shall nevertheless ask the law advisers to go into those points again just to make sure that the statement I have just made is correct.

Another objection which hon. members have raised to the legislation concerns the extension of the jurisdiction of the regional magistrate to ten years. Hon. members consider this to be too high. They suggest that it should be five years and they take it amiss of us that we should want to extend it to ten years.

Another point made by hon. members is that the regional magistrates are now being given jurisdiction to adjudicate in cases of sabotage and terrorism.

The other point made by the hon. member for East London City—he also raised all the points I have just mentioned—is that if we look at the legislation, at the Terrorism Act and all the other laws, we shall find that all these laws are too complicated for a regional magistrate to unravel and that laws of this kind should actually be interpreted only by a Supreme Court.

I have already given my reply concerning the record, and as regards the ten years, the Viljoen Commission recommended that it be six years. The commission advanced good reasons for this. The Viljoen Commission concedes, in the first place, that there should no longer be any compulsory sentences, that there is a tremendous discretion, and that the carte blanche, as it were, that has been given to the magistrates, the regional magistrates and the Supreme Court to impose sentences will mean that a tremendous amount of work will go to the Supreme Court. Under those circumstances, the Viljoen Commission recommended on well-reasoned grounds that an increased jurisdiction be given to the regional court in respect of the period of time. The Viljoen Commission decided on six years. Now we are faced with the position that the penalty for the prevention of crime which has to be imposed by a regional magistrate already comprises a sentence of five to eight years.

In other words, a regional magistrate can under certain circumstances impose a penalty of between five and eight years for the prevention of crime. If the accused is declared to be an habitual criminal, he has to impose a sentence of between nine and fifteen years. These powers are now being abolished, and for this reason as we say that the regional magistrates ought to have a jurisdiction of ten years. I have taken the trouble of examining the files of regional magistrates. I readily concede that statistics can be misleading, and that one cannot always rely on statistics. I examined the statistics relating to appeals from the regional court to the Supreme Court, in order to ascertain how many appeals there had been, how many convictions had been set aside, and how many sentences had been amended. I followed the same process with regard to appeals from the Supreme Court to the Appeal Court. I also ascertained how many appeals there had been against rulings of the Supreme Court, how many convictions had been set aside and how many sentences had been amended. I know hon. members will forgive me if I do not give them the statistics. However, I am willing to furnish these statistics privately to any member who cares to ask me for them. But I would prefer not to involve the Supreme Court or the regional court in a public debate.

I obtained these statistics purely for the sake of interest, because I wanted to find out what the statistics of the regional courts were like. As far as I am concerned, regional magistrates have no need to blush for the number of sentences that have been set aside or amended. Statistics show that regional magistrates are acquitting themselves very well of their task. For this reason, I am quite satisfied that we need not hesitate to grant the increased jurisdiction to regional magistrates.

I want to refer to the argument that regional courts remain inferior courts as against the Supreme Court. Of course, I concede that this is the case. However, I believe that hon. members are making a mistake in dwelling exclusively on the fact that a regional court remains a magistrate’s court. Regional courts actually occupy a position between the Supreme Court and the ordinary magistrate’s court. That is the status of the regional court. At this stage, the jurisdiction of the regional court is, I believe, too limited. The requirements set by my department in appointing regional magistrates are very high. Factors that are carefully considered in appointing regional magistrates include academic qualifications, competence, the period for which an aspiring regional magistrate has already served as magistrate, and so forth. Apart from one or two hon. members of the PRP, I do not think there is any member here who would cast any doubts upon the competence of our regional magistrates.

This being so, I must try to ascertain whether we can make the present system more flexible. In terms of the present situation, conditions prevail in the Supreme Court which simply cannot be allowed to continue. Without referring by name to a specific court, I do want to mention an example. There is a court—and this is not the fault of that court—where the situation at the moment is that if a criminal case is placed on the roll today, a criminal case, for example, against an accused who has just been arrested, he cannot hope to be tried before perhaps January or February next year, because of the position of the court roll. It is an impossible situation.

Hon. members may say that I should appoint more judges. However, that would mean that I would be causing an imbalance between advocates and judges. It would mean that I would be skimming off the cream of the advocates, and that at the same time I would be placing a greater work-load on the shoulders of the junior advocates. The hon. member for Houghton—I believe it was she—requested me to provide statistics regarding the judges I had appointed in an acting capacity. In order to counteract the congested rolls, I have had to appoint a tremendous number of acting judges. In the first place, this detracts from the office of the Bench. It means that a lot of senior advocates are being given the opportunity of sitting on the Bench, with the result that people may say that anyone can sit on the Bench these days. In the old days, a man served as a KC for years before being appointed to the Bench. Today, the position that when a man is appointed as a senior advocate, I have to give him a temporary appointment as a judge for a few months in order to counteract the congested rolls. The advocate is in honour bound to help out, although it means that he has to neglect his good practice for † few months to sit on the Bench. He loses a vast amount of income because the practices are so expensive to maintain today. He has to go on paying for his offices; he has to bear the expense of his typist and all the normal expenses of an advocate. However, he only receives the salary of a judge for that period. I consider it unfair to expect this of these people. They do their best; I do my best and the courts do their best to keep up, but we simply cannot keep up. Consequently we now want the jurisdiction of the regional courts to be extended in order to afford some relief. Which cases will be referred to the regional courts? Important commercial cases will be referred to the Supreme Court by the Attorneys-General. I have the most competent team of Attorneys-General one could wish for. I am fully confident that they will be able to evaluate the cases as far as the evidence is concerned. It is easy to look at the evidence. There are cases where there is not a great deal of evidence, and that is why I have increased the jurisdiction in respect of imprisonment to ten years. A great deal of evidence is not required for imposing a sentence of ten years. If the case is a short one, it is better to deal with it in the regional court. This applies to sabotage and terrorism trials as well. The regional courts have always had the jurisdiction regarding the old security law, the old Suppression of Communism Act. Bram Fischer and Nelson Mandela were both tried by magistrates, although they did subsequently appear in the Supreme Court on more serious charges. With regard to intricate laws such as the Suppression of Communism Act, which was referred to by the hon. member for East London City, magistrates have given interpretations and passed sentences which have withstood appeal.

There was nothing wrong with the sentences. Walter Sizulu, Bram Fischer, Sobukwe and Father Blaxall were all tried by a magistrate. Nothing went wrong with the trials. Let us see which security cases the Attorneys-General will refer to a magistrate. In my Second Reading speech I said that I was entitled to keep an eye on the Attorneys-General. In the first place, I shall not allow a case which may go on for nine months or a year to be referred to a magistrate. We know what a case is about and how much evidence has to be given, and if such a court record is going to be built up, there is no sense in referring that case to a regional magistrate. Why is there no sense in it? Because there is automatic appeal to the Supreme Court in a case which has been heard by a regional magistrate. This means that there will be an automatic appeal to the Supreme Court and that two judges will then have to work through piles of records in order to pass judgment again in the same case. That is why I say that the hon. members have no reason to fear that I shall refer intricate cases of that nature to the regional courts. However, one gets other cases, for example a charge under the Terrorism Act in which a youth of 16 or 17 years has tried to set fire to a building. One knows that the sentence is not going to be very severe and that only a few facts are required for ascertaining his guilt. Why does that man have to stay in prison, waiting to be put on the roll of the Supreme Court, finally to be told that he is being sentenced to five, six or even seven years’ imprisonment? There is no need for him to wait so long. I am criticized for detaining witnesses in terms of the security legislation to prevent them from being killed or intimidated. There are many such witnesses. I have to detain them in a prison until the cases on the Supreme Court roll have been properly disposed of. This means that people who have not even been accused have to spend up to a year in prison before their evidence can be heard. I do not like to detain witnesses or accused for such a period of time. For this reason I should like to bring about a distribution of work between the Supreme Court and the regional court which will enable both these courts to function properly and to perform the maximum amount of work in the most efficient way. That is all we are aiming at here, and in this connection I want to subscribe to what was said by the hon. member for Verwoerdburg.

†I should like to address myself to the hon. member for Sandton and possibly the hon. member for Durban North, although I do not really have an axe to grind with him this afternoon. The hon. member for Sandton, one of the two great jurists of the PRP, is starting to fall into the trap which the ex-chairman of the Justice group of the old UP—he is not in the House any more—used to fall into consistently. That is that the moment one of the legal Bills appears on the Order Paper, the Press runs to these gentlemen who are very busy making all sorts of schemes to get more members on their side. They are always busy with surreptitious little meetings, canvassing to see how many people they can draw away from the UP to join them before the end of the session so that they can become the official Opposition. While they are busy with all these manoeuvres, however, the Press approaches these two legal lights of the PRP and asks them for an opinion on the legislation before the House. I believe quite honestly that if the hon. member makes a study of this legislation, he will know what he is talking about, but before he knows what he is talking about, he fires away and talks. I quote what he said—

In all fairness to the hon. member for Durban North, I want to say that he did his absolute best to try to save the face of the hon. member for Sandton. However, that is such a ridiculous, silly and unlegal statement that it is totally unworthy of the hon. member for Sandton. He knows that section 121(5)(b) of the Criminal Procedure Act says that a death sentence cannot be imposed unless the evidence has been led as if the accused had pleaded not guilty. The hon. member for Durban North then started reading sections in which there was a reference to a magistrate. However, he knows that he should have read further. That is the trouble these people cause. They are equating a magistrate with a regional magistrate, but there is a clear definition in the Act as to what a regional magistrate and what a magistrate is. These are two different conceptions. If a regional magistrate looks at the Bill we passed a few months ago, he will find that if the regional court refers any case to the Supreme Court, the regional court must change it into a preparatory examination. That is stipulated in sections 123 and 124. It appears to me as if the hon. member was mistaking section 119 to mean that the court also means a regional court. When the Act refers to a magistrate’s court, it means a magistrate’s court. When it refers to a magistrate, it means a magistrate in a magistrate’s court. It is not referring to a regional court. That is where I think the hon. member made a mistake. In all fairness to the law and to this House I think it is no more than right that the hon. member for Sandton should go back to the Rand Daily Mail and tell them that he has made a fool of himself, that he is awfully sorry and that they must change it before they are taken to the Press Council because they have published an obvious mistake.

*That is the least the hon. member can do.

I want to point out to the hon. member for Sandton that he levelled an accusation against me and my department. That was very unfair. The hon. member said that since I had become Minister, my administration and I had been whittling away the rights of the individual. I deny that. The hon. member knows as well as I do, he knows it in his heart although he says something different out loud, that I have great sympathy for accused persons. He knows that I am sorry for prisoners, no matter what they have done. The hon. member also knows that I watch over the rights of individuals to the best of my ability. He can ask the hon. member for Houghton whether or not this is true. If people want to see me, they come to my office—banned people and others who are having difficulties—and I listen to them to the best of my ability. The hon. member alleged that I was deliberately introducing legislation which was encroaching upon the rights of the individual. This is not so. By means of this legislation we are bringing all related matters into line with the Criminal Procedure Bill. Therefore, the legislation which is before the House at the moment is an outcome of the Criminal Procedure Act, and I believe that it will enable us to bring about a better distribution of court cases on a better basis between the various courts, so that the courts concerned may be granted some relief and may function more smoothly.

Question put,

Upon which the House divided:

Ayes—101: Albertyn, J. T.; Aronson, T.; Badenhorst, P. J.; Ballot, G. C.; Bodenstein, P.; Botha, G. F.; Botha, J. C. G.; Botha, L. J.; Botha, M. C.; Botha, S. P.; Brandt, J. W.; Clase, P. J.; Coetsee, H. J.; Coetzee, S. F.; Conradie, F. D.; Cronje, P.; Cruywagen, W. A.; 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.; Du Plessis, B. J.; Du Plessis, G. F. C.; Du Plessis, G. C.; Du Plessis, P. T. C.; Du Toit, J. P.; Grobler, W. S. J.; Hartzenberg, F.; Hayward, S. A. S.; Henning, J. M.; Heunis, J. C.; Hickman, T.; Hoon, J. H.; Horn, J. W. L.; Janson, J.; Janson, T. N. H.; Kotzé, G. J.; Kotzé, S. F.; Krijnauw, P. H. J.; Kruger, J. T.; Langley, T.; Le Roux, F. J. (Brakpan); Le Roux, Z. P.; Ligthelm, C. J.; Lloyd, J. J.; Louw, E.; Malan, G. F.; Malan, W. C.; Maree, G. de K.; Meyer, P. H.; Morrison, G. de V.; Mouton, C. J.; Mulder, C. P.; Muller, S. L.; Nel, D. J. L.; Niemann, J. J.; Nothnagel, A. E.; Palm, P. D.; Potgieter, S. P.; Raubenheimer, A. J.; Rossouw, W. J. C.; Schlebusch, A. L.; Schoeman, J. C. B.; 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 Breda, A.; Van den Berg, J. C.; Van den Heever, S. A.; Van der Merwe, P. S.; Van der Merwe, S. W.; Van der Spuy, S. J. H.; Van der Walt, A. T.; Van der Walt, H. J. D.; Van der Watt, L.; Van Rensburg, H. M. J.; Van Tonder, J. A.; Van Wyk, A. C.; Van Zyl, J. J. B.; Venter, A. A.; Viljoen, P. J. van B.; Vilonel, J. J.; Vlok, A. J.; Volker, V. A.; Vosloo, W. L.; Wentzel, J. J. G.

Tellers: J. P. C. le Roux, N. F. Treurnicht, C. V. van der Merwe and W. L. van der Merwe.

Noes—36: Basson, J. D. du P.; Baxter, D. D.; Bell, H. G. H.; Boraine, A. L.; Cadman, R. M.; Dalling, D. J.; De Villiers, I. F. A.; De Villiers, J. I.; De Villiers, R. M.; Enthoven ’t Hooft, R. E.; Graaff, De V.; Hughes, T. G.; Jacobs, G. F.; Lorimer, R. J.; McIntosh, G. B. D.; Miller, H.; Mills, G. W.; Murray, L. G.; Oldfield, G. N.; Olivier, N. J. J.; Page, B. W. B.; Pitman, S. A.; Pyper, P. A.; Raw, W. V.; Slabbert, F. van Z.; Suzman, H.; Van Coller, C. A.; Van Eck, H. J.; Van Hoogstraten, H. A.; Van Rensburg, H. E. J.; Von Keyserlingk, C. C.; Waddell, G. H.; Wainwright, C. J. S.; Wood, L. F.

Tellers: E. L. Fisher and W. G. Kingwill.

Question agreed to.

Bill read a Second Time.

Mr. Speaker, I move—

In view of the scope and importance of the proposed legislation I want to indicate that, after the Second Reading has been passed, I shall move that the legislation be referred to a Select Committee.

The Hire Purchase Act, No. 36 of 1942, came into operation on 1 May 1942. That does not mean to say that hire-purchase agreements were not entered into prior to that date. According to my information, one of the text-book authors mentioned that as long ago as 1882 a report on a court case appeared in which a hire-purchase contract had been the cause of the litigation.

The hire-purchase contract, of course, had its origin in a need for a method by means of which goods bought or sold may serve as collateral when those goods are bought or sold on credit and the purchase price is not paid in full. I do not intend going into the methods which have been used to attain the above-mentioned objects.

However, it would appear that the utilization of the hire-purchase contract encouraged the granting of credit to such an extent that the legislature in this country and abroad found it necessary to regulate certain aspects of hire purchase by way of legislation. Since 1942 the total extent of credit provision by commerce in our national economy has grown considerably.

Consequently it is evident that members of the less well-to-do sector of our society, as their income levels and standards of living were in time progressively raised, also began to make increasing use of credit to finance their purchases of durable and semi-durable consumer goods. At present by far the greatest portion of the sales of these goods takes place on a credit basis.

I want to point out that hire-purchase transactions as such are only one form of credit provision, while open account sales, credit cards purchases and leasing of movable goods are also forms of credit provision which at present have an important effect on the total extent of credit provision in general in our country.

Although the Hire Purchase Act, 1942, has been amended six times during the past 35 years, the Act did not, in principle and scope, keep pace with all the new developments in the field of credit provision, and in my opinion it has now become necessary for the entire Act to be comprehensively revised. In fact, one of the judges of the Supreme Court recently pointed out that the scope of contracts other than hire-purchase contracts by means of which credit is granted is constantly expanding and the judge in question consequently expressed the opinion that it was anomalous that only hire-purchase contracts, and not those other contracts as well, were regulated by way of legislation.

During the past few years numerous complaints have also been lodged with the Department of Commerce about various undesirable practices carried out by dealers in respect of credit provision, particularly in respect of the less well-to-do persons in our community. It came to light during a comprehensive investigation into conditions in the furniture trade, an investigation which was made by the office of the Price Controller, that the above-mentioned complaints were not unfounded. This situation also confirmed the desirability for suitable legislation in respect of credit provision to afford credit receivers more effective protection. During the past two years officers of the Department of Commerce have, on several occasions, held talks with interested persons and organizations on tentative proposals for such legislation. A Bill, in which the principles of the proposed legislation were incorporated and which is now before the House, was published for general information in the Gazette of 19 November 1976.

Certain adjustments arising from the representations received have since been effected to the published Bill. However, it was not possible to give effect to all the representations received. Nevertheless an attempt has been made to reconcile the divergent standpoints and frequently, too, the divergent interests as far as possible.

I should now like to deal with a number of the main principles contained in the Bill which is now before this House. Because many of the existing principles of the Hire Purchase Act, 1942, are incorporated in the Bill, I want to confine myself primarily to the new principles contained in the proposed legislation.

In contrast to the Hire Purchase Act, 1942, which contains nine definitions, the Bill now makes provision for 36 definitions. It will be noted that the Bill makes no reference at all to the concept of “hire-purchase contract”. However, the concept in question is included in the definitions of “instalment sale agreement” and “credit agreement”. Since the definitions are being inserted in the Bill primarily for reasons of efficiency, I do not intend elaborating on those definitions any further.

In general the proposed legislation will be applicable to credit agreements relating to movable goods and services, the period of repayment of which exceeds three months. Firstly I want to point out that, unlike the Hire Purchase Act, 1942, the Bill provides that no restriction shall be placed on the purview of the proposed legislation in regard to the extent of any transaction. Secondly the proposed legislation will also be applicable in respect of certain leasing transactions which are not at present affected by or covered by the Hire Purchase Act. In addition certain commercial transactions are excluded from the application of the proposed legislation.

In clause 3 of the Bill provision is made enabling the responsible Minister to make regulations in respect of certain matters. I have already mentioned that in general a term of repayment exceeding three months will be prescribed for the application of the proposed legislation. It will be possible to extend or shorten this term by way of regulation.

It is important that prospective purchasers are informed of the prices of commercial articles to enable them to compare prices. It is therefore being provided that the way in which prices shall be displayed may be prescribed.

Although the responsible Minister will be empowered to prescribe the rate at which finance charges may be levied in terms of a credit agreement, this power will be limited owing to the proviso to clause 3(1)(b) of the Bill. The effect of that proviso will be that rates may only be prescribed if they are not prescribed in terms of the Limitation and Disclosure of Finance Charges Act, 1968. Any duplication of that Act by the proposed legislation is therefore being eliminated.

A source of dissatisfaction among purchasers is frequently the discount they receive with accelerated repayment of hire-purchase debt. Clause 3(1)(g) of the Bill provides that a minimum rate at which the said discount is granted may be prescribed by regulation.

In clause 3(4) it is being provided that the responsible Minister, when he wishes to rescind, revoke, amend or vary any regulation in terms of clause 3(1)(a), shall publish a notice calling upon all interested persons to lodge representations in respect of the said regulation with the Secretary for Commerce. I believe that this provision will ensure that interested persons are afforded an opportunity of objecting to any such intended regulations and of being heard in that regard.

In the past many complaints were lodged with the Department of Commerce in regard to the sales techniques of door-to-door salesmen. The provisions of the Bill in respect of this matter are therefore important. In terms of clause 4(b) a prospective credit grantor shall be required to advise a prospective credit receiver in writing of his right to withdraw from a credit agreement if the agreement was entered into at a place other than the business premises of the credit grantor.

This right will be granted to the credit receiver by clause 17(5). I want to emphasize at once that this right of withdrawal only arises if the initiative for entering into the agreement emanated from the credit grantor. In addition I must also mention that, in terms of clause 9(1)(p), no credit receiver will be able to vouch for the fact that a credit agreement was signed on the business premises of a credit grantor.

Although the formal requirements for entering into a credit agreement will be the same as those of the Hire Purchase Act, 1942, clause 5(1)(b) provides that all signatures shall be affixed to the agreement within a period of 14 days. In this connection I want to mention that it was alleged on many occasions in the past by hire-purchasers and quite rightly so, I think, that they did not receive a copy of a contract. To deal with this malpractice, keener sanctions in respect of the non-compliance of the aforesaid obligation are being proposed in clause 5(4).

Under clause 5(2) a credit agreement shall be drawn up in the official language chosen by the credit receiver. The provisions of clause 6(1), which contains stipulations in respect of the content of credit agreements, differ primarily from the provisions of section 5(1) of the Hire Purchase Act, 1942, owing to the application of the proposed legislation in respect of certain leasing contracts.

Clauses 7 and 8 contain provisions relating to the financing charges which may be levied in connection with credit agreements. Although I do not regard these provisions as being unimportant, I feel that I should not elaborate on them in detail now, because I should like to devote more attention to certain other provisions of the Bill and also want to indicate that it may be quite meaningfully discussed by the Select Committee.

Under clause 9 the inclusion in any agreement or document of certain terms is prohibited. Apart from the prohibition on certain terms in the clause in question which were taken over from section 6 of the Hire Purchase Act, 1942, that clause also contains a prohibition on certain terms in respect of which complaints have been lodged with the Department of Commerce during the past few years. Because standard contracts are in general used in the trade the relevant terms have for the most part the effect in practice of prejudicing credit receivers. The provisions of sections 7 up to and including 12 of the Hire Purchase Act, 1942, have, with certain adjustments, been included in clauses 10 up to and including 15, and I want to refer only to a few of these adjustments.

†It was found appropriate to incorporate the provisions of section 7(2)(c) of the Hire Purchase Act, 1942, relating to payments by cheque, in clause 14, which deals with negotiable instruments. On account of complaints received by the Department of Commerce, it was found necessary to extend the provisions of section 8 of the Hire Purchase Act, 1942, relating to inducements offered to persons to enter into a credit agreement, to include also principals.

In clause 12 the provisions of section 9 of the Hire Purchase Act, 1942, relating to the information with which a credit grantor shall, on demand, furnish a credit receiver, have been extended, among other things, to make it clear that a credit receiver may, against tender of an amount of 50c for expenses, obtain a statement of his account. This provision is considered necessary because traders have in the past refused to furnish information in regard to specific payments made by hire purchasers.

Section 12 of the Hire Purchase Act, 1942, contains a limitation on the right of a seller to enforce certain provisions of a hire purchase agreement. The provisions of that section were incorporated in clause 15 of the Bill. However, the limitation on the enforcement of an acceleration clause in an agreement was modified in order to provide for the applicability of such limitation in respect of a lease agreement. Furthermore, effect was given to certain observations made recently by the Appellate Division in regard to the notification required when an agreement is cancelled upon default, by virtue of a right of cancellation conferred by the agreement.

The manner in which goods sold under hire purchase have been repossessed has been the subject of numerous complaints. This matter is dealt with in clause 16 of the Bill. Under section 13(1) of the Hire Purchase Act, 1942, a purchaser is, under certain circumstances, entitled to be reinstated in terms of the agreement within 21 days of a voluntary repossession. It is proposed that this period be extended to 30 days.

Clause 16(3) of the Bill makes provision that no credit grantor shall require or induce any credit receiver to sign a voluntary repossession and that no such document shall be valid, unless at least two instalments under a credit agreement are due and unpaid. It is also proposed in clause 16(4) of the Bill that when goods are repossessed validly as contemplated in clause 16(3), the credit receiver shall be relieved of further liability under the agreement.

Apart from the so-called cooling-off provisions to which I have already referred, the provisions of section 14 of the Hire Purchase Act, 1942, have been embodied in clause 17 of the Bill. In this regard, however, I must point out that under clause 17(4) of the Bill, it would be an offence for any credit grantor to fail to allow to a credit receiver the reduction in the credit price contemplated in clause 17(3) of the Bill.

A practice which has in the past lent itself to considerable abuse is the system whereby a person may purchase goods or obtain the rendering of a service on a so-called lay-by. In clause 18 of the Bill it is proposed that certain specific requirements in respect of lay-by agreements be prescribed.

The expression “lay-by agreement” will be defined for purposes of the proposed legislation. The seller or person who renders a service will be required to furnish the purchase or the person to whom a service is to be rendered with certain information in writing. This information should be sufficient to inform the purchaser or person concerned of his commitments under the agreement.

The clause in question will also make it clear that, firstly, the purchase price or service charge under the lay-by agreement may not be altered; secondly, proper books of account should be kept in respect of each transaction; and, thirdly, the purchaser or person to whom a service is to be rendered may at any time resign from the agreement if the goods have not been delivered or the service has not been rendered. Unless goods are to be manufactured to the specifications of the purchaser, the seller or person who renders a service will be required on demand of the purchaser or person to whom a service is to be rendered, to refund forthwith any money which he may have received. I may add that, whereas the word “lay-bye” is misspelt in the Bill, I shall in the Committee Stage propose appropriate amendments to the Bill in order to rectify the position. The provisions of sections 15 and 15 bis of the Hire Purchase Act relating to certain rights of a purchaser under a hire purchase agreement, will be re-enacted in clauses 19 and 20 of the Bill. As far as the corresponding rights of a lessee of movables under a credit agreement are concerned, it was considered necessary to provide in clause 19(4) of the Bill that, when the market value of goods to which a lease relates exceeds the depreciated value of such goods at the termination of the lease, the lessee may claim payment of such excess amount. Under clause 8(1)(e) of the Bill, the lessor may recover the difference between the value in question if such difference is due to an abnormal use of the goods concerned.

It will, no doubt, be appreciated that the value of goods to which a credit agreement relates could be open to dispute. Section 16 of the Hire Purchase Act, 1942, presently provides that, when the value of goods is to be determined, the parties to a hire purchase agreement may jointly nominate an appraiser for that purpose. Should such parties fail to come to an agreement as to the person to be nominated, any one of them may apply to a court of law for the appointment of an appraiser.

This arrangement may, no doubt, appear to be equitable. However, valuations are seldom, if ever, done by appointed appraisers. In any proceedings the value of goods must necessarily be proved by evidence. Generally, the value of goods is proved in proceedings by the evidence of an appraiser. Clause 21 of the Bill will afford recognition to the procedure which, in fact, is followed in connection with valuations in practice.

I have already referred to certain requirements with which credit agreements will, by virtue of the provisions of clauses 4, 5, 6, 7 and 9 of the Bill, have to comply. A court of law will, by clause 23 of the Bill, be empowered, if any credit agreement does not substantially comply with the provisions of the clauses in question, upon application of the credit receiver, firstly, to reduce the rate at which finance charges are payable under such agreement, secondly, to order that such agreement be appropriately amended, thirdly, to declare such agreement to be invalid and, lastly, to grant such alternative relief as the court may deem fit. These powers will enable the courts of law to express, in appropriate cases, their dissatisfaction with non-compliance with the provisions of the proposed legislation. The magistrate’s court will also be empowered to grant the relief in question.

Since I do not propose to comment on the provisions of clauses 22 and 24 of the Bill which deal with certain legal procedures, I shall now turn to clause 25 of the Bill. The latter clause should be considered in the light of the provisions of section 18 of the Hire Purchase Act, 1942. Presently, sellers under any hire-purchase agreement are precluded by section 18 from obtaining an order under section 65 of the Magistrates’ Courts Act, 1944, for the purpose of enforcing payment by a purchaser of any indebtedness arising from or in connection with a hire-purchase agreement.

The Magistrates’ Courts Act, 1944, was amended last year in order to give effect to certain recommendations of a committee of inquiry into certain provisions of that Act. The committee in question also recommended that certain amendments should be effected to section 18 of the Hire Purchase Act, 1942. The amendments recommended by the committee, in fact, entail that sellers under an instalment sale agreement should be allowed to obtain any of the orders enumerated in clause 25 of the Bill for the purpose of enforcing compliance with a judgment or order of court for payment of an indebtedness arising from or in connection with such an agreement if the seller concerned, firstly, did not before such judgment or court order obtain return of the goods to which the agreement relates; secondly, did not in his application for such judgment or court order claim return of such goods; and, lastly, did before or in his application for such judgment or court order, waive his right to terminate or rescind such agreement, or to claim return of such goods.

I have already explained that the provisions of the Bill will limit considerably the repossession of goods sold under a credit agreement. It is, therefore, only fair that sellers under an instalment sale agreement should be able to recover the credit price of goods which are not repossessed.

It is often alleged that credit is given indiscriminately. Whether that is the case is, of course, difficult to determine and I shall not try to pass judgment on the validity of this argument. However, provision is made in clause 26 of the Bill that, when an administration order referred to in section 74 of the Magistrates’ Courts Act, 1944, has been granted to any person whose gross monthly income is less than R250, it shall be an offence, while such order is in force, without the consent in writing of the administrator concerned, to enter into a credit agreement with such person if the credit price he is to pay under the agreement exceeds R100. It is hoped that this prohibition will curb a certain amount of credit which may have been extended indiscriminately.

However, I must mention that in the past the Department of Commerce has had to rely mainly, for purposes of policy making on such information in regard to hire-purchase transactions as may be gleaned from the complaints which are from time to time lodged with the department and as may be gathered incidentally by price control inspectors in the course of their duties under the Price Control Act, 1964.

Business suspended at 18h30 and resumed at 20h00.

Evening Sitting

Mr. Speaker, this state of affairs is not satisfactory at all. Provision is now made in clause 32 of the Bill for the powers of the inspectors in terms of the proposed legislation.

In the past complaints have often been lodged with the Department of Commerce in connection with an alleged reluctance on the part of credit grantors to refund credit receivers with money due to them. In clause 33 of the Bill provision is now made for a procedure whereby an official of the department designated by the responsible Minister may by notice order a credit grantor to refund certain moneys to a credit receiver.

The procedure in question could be applied, firstly, when any person in connection with any credit agreement has paid to the credit grantor an amount in excess of the total amount which, in accordance with the proposed legislation, is recoverable from the credit receiver in terms of the agreement; secondly, when a credit grantor fails to refund the credit receiver, within 10 days after he has been requested in writing to do so, with any amount paid by the credit grantor in terms of a credit agreement under which the goods have in fact not been delivered, or the service has not been rendered, within 30 days of the conclusion of the agreement; and thirdly, when any seller or person who renders a service fails to refund the purchaser or person to whom a service is to be rendered, forthwith, after he has been requested in writing to do so, with any amount paid by such purchaser or person under a lay-by agreement if the goods have not been delivered or the service has not been rendered.

Under the existing rules of law, the official in question will be required, firstly, to make a thorough investigation and, secondly, to afford the person upon whom such notice is served an opportunity to state his case. The relevant clause also provides that the official in question shall, after any such notice has been delivered, lodge an authenticated copy thereof with the clerk of the magistrate’s court in question or the Registrar of the Supreme Court in question, as the case may be. After any such notice has been lodged with the clerk or registrar, it will have the effect of a civil judgment of the court concerned and may be executed as if it has been a judgment of the court.

It may perhaps appear that the official in question may exercise his powers under this clause in an arbitrary manner. However, provision has been made in subsection (3) of clause 33 of the Bill that any person to whom a notice in terms of the specific clause has been delivered, may request the official in writing to furnish him in writing with his reasons for the notice. If that person is so advised, he may appeal to the relevant division of the Supreme Court against such a notice as if it is a judgment delivered by a magistrate’s court in any civil proceedings.

I believe these provisions should help considerably to remove the possibility of arbitrary action by the official concerned under the clause.

*The remaining provisions of the Bill make provision for secrecy and for the repeal of the existing Hire Purchase Act, 1942, and also contain further provisions in regard to the commencement of the proposed legislation.

I conclude by indicating once again that in view of the importance of the Bill and in view of the fact that important contributions could quite probably be made by both sides of the House towards the modification and improvement of the legislation, I shall move, after the passing of the Second Reading, that it be referred to a Select Committee.

I think the hon. the Minister’s Second Reading speech is evidence of the importance of the subject with which he has dealt. Furthermore, I should like to commend the wisdom of the hon. the Minister in advising the House that at the end of the Second Reading debate he will move that the Bill be referred to a Select Committee. I think that perhaps he must have had some foresight or perhaps he has a deeper wisdom than I think. I have in my hand 70 amendments which we have already prepared in connection with the Bill but which, in view of what the hon. the Minister has told us this evening, will not appear on the Order Paper. These will be held back.

The subject of consumer protection has become an urgent problem in business life today and an important factor in establishing confidence in the fairness of the free enterprise system. In other countries such as Canada, the USA, Germany and Great Britain this matter has come to the fore in recent days. In Germany the consumer protection laws have a special chapter, “General Terms of Business”, which deals mainly with protection for the consumer and the regulation of consumer credit between the credit grantor and the receiver. In Britain there is the Consumer Credit Act which was passed in 1974 and in Canada this subject has been advanced very much indeed. One of my colleagues had the opportunity a year or two ago to attend a special seminar on consumer credit, and I hope the benefits of what he has learnt will be passed on to the Select Committee, of which I hope he will be a member.

The volume of the purchase, leasing and hire of durable consumer goods and the rendering of services has multiplied considerably in the past few decades, particularly because of the economic advance of the Black people throughout the Republic. This has introduced considerable numbers of inexperienced and unsophisticated consumers into the market. Regrettably exploitation and high-pressure salesmanship and a motley of unscrupulous businessmen—fortunately in the minority—have created the urgent necessity for comprehensive and effective legislation for consumer protection. The whole structure of our economic system is credit orientated and in fact is an important and praiseworthy function of our free enterprise system. The credit and hire-purchase systems are virtually the yardstick of normal living of the average middle and lower income groups of our present-day communities. Virtually every home, however humble, is furnished with goods and household equipment such as furniture, fridges, stoves, washing machines, cleaners, polishers, radio sets, and in recent days, TV sets, all acquired on hire purchase or some other form of extended credit. Even clothing, of whatever nature, has become a feature of the extended credit system. Services of all kinds and the leasing of goods all find their outlet in the credit system of business today.

This Bill endeavours to regulate all these transactions in so far as the credit grantor or the credit receiver are concerned, covering such matters as cash prices, selling prices, periodical payments, finance and other charges which may be added to the purchase or leasing price or cost. In this regard I should like to draw the attention of the House to two factors. One is that I have noticed with great interest—I think it is a very commendable fact—that the hon. the Minister’s department had a committee of inquiry into the whole question of price control and the Hire Purchase Act. They have taken into account a number of the complaints that they have received. Furthermore, I think they have also taken note of a judgment by the Supreme Court, Witwatersrand Local Division, in August 1974 in the case of Western Bank Limited v. Sparta Construction Co. The case concerned the financing of a lease and the judge in this particular case, after studying the agreement which was the subject of the dispute, said—

Further on he says—

I think that this particular judgment also assisted in motivating the department to present a Bill with regard to the very tortuous and difficult existing Act, the Hire Purchase Act.

At the same time the Bill sets out to protect the consumer so that he does not become a victim of any unscrupulous trader or an over-zealous salesman, or fall victim to excessive credit beyond his means. The Bill seeks further to prohibit malpractices in credit transactions. The Bill is, nevertheless, somewhat confusing and in certain instances inadequate in its provisions. For example, the definition and provisions relating to finance charges should be simplified as they make tortuous reading and can be somewhat confusing. I will not deal with that in detail, but this is my comment. The question of what is a cash price is also confusing. The protection for the consumer is in many respects inadequate. Inter alia, the effects of certain protective provisions, for instance, are negated by other provisions, and I refer to clauses 6, 9, 10, 16 and 29 as examples. This Bill has been severely criticized by legal academics as well as by consumer experts, and their criticism has been directed at the provisions, or may I say lack of provisions, in the Bill.

Furthermore, there is a proliferation of legislation on the subject, viz. the Price Control Act, the Limitation and Disclosure of Finance Charges Act, the Trade Practices Act and the existing Hire Purchase Act. As the Minister has pointed out, the Hire Purchase Act is virtually being incorporated in this Bill which repeals the existing legislation. The Bill in its present form will, however, still be faced with overlapping in that the Price Control Act and the Limitation and Disclosure of Finance Charges Act and the regulations promulgated thereunder will still continue to play a concurrent part in the operation of the provisions of this Bill which itself provides for the making of regulations setting out its operational machinery. We believe that the principles of the Bill are to deal with credit agreements in general, covering more specifically the business of leasing, rendering of services, hire purchase and the regulation of the relationship between credit grantor, which covers seller, lessor or the renderer of services, and credit receiver, covering purchaser, lessee and persons to whom services are rendered, and at the same time to provide for the protection of the credit receiver in respect of agreements and their functioning, and the rights and obligations of such credit receiver. In other words, Sir, it deals with consumer credit and the regulation thereof in the interest of both the credit grantor and the credit receiver.

Based on these principles, we will accept the Second Reading of the Bill. We trust that in the Select Committee we will have the opportunity of dealing with the provisions of the Bill in detail to bring about the changes which the Select Committee may wish to accept in its wisdom. The objective of the Select Committee should, in my opinion, be to co-ordinate the whole of existing legislation concerning consumer credit and to incorporate into one piece of legislation all that is pertinent thereto, leaving the existing legislation to care for the specific purposes for which it was intended. Thus we will avoid overlapping and a multitude of regulations creating difficulties at the moment for both the credit grantor and the credit receiver.

One of the effects of proper and adequate provisions in the Bill would be to assist in the restraint of indiscriminate credit.

May I, before I conclude, give a few statistics. Civil judgments for debt in South Africa during November last year, compared to the corresponding month in 1975, increased by 19% in the one month from 21 918 to 26 089. Civil judgments for 11 months of 1976, January to November, showed an overall increase of 3,8% compared with the same period in 1975 and moved from 253 000 to 263 000. Summonses for the same period, however, jumping by 4,7%, reached a total figure of 576 711. I believe that this would cover an amount of approximately R75 million. This is indicative of the importance of this particular subject of consumer credit and I sincerely hope that, arising out of a more detailed study of the Bill in a Select Committee, we shall be able to bring about legislation which will assist in this particular cause. We support the Second Reading.

Mr. Speaker, I should like to be as brief as possible because the hon. the Minister has, of course, indicated that he is going to ask for this Bill to be sent to a Select Committee. We in these benches would firmly support that. This Bill is really dealing with three separate Acts, the Hire Purchase Act, the Limitation and Disclosure of Finance Charges Act and the Price Control Act, particularly section 9 of the latter Act. I believe that the hon. the Minister is introducing this measure in consolidation of the legislation and that he is really introducing this measure for the benefit of the consumers of South Africa. From that point of view we support the Second Reading in principle. That is one side of the coin because when we speak of “consumer credit”, we are talking about the sale of goods and services for the purposes of personal, family or household use. In that connection, the hon. the Minister has introduced this legislation—as we understand it—simply to protect the man in the street, and more particularly to protect the poor, the ignorant and the fallible from the malpractices which he mentioned. From that point of view we have absolutely no trouble in supporting the Bill.

There is, however, another side of the coin, and I am sure the hon. the Minister is aware of that fact. There is the one sphere in which one is basically dealing with natural persons and, of course, the other sphere involving the mutual agreements between commercial undertakings, excluding natural persons. I do not think that sophisticated business corporations require statutory provisions. The hon. the Minister is no doubt aware of the fact that some of the clauses in this Bill, which I hope the Select Committee will direct itself to, impinge very directly on the forms of financing which have been developed to deal with the requirements—particularly the cash flow—of one commercial undertaking when it is dealing with another. All that we are saying is that a balance needs to be struck between the natural persons on the one hand and commercial undertakings on the other. I hope the hon. the Minister will deal with that aspect which I do not think he mentioned in his Second Reading speech. One way of striking that balance is, of course, to consider a monetary ceiling as far as some of the points and definitions in this Bill are concerned. There is another special case, and that is in regard to the corporations which deal with the rental of television sets. I think the hon. the Minister is aware of that aspect and has received representations in that regard.

I now want to come to the last few major points. I think the hon. the Minister will be aware of the effects of clause 19(4) of this Bill which he mentioned. I am referring to the effects it is likely to have on the accounting practices and, indeed, the modus vivendi of certain businesses. If I can alert the hon. the Minister, let me say that we think he has struck the wrong balance there. That is certainly something I hope will be raised in the Select Committee.

The last major point we should like to raise with the hon. the Minister is that he is taking upon himself—I do not mean this personally—extraordinary wide executive powers which can also be passed on through him to his departmental staff. Like the hon. members to the right of us, we too have a large number of amendments, but those are matters for the Select Committee. As I have said, in view of the fact that this measure is for the protection of consumers in South Africa, we shall support the Second Reading and we shall also support the hon. the Minister’s request for a Select Committee.

Mr. Speaker, we on this side of the House are extremely grateful to the Opposition Parties for supporting the principles of this legislation. I do not think that we have much fault to find with the matters raised by the hon. member for Jeppe. He referred to a number of matters concerning aspects which have already been embodied in the legislation. He also gave us very interesting statistics concerning prosecutions etc. He also raised an old “hardy annual” once again, namely the question of free enterprise. I should like to express a few ideas about this in a moment or two.

I do not think that the hon. member for Johannesburg North has read the Bill at all. Firstly, clause 2(b)(i) makes excellent provision for the exclusion of negotiations between entrepreneurs. The provisions do not apply to this. In other words, the argument which the hon. member advanced has already been covered in the Bill. As far as clause 19(4) is concerned, I certainly cannot agree with the hon. member. I think that this is one of the very provisions which puts an end to malpractices concerning demands and payments while the goods have already been reclaimed by the entrepreneur. Therefore I cannot agree with him that this is a poor provision in this legislation.

Recently, a great deal of fuss has been made about the question of Government involvement in the private trading sector. If this is the case, one asks oneself why the Government would introduce legislation like the trade practices legislation and this Bill. I personally am very sorry that legislation such as this has to be placed on the Statute Book. The dilemma with which the Government is faced, however, demands that legislation of this nature be introduced in the House of Assembly. It is necessary precisely because certain elements in the private sector who are so concerned about their autonomy and freedom, this free enterprise, do not have the will or responsibility to discipline themselves. I think that those people are abusing those freedoms which free enterprise offers them, freedoms of which they ought to be very jealous. That freedom and autonomy ought to be protected with a jealous pride by the private sector.

The draftsmen and the hon. the Minister have a particular, cardinal problem in drawing up legislation of this kind. The first part of this problem—I should just like to mention three points quickly—is that it is the duty of a responsible Government like the NP Government, of which I have the privilege to be a member, to use legislation such as this to protect the buying public from irresponsible and undisciplined dealers or trade practitioners, as I should like to call them, whose primary objective should be to provide a service to the community in order to earn their rightful entrepreneur’s wage but who are in fact guilty of malpractices and exploitation. Those people are actually trade parasites and an embarrassment to free enterprise and their trading partners. A trade practitioner such as this has no right to the freedom and autonomy in trade. This is the first and most important principle that I want to spell out here and this is what is embodied in this legislation—to protect the buying public and the community from malpractices of this nature in commerce. If we wanted to take up more of the House’s time, we could quote many examples from this legislation.

The second outstanding principle which I personally consider much more important than the previous one I mentioned, is a principle with two legs. The first leg is that this draft legislation has to be drawn up and implemented in such way that it does not make the rights, privileges and trading freedom of the responsible and disciplined trade practitioners such that they can no longer lay claim to them rightfully. That privilege must not be prejudiced or handicapped in any way. It must be a principle of this legislation. It must not make things so difficult for traders that they cannot provide the buying public with a proper service. I think that all of us in this House agree with this principle wholeheartedly. We can also quote examples from this legislation of cases where this does happen.

The second leg of this principle is to protect the responsible disciplined dealer from being exploited by unscrupulous members of the public. Many examples of this principle can be quoted from this legislation. However, since the Bill is being referred to a Select Committee, we shall not do so. This principle is also very correct in this respect that it gives the dealer who wants to make his rightful profit in an honest way, the opportunity to do so.

The last principle is to my mind very important, the principle that this legislation contains a principle which boils down to the fact that a responsibility is being placed on the Government, a responsibility is being placed on the Minister, to ensure that that free trade, that free enterprise about which our friends on the other side speak so glibly, is protected. This is to my mind an important principle which is contained in this legislation.

If one tests clause after clause of this legislation against these principles, one can actually ask many questions, questions which should be asked, questions which merit replies, but since the hon. the Minister has already decided to refer the Bill to a Select Committee, I should like to content myself with saying that we on this side of the House subscribe to its principles. We support the Minister and we also support his decision to refer the Bill to a Select Committee.

Mr. Speaker, the hon. member for Wonderboom is probably going to serve on the Select Committee. Therefore I am assuming that we do not have to discuss that matter any further. So I am not going to react to what he said in that regard. This Bill is very important and should be handled very carefully. The decision which we take here is, economically speaking, of vital importance to all the people concerned. We should liked to ensure that the Bill really serves its purpose. We think it is a very wise decision to refer this Bill to a Select Committee after the Second Reading. [Interjections.] I can hardly hear myself speak.

Order!

This Bill is not a political measure. [Interjections.] Mr. Speaker, if hon. members want to interject, I shall accept their interjections, but they must not show their after-supper exuberance here.

Order! It is not necessary for the hon. member to make remarks about other hon. members.

Mr. Speaker, this Bill is not a political measure, but merely a commercial measure to regulate the business life of South Africans. It is of vital importance, because it regulates the actions of the most sophisticated people in our society, but at the same time it regulates the position of the most unsophisticated of people in our society and tries to protect them against their own ignorance. At the same time it tries to protect them against certain dealers who may be unscrupulous. Consumer protection against themselves, whether through ignorance or avarice, will always have our backing. I use the term “ignorance” because some consumers, through sheer lack of knowledge, suffer severe losses through their own gullibility. I refer to consumer avarice and I do so because some consumers are often guilty of over-extending themselves by purchasing luxuries on credit when they know there is no real hope of paying for the luxuries they have purchased.

Then there is another type of consumer for whom we feel particularly sorry. That is the consumer who is someone without means. Such consumers are given credit in the hope that they will be able to pay but their income is so meagre that they simply cannot afford to pay. Some creditors then write off the debt as a bad debt. Other creditors may take the debtors to court in the hope of recovering at least some part of the debt. One finds that where the debtor’s expenditure exceeds his income, a magistrate refuses to make an order and the creditor, in any event, does not recover the debt. Some traders are overtrading because they are either overstocked or under-financed. In over-trading they are giving credit which they do not have a snowball’s hope of recovering. Many a trader has gone insolvent because of his bad debt ratio. A trader’s insolvency often has very severe repercussions on many financial institutions because many traders cede their entire book debts to the financial institutions concerned, and when the trader goes insolvent it means severe losses to such financial institutions.

The institutions recently experienced a very big collapse. Admittedly it was with immovables, but even so, these were deeds of sale which were ceded to the institutions. In the same way these book debts are also ceded to the institutions. Credit grantors have the responsibility to ensure that they give credit to people who are creditworthy. The system of hire purchase increases the wealth of this country. Hire purchase contracts and credit agreements deal with such a variety of commodities …

Order! The hon. member there reading his newspaper, should refrain from doing so.

… ranging from furniture to motorcars and credit has become an integral part of our commercial community and of the commercial life in South Africa. It has obviously increased the standard of living of the have-nots in our society. It has increased the development of our industry. If an examination is made of our industrial life, it will be found that many industries are almost totally dependent for their survival on the credit system in South Africa.

Thousands of millions of rand will be spent during this year and ensuing years under this particular Bill and under the Hire Purchase Act, the latter being an Act which we are about to repeal. It is therefore essential that consumer protection in this Bill must have adequate safeguards. The present Act and the Bill improve the quality of life of many South Africans. Unfortunately, some salesmen use high pressure tactics and get some people who can least afford it to spend money as though money is going out of fashion. Therefore, the cooling-off period mentioned in clause 17 may have some merit. However, five days given to a credit receiver to resile from the agreement under certain circumstances, may be far too long. The hon. the Minister can just imagine what will happen if someone is given a motor-car for five days and he acts unscrupulously. At the end of five days the car can perhaps be worth next to nothing.

Now, I know the hon. the Minister’s answer is going to be that a credit grantor should only give delivery after the five day period. Unfortunately we live in a very competitive world today and if a credit grantor refuses to give immediate delivery, the credit receiver will go elsewhere to buy his motor-car. I believe we can reconcile the situation if we reduce the cooling-off period from five days to two days. More specifically in these very difficult economic times, I feel that two days will be long enough as a cooling-off period.

Most South Africans are battling to make ends meet, due to the tremendously high cost of living, and it will be wise for them not to over-commit themselves. Buyers should be protected against their own exaggerated optimism, as some of them always tend to think that something better will turn up tomorrow. I like an optimist, but then he must have realistic expectations to make ends meet.

There are certain clauses in this Bill that obviously do not find favour with us, but in view of the attitude of the hon. the Minister, we are not going to debate those clauses tonight. Our advice to potential credit receivers is that if they buy in haste they are certainly going to be repentant in pressurized leisure. We in these benches will not oppose this Bill.

Mr. Speaker, at this stage I rise simply to thank hon. members for their contributions and support of the principles of this legislation. I do not intend to reply to the contributions of hon. members in any detail, except to make a few general remarks, remarks which I think are relevant. I want firstly to say that this legislation actually has a dual purpose. Naturally the first purpose is the protection of the consumer in those spheres in which he is not able to protect himself. A second purpose, which is also very important, is associated with the fact that the whole question of granting credit is very closely connected with the economic trends in our country. That is why this legislation is a mighty instrument by means of which we can deal with our financial policy. That is why I just want to utter a general word of warning that we should not merely emphasize one specific facet of the legislation in our approach to or consideration of it. I want immediately to concede that it may be an important facet, but on the other hand hon. members will understand that we must also use the legislation to implement our financial and economic policy which we state from time to time.

Secondly, I want to point out that it is extremely important for us to understand—I think that the hon. member for Wonderboom emphasized this in particular—that in regard to this legislation we must also take very careful note of the fact that, apart from protecting the consumer—an important element of this legislation—the legislation must be regarded as one of the instruments not for restricting the existing economic system but specifically for maintaining the system. One often maintains this system by removing from it the evil of human weaknesses which often detracts from the system. The hon. member for Walmer is quite correct in saying that the legislation will affect the broad spectrum of business and commercial activities in our country. On the one hand it affects the most sophisticated business undertakings and activities and on the other, the most uninformed or unsophisticated people in our society.

I want to tell the hon. member for Johannesburg North immediately that the whole question of limitation which is found in the existing Hire Purchase Act concerning the quantum of the purchase price—this limitation has been omitted from this Bill and it is now being left to the Minister to determine it—involves a number of factors which are extremely important. Let me say immediately that we cannot accept legislation in this House which is governed by the question of whether the terms of a contract provide who or what is or is not a natural or juristic person. The fact is that many people who do not have the sophistication and knowledge of more advanced business affairs, nevertheless organize their activities in a company for other considerations, namely tax considerations. That is why it cannot be the norm. However, I believe that acceptance of the principle that the effect of the legislation should be wider than merely the question of the sale of movable property—that it should also include services like certain leasing agreements, agreements which are nothing more than stimulated credit sales—can take us a long way towards sorting out the technical parts of the legislation in the calm atmosphere of a Select Committee. I hope that the members of the Select Committee will show the same wisdom as I showed when I decided to refer this legislation to them.

Question agreed to.

Bill read a Second Time.

Mr. Speaker, I move—

Committee for inquiry and report.

Agreed to.

Mr. Speaker, I move—

Before the Prevention of Illegal Squatting Act, No. 52 of 1951, was amended last year, the Act was to a large extent a dead letter in that it was virtually useless as an instrument with which to counteract squatting. A number of emergency camps were proclaimed in terms of the Act and for the rest the Act was mostly used to prosecute persons for unlawful entry upon property.

As a result of a tendency for illegal squatting to increase, particularly in the Cape Peninsula, and the dangers this would constitute to the entire community if it were allowed to do so unchecked, the Act was given more potency in 1976 in order to clamp down on the evil of squatting. As I stated repeatedly last year in debates in this House as well as in the Other Place, I am convinced that the squatting problem will only be solved if adequate accommodation is provided, whilst at the same time exercising strict control over new squatting.

The Amendment Act of last year empowered the appropriate bodies to take positive steps against new squatting. Hon. members will recall that the principal amendments were the following—

1. (1) A prohibition on the erection and occupation of unauthorized structures was introduced. This prohibition was also aimed at the so-called squatter-mongers who for their own gain allowed squatters to erect their shacks on their (the squatter-mongers’) land without making provision for a water supply, sanitation or any other services.
2. (2) The owner of land, the local authority or the Department of Community Development, and in the case of Bantu squatters, the Bantu Affairs Administration Board, was authorized to demolish structures which had been erected without the consent of the owner of the land, without a court order. In this regard I gave the assurance that, as far as the Coloureds were concerned, squatter shacks that had already existed prior to the commencement of the Amendment Act, but in the case of the Cape Peninsula prior to 15 November 1974, would be condoned and that the occupants thereof would be provided with proper permanent housing before the shanties were demolished immediately afterwards. I also gave the undertaking that this provision would be applied as sympathetically as possible.
3. (3) The Minister of Community Development was empowered, after consultation with the local authority in question, to provide that in respect of any population group and area defined by notice in the Gazette and local newspapers, a prospective employer shall obtain from a local authority a certificate in which it is stated that housing is available for a person who is to be employed before such a person is brought into that area from elsewhere as a result of his employment. This was of course aimed at the employment of persons in areas where sufficient proper housing was not available and where those persons would therefore have to have recourse to squatting.

The above-mentioned amendments unleashed wide-ranging and sometimes vehement discussion and opposition in this House and in the Other Place, but the principles were accepted.

The amended Act is being applied with good consequences by my department, local authorities and Bantu Affairs Administration Boards. As far as Coloureds in the Peninsula are concerned, 5 427 squatter families had, as at 31 March 1977, already been rehoused in proper dwellings and their shanties had been demolished. Despite the publicity which actions by certain local authorities in regard to squatter control received in the Press, the extremely necessary control measures in terms of the Act were continued. This undoubtedly resulted in curbing the further spread of squatting. There is the most cordial co-operation between my department and the local authorities concerned in this regard.

As has already been said, in the elimination of the squatting problem the counteracting of new squatting goes hand in hand with the provision of adequate proper housing. In the Peninsula where the gravest problem exists, two contracts were signed during the past few weeks for the erection of a further 10 000 dwellings in Mitchell’s Plain over the next three years, in spite of the present unfavourable financial climate. This is in addition to a scheme of 4 560 dwellings which are already under construction, there, a scheme under which 40 dwellings will be completed and handed over per week. If other schemes which are under construction or will soon be under construction in the Peninsula are also taken into consideration, there will be approximately 20 000 dwelling units under construction for Coloureds in this area. This is indeed a phenomenal achievement. The formula in terms of which 37½% of all new dwellings are allocated to squatters, 37½% to persons on waiting lists and overcrowding cases, and 25% for the purposes of the Department of Community Development has been altered for the two latest schemes of 10 000 dwellings so that 60% of the dwellings are going to be utilized for squatters, 20% for waiting lists and overcrowding, and 20% for the purposes of the department.

When these schemes have been completed, the squatting problem in the area of jurisdiction of the Cape Town municipality will be something of the past. I should like to say this to hon. members on that side of the House in particular who maintained that we would never solve the problem. In the rest of the Peninsula of course further housing schemes will also be constructed as quickly as possible, depending on the availability of funds, and existing squatter conditions will accordingly be cleared up. Great improvements have already been made recently and the prophets of doom who stated that it would not be possible to clear up squatter conditions in the right manner as far as the area of jurisdiction of the Cape Town municipality was concerned, where this scourge was among the worst in the country, will have to sing another tune after another two to three years once the approximately 15 000 to 17 000 houses which are now under construction, have been completed. In the areas of jurisdiction of the divisional councils of the Cape and Stellenbosch, great progress has also been made during the past 18 months.

As far as Bantu squatters are concerned, other procedures than those for Coloureds apply. It is a prerequisite in terms of the Bantu (Urban Areas) Act that housing should be available when Bantu workers are brought to the Peninsula. According to report the Bantu Affairs Administration Board provides Bantu who are legally in the area with temporary housing if there is no permanent housing available and therefore there is no need for Bantu who are legally in the area to resort to squatting.

Mr. Speaker, I have given the foregoing information to indicate with what earnest the Government approaches the solution to the squatter problem. With the above-mentioned tremendous housing effort, in spite of the prevailing economic conditions, and with the powers which Parliament has given the executive authority by way of the Act to counteract new squatting, we simply have to succeed in finding the solution to the squatter problem.

But, Mr. Speaker, it is clear that there are other forces at work, forces whose object it is to encourage and perpetuate squatting in order to foment dissatisfaction and racial hatred and to discredit the Government and South Africa. How else does one explain the recent court cases which were aimed at thwarting the authorities when they wanted to take steps to put an end to illegal squatting, which constitutes a danger to society? I am referring specifically to case where the Department of Public Works wanted to take action against illegal squatting on State-owned land at Modderdam, Bellville, and where the Stellenbosch council took action against squatters on its own land at Kraaifontein. Money for court cases seems to be no problem to these indigent people who have no right to be on the land in question and are breaking quite a number of laws, laws pertaining to entry, and to building and health regulations, etc. Every possible technical point, however small, is seized upon to thwart any action against scourge by means of protracted court proceedings.

The squatters in question, or the people inciting them, were successful in their court applications, not because they had the law on their side, but merely on the grounds of technical points of law pertaining, for the most part, to faulty notices of intention to demolish, notices which are required in terms of the Act. This obvious defiance of State authority, not by the unfortunate squatters themselves, but obviously by persons and organizations hiding behind them for their own obscure motives, cannot be tolerated.

The Bill before this House is primarily aimed at preventing the thwarting of steps on the part of the authorities against conditions which are illegal and bad, and doing so by means of court applications on technical points on behalf of persons who have no legal rights to a property and at preventing unnecessary court proceedings on insignificant technical points unless the person who institutes the proceedings is able to prove that he has the right to be on the premises in respect of which he wishes to litigate. It is an untenable position that persons who are already prima facie without a lawful right should oppose the person or body that in fact wants to protect his prima facie right to or in respect of the property.

I want to inform this House that when we were preparing this Bill it seemed as though the only means which we would be able to apply was a prohibition on any application to the courts under any circumstances as far as this type of case was concerned.

Disgraceful!

Sir, I am sorry, but it seems to me my hon. friends have not understood what I said. I said that when we were considering this legislation, it seemed as though the only step we would be able to take would have been to exclude the courts and make proceedings on these cases impossible. This appeared to be the case, according to the legal advice we had, but the Prime Minister asked us to reconsider the matter. He himself suggested an alternative. I discussed that alternative with the law advisers and they told me that it seemed virtually impossible to insert that alternative. I reported back to the Prime Minister and he then asked me to come and see him, together with the law advisers. We had an interesting, succinct discussion with the law advisers, and within half an hour the matter had been cleared up. In this Bill the alternative which emanated from the Prime Minister has now been included. It still makes it possible for people to go to court. The courts are therefore not being excluded. All that is being required, is that these people who want to make a case to defend their occupation of land, must prove that they in fact have a right, based on the preponderance of probability, to occupy that land. [Interjections.] Their right to go to court, however, remains unimpaired.

I should now like to deal briefly with the contents of the Bill. I want to emphasize that no new principles are being inserted and that persons who can prove that they have a lawful right to property will still be able to make an application to the court.

Clause 1(a) provides that a structure may also be demolished when it is being occupied without the owner’s consent. As the Act reads at present, a structure which has been erected on the land without the owner’s consent, may be demolished. It must be the owner’s consent. However, cases occur in which a structure is erected with the owner’s consent, but is then occupied without his consent. Authority to take action in such a case is of course imperative.

In clause 1(b) the requirement that seven days’ notice of intention to demolish shall be given to the person who erected the structure is being done away with. In fact it is very difficult to establish beyond doubt who the person who erected a shanty was. This requirement therefore lends itself to abuse as far as applications to the court are concerned. However, I want to give the assurance that the doing away with this statutory notice will not mean that there will be a less sympathetic approach to demolition than in the past. I foresee that where a new shanty is found, after the passing of this amendment Bill, the occupants will be warned that they are squatting illegally and that they will have to move. If there is then no response, after a reasonable period of warning, demolition will have to take place. It can be administratively arranged that sympathy and understanding continue to be displayed in such cases.

Without notice!

No. I have just stated that there will be a notice. My hon. friend was not listening. I find it extremely difficult to conduct a debate or to explain something to people who close their ears. There will be a notice. I repeat: There will be a notice.

Clause 1(c) provides that only a person who is able to convince the court—I have already referred to this—that he has a lawful title or right by virtue thereof to occupy the land lawfully may apply to the court with reference to the demolition or proposed demolition of a structure. This provision is also being made applicable to orders which have already been made by the court or which may be made before the passing of this measure.

In addition it is being provided that a person who occupies land with the consent of a person other than the owner will not be deemed to have a title or right to the land unless the owner can prove that he may legally allow that person to occupy the land. In other words, it will not be possible to submit that, consent from an unauthorized person constitutes a right to occupy land. Apparently the meaning of “building” or “structure” already includes a shack, hut or tent, but in order to place these concepts beyond any doubt, the Government law advisers recommend that they be clearly defined, as is in fact being done in this clause.

Clause 2 comprises merely a technical amendment—which should not be contentious—to make it possible to demarcate a larger area, for example the Cape metropolitan area within which various local authorities are situated, in terms of section 3C. If a person is employed and this results in him being brought into the larger area, a certificate will have to be obtained from a local authority to the effect that there is proper housing available for him. Should he afterwards move from the territory of one local authority to another within the larger area, it will not be necessary, in terms of this amendment, to obtain a certificate on each occasion, as is at present the case in terms of the present wording of the section. This amendment is therefore really an alleviation of the present provisions.

Mr. Speaker, to summarize, I can say that this Bill does not in any way impair the freedom of individuals to address applications to the court provided they can prove their title or rights to property. It is aimed in the first place at persons and bodies who are playing a dangerous game, who are trying to make heroes of law-breakers, and villains of authorities who are trying to render their services to the best of their ability in the interests of society as a whole.

I trust that the hon. members on both sides of the House will see this Bill in its correct perspective, and I am looking forward to an objective debate.

Mr. Speaker, the hon. the Minister in introducing this measure “het met ’n lang ompad gery om by die punt uit te kom”. First of all, he spent an awful lot of time telling us about the housing that is being constructed for Coloured persons. I have said here before that we on this side of the House appreciate what is being done to provide housing for Coloured persons. I have had occasion to visit such sites and to see what was being done.

That is what is being achieved as far as Coloured persons are concerned. But when one is dealing with squatters, one is dealing not only with Coloured persons, as the hon. the Minister is well aware, but also with thousands upon thousands of Black people. When we discussed the squatter question earlier this session, I remarked on the fact that there was a notable silence from the quartet of Ministers who are responsible for the Bantu people. The hon. the Minister of Community Development has come to us this evening wrapping up the measures and terms of the Bill within an interview he has had with the Prime Minister and suggesting that this was the great thought of the hon. the Prime Minister in dealing with this problem. The hon. the Minister then proceeded to deal with some scandalous remarks about the legal profession involved in the defence of squatters before the courts. Then, what is worse, when I said that no notice whatsoever would have to be given, he said I was stupid and did not understand what was in the Bill.

I did not use the word “stupid”.

The hon. the Minister knows perfectly well—let me deal with this before I come to other matters—that clause 1(b) of this short Bill before us provides that—

The hon. the Minister will say that in the course of affairs, in the course of the administration, these people will be given some reasonable notice, but without any obligation. Let me remind the hon. the Minister of his annoyance and indignation and that of his colleagues when I suggested that bulldozers would be used to break down shacks. At the time he gave an assurance that such a thing would never happen, but what happened? Front-end loaders were used instead!

He should have resigned!

The hon. the Minister must remember, and I think the House will remember, that last year, when an amendment was introduced, I moved on behalf of the Opposition that the Bill be referred to a Select Committee. I moved that amendment because we regarded the Bill as being, in the main, a superficial strong-arm approach to the problem of squatters. The hon. the Minister himself has confirmed that tonight by saying “ons het tande aan die Wet gegee”. Secondly, we were concerned at the fact that there were half a million squatters, Black people and Coloured people, to be rehoused in the western Cape and Natal alone, that Black people and Coloured people were involved and that the problem of squatters was a universal one. The hon. the Minister himself agreed last year that this was a phenomenon which one met with throughout the world. We said that we were concerned that influx control would be applied to Coloured people and that hardships would result from the provisions which were then introduced, viz. that no Coloured man could be taken into employment unless he had a house. Those hardships have materialized. The hon. the Minister should know, if he is in touch with the local authorities and with his own department, that if a Coloured man wants to apply for a house from the city council, he must have a job. He cannot get a job under this law unless he has got a house. That is what is going on at the present moment with regard to the Coloured people. That is the situation at present. If the man has no employment he is not placed on the council’s waiting-list. What we also felt was that it was housing that was required, not the demolition of shelters, however inadequate. Last year the hon. the Minister rejected the suggestion of a Select Committee and I want to tell hon. members what he said. He said the Government has gained experience, not only of how to tackle this problem, but also of how to solve this problem. As far as the Coloureds are concerned I want to repeat that the hon. the Minister promised that during the ensuing year some 20 000 houses would be built. That is being undertaken. Of those 20 000 a fair proportion would be available, he said, to rehouse squatters. We appreciate that that is being done, but that is half the problem, or shall I say even less than half the problem; it is probably only one quarter of the problem, when one sees the composition of the racial communities who are in the squatter camps in the Cape and particularly in Natal. With regard to housing it is obviously not the city council’s intention to take people from squatters’ shacks and to put them into houses in Mitchell’s Plain. There are the social problems, and the position is that they are attempting, which I believe is the correct procedure, to take people out of the sub-economic homes and to upgrade them to a better type of housing and then to move the squatters into the sub-economic homes where they can be given the social guidances which are necessary to accustom those who have not been accustomed before to living in homes of that nature, to the normal conveniences which are in such a home. But in spite of the assurance that the Government knew everything and would solve this problem, we now have this amending Bill. What more proof is needed that we were correct when we requested a Select Committee last year?

I have told the hon. the Minister, and I gave him the relevant documentation, that people more concerned with this and nations more advanced than we are in South Africa are grappling with this same problem. It has been necessary to have world conferences, attended by up to 48 different nations, to discuss this problem. But this Government says that they have the answers, that they will solve the problem and that a Select Committee is not necessary to collect evidence from the people concerned. We are particularly faced with a problem which has now to be debated across the floor of this House. This is a sensitive issue. I am sure that you, Mr. Speaker, will appreciate that it is a most sensitive issue requiring the utmost care and consideration, if only because the people concerned are people who are in the main the underprivileged part of our community. The need for caution and the fact that this Act, which is a drastic Act, must be applied cautiously, is obviously recognized, if not by the hon. the Minister and hon. members opposite, then certainly by the Secretary for the department. It was with interest that I read last evening in The Argus a letter that was addressed by the Secretary for the Department of Community Development to the Divisional Council of the Cape. It must have been addressed some weeks ago, but it came up at the Divisional Council meeting. I want to read to hon. members what the Secretary, Mr. Fouché, wrote. The report in The Argus reads as follows—

Then the letter goes on, and I quote—

That is a requirement of the law now, a requirement which the hon. the Minister wants to do away with.

I gave you the assurance … [Interjections.]

No bulldozers! I want to continue reading from the letter. It goes on to a say—

This is a highly proper and commendable approach by the Department, an approach which is hardly consistent with that of the hon. the Minister this evening.

Now, the Government wants more power. It wants to direct and control these people. And if it is not to deny them access to the courts, then at least the hon. the Minister—with this beautiful scheme which, he tells us, he has discussed with the hon. the Prime Minister and the legal advisers—makes it extremely difficult for a squatter to exercise the fundamental right which he has to seek the protection of the courts. That right is now so circumscribed and so limited that it is meaningless.

[Inaudible.]

I will show the hon. the Minister. I will tell him why. The Act, as amended in 1976, prohibits the owner or lessee from erecting unauthorized buildings or structures on his land. It thereby endorses the normal local authority building regulations. The Act makes it an offence to permit any such unauthorized structures to be occupied. It also prohibits persons to reside in circumstances which may endanger the health or safety of the public in general. It provides for penalties to be imposed. It provides for demolition to be ordered, unless the court orders otherwise, and then only if seven days have elapsed after the period allowed for an appeal to be lodged, or after the appeal has been rejected. The Act further provides that an owner may demolish any building erected on his land without his consent. He may do that without an order of court. However, in terms of the Act, as it stands now, he must give seven day’s written notice of his intention to demolish prior to carrying out the demolition. A notice is necessary to ensure that the occupier or the person who erected the structure is alerted to the action about to be taken, an action which will affect his property or his person, however modest or poor it might be. It gives him the opportunity to seek the protection of the court, should the contemplated action be considered arbitrary or vindictive.

In his more enlightened past the hon. the Minister agreed with this approach. I want to remind him again of his own words when he tries to sell us this Bill with such fervour this evening. He once said that the decisions of bureaucrats should never be allowed to replace the majesty of the law. He also said that the ultimate guardianship of the courts over our rights should be regarded as sacred. [Interjections.] The hon. the Minister will, no doubt, argue that access to the courts is not denied, that the provisions of the Act and of this Bill do not prohibit all access to the courts, and that he merely wishes to demarcate the circumstances and the prerequisites for any approach to the courts. However, the fundamental right …

Should people not go to the court with clean hands?

Who determines the cleanliness of a person’s hands? Does the hon. the Minister determine that?

The court determines that.

Yes, that is correct. However, the hon. the Minister denies them access to court, because he says they have dirty hands before they have even gone to court. [Interjections.] The fundamental right of any citizen, rich or poor, White or Black, is to have his rights, personal and proprietary, safeguarded by the ordinary law of the land. When one fiddles with this principle a state of chaos arises. I want to show what has happened in this case. Let me give an example. In terms of section 3A(1)(c) of the Act, when an owner is prosecuted for permitting occupation of a building or a structure which has been erected by him or someone else without prior approval by the local authority, the occupier of such a building “shall be deemed to have been on the land with the consent of the owner or lessee, as the case may be …". In other words, it is deemed that the squatter had the right to erect or to occupy that unauthorized structure on the land. Unless the owner can rebut that presumption, the owner is guilty of an offence. The owner is convicted because the squatter had the right to be there and the owner must then demolish the squatter’s house. The owner of course has access to the courts because he has to be convicted before he can be forced by law to demolish, but when we go to section 3B we notice that as the law now stands he then has to give the squatter seven days’ notice. The squatter then has the opportunity of going to the court and claiming that he has a right to be on the land because he is a tenant who is paying rent. He can say that he is seeking damages if he is ejected by the landlord who allowed him to stay on the land. However, what happens now? This man who is deemed to be there for the purposes of convicting the owner, who is deemed to be there lawfully, must now, having so been deemed and the owner having been convicted, go to court if he wants to protect himself. The court will now say to him: “You must now bring proof to us that you are there as of right.” This happens after the court has accepted the fact in the prosecution of the owner. Where is the justice of this?

Oh!

The hon. member at the back says “oh!” If the hon. the Minister will just look at the Act, he will see that that is so. When the owner is prosecuted for allowing a squatter to occupy an unauthorized property on his premises, he is deemed to have authorized that squatter to occupy the premises, finished and “klaar”! Then it comes to removing the squatters. If the squatter wants to go to court he cannot get a court order unless he proves what the court has already accepted, because they could not have convicted the owner unless they had accepted that the squatter had a right to be there. This is what is happening in the legislation. I can only say that this situation is Gilbert and Sullivan at their best. What the hon. the Minister is doing is that when he prosecutes the owner he tosses a coin and it comes up heads. Then, when he wants to remove the squatter he tosses the same coin and if its falls on the other side it is also heads. It is heads on both sides of the coin that the hon. the Minister is using. This is his justice, his fair play. This is the way he is being fair to the people and not depriving them of their right to proceed to court. The hon. the Minister and his Government have become irritated by legal procedures. The safeguarding of the fundamental right of every citizen, however poor, of access to the court has led in this Minister’s own words to “unavoidable delays which are attendant upon such procedures”. This is it. So he wishes to assume the powers of a sole arbiter and to move in with or without front-end loaders as he should decide. In Hansard last year the hon. the Minister evidenced his annoyance at being involved in legal proceedings, as he did tonight. He said—

The hon. the Minister had the audacity to say then—he repeated it in other words this evening—“Surely there is more to this than meets the eye”. I told him last year—and I want to repeat it this evening—that in Cape Town the Attorneys’ Association has for months, long before the last Bill was introduced, had a panel of firms of attorneys who were prepared to act pro Deo and pro amico without a single cent as far as fees were concerned, to advise and to assist these unfortunate people who had no means of being legally advised.

That is not the whole truth.

That compassion exists. My firm is one of them. A professional member of my staff handles these cases without expecting a cent in fees, because we feel it is a responsibility we have to give adequate advice. The hon. the Minister can rest assured, and I can assure you, Mr. Speaker, that attorneys are not going to spend their time going into courts to waste time on a worthless case. I told him that last year. I hope the hon. the Minister will stop suggesting that those legal practitioners, who are dealing with those cases, do that for the sake of making considerable money. This Government has a record with regard to its attitude towards the courts. No doubt the Government finds it difficult to understand that attorneys, the members of the legal profession, should act in this way. One only has to think back to its subterfuges to get around the courts, e.g. enlarged Senates, High Courts of Parliament, to avoid being brought before the courts to have its actions tested. I do not have to enlarge upon that. What is needed today is a thorough investigation of the problem, viz. the universal problem of squatters. The physical aspect of the problem, viz. housing, is not the only one to be investigated. I readily concede, and it is appreciated, what the Government is doing in so far as Coloured housing is concerned. But there are socio-economic causes. A means to halt urbanization, other than by the process the hon. the Minister has euphemistically called “control of movement”, must be sought.

Having referred to the Secretary’s letter, I want to ask the hon. the Minister and the House whether the Minister is being used, by a quartet of Ministers in charge of Bantu affairs, introducing this Bill? He can handle the Coloured issue without this Bill. This Bill serves no purpose other than to increase human hardship. It violates the principle of access to the courts. For that reason I have no alternative but to move—

Mr. Speaker, it is probably not such a great surprise to us to hear the amendment which the hon. member for Green Point has just moved. Last year the Opposition took refuge in an amendment that a Select Committee should be appointed on this matter. This year they resort to an amendment that the Bill should be read this day six months. I believe that somewhere or other we will find whatever may be the necessary instruments to really deal with this problem. The hon. member repeatedly stressed the point that this squatter problem was a “universal problem”. We all admit that that is so. I do not think there is any quarrel with that. But does this prove that for that reason we must always endure it and accept it as it is? I shall come back to this in a moment. But that is not valid evidence of this. Last year the hon. member asked that a Select Committee be appointed. I do not think that Select Committee would have completed its investigation by this time. So I do not think that we have lost any time by not appointing a Select Committee. The Cape Divisional Council included a certain document on one of its agendas. The title of the document was “Seventeen reasons by the squatter problem can’t be solved”. It was drawn up by Shlomo Angel and Stan Benjamin. The authors are Faculty members in Urban and Regional Studies at the Asian Institute of Technology in Bangkok, Thailand.

If one reads the article, one finds that they really went to a lot of trouble to make a very good study of this subject. They come to the following conclusions—

After their very thorough investigations, those two people threw their hands in the air. They gave up and said that they did not have an answer and neither could they suggest an improved system. That then was one of the reasons why the Government did not think it necessary to appoint a Select Committee to investigate the matter.

The hon. member also argued that in terms of the Bill the onus would in future rest on the squatters. They will have to show that they have a title or a right to be present on a certain piece of land. Those same advisers who are now counselling them in their court cases will of course be available again to give them good advice on how to prove their title or right, if such a claim is made. I hope this time they will be given the good advice that they have no case and that they should rather abide by the Act. The hon. member asked scornfully what sort of “justice” it was to place the onus on the squatter. My question to him is: What sort of justice is it if someone who in accordance with all acceptable criteria illegally squats on a property and has the protection of the law? [Interjections.]

I think we are all agreed that there is squatting, that there is illegal squatting, and that it is undesirable to allow this squatting to continue. I think we only differ in regard to the means to be adopted in dealing with the squatter problem.

The hon. the Minister stressed this evening in his Second Reading speech that the squatter problem could only be solved in two ways. In the first place it can be done by means of the provision of sufficient housing and in the second place by the effective prevention of fresh squatting. The provision of housing is not, I think, really at issue this evening. In this connection the Government has already given proof of its good faith, and continues to give such proof. In fact, the hon. the Minister has announced that 60% of the completed houses, in terms of the new schemes, will be allocated to squatters. This legislation will really just improve those measures by virtue of which prevention will be made more effective.

Squatting is regarded as an everyday occurrence in most countries of the world, especially in the countries of the Third World. So we have no feeling of guilt in respect of the vast proportions that squatting has assumed in certain parts of our country, and we do not regard it as a social stigma applicable specifically to South Africa. While we are anxious to remove these circumstances, there are certain bodies of opinion which not only want it to continue but even to expand on a permanent basis. Why? Many fine-sounding reasons can be advanced for this, but political motives are obviously lurking in the background, political motives for which the circumstances of the squatters can be used as recrimination against the Government. Die Burger had this to say on Tuesday, 22 February, in a leading article concerning this specific matter. I quote a short paragraph—

It goes even further. In an article by Fleur de Villiers in the Sunday Times of 13 February 1977, we find the following, and I quote only one paragraph which was written with particular reference to the Prevention of Illegal Squatting Amendment Bill—

This refers to the four days notice the squatters had been given that their shanties would be demolished—

Sir, it is so easy to find a scapegoat and then to besmirch that scapegoat. We want to break up the so-called “poverty culture”, of which we have heard so much, in many ways, inter alia, by clearing up the squatter situation. The element which sympathizes with these people and which is trying to apply the brakes and to delay action as much as it can, is trying to idealize this so-called culture and have it take root and thereby be given ammunition to use against the Government and to symbolize it as an ogre. The danger of the efforts of those elements is specifically that they seem so naïve and innocent, so full of sense and compassion. The sting is in the tail. People with a poverty culture are the easy prey of political organizers, a prey without a sound judgment and without insight, ready to be mislead by the henchmen of anarchy and even revolution. The poverty culture is an American concept which we find in many American writings, but many poor people rise above their circumstances and prosper. The history of my own nation is full of examples of this. But many of these poor people do not want to prosper. Perhaps they do not have the ability to prosper, but must we permit them then to be exploited by political wolves?

Who are the political wolves? [Interjections.]

Mr. Speaker, there are industrialists in the Cape Peninsula as well who admit that some of their colleagues and fellow industrialists employ Blacks illegally. These industrialists themselves say that this is wrong because as a result of this the Coloureds are discriminated against. It is also unfair to those Blacks who are legally present in this area. They say that the Bantu will continue to stream to this area illegally as long as there are employers who are prepared to employ them illegally. They ask that those employers should be heavily penalized for various reasons, inter alia, because they are shirking their financial obligations to the Bantu Affairs Administration Boards …

Order! The hon. member must not go beyond the purview of the Bill.

Mr. Speaker, I am sorry if in your view I have gone beyond the confines of Bill. Sir, there are many Black squatters, especially here in the Peninsula.

The principle of squatting is not relevant, only the Bill and the particular measures it seeks to introduce. I have allowed the hon. member to speak about squatting in general, but he should not take advantage of my leniency.

I accept your ruling, Mr. Speaker, and shall conclude this part of my argument by saying that some industrialists themselves acknowledge that many of their fellow-industrialists benefit because they employ people illegally, people who are tolerated here because there is no legislation to remove them from this area where they are present illegally.

The South African public sets great store by abiding by the law and condemns deliberate contraventions. That is why they expect the Government to take the necessary steps to enforce the law, particularly when it is being contravened provocatively.

Here we have such a case. We had hoped that the existing legislation would be adequate to control the situation, but it has been found that this is not the case. Some wonderful work has been done to deal with the problem of squatting in terms of the present Act. Notice was given the first time together with an offer of information and assistance from officials. Everything went very well. After this a period of grace was allowed and then notice was given for a second time. Then we reached an impasse because of a court decision in terms of which, inter alia, the Stellenbosch Divisional Council had to build shanties that had been demolished. At the moment we find ourselves in a position of stalemate because the Act apparently does not contain the necessary powers. The question now is whether the State has to do its duty or whether it has to throw in the towel for humanitarian reasons and to satisfy liberal demands. To judge from the interjections, it sounds to me as if there are Opposition members who feel that we should throw in the towel and accept the squatter position as it is. The Opposition could expect this of a weak Government, a Government which shirks its obligations. But this Government is prepared to do its duty and is also prepared to take unpopular steps in the interests of the maintenance of law and order. That is why this legislation has been introduced—as an instrument to plug the loopholes and to give the Government the indisputable right to put an end to this kind of offence and to punish it.

Even if the Opposition were to come forward with thousands of examples of large-scale squatting all over the world, we can name even more which exist in other parts, particularly in developed countries. But it is not the intention of this Government to tolerate that here. Why should we endure the squalor and the disorder, even for a period of six months, until new legislation can be discussed? We like to learn from others, but we only accept what suits us and not what will be an embarrassment to us. This large-scale squatting would in time become an embarrassment to the Government, something we could not feel proud of which would undermine our self-respect as a civilized nation. That is why we must get rid of it, whether the people concerned like it or not, because squatters generally are uninvited guests and are therefore unwelcome.

In many cases they are criminals who prey parasitically on society. [Interjections.] They cannot make demands, but what do we find now? We find that the Act protects them. The existing Act protects them, and therefore it is necessary for the existing Act to be amended so that action can be taken against them. [Interjections.] It was always the intention only to accommodate those we needed in White areas. In a free economy these things are decided by supply and demand, and this also applies in respect of labour and the presence of workers. If the States takes on too much we hear that the State is making an assault on private enterprise. But if it does too little, that is no good either. It seems almost as though the State can never win. So we need not pay too much attention to those sideline politicians of the Opposition when they oppose this sort of legislation. We must do what we know is right.

Job opportunities is the one cry that is always raised to indicate why these people should be allowed here under the circumstances in which they live. Family life is another cry which is often heard. But I shall not go into that, Mr. Speaker, because I see you looking at me. Accommodation is another cry which is raised, an aspect I have already dealt with. If the houses are too expensive and the people cannot afford them and for that reason find it necessary to squat, I want to repeat once again this evening that the Government is not unsympathetic. For this reason it has already been announced that cheaper houses, the so-called core house (kernhuis), or as it was originally styled, a “dophuis”, will be built as experiments. On the other hand there are many of these squatters who just throw their hands in the air and say that they cannot afford proper housing. But those are the ones who do not work hard enough and do not work regularly. That is why they cannot pay their rent.

We must not think that squatting in this vicinity or in any other place in South Africa will decrease if we do not have a law which ensures positive and effective action. On 15 November 1975 there were no squatters in the vicinity of the University of the Western Cape. About a year later there were so few that we really did not think it necessary to take action. Some people felt sorry for those persons. Seen in retrospect they were of course mistakenly sorry, because in that squatter complex alone now there are already 3 000 structures housing 483 Coloured families and 2 500 Black families. That is just one squatters complex on land belonging to the University of the Western Cape. At the moment there are 10 000 structures at Crossroads and the University of the Western Cape alone. In the Cape Divisional Council and municipal areas and in the Stellenbosch Divisional Council area there are about 32 000 squatter structures. I too am sorry for these people, but we must call a halt somewhere, otherwise we will soon look like Latin America, just to give one example.

Mr. Speaker, I hope you will allow me to quote just two documents here. I refer to a report which appeared in Die Burger in June last year. I quote—

The report states further—

I shall not read any more of this but would just like to point out that when we listen to the arguments of the Opposition it sometimes sounds as though they want those circumstances to be permanent with us as well. When we look at the numbers then we are grateful that the situation here is still manageable, and that the Government is willing, notwithstanding the Opposition’s resistance and suspicion-mongering, to do the necessary clearing, an operation which is wholly to the advantage of the squatter himself. The Opposition accuses us. They say we are unfeeling, callous and persecutive. We shall endure this because we realized long ago that it was our fate to be saddled with a negative and fatalistic opposition.

A very good Opposition! [Interjections.]

They can accuse us of many things, but they cannot accuse us of irresponsible action and of not wanting to maintain law and order in the country. By means of this legislation we are attempting to prevent those circumstances I have just mentioned occurring in South Africa. There is still time. However, if we were to appoint Select Committees every time and delay legislation for six months we would very soon take on the appearance here of Latin America. In the country to which I have referred there is no South African NP which can be blamed. There they use bulldozers and take other drastic steps, but in spite of that the evil continues to develop uncontrolled. It will not be allowed to continue here. We, especially the Afrikaner, are accused that we are callous in this matter. The circumstances prevalent in South America could arise here, and the Opposition is too soft and too passive to do anything about the situation.

According to a report which appeared in March 1974, Prof. Sadie said the following—

This, of course, also applies to the squatters. I have just said that I too am sorry for them; but we cannot allow this to proceed unchecked. True to that unsolicited testimonial, we act reasonably; not with bulldozers, but with information, advice and help, but at the same time with determination to maintain law and order.

The White advisers of these people have in the past influenced them to flout the law. In this particular case there is no authority higher than the law of the land. I want to read a paragraph from a newsletter from Athlone’s advisory office. It deals with their report in November and December last year, and January this year; so it is quite recent. Let us consider the tone of this letter and the contempt for the laws of the land which radiates from it. I quote—

Order! The hon. member must deal with the Bill.

The following paragraph deals particularly with the evasion of the provisions of the Bill. I quote further—

Then they give examples of domestic servants and gardeners. Are these the sort of people who are really essential in this area? A responsible opposition and a responsible press would help the Government to deal with the problem. They must not just act negatively and emotionally. I want to conclude by asking: Is that asking too much? If it really is asking too much then I want to tell hon. members opposite that we shall have to go it alone.

Order! Before calling upon the next hon. member to speak, I want to point out that I have a very long list of speakers on this Bill. I want to say therefore for the guidance of hon. members that I shall allow them to refer to the sociological and social problem of squatting, and to aspects thereof—I say “to refer”—but not to discuss them. The Bill has three clear principles, and I expect hon. members to discuss them.

Mr. Speaker, I respect your decision and welcome the fact that you said that we may refer occasionally to the sociological and social aspects of squatting. The hon. member for False Bay spoke at some length on some sociological reasons and I should also like to comment on some of them. If the hon. member for False Bay had only taken the elementary trouble to read the Theron Report, he would have realized that most of the remarks he made, especially with regard to Coloured squatting, are factually wrong. That is how simple it is. I shall return to that. I have the information and can show it to the hon. member. I should like to return to the Second Reading speech by the hon. the Minister, especially to that part where he tried to give the real motivation for this Bill. He said, inter alia—

I happen to be aware of where the money came from for these specific court cases. I can give it to you, Mr. Speaker.

Whom does it come from?

Thus far altogether R1 568 has been spent on that particular court case and exactly R618 of it came from the inhabitants themselves. There are 10 000 people there. If everyone gives 50 cents, they have the money. R450 of the remaining amount came from the Roman Catholic Archbishop of Cape Town. These, then, are the forces fomenting racial hatred of which the hon. the Minister spoke. The rest of the money comes from the Delhar Ratepayers’ Association—a well-to-do Coloured area right next to the Modderdam squatters. They gave R500. It is the Coloured people themselves.

Who furnished that information?

This information was furnished by the Cape Flats Interim Accommodation Committee which was approached by those people themselves. It is factual information. If the hon. the Minister wants to dispute it, he can ask the courts himself. That is the first point I should like to make, namely that the hon. the Minister is busy sowing suspicion against these people who try to help. The second statement I want to make, is that the hon. the Minister should please keep in mind that in this particular court case it was found that there was wrongful action, that action was taken against the law. That was the verdict of the judges. I do not want to go into this any further. One of my hon. colleagues will talk about this later. [Interjections.] It is so. In terms of the verdict of the court, it is so. The hon. the Minister said furthermore that access to the courts still exists. For whom does this access to the courts exist? It is for those who can furnish proof that they have a title or a right. Well, by definition a squatter does not have a title or a right. [Interjections.] By definition it means that … [Interjections.] It is so ironical. It almost makes one cynical. The hon. the Minister goes about this in a very cynical way by saying that squatters are not being barred from the courts, as long as they have a title or a right. What is a squatter? In effect it is someone who does not have a title or a right. What, then, is the issue? [Interjections.]

Order!

The third statement which the hon. the Minister made—and it almost makes me laugh—is that a very sympathetic approach will be adopted in this regard. He says that they will act with sympathy and that there will have to be advance warning. Notice must therefore be given. The hon. the Minister also says that notice will in fact be given. But what does it say in the Bill? I refer to clause 1, whereby section 3(b) of the principal Act is amended. There we read the following—

What is the hon. the Minister trying to say here? If he says notice will be given, I want to know why it is not so stated in the Bill. However, the hon. the Minister says: “Do not worry, notice will be given.” If notice will indeed be given, the hon. the Minister might as well indicate it in the Bill. [Interjections.] However, clause 1 is specifically one of the clauses of this Bill in terms of which the necessity for giving notice is done away with. What is the hon. the Minister trying to tell us when he says this? Exactly who is he trying to fool?

†Mr. Speaker, with this Bill the hon. the Minister of Community Development, on behalf of the owner of land or property—whether it is private or public—has declared a permanent open season on squatters in South Africa. He has cut off all access for squatters to the courts. [Interjections.]

That is not true!

For squatters the hon. the Minister has cut off all access to the courts. Only people who have a title or a deed have access to the court. Therefore, a squatter does not have any access to the court. This Bill states that any squatter dwelling can at any time be demolished without notice, and no civil proceedings of any nature can be brought against the owner of property who does so. The Bill also has a retrospective clause which makes any present or pending civil action null and void.

Do you enjoy reading your speech?

Mr. Speaker, if the hon. member for False Bay could read off his speech, I suppose I can do the same.

†In this way the hon. the Minister has said that squatters, because they squat, are excluded from any access to, or protection by, the courts. I defy the hon. the Minister to indicate to me, in this piece of legislation—not in his intention, or in his declared sympathy, but in this legislation—where a squatter, as a squatter defined by the law, has any access to the court. This Bill is simply the culmination of a long process whereby all protection by the court has been systematically and ruthlessly taken away from squatters. Firstly there was the original Act. The original Act stated that there had to be a court order and notification. Then, last year, the hon. the Minister introduced legislation whereby the necessity for a court order before demolition was removed.

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

No, I do not have time now. [Interjections.]

†Last year the hon. the Minister introduced a Bill taking away the necessity for a court order. This year, of course, the last vestige of any legal protection, viz. the necessity to notify people that their shacks are going to be demolished, has been taken away. With this Bill the hon. the Minister of Community Development, as I have said, has declared open season on these people as squatters. Who are these people? Obviously, any persons or any group of persons in the society who are beyond the protection of law, as specified in this Bill, must constitute a community which poses some threat to the society. [Interjections.] The hon. the Minister has asked for some discussions. I will try to be as objective as possible. I shall state the facts and figures and would appreciate it if the hon. the Minister would listen to my speech and point out, in his reply to the Second Reading debate, whether these figures and facts are wrong. [Interjections.] The hon. the Minister can also interject if he wants to. I would appreciate that because it shows that he has some interest in the legislation. [Interjections.] Who are these squatters? First and foremost, squatters are families who either cannot afford housing or who cannot obtain housing for whatever reason.

Who do not want to pay for housing.

I shall come to that point now. The Cape Town city council and divisional council surveys conducted on 3 794 squatter families in 16 squatter settlements found that 79% were employed on a full-time basis. In other words, four out of five members in 16 squatter settlements of more than 3 500 people were employed on a full-time basis. That is the first point I want to put to the hon. member for False Bay. The second point is that the Urban Problem Research Unit of the University of Cape Town found, in 1975, that the household income for squatters in the city council area was as follows: 30% earned less than R80 per month, 61% earned less than R120 per month and 14% less than R200 per month. These figures have been verified by the Theron Commission’s analysis. According to the pattern of employment they also found that 82% had been in the same job for more than one year, 58% for more than two years, 48% for more than three years, 27% for more than five years and 14% for more than eight years. I am just stating these figures in reply to the hon. member for False Bay who says that these people are lawbreakers who are unemployed, are not prepared to work and are parasites in society. These figures refute what he said. The Cape Flats Committee for Interim Accommodation describes the Modderdam Road squatter settlement in the following terms, referring to the situation at the time—

The hon. member said I may interrupt. Can he tell me from what dwellings do the 81% come?

I shall go into that later. I am just giving these figures now—

That is just giving a brief description of the socio-economic characteristics of this particular community. However, I leave the matter at that …

Order! The hon. member is stretching my ruling a bit.

Yes, Mr. Speaker, I am aware of that, but I have to respond to some of the allegations made by the hon. member for False Bay when he referred to squatting in such general and vague terms that one has to refute him with more hard facts than he was prepared to provide. From this description one can deduce the reasons for squatting. I do not want to go into them too much, but the hon. the Minister referred to some of them in his Second Reading speech and one has to reply to them. The main reasons are overcrowding in the existing squatter settlements, immigration from the rural areas, population increase, shortage of housing supply and inability to afford housing. These are the main reasons that are usually cited by people who have investigated and analysed squatting in the Western Cape area and in the country generally. In order to cope with the problem—as the hon. the Minister has indicated, as being part of the Government’s policy for emergency housing and housing in general—one has to understand the nature of the factors responsible for the problem of squatting. If one looks at the problem of overcrowding, it is clear that for each squatter family there is at least one family living in overcrowded conditions in the housing estates, families who need a house just as much as squatters. This is a very important fact. The hon. the Minister tells us that within eight years the problem of squatting will be solved, but what one wants to know is to what extent the hon. the Minister is aware of the fact that at least 46%—according to the Theron Commission’s report and more in some other investigations—of the people who squat come from existing overcrowded housing estates. So, despite the squatters, one has at the present moment for every squatter family a family who lives in overcrowded housing conditions, a family who will eventually move out. Young people living in these overcrowded conditions who get married naturally want to be on their own; so they become squatters as well. That is one of the problems I am not quite sure the hon. the Minister is taking into account. The Theron Commission’s report estimated that the Coloured housing needs throughout the country were for 131 000 dwellings, of which 40% were for squatters and slum-dwellers, 46% for those in overcrowded conditions and 14% for those who have been moved under the Group Areas Act. So, roughly 86% of the people in need of housing are either squatters or slum-dwellers on the one hand or, on the other hand, people living in overcrowded conditions. Many people who live in these overcrowded conditions eventually decide to move out and go and squat. That is why I believe it is rather optimistic on the part of the hon. the Minister to say that within eight years the problem will be solved if we follow this building pattern. There is a great deal of disguised squatting going on in the Cape Flats, and this simply does not give us a true reflection of the real housing needs today.

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

Mr. Speaker, I shall come back to the Bill. The hon. the Minister says that when people want to have access to the courts as a result of their shacks having been demolished, they must somehow prove that the owner has given them permission to squat on his land. This is what he said, if I understood him correctly.

How can this reasonably be done in terms of the law? How can it reasonably be shown that a person can give that permission? It must be in the form of an affidavit, or some kind of written statement or a contract from the owner of the property. These people are squatting all over the Cape Flats. How is it possible for these people to trace the original owner in order to get permission? If the squatter cannot do it, it simply means that he will erect or occupy a dwelling which can be demolished without notification at any time of the day. This is basically what this Bill means. However, I fail to see how this particular Bill is going to assist the Government in coping with the squatter problem, because this Bill must be seen in the light of the Government’s broad strategy towards squatters and towards the whole housing problem. How do they hope to cope with this? Basically the Government makes a four-prong attack on the squatter problem. The first is a crash housing programme to which the hon. the Minister has referred in his Second Reading speech. The second is the freezing of the squatter areas in existence up to November 1974. The third is the repatriation—I am here particularly referring to Africans, although also to Coloureds. The fourth is the demolition of those squatting units that came into existence after November 1974. If we look at the crash housing programme announced by the hon. the Minister of Community Development in a speech made in the Other Place and reported in The Cape Times of 3 March 1976, we find that he said the following—

Were these figures, given by the hon. the Minister, calculated only on the natural increase of the Coloured population and on the existing waiting list? What about the problem of overcrowding, which also contributes to the housing need, and the question of migration? In regard to the question of overcrowding, I approached the hon. the Minister when we experienced problems with the Modderdam and the Kraaifontein squatters earlier this year. I put to the hon. the Minister a very pertinent question, namely whether he had alternative accommodation for these people. They were threatened with being evicted. At the time the hon. the Minister said that he did not want to answer me, because we were going to have a debate that afternoon and he would reply to me in that debate. I put the same question in the debate, and again the hon. the Minister did not reply to it. I now want to know whether the hon. the Minister has alternative accommodation, because it would seem to me that one way of solving the problem, is to demolish existing squatter units, to accommodate as many of them as possible in new housing areas, or to hope that they will disappear into the already overcrowded housing estates that are in existence. If that is the case, one can expect that there will be more squatting and the necessity for implementing harsh legislation like this will increase. On the other hand there is also a possibility of a cut-back on funds for the planned projects and for those already in existence. We know, for example, that the Mitchell’s Plain project was delayed for six years before it actually went into operation. The project was announced long before it actually went into operation. A lot of land expropriation and deals took place, but that one can expect. This procedure will obviously have to be followed in regard to new areas which the hon. the Minister is hopefully going to require to build the houses that he mentioned. The Secretary for Community Development has already said that only existing projects can be financed; not new ones. This is so because we are experiencing difficult economic circumstances and funds are not readily available. The hon. the Minister himself has said repeatedly: “If funds are available, we shall be able to catch up with the backlog.” That is a very important “if” and that “if” does not simply depend on the good intentions of the hon. the Minister himself. It also depends very much where on the priority list the hon. the Minister’s department falls in the whole budget scheme of South Africa. If he does not fall very high in a particular year, obviously his building programme is not going to proceed as planned.

The freezing of old squatter camps and the demolishing of new ones simply illustrates the futility of the legislation which the hon. the Minister has introduced. Even if the hon. the Minister does give the law more teeth, the Bill as it stands here, within the context of the Government’s housing policy, is a futile law, because it ignores the underlying socioeconomic forces responsible for the problem of squatting.

The third part of the Government’s solution is repatriation. Where to? The phrase we heard is: “To the place of origin.”

Order! It is not in order to discuss that now.

The fourth part of the Government’s solution of the squatting problem is demolition. What is contained in the Bill, is how to go about …

At last you have come to the Bill.

That is correct. One can only understand the Bill if we understand the contents of the problem. We cannot simply treat symptoms. We have to understand their cause. It is because the Government focuses on symptoms most of the time that they are later on saddled with new symptoms. This Bill, as part of the Government’s policy to cope with the problem of squatting, says demolition will solve the problem. Mr. Speaker, demolition will not solve the problem.

Nobody said that!

This Bill says that if a person occupies a piece of land and he has no right to be there, if he is there illegally, he can without notice be evicted and the dwelling can without notification be demolished. This is what the Bill says. What this in effect achieves is simply to rotate the squatter communities in the Cape Peninsula. That is all it will achieve. The dwellings will be demolished in one area and the squatter will erect them somewhere else. Why? For the simple reason that these families have no alternative accommodation. If they have no alternative accommodation, the hon. the Minister is whistling in the dark if he hopes that this kind of legislation will assist in solving the squatter problem. What it will do, and that is why this legislation is extremely provocative legislation, is that it will create incidents in our country. As sure as I stand here, there will be incidents as a result of the implementation of this legislation. There will be dissatisfaction; there will be frustration and anger. This Bill simply helps to promote that. Therefore I cannot help but condemn this kind of legislation in the strongest terms and accordingly support the amendment of the hon. member for Green Point.

Mr. Speaker, the hon. member for Rondebosch accused the hon. the Minister of sowing suspicion. I want to ask him pertinently whether South Africa does not have every reason to examine the whole question of illegal squatting and the ways in which it developed in 1975 and 1976, particularly here in the Western Cape, through a strong magnifying glass I want to give one illustration. After the Easter weekend of 1975 no fewer than 600 squatter families suddenly moved into the Crossroads area, which is very well known, within a period of ten days. They came from all directions. Simultaneously, within a week, they established themselves at Crossroads. I ask: Where did they come from? One came from Fish Hoek, one came from Kraaifontein and another from Britstown, but how did they all arrive here simultaneously within a matter of days? How did they manage to set up their houses in rows, leave roads open and measure out communal areas? Do hon. members want to tell me that that does not show there was organization behind it, that there were people who planned this whole situation? If the answer to that is “no”, then I want to put this further question: How did it come about that the number of families so increased in subsequent months that a year later there were between 10 000 and 12 000 squatting in the area illegally? I also want to ask this question: If we make an analysis of those people and we find that approximately five-sixths of them are here in the Cape Peninsula illegally, do we not have the right to take steps against them? Do we not have the right to assume that there is an organization which is settling those people there in an attempt to disrupt our orderly pattern of life?

The hon. member for Rondebosch had a lot to say here about the fact that the squatters would now be denied the right of recourse to the courts. I want to differ with him most strongly. This Bill makes clear provision for a squatter, on the balance of probabilities—hon. members can laugh—to go to court. If the hon. member for Rondebosch says now that the squatter is someone without right or title, then that is the very point we are making. Such a person cannot show on the balance of probabilities that he has a right or title. What on earth would anybody like that be doing at court?

Ha, ha!

Order! I do not think the hon. member should make that sort of noise in the House.

Mr. Speaker, if one makes an analysis of the policy of the PRP, their attitude becomes very clear to one. We know of course that they are the people who are in favour of an increase in the number of Black families here in the Cape. We know of course that they are the people who are in favour of Black majority government. We know too that they are the people who are in favour of integrated schools. We know too that they are the people who denigrate South Africa in the eyes of overseas countries. That is why they adopt this attitude; for no other reason, and not because of the contents of an important Bill. In this case there are other, obscure reasons.

The hon. member for Green Point who spoke on behalf of the official Opposition made the statement that the Government was irritated by court cases. But I want to state quite categorically here that the Government does not begrudge anyone the right to go to court. The Government is not irritated by people who go to court. What does irritate it though, is when the rightful owner, because of loopholes in the law, cannot exercise his own legal rights when people go to court, and when the rightful owner’s legal rights are unsurped illegally by a person who has no right to them. That is really what it is all about. The fact that the official Opposition ask today that the Bill should be delayed for six months means that they are running away from the problem, that they want to maintain the status quo and they take great delight in people, who have no rights, embarrassing the Government, or the rightful owner, by going to court because there are loopholes in the legislation which makes it possible for them to do so.

Have you read the verdict of the judge?

There are two basic aspects embodied in this Bill. In the first place there is the aim of controlling undisciplined, disorderly living and chaotic living; and in the second place—an all-important aspect—the aim of providing that the legal owner shall himself enjoy the possession of his own lawful title rights and shall not have to stand back helplessly manacled and watch someone else, with no rights, usurp the right of the rightful owner to the property. These are the basic aspects of this matter. The question now is whether the legal owner of the property is now the servant, and the squatter the master. That is what this is all about. What is at issue here is that the rightful owner cannot exercise his own rights. In contrast to this the squatter is usurping rights which in fact are not his.

If the Opposition is opposed to the Bill, it only means two things. In the first place it means that the official Opposition and the other Opposition parties want to deny the legal owner his rights and to deliver him into the hands of the squatter. That is why they want to delay the Bill for six months. In the second place it means that they want to strengthen the hand of the squatter in contravening the law, in becoming the pawn of agitators in becoming a potential danger to security and, in this specific case, in deliberately flouting the Government. For them it is all to the good if the Government can be embarrassed. Naturally the Opposition parties are delighted if someone with no rights, as has clearly emerged in this case as a result of a technical point, can make use of a loophole in the law to usurp rights to the detriment of the man who in fact owns those rights. From the vociferous opposition which we have had this evening from the Opposition parties, to this important Bill we can deduce that by this means greater expectations are created in the minds of those people who have no rights and that those people are given the impression that they in fact possess those rights. There is therefore only one genuine accusation that can be levelled against the Government in connection with any squatting question and that is if the Government has neglected to provide housing. Although I do not want to take this further, hon. members know as well as I do that in the past year this Government has done more than has ever before in our history in connection with housing. In this year of money shortages an additional R63 million has in fact, been added for that purpose. We heard tonight that 60% of all available completed housing is being made available for the resettlement of people. We know that many of those people fall outside the income group which qualifies for a sub-economic loan because their incomes are in the region of between R200 and R250 a month. Hon. members know as well as I do that the only other solution to this problem apart from the building of houses is strict control over the erection of squatter shacks.

This brings me to the crux of this matter and the basis of this Bill, namely, the meaning of title rights or the meaning of the rights of the owner of immovable property. That is really what the whole thing is about. In this connection I want to base my argument on our common law and develop my argument to show how it is extended in the statutory provisions embodied in this Bill.

In the first place it is of the utmost importance that we should note repeatedly that ownership rights are the most comprehensive rights and the oldest real right in the world. The owner of such a right can exercise his rights in terms thereof and maintain them against the whole world—against any and everybody. That is the first aspect. In the second place it is equally important that one should bear in mind that the obligation is placed on all other persons to respect that owner’s right unreservedly. These two aspects are of the utmost importance and they constitute the two fundamental principles of right of title which, as I have already said is a real right.

The fact that this right is of the utmost importance is illustrated by the fact that when a person obtains right of title to immovable property, it is registered in the deeds office. Even a right of servitude is registered in the deeds office so that the existence of that right is recorded beyond all doubt and is there for all to see. Equally important is that the legal owner is the only person who has the right to possess his land, to control it, to deal with it and to enjoy the use of it, and no person without a limited real right to the land can interfere.

What is the status of a squatter? That is the question that must be asked when one looks at the position of the true owner. The squatter is someone who claims to himself rights which in effect do not exist. He is literally trying to deprive the owner of his rightful use of the land. Should such an owner tolerate such a state of affairs and should the State allow the outraging of our law in this respect by allowing the squatter overtly to usurp rights?

Because of the ramification of his right the registered owner of the land enjoys an equally comprehensive protection, not only in terms of the common and statutory law in South Africa but throughout the world. There are three main principles which are very important and which flow from the protection which the registered legal owner of the land enjoys. In the first place he can demand his land back from someone who is in possession of it; that is to say, someone who does not have a limited real right or any other real right to it. All he has to show—this is laid down in the common law—is that he has right and title to it and that the other party in possession of it has no rights thereto.

This principle has been taken over exactly as it is and it is now portrayed in the Bill in which it is embodied. This principle has been maintained in the courts since pre-Union days, and in this connection I want to draw attention to the Appeal Court case of Marcus v. Stamper and Zoutendijk, 1910 A. D., p. 75. The principle at issue in this case was applicable in our country before Union, and it is now further portrayed in this legislation. This Bill spells out this principle very clearly in the new subsections (4)(a), (b), (c) and (d) which aim at its inclusion in section 3B of the principal Act by means of Clause 1(c). Because the principle is as old as the hills, it is self-evident that it should be made of retrospective effect as set out in the proposed section 3B(4)(b).

The second main principle of the protection which the legal owner enjoys in respect of his immovable property throughout the free world is that he can obtain an interdict if anybody should illegally claim the enjoyment and use of the property. In the nature of things is this once again the same end result we find in this particular Bill. We find precisely the same upshot because the owner now has the right summarily to remove the illegal infringement of his right, while the squatter on the other hand will still have to go to court. But he must show on the balance of probabilities that he has right and title to live on the relevant piece of land.

The third main principle for the protection of the owner’s title right is that he can claim compensation from the person who has prejudiced him. That is the only principle of the common law which is not included in this Bill, and for obvious reasons. One cannot expect multitudes of owners to institute civil claims against people who—as the hon. member for Rondebosch says—have no right or title. The squatter, of course, has no rights. All that he has done is to occupy land illegally. His occupation of the land is such that it can be compared to the most primitive form of acquisition of property, a form practised in the earliest years before legal systems were properly formulated. This is simply taking possession of something that does not belong to anyone else, and was known in Roman Law as occupatio. What the squatter does, however, is to occupy land in an illegal manner.

Now I want to put it this way. Here in South Africa, and in the Cape Peninsula in particular, it would seem as if the illegal occupation of land by squatters constitutes obtaining by force fictitious rights which the squatters claim. The squatter is already acting so illegally that by virtue of his stolen possession—I regard it as stolen possession—he can only go one step further and that is to attempt to obtain his usurped right of occupation of another man’s property by force. Here in the Cape Peninsula in particular, here where we have a multitude of Black and Brown people together, and where people are often grouped together in explosive circumstances—circumstances which, by reason of emotional occurrences, become still more explosive—the position sometimes borders on the violent, and it is even possible that squatters may try to impose their fictitious right of occupation of a certain property in a violent manner. These things are so cardinal and so clear that this particular Bill makes provision for the removal of squatter shacks to be proceeded with without prior notice. We have had the statement and the undertaking from the hon. the Minister tonight that, as far as the State is concerned, an endeavour will be made to give notice. In fact, the squatters do not need to be given notice. After all, they have no right. They have not entered into any legal arrangement. They did not give notice to the owner on whose property they have trespassed. When one looks at our South African legal system, one finds that in contractual obligations, where a person has failed in his contractual obligations in terms of the common law in South Africa, an ejection order may be sought against him. The squatter has not acquired any contractual obligations. Therefore it is quite clear that his illegal occupation should be terminated and at the earliest opportunity and in the quickest manner.

I want to refer to just one such example. People squatted in Joostenbergvlakte in October 1976 and their houses were demolished. In November the same people erected the same houses, and these houses were again demolished. In December those same people again re-erected those houses, on each occasion with other material, but again the houses were demolished. The same process was repeated a fourth time. Where is this chaos to end? When the Government tries to create order out of this chaos, why do the Opposition parties refuse to support their efforts? Must the murderer, the robber and all other criminals be given notice? Must the man who steals a motor vehicle also be given notice? Where will it all end?

That is a good question.

It is not a question of a law which deals out punishments. It is a question of a Bill which is aimed at protecting rights and not at dealing out punishment. Nothing else is involved.

Finally, this brings us to the necessity for this Bill.