Mr. Speaker, the business of the House until next Friday will be more or less as follows: On Monday the Transport Vote will come up for discussion. The House will then proceed with legislation as printed in the Order Paper for today. On Wednesday the Social Welfare and Pensions Vote will come up for discussion, after which we shall again deal with legislation. On Friday the discussion of the Civil Defence Bill and the Second Defence Amendment Bill will commence.

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

Aspects of the problems arising out of the proposed clause have already been discussed at some length and the hon. the Minister’s replies to some of the queries raised by the hon. member for Umhlatuzana were, in fact, helpful. I understand from one of his replies that attorneys acting for instance in regard to the prosecution of an appeal arising out of criminal cases under this clause, will not be restricted in utilizing the record of a “closed trial”, if I may use that term. I also understand that attorneys acting in subsequent legal proceedings—civil proceedings—are also excluded from the ambit of this clause. I think this is helpful. However, there are still one or two problems which remain, problems which, by means of an example I want to quote, might be illustrated. I would like to quote a hypothetical example.

Let us consider a trial held in the regional court relating to charges brought under the provisions of the General Law Amendment Act, 1962. In the trial the accused are well-known people, enjoying wide support from at least certain sections of the community. The trial and the alleged offences may well be of a highly contentious, perhaps even of a political, nature. The atmosphere amongst the public is tense. The prosecutor submits to the magistrate, in terms of section 153(1) of the Criminal Procedure Act, that it is in the interests of good order that proceedings be held behind closed doors. The prosecution perhaps submits documentary evidence of the public disquiet and tension. The court agrees with the prosecutor and the trial is then closed to the public, to observers, and, of course, also to the Press. The trial then proceeds in the normal way. The accused receives a fair trial. They present their defence, if any. But, nonetheless, it is shown in the trial that the persons concerned acted in breach of the law, and they are found guilty. Pleas in mitigation are submitted, arguments are heard, and after proper process the accused persons are sentenced to, say, eight years imprisonment. It is at this point that section 154(1) of the Criminal Procedure Act is brought into action, and for the same reasons as the earlier decision to close the trial to the public—also in terms of section 154(1) of the Criminal Procedure Act—publication of the proceedings is now stopped.

All that is published, is the fact that Messrs. X, Y and Z were found guilty on certain charges and that a specific sentence was imposed. At this point the provisions of clause 2 of the Bill come into play. The provisions of clause 2 amend section 7 of the principal Act. These provisions now become relevant. These provisions prevent, not only publication of the proceedings, but have the effect of also closing the record entirely to public scrutiny. The attorney for the accused will, no doubt, have access to the record for purposes of appeal. However, the question is whether other parties—parties who may or may not have direct interest in the appeal concerned, but who may well have a direct interest in the administration of justice—will have access to the record.

Let us take a few examples, for instance the General Bar Council, or any one of the bar councils throughout the country. Let us assume that this trial has aroused a certain interest in the outside world. Will the International Commission of Jurists be excluded by virtue of the provisions of this clause? Will editors of the Press be excluded? I submit that they are. I refer to members of the accused’s family, people who do not have a legal interest, but have a human interest in the rights of those accused. Then there are the accused’s employers, or perhaps the employers of members of the accused’s families, all of whom, for one reason or another, may well wish to inspect the record.

My argument therefore is not that the parties concerned will not receive a fair trial, but rather that, by allowing of a situation where contentious proceedings can be “blacked out”, the Government is placing our courts and their reputation for fair dealing in jeopardy. This is a very serious problem and has to be overcome. Justice, in those circumstances, cannot, I believe, be seen to be done, and the world outside will, no doubt, believe that justice was in fact not done.

While it may not be the intention of the hon. the Minister, this legislation, read with the Criminal Procedure Act, now makes it feasible to hold trials of a most controversial nature, of a political nature, in secret. I do not consider this to be in the interests of the country. I hope therefore that the hon. the Minister will seriously consider accepting the amendment which deletes the aspects relating to section 154(1) as read with sections 153(1) and 154(1) of the Criminal Procedure Act.

Mr. Chairman, the hon. member for Sandton will realize that in the first instance the presiding officer has a discretion. In terms of the present Act the presiding officer has a discretion in the first place. Therefore the presiding officer will consider whether it is in the interests of the sound administration of justice, whether it is in the interests of good public morals, of the security of the State, etc., that the particular case should be heard in camera or not. All this Bill provides is that if the magistrate or presiding officer gives a ruling of this nature, it will be only fair that one should carry this instruction through to the records of the case. This is only fair. There is no sense in saying, for example, that the case must be heard in camera because the public must not hear it, and then allowing the public to be able to read up the whole case, names and all, in the records in any event. After all, this is an anomaly. All the Bill does is to carry the ruling of the presiding officer right through to the records. I do not consider this provision unfair, because firstly, the presiding officer has the discretion whether or not to do this. The Bill merely makes the procedure more effective.

During the Second Reading debate the hon. member for Sandton mentioned the provision in connection with the security of the State. The provision is not found in the old Act and the hon. member wanted to know why it has been added now. I just want to point out that the provision was added after the acceptance of an amendment by Mr. George Oliver of the UP in 1973. I happen to have the 1973 Order Paper with me and from it it is apparent that the provision was added after an amendment had been accepted by my hon. predecessor at the insistence of the Opposition. The provision is now being inserted once again because it was a UP amendment that we accepted, was moved by the UP. I agree with it entirely; otherwise we would not, after all, have accepted it. I just want to point out to the Opposition that the aspect raised by the hon. member for Sandton is an aspect which did not originally come from this side of the House, but from the Opposition. Furthermore, I may just add that in fact it gives full effect to the ruling of the presiding officer. In the circumstances I do not see my way clear to changing the provision.

Mr. Chairman I would like to ask the hon. the Minister to clarify the issue that he dealt with in his Second Reading speech when he stated that he would go into the question of, I think, access to the public and what was actually covered by the word “public”.

Mr. Chairman, I am grateful to the hon. member for his question. I did go into the legal position, and the legal advisers agreed with me that I was correct when I said that a legal representative was an officer of the court. The legal opinion which I obtained went a little further and said that, even if they were not lawyers, people involved in a case like this, would also be able to gain access to the records. The word “public” here means the general public and not public in the narrow sense of the word. In any event, the legal representatives, being officers of the court, are entitled to access to the records. This also answers the question of the hon. member for Sandton, because it means that the members of the Bar will therefore also be entitled to look at the record, as well as those members of the public who have a real interest in it, but not other people.

Amendment negatived (Progressive Reform Party dissenting).

Clause agreed to.

Clause 9:

Mr. chairman, I rise to move the amendments printed in the name of the hon. member for Umhlatuzana on the Order Paper, as follows—

1. (1) On page 6, in line 13, to omit “ten” and to substitute “five”;
2. (2) on page 6, in line 18, to omit “ten” and to substitute “five”.

This matter was also debated very fully during the course of the Second Reading, when my hon. colleague to whom I have referred, linked up the extension of the limits of jurisdiction in this particular clause with clauses 14, 15 and 16 which enable the hon. the Minister to achieve what he thought would be a means of relieving the Supreme Court of the burden of these types of cases, because of the fact in the first place that the courts are so congested, and secondly because he said that by reason of that congestion many persons who had been arraigned were being kept in gaol for indeterminable periods since the courts were unable to reach their specific cases on the rolls. That is a problem which worries him.

I have read the Viljoen Commission’s report very carefully and I have found that the commission used many constructive arguments and even gave examples of cases in order to justify the recommendation which the commission made to increase the penalty of jurisdiction of the Regional Courts to six years. This is indicative of similar thinking to that which motivates us in moving these amendments. A period of ten years is an extremely long period and a very serious penalty. It is very seldom that accused are sentenced beyond that period and if they are, one finds in many cases that the penalty could have been life imprisonment as a habitual criminal or that the death sentence could have been considered. In fact, this is the very issue that is involved in this particular type of case which will now appear before a regional magistrate.

We have made it clear that we regard the seriousness of these offences in the same light as it was regarded in the days when the relative Acts were originally passed. I should like to quote what the then hon. the Minister of Justice, in dealing with the matter, had to say in 1962 (Hansard, Vol. 4, col. 6077)—

That was his first point. Later on he continued—

He was then dealing with the question of summary trials. He continued—

In other words, there he dealt with one of the points which justified his desire to have summary trials and to provide for such trials in the statutes of the land. He said further on—

This indicates what the thinking was at the time and I do not think our law system warrants such drastic changes in the short period of slightly more than a decade. The Terrorism Act was passed merely a decade ago while the other Act was passed a decade and a half ago. Usually many, many years elapse before we make drastic changes in the administration of our law and more particularly in the criminal code of our country. We make adjustments, but we do not make drastic changes.

I can well understand the commissioner’s reasoning in coming to the conclusion that the period of three years should be doubled to six years. He recommended such an extension because he wanted to bring it into line with the very thinking that there were a number of cases which could well go to a senior court such as a regional court in order to bridge the gap that existed at the time between the magistrate’s court and the Supreme Court. It was a very wide gap indeed.

I believe even the provision of five years will relieve the Supreme Court considerably of the present congestion of its rolls, irrespectively of my point of view that we should have more judges. I still believe we should have more judges and I think the hon. the Minister has decided a little too late in this regard.

Nevertheless, I still believe that it will take a considerable strain off the criminal roll of the Supreme Court. Therefore, we feel very strongly indeed that a drastic change from three years to 10 years is not warranted in these circumstances. I do not believe the motivation of the hon. the Minister is sufficiently strong to warrant our accepting the clause as it stands. The fine suggested is consequently R5 000 instead of R10 000. I seriously ask the hon. the Minister to weigh the whole matter up so as not afterwards to find himself in a position where he will come under criticism, because such cases may well occur. I do not want to go into it now as I do not think it is necessary to discuss the circumstances under which these cases may take place. One does not know what the future holds for us. However, one always wants to feel that in our country the administration of justice, which still stands to the great credit of our country irrespective of all criticism that is levelled against us, is one of the bright lights of the democratic system in our way of life in South Africa There should not be the slightest possibility of any criticism arising out of circumstances on that score. Therefore I believe that we should take our steps gently. We should not take actions precipitately and we should not be that wise as to see too far ahead. It is the natural process of legal reasoning, legal scholarship and a legal system as we know it and as we have inherited it, that we should not take giant steps forward, thereby perhaps unbalance, in many senses, what is an established practice in our courts and under the law of our land. I ask the hon. the Minister with the utmost sincerity to weigh up that issue and accept our amendment, an amendment which meets him halfway and which, I think, will considerably assist him in the problem facing him.

Mr. Chairman, I think the hon. member for Jeppe has made out a good case for his amendment. We shall support the amendment. I think there are several good reasons why the jurisdiction of the regional court should not be increased as far as to include sentences to a maximum of 10 years’ imprisonment. While relieving the congestion of the Supreme Court, the increase which is proposed is, we believe, a fairly radical increase. The provision thereby merely transfers the problem of congestion to the lower courts and thus ensures that the waiting list for trials in the lower courts will be of even greater proportions than presently exist. It is clear that from now on, once the proposal of the hon. the Minister has been accepted, that the overwhelming mass of criminal matters and criminal charges, political or otherwise, will in fact be brought before the magistrates in regional courts and that the Supreme Court’s function in criminal matters will be drastically reduced, if not entirely eliminated. I think that would be an unwelcome development.

Secondly, trials in which a conviction could mean an imposition of a 10 year prison sentence, should in fact, we believe, be conducted by judges of the Supreme Court and not by magistrates. It is a simple view to understand, whether one agrees with it or not. It is put forward without meaning to cast any reflection on magistrates, who do an excellent job within their sphere of competence. We say that the sphere of competence of a magistrate should be set at a level of a jurisdiction of, for instance, five years’ imprisonment and not at ten years. It is a simple, straightforward viewpoint. It becomes an even stronger argument when one considers the possibilities provided in the new Criminal Code in terms of which trials may be heard in one court, sometimes without independent evidence being heard, and sentences in respect of those trials being passed by a court at a higher level, being either the regional or the Supreme Court. Therefore we support the amendment to limit the jurisdiction of the regional court to a sentence of five years’ imprisonment, and I ask the hon. the Minister to consider this.

Mr. Chairman, I very briefly want to say that we cannot support the amendment. The regional courts have been given more power and we heard that the Viljoen Commission recommended that the fine should be increased to R10 000 or to six years’ imprisonment. If one gives the regional courts additional power, it does not make sense if one then wants to reduce the length of sentence which they are allowed to impose. If they are to handle this additional responsibility, they must have the right to impose the higher sentences. Therefore we shall not support the amendment.

Mr. Chairman, I want to tell those hon. members who participated in the debate, that I did go into the whole matter very thoroughly. I feel that it is very clear from the report of the Viljoen Commission that at the moment there is an imbalance between the various courts, especially as regards criminal cases. That is why the Viljoen Commission recommended that the period of imprisonment should be lengthened to six years. We investigated the question of how many cases were heard here and how many were heard there, and we found that in order to rectify the balance between the regional court and the Supreme Court, we would have to give the regional court a jurisdiction of ten years. We do not aim to take so many cases away from the Supreme Court that it will no longer have any work; this will never happen. We are only trying to eliminate the imbalance which very clearly exists at the moment. It has been very clear since 1962 that the regional courts have proved themselves and that the regional magistrates have also proved themselves. In general the standard of jurisprudence has risen rather than dropped. Today more people than ever before hold the degree B.A. LL.B. If hon. members take a look at the criminal cases of the Supreme Court, they will not only find that the rolls are more than full, but that the advocates, too, are overworked. In fact the advocates are trying to postpone the cases and they are being granted postponement on the grounds that they simply cannot cope with all the work. There must be some relief for the courts in this regard. The regional courts have proved themselves, and today attorneys are better lawyers than they were before. Practically without exception, attorneys today all have the qualification B.A. LL.B. Therefore we have a uniform distribution not only for the court, but also for the defence. I have already said in the House that we shall see to it that the regional courts will get the shorter cases, cases where fewer facts have to be looked up, perhaps even legal questions which have to be looked up. Then, the Attorneys-General, who are also highly qualified people, will be able to allocate the cases better than is the case at the moment.

Nor should hon. members ever forget—I see that the Press has reported me incorrectly on this point—that, as I said during the Second Reading debate, there is an automatic appeal from the regional court to the Supreme Court. In other words, one does not have to ask a regional magistrate whether one can appeal to the Supreme Court or not; it takes place automatically. One simply submits one’s appeal and it automatically appears before the Supreme Court. Therefore, if one feels that the regional magistrate has made a mistake, one automatically has the right to go to the Supreme Court in order to rectify it Considering all the circumstances, I do not think it is unfair to put the jurisdiction at ten years so that there can be a better distribution of court cases and workloads in general throughout our administration of law.

Mr. Chairman, there is just one matter I would like to raise with the hon. the Minister. As I mentioned during the Second Reading, at present people charged with offences which may result in capital punishment, get pro Deo counsel. However, 90% of the cases being heard do not result in capital punishment being imposed. Nevertheless they do have pro Deo counsel and very often they get lengthy periods of imprisonment. Ten years is of course a lengthy period of imprisonment. I am not suggesting that every person who appears before a regional court should have pro Deo counsel. Will the hon. the Minister tell us whether the concept of pro Deo counsel will be entirely excluded, or whether in matters which are comparatively serious, and in which, according to the Attorney-General, sentences of imprisonment for seven, eight, nine or ten years may be imposed, pro Deo counsel will be provided.

Mr. Chairman, I think that the argument put up by the hon. the Minister is not really valid. Firstly, I believe it is completely invalid to say that because there is an automatic right of appeal from a regional court, this may be taken into account as to whether that regional court should deal with a particular matter. It should not be taken into account at all.

I said it was a further safeguard.

Yes, but there is no automatic right of review from the regional court. One must bear this in mind as well. One must look at this matter on the basis of whether it is necessary from an ordinary process point of view. When one reads the report of the Viljoen Commission very carefully, one will find that the Commission was also concerned about giving increased jurisdiction, not only to the magistrates’ courts, but also to the regional courts. As a matter of fact, they have placed almost a caveat upon what they suggest. This is what the report says—that is after recommending an increase in the magistrates’ courts—

Our argument is that there should be an extension of the jurisdiction of the regional courts because, as the hon. the Minister rightly says, there has been a gradual, general improvement in the academic qualifications laid down for admission to the attorneys’ profession and also in the legal qualifications for the Public Service. Therefore we believe that we can extend it, but we do not believe that an extension such as is contemplated by this Bill should be entered into immediately. There are these provisos and fears expressed by the commission, and we therefore believe that it should be done gradually. One should not forget that it was as recently as in 1974 that the jurisdiction of the magistrates’ courts and of the regional courts was increased. Now we are attempting to increase it again. We are prepared to do it, but we do not believe that it is justifiable to change the jurisdiction in the case of a sentence to imprisonment from three years to ten years and in the case of a fine, from R1 500 to R10 000. Then, too, if one reads the commission’s report—and I believe that the hon. the Minister’s actions here are based to a large extent on the result of the commission’s report—one can find no real reason for the drastic increase. The commission’s report recommended an increase from three to six years, and from R1 500 to R10 000, but there is no justification for this at all in the commission’s report. We believe that it would be reasonable now to accept that there should be a partial increase.

Finally I just want to ask the hon. the Minister whether he could give us some indication as to what the general Bar Council of South Africa has said about the increase of jurisdiction. There was a report in Die Burger this morning which reads as follows—

This report appeared in the newspaper this morning. We understand the concern of the Bar Council because, as the hon. the Minister knows, the Bill was read for a first time, I believe, only last week and has been hurried through rather quickly. We have been prepared to debate it because we realize that it is important to pass a number of clauses in this Bill, seen in conjunction with the criminal code which we have just passed. However, I believe that the Bar Council’s opposition to the extension of this jurisdiction is an important factor. Those gentlemen in the Bar Council are people who know the functions of the courts far better than I do and, I believe, far better than many other hon. members present here. They know the functions of the courts throughout South Africa and I believe that they have considered this Bill and that they are against it. However, I should like to hear the hon. the Minister’s report on their opinion. We ourselves are strongly of the opinion that there should be an increase, but we do not believe that the increase, which the hon. the Minister has suggested, is justified.

Mr. Chairman, with reference to what the hon. member for Durban North said about pro Deo counsel, let me state that it is my opinion that the hon. member for Durban North has a very valid point. I think it is a point well made, and I shall certainly go into the matter. I do not want to make any promises in the House this morning, but I shall be thinking in terms of a magistrate having the discretion, when there is a very intricate point of law and a person is undefended, to state that the person concerned is entitled to pro Deo counsel. Alternatively, from what the prosecutor tells him in his opening address, the magistrate may feel that the sentence may be quite a heavy one if the person is found guilty. In those circumstances it could possibly be left to the discretion of the regional court magistrate to call for an adjournment and to call in pro Deo counsel. I am thinking along those lines. I do think the point is well made, and I shall go into the whole matter.

*I now come to the hon. member for East London City. I really do not think that the commission in any way intended that the magistrate may begin to pass heavier sentences because the parole system does not impose those sentences. I think that the commission would have been wrong if this had been its intention. After all, the whole aim of the findings of the commission in general was to keep people out of prison. The whole report was sent to all magistrates so that they could acquaint themselves with the findings of the commission and keep people out of prison wherever possible. This is one of the reasons why we are granting the increased jurisdiction, viz. because the magistrates and regional magistrates are aware of all the other alternatives for keeping people out of prison rather than putting them in prison. I think that we are dealing with a double-edged sword here. Exactly the opposite can also apply. Magistrates can say that they will not put people in prison even though they have jurisdiction to do so. Even though they have the power to pass sentences of seven years, they may argue that they are going to take certain of the commission’s directives into consideration and apply those directives rather than a sentence of seven, eight or ten years. This is an argument which we can advance in favour of increasing the jurisdiction to ten years because the person has various alternatives in terms of that jurisdiction.

As far as the General Bar Council is concerned, I want to say that they sent two advocates to me just to state formally on their behalf that the General Bar Council does not support the increase in any way. I gave them my reasons for the increase and they gave me a very sympathetic hearing. I am not going to say to what extent they agreed with my reasons. The task they were given by the General Bar Council was to inform me of the fact that they did not support this, and I shall content myself with this. After all it is very noticeable that the Side Bar has not reacted to this at all. The members of the Side Bar are also a very responsible group of lawyers. They would quite probably have had something to say if they were opposed to this. One can take it that they are less opposed to it than the General Bar Council. I cannot take that argument any further. I have gone into the matter very thoroughly and I am afraid that I cannot change the 10-year period.

Mr. Chairman, I should like to put a question to the hon. the Minister. In his first reply to the amendment of the hon. member for Jeppe, the Minister said that, in setting the jurisdictional limit of the regional courts at 10 years, he had tried to create a balance. I assume that, in trying to create a balance, he based his approach on statistics and considered the number of Supreme Court trials in which sentences were passed in excess of 10 years and below 10 years and how this amendment would affect the situation.

As regards the point that has been made relating to the fact that the congestion at the lower courts may be increased while the Supreme Courts are emptied of criminal trials, I wonder whether the hon. the Minister can give us some idea of how he came to his conclusions in arriving at that balance and setting this term of imprisonment as the jurisdictional limit.

Mr. Chairman, I cannot give the hon. member the full argument of the department. However, the department has examined all the aspects the hon. member referred to. I know that statistics are in fact very patient. However, I am satisfied that the department has properly examined the balance of the proceedings of the courts. I am also satisfied that it is essential that we should in fact have an intermediate court between the magistrate’s court and the Supreme Court and that the regional court, as it exists today, cannot serve as such an intermediate court. However, if we give the regional court a jurisdiction of 10 years, it will in fact be a court that can operate between the magistrate’s court and the Supreme Court. We undoubtedly need something like that. Hon. members know this as well.

Mr. Chairman, arising out of what the hon. the Minister has said, I want to leave with him the thought that he might possibly be bringing the day of dual practice a little nearer. In engaging the Side Bar in these much more serious trials, he will probably be arriving at another balance that might be important. He might just think about that.

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

Upon which the Committee divided:

Ayes—91: Albertyn, J. T.; Aronson, T.; Badenhorst, P. J.; Ballot, G. C.; Barnard, S. P.; Bodenstein, P.; Botha, J. C. G.; Botha, L. J.; Botha, P. W.; Botma, M. C.; Brandt, J. W.; Clase, P. J.; Coetzee, S. F.; Conradie, F. D.; Cronje, P.; De Beer, S. J.; De Jager, A. M. van A.; De Klerk, F. W.; De Villiers, J. D.; De Wet, M. W.; Du Plessis, B. J.; Du Plessis, G. F. C.; Du Plessis, G. C.; Du Plessis, P. T. C.; Du Toit, J. P.; Grobler, M. S. F.; Grobler, W. S. J.; Hayward, S. A. S.; Hefer, W. J.; Herman, F.; Heunis, J. C.; Hickman, T.; Janson, J.; Janson, T. N. H.; Kotzé, G. J.; Kotzé, W. D.; Krijnauw, P. H. J.; Kruger, J. T.; Langley, T.; Le Roux, F. J. (Brakpan); Le Roux, F. J. (Hercules); Le Roux, Z. P.; Ligthelm, C. J.; Ligthelm, N. W.; Louw, E.; Malan, G. F.; Malan, W. C.; Marais, P. S.; Meyer, P. H.; Morrison, G. de V.; Mouton, C. J.; Muller, S. L.; Nel, D. J. L.; Niemann, J. J.; Nothnagel, A. E.; Palm, P. D.; Potgieter, J. E.; Potgieter, S. P.; Raubenheimer, A. J.; Reyneke, J. P. A.; Rossouw, W. J. C.; Schoeman, J. C. B.; Scott, D. B.; Snyman, W. J.; Steyn, D. W.; Steyn, S. J. M.; Streicher, D. M.; Swanepoel, K. D.; Swiegers, J. G.; Terblanche, G. P. D.; Uys, C.; Van den Berg, J. C.; Van den Heever, S. A.; Van der Merwe, H. D. K.; Van der Merwe, S. W.; Van der Spuy, S. J. H.; Van der Walt, A. T.; Van der Walt, H. J. D.; Van der Watt, L.; Van Heerden, R. F.; Van Rensburg, H. M. J.; Van Tonder, J. A.; Venter, A. A.; Vilonel, J. J.; Vlok, A. J.; Vosloo, W. L.; Wentzel, J. J. G.

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

Noes—28: Bartlett, G. S.; Basson, J. D. du P.; Baxter, D. D.; Bell, H. G. H.; Boraine, A. L.; Dalling, D. J.; De Villiers, I. F. A.; De Villiers, J. I.; De Villiers, R. M.; Enthoven ’t Hooft, R. E.; Graaff, De V.; Jacobs, G. F.; Lorimer, R. J.; Miller, H.; 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 Eck, H. J.; Van Hoogstraten, H. A.; Van Rensburg, H. E. J.; Wood, L. F.

Tellers: T. G. Hughes and W. G. Kingwill.

Questions affirmed and amendments dropped.

Clause put and the Committee divided:

Ayes—92: Albertyn, J. T.; Aronson, T.; Badenhorst, P. J.; Ballot, G. C.; Barnard, S. P.; Bodenstein, P.; Botha, J. C. G.; Botha, L. J.; Botha, P. W.; Botma, M. C.; Brandt, J. W.; Clase, P. J.; Coetzee, S. F.; Conradie, F. D.; Cronje, P.; De Beer, S. J.; De Jager, A. M. van A.; De Klerk, F. W.; De Villiers, J. D.; De Wet, M. W.; Du Plessis, B. J.; Du Plessis, G. F. C.; Du Plessis, G. C.; Du Plessis, P. T. C.; Du Toit, J. P.; Grobler, M. S. F.; Grobler, W. S. J.; Hayward, S. A. S.; Hefer, W. J.; Herman, F.; Heunis, J. C.; Hickman, T.; Janson, J.; Janson, T. N. H.; Kotzé, G. J.; Kotzé, W. D.; Krijnauw, P. H. J.; Kruger, J. T.; Langley, T.; Le Roux, F. J. (Brakpan); Le Roux, F. J. (Hercules); Le Roux, Z. P.; Ligthelm, C. J.; Ligthelm, N. W.; Louw, E.; Malan, G. F.; Malan, W. C.; Marais, P. S.; Meyer, P. H.; Morrison, G. de V.; Mouton, C. J.; Muller, S. L.; Nel, D. J. L.; Niemann, J. J.; Nothnagel, A. E.; Palm, P. D.; Potgieter, J. E.; Potgieter, S. P.; Raubenheimer, A. J.; Reyneke, J. P. A.; Rossouw, W. J. C.; Schoeman, J. C. B.; Scott, D. B.; Snyman, W. J.; Steyn, D. W.; Steyn, S. J. M.; Streicher, D. M.; Swanepoel, K. D.; Swiegers, J. G.; Terblanche, G. P. D.; Uys, C.; Van den Berg, J. C.; Van den Heever, S. A.; Van der Merwe, H. D. K.; Van der Merwe, S. W.; Van der Spuy, S. J. H.; Van der Walt, A. T.; Van der Walt, H. J. D.; Van der Watt, L.; Van Heerden, R. F.; Van Rensburg, H. M. J.; Van Tonder, J. A.; Venter, A. A.; Vilonel, J. J.; Vlok, A. J.; Vosloo, W. L.; Wentzel, J. J. G.; Wiley, J. W. E.

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

Noes—28: Bartlett, G. S.; Basson, J. D. du P.; Baxter, D. D.; Bell, H. G. H.; Boraine, A. L.; Dalling, D. J.; De Villiers, I. F. A.; De Villiers, J. L; De Villiers, R. M.; Enthoven ’t Hooft, R. E.; Graaff, De V.; Jacobs, G. F.; Lorimer, R. J.; Miller, H.; 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 Eck, H. J.; Van Hoogstraten, H. A.; Van Rensburg, H. E. J.; Wood, L. F.

Tellers: T. G. Hughes and W. G. Kingwill.

Clause agreed to.

Clause 14:

Mr. Chairman, this clause deals with section 21 of the General Law Amendment Act, which is commonly known as the sabotage clause. I move the amendment standing in my name on the Order Paper as follows—

The effect of my amendment is to retain the status quo, with the superior courts having sole jurisdiction in regard to the offence of sabotage. This matter was discussed fairly fully in the Second Reading debate, but I believe there are certain aspects which have to be raised now. Before I do that, I want to explain our attitude in contradistinction to the attitude of the hon. member for Sandton, who has amendments on the Order Paper to negative the clause. We have, in fact, only moved for the deletion of two paragraphs of the clause, i.e. (a) and (b). Paragraph (a) deals with the question of the superior court and in consequence of that, paragraph (b) also deals with the allowing of the matter to come before a regional court. We have not moved for the deletion of paragraph (c) because we believe that the present Criminal Procedure Act, which we passed recently, will deal with the matter adequately in regard to the question of preparatory examinations. However, before I go any further, I do want to know from the hon. the Minister why it is that he has not considered removing paragraph (f) of subsection (4) of section 21 of the General Law Amendment Act of 1962 which, in fact, deals with the question of the Criminal Procedure Act of 1955. We cannot understand why the hon. the Minister at this stage has omitted to move for its deletion.

Paragraph (f) of subsection (4) actually deals with the question of suspension of sentences. It indicates the seriousness with which this House considered the matter of sabotage when it passed section 21 of the General Law Amendment Act, in that it provided that no court may suspend a sentence passed under the sabotage clause in the General Law Amendment Act. We are concerned that perhaps there has been no proper replacement of this subsection. We believe it is a serious matter and we also believe that no suspensions should be applied. The effect of our whole argument is that we believe that this sabotage clause in the General Law Amendment Act is so important that a case should be taken to a superior court for a decision. We have said this before and we now repeat it in the Committee Stage. In analysing the approach of the hon. the Minister and the Government to this matter, it appears that the whole reason for these particular clauses, 14, 15 and 16, lies in an endeavour to relieve the congestion in the superior courts. What the hon. the Minister has done, quite apart from increasing the jurisdiction of the regional courts in order to relieve the position, is to look around, trying to find some statutory provision which can now necessarily be brought under the control of the regional courts in order to relieve the superior courts. He has found two, a Sabotage Act and a Terrorism Act. That is his approach. He looks at it from the point of view of how he can deal with the manner in which justice is going to be done in this country and we look at it from the point of view that we believe that we should not look at the manner in which justice is going to be done, but see that justice is in fact properly done. I want the hon. the Minister to remember the words which were said by the previous Minister of Justice in 1962. He is now the Prime Minister of our country. Earlier on these words were quoted by the hon. member for Jeppe. I quote from Hansard, 1962, Vol. 4, col. 6077-

Why can I not charge him directly in the Supreme Court? What is wrong with that? Does not the seriousness of the offence justify my taking him directly to the Supreme Court?

In those days the hon. the Minister of Justice regarded this matter as being of vital importance. I quote further from col. 6078—

This Sabotage Act deals only with the security of the State. I believe that the hon. the Minister must now realize that our approach is that the State is involved. For that reason we believe that the matter must be heard in the Supreme Court.

In his Second Reading reply the hon. the Minister talked about the question of the competency of the regional courts to deal with matters. He mentioned statistics, although not in detail. I believe the hon. the Minister must accept that statistics are not the be-all and the end-all. He must surely know about the professor who decided to examine the position of certain students who had left his university after completing their studies, to find out how many children they had. He found that the men students had 3,5 children per family and that the female students had 3,3 children per family. He came to the conclusion that men had more babies than women! This is why I say that statistics are hopeless, particularly the statistics the hon. the Minister mentioned. In his speech the hon. the Minister talked about how many times judgments of the regional courts had been upset by the Appeal Court. This must be taken relatively. The jurisdiction of the regional courts must be taken into account as well as the jurisdiction of the magistrates’ courts. If the magistrates in that particular area of jurisdiction are doing their job well, it does not necessarily mean that they are capable of performing a function which is perhaps beyond the scope of their training or beyond the scope of their background. I do not want the hon. the Minister ever again to say that one criticizes the magistrates or the regional magistrates …

I never said that.

Wait; let me finish. … if one says that the jurisdiction should be higher.

I never said that at any stage.

I am very pleased to hear the hon. the Minister say that, but there are hon. members on that side of the House who did cast that criticism at this side of the House. There is no doubt about it. I want to put the matter right straightaway. The hon. member for Schweizer-Reneke was one of them and he might want to listen to what the Viljoen Commission stated in its report. It stated the following in regard to magistrates when they were dealing with the question of declaring a person a habitual criminal—

Why did they say that? They said it because they realized that it was a very drastic measure. It was not a criticism of the regional magistrates and we are not criticizing the regional magistrates or the magistrates either. There are, however, stages in our criminal procedure and similarly we say that this particular matter must be dealt with by the Supreme Court because of the importance of the matter.

The hon. the Minister also referred to the difficulties of appointing more judges. In this regard the hon. the Minister made some really peculiar statements. For instance, he said the following: “Dit sal egter beteken dat ek weer ’n wanbalans sal veroorsaak tussen advokate en regters.” In this regard I want to quote some statistics to the hon. the Minister. Does the hon. the Minister know that at the Cape Town Bar—according to the figures published in Hortors’ Law List of 1977—there are 83 barristers practising with 15 silks …

You yourself said that statistics were very patient.

The hon. the Minister can draw his conclusions; I shall draw mine. I hope that the rest of the House will draw their conclusions as well. I am going to mention these statistics because I want the hon. the Minister to hear them. I am afraid the hon. the Minister was talking a little bit of nonsense the other day. There are 83 barristers and I know that a barrister takes a number of years before he can take silk. There are 15 silks and 13 judges. If the hon. the Minister appoints two more judges …

How many silks are over 60 years of age?

I do not have the figures in regard to their ages. I do not want to enter into an argument as to when a man’s ability at the Bar ceases to become a real ability, because in my own opinion a barrister over the age of 70 and practising is still very capable. Therefore if the hon. the Minister asks me how many of them are over 60 years of age, I am quite happy to accept that there are barristers who have taken silk who are over 60 years of age and who will do an excellent job on the Bench.

There are many who are not even practising.

I must admit that there may be one or two. I saw one name only—I shall not mention who it is—who has also been admitted to the Bar, but there are not very many. Nevertheless, what the hon. the Minister said was: “Dit sal beteken dat ek die room van die advokate afskep.” How many silks are practising at the Johannesburg Bar? There are 40 of them and yet the hon. the Minister feels that he will be taking the cream off the Bar if he takes two or three as judges to improve the position in the Supreme Court. How many junior barristers are there altogether? One hundred and eighty are practising at the Johannesburg Bar. I can assure the hon. the Minister that 50% of those barristers have had more than 10 years’ experience as juniors, senior juniors. The hon. the Minister goes on to say in his Second Reading speech: “Dat dit terselfdertyd ’n groter werklas op die skouers van die junior advokate sal plaas.” I do know of junior barristers who sit waiting for briefs in their chambers. They would love to have this extra burden that the hon. the Minister is not going to put on those shoulders. I want to quote some more figures. Let us go around the country. How many barristers do we have in Pretoria which, as hon. members know, is only 35 miles from Johannesburg? There are 79. The hon. the Minister practised at the Pretoria Bar and he knows that there are 79 juniors there and 15 silks. Let us go to Natal. There we find that there are 71 juniors and 10 silks all waiting to go to the Bench. The hon. the Minister’s arguments in relation to his inability to appoint extra judges are not valid. I want to say too that we must get away from the system of appointing acting judges. This practice is bad for a number of reasons and I will discuss it with the hon. the Minister in his Vote. We must look facts in the face and we must not take this Sabotage Act and allow it to fall under the jurisdiction of the regional courts and then say that this is going to satisfy the position. We must rather look at it and ask: “Can we effectively operate our Supreme Courts?” Let us rather consider the question of appointing more barristers to the Bench. [Time expired.]

Mr. Chairman, I will support the amendment moved by the hon. member for East London City. Section 21 of the General Law Amendment Act, which as we all know is unpopularly known as the Sabotage Act, provides for the most severe penalties. For the interest of hon. members I would like to quote from this section—

Upon conviction under this provision, namely section 21, the penalty may be anything from a sentence of five years’ imprisonment to the penalty of death. The offences described in the General Law Amendment Act of 1962 are drafted and defined in such a way as to encompass an extremely wide spectrum, as some hon. members will already know. The spectrum is so wide that it includes high treason and trespass. On the other hand it could also include murder and damage to property. The possibilities within the framework of what is defined as a crime under the Sabotage Act are in fact infinite to the fertile mind.

The commission of an offence includes an attempt, it includes a conspiring, an incitement and an aiding and even the mere encouragement to commit the offence. Furthermore this is one of the laws which, since 1948, have from time to time been placed on our Statute Book which shift a very heavy onus onto an accused person. Once the commission of the act complained of has been proved, in order to escape the harsh penalties already mentioned, an accused person would have to prove, and I quote from section 21(2) of the General Law Amendment Act, No. 76 of 1962—

I would like to quote just a few of the aspects mentioned in section 21(2) which must be proved an accused person—

Section 21(2)(c) provides that an accused must also prove that it was not his intention—

Section 21(2)(e) provides that such accused shall furthermore prove that it was not his intention—

I should like to quote section 21 (2)(g)—

Finally, I should like to quote section 21 (2)(j)—

I am not permitted today—though I wish I were—to argue the merits of the sabotage provisions. However, my purpose in quoting the above provisions is to bring home to this House, firstly, the vagueness of the law itself; secondly, the difficult onus to be discharged by an accused person and, thirdly, the incredibly severe penalties, including the minimum penalty, to be imposed upon conviction. I therefore want to ask whether this is not the kind of matter which should, in fact, be tried exclusively by the Supreme Court.

Why?

In my view it surely is. I shall deal with the hon. member for Brakpan’s question in a moment. Many of the arguments in favour of retaining the system were stated during the Second Reading debate. The hon. member for East London City has stated a few more arguments very competently. These arguments related firstly to the fact that trials of a political nature should be adjudicated by jurists whose background, training and tenure of office are totally independent of the State. That was the first argument. Judges fit this requirement and I say that magistrates, no matter how senior or competent, do not fit this requirement. This argument was decried and it attracted abuse from the other side of the House, but it has not been satisfactorily argued or answered.

Who pays the salaries of judges?

The hon. member for Brakpan interjects continually, but does not have the necessary interest to stand up and make a speech rebutting the argument I have just put forward. If he wants more information and wishes to argue against the point I have put forward, I invite him to stand up and argue the point before this House instead of interjecting from behind my back. The second argument that has been put before this House is that trials of the category envisaged are often of a most complicated nature—I think the hon. member for Umhlatuzana put that point—and lengthy in duration, requiring the most skilful and perceptive handling. We believe that judges are the best qualified to do this. This argument has not, as yet, been satisfactorily dealt with, although the hon. the Minister has partially given an assurance. However, I do not think it is entirely satisfactory. The third argument is that an accused person, facing the ruination of his life because of the imposition of the penalties now to be allowed in the magistrates’ courts and the severe penalties allowed in terms of the sabotage provisions, is entitled to be heard in the highest and most qualified legal forum in the country. I do not believe that this argument has been dealt with. Fourthly, pro Deo counsel are available only in the Supreme Court and not in the lower courts. This argument has been partially dealt with. Fifthly, the argument was that it was a bad principle, in cases of this type in particular, that one court, which had not heard the trial but merely had before it a documented record, could in certain circumstances be placed in the position of imposing what could, in fact, be an extremely heavy sentence. This point was discounted by hon. members on the other side of the House. I should like to ask the hon. the Minister a question. What is his true intention, perhaps unstated as yet, in including sabotage and terrorism within the jurisdiction of the lower courts? I should like to ask the hon. the Minister what his intention is because I believe that there is more to it than he has told us. Does he expect a radical escalation in sabotage trial statistics in the near future?

Now he is letting the cat out of the bag!

Does he expect that? Is this what awaits the scores of people at present being held in detention as a result of the recent unrest, i.e. trial for sabotage in the lower courts but with the same high penalties. I wonder, and I bet those behind bars at the present time are also wondering. I honestly think the hon. the Minister should take the House into its confidence as to his true reasons for bringing sabotage and terrorism within the purview of the magistrate’s court.

There is one other argument Despite the tough laws on our Statute Book and despite all other circumstances, our administration of justice in South Africa is rightly held in high regard in many quarters. I believe that this measure can only weaken that image and can only dissipate that viewpoint. I seriously suggest that in so far as this clause is concerned, the hon. the Minister should think again.

Mr. Chairman, I think that during my Second Reading speech I replied very fully to all the objections in principle raised by hon. members on that occasion and again this morning. I am going to try and reply to the new points raised by way of a few remarks. The hon. member for East London City asked me a question with regard to subsection (4)(f), the provision relating to sabotage in the General Law Amendment Act of 1962. We believe that in the case of the regional courts, too, suspended sentences should not be imposed in these circumstances. That is why we did not tamper with that specific provision.

But that is the old Act.

Yes, but it is still valid. In the new Act it is exactly the same.

As far as the advocates are concerned, I want to say that statistics are of no value whatsoever as far as advocates and appointments to the Bench are concerned.

I only gave figures and not statistics.

I realize that the hon. member only gave figures, but he did also come to some conclusion based on them. Apart from a person’s political convictions, there are a number of factors to be taken into account before a person can be appointed to the Bench on a temporary or permanent basis. I make no appointments before the judges-president have made certain recommendations. I can tell the hon. members that the judges-president find it difficult to make recommendations at this stage because they also have to take into account what the position is at the Bar. They must consider the administration of law, not only from the point of view of the Bench, but also with regard to the Bar. As far as that is concerned, we have problems. I also concede that we have problems as regards temporary appointments. Hopefully we shall be able to eliminate all these problems in due course.

The hon. member for Sandton dealt with the arguments on merit. I am not prepared to go into that again. Let me just give him the assurance that nowadays, regional magistrates deal with the most complicated legal matters, inter alia, statutory offences and charges of fraud with respect to companies. Furthermore I think that over the years they have proved that they are capable of handling these matters well. The hon. member says that he believes there are other reasons why I am allocating crimes against the State to the regional magistrates. I do not know quite what the hon. member means. I laid my cards on the table. Allow me to say—he can question a few Black Power priests in this regard—that nowadays sabotage and crimes against the State are of such a nature that one can speak of degrees of crime. I think that the hon. member will agree with me that a great change has taken place and that crimes by card-carrying members of the ANC, to take an extreme example, and crimes of young school-children cannot be treated in the same way. School-children do commit serious offences, but one has to take into account that they are children and were not perhaps fully aware of what they were doing. Therefore we now make it possible for some offenders to be taken to the regional courts so that cases can be dealt with more rapidly. The hon. member often refers to people detained in prison while awaiting trial. We have also in the past discussed the cases of witnesses who are detained for their own protection. I do not want to detain these people longer that is necessary. I need more courts for this type of case. The hon. member for Sandton can read the future as well as L We have to make provision for the work in our courts to flow smoothly, so that trials can be disposed of, so that witnesses can be released from prisons and appear before the court to give their evidence and so that people who are awaiting trial can be tried. That is my aim. The hon. member asked what my aim was. My aim is that the people should get out of the prisons and appear before a court. Now the hon. member wants to obstruct me in this. He complains about people who are detained for such a long time, but now that I want to give them the opportunity to be tried, he is obstructing me.

Mr. Chairman, I just want to deal with one or two matters with which I did not have the opportunity of dealing earlier on. The hon. the Minister maintained that the Attorney-General had always had the power to decide whether to indict an accused or not, but that he would now have the power to be able either to direct the case towards the superior court or to direct it towards the regional court. I can accept that. I believe that what can be done, however, is that an instruction can be given by the hon. the Minister to Attorneys-General, because, after all, the Attorneys-General are an arm of the Executive. They are completely under the power, control and direction of the Minister. The hon. the Minister can give a direction to Attomeys-General. In cases where it is found that people were near to the commission of an offence in terms of the sabotage section, they can be charged with other matters and they can be charged before the regional court. If these are minor matters—and I do not believe that there can be any grading of sabotage; sabotage is sabotage, the same as murder is murder and treason is treason—the Attorneys-General can simply be instructed to indict for other crimes which do not fall under the Sabotage Act, in the regional courts. That will relieve the position.

The hon. the Minister has had the opportunity to amend the Magistrates’ Courts Act. Yet he has retained the restriction in the Magistrates’ Courts Act in terms of which they may not hear matters relating to murder, treason or rape. Why did he not remove the jurisdiction restriction in the Magistrates’ Courts Act in relation to treason? Why did he not do it? It is because he regards treason as being a very serious offence and must therefore be heard in the superior courts. But the Sabotage Act must be regarded as treason for the purpose of sentence. It is therefore exactly the same thing. Why does the hon. the Minister not also remove treason from the jurisdiction of the superior courts?

Would you support it?

We would certainly not support it, but on the arguments which the hon. the Minister has advanced here, why does he not do that? It is utterly ridiculous. Then I also want to say that the hon. the Minister must remember that when a sentence is passed in terms of the Sabotage Act, there is going to be no remission. Does the hon. the Minister agree with me?

Yes.

Yes. He said so the other day. He said that with regard to offences connected with the safety of the State there will be no remission. In the normal course of events with regard to magistrates’ courts and the regional courts, there will always be the possibility of a remission to the accused. But when an accused goes before the court on a charge under the Sabotage Act, there is a minimum sentence of five years—but with the possibility of a death sentence—and no remission whatsoever. Is it not reasonable and acceptable in the ordinary view of the administration of justice in South Africa that those matters should be referred only to the superior court? They are of such a drastic nature. We have listened to the hon. the Minister; we have tried to go along with him and he will see that we have agreed to increase the general jurisdiction of the regional courts, we have realized the difficulties, we have made suggestions to him, but we cannot agree with this. We can also not agree with the inclusion of the next subsection with which we are going to deal and for that reason we shall vote against this clause.

Mr. Chairman, in addition to what the hon. member for East London City has just said, I want to point out that there is, of course, the point that trials on charges of sabotage and terrorism are, in a sense, much worse than treason, because they carry minimum sentences, which treason does not carry. They carry a minimum of five years, which is nearly twice as much as a regional magistrate has ever in his life been entitled to impose. Now he has to impose a minimum of five years’ imprisonment.

In addition to that, the hon. the Minister will know that in cases of sabotage and terrorism, the practice has been—in the recent past in any case—to charge people under three or four, or even five counts. That has been the case in nearly every case I know of. I shall give the hon. the Minister an example. In a case in Durban, a case in which school-children were charged with setting fire to a door, they were, firstly, charged with conspiracy; secondly, with buying a bottle of petrol, and, thirdly, with setting fire to the door. In the case I am thinking of the damage to the door was R18. However, the school-children were charged on three counts. That means that the magistrate could sentence them to ten years on each count. That means a total of 30 years’ imprisonment.

I just want to draw the attention of the hon. the Minister to the fact that this does happen. There are various means whereby a magistrate can send a person to gaol for 30 years on this basis.

There is another point I would like to mention. The hon. the Minister seemed to become quite annoyed by the hon. member for Sandton. The hon. member wanted to know why there were now special categories of sabotage and terrorism, categories to be dealt with by regional courts. I have certain figures here that were passed on to me. I understand that some 250 people were charged with terrorism in the Cape Town Supreme Court…

Not all of them in the Supreme Court.

Not all of them in the Supreme Court. However, many of them were charged in the Supreme Court during the last few months. Of those 178 were acquitted. I do not know whether this is a factor which the hon. the Minister is taking into account. I understand that in Johannesburg some 75% of the people charged with terrorism and sabotage were acquitted. I do not know whether the hon. Minister thinks that they tend to be convicted in the regional courts and not in the Supreme Court.

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

Upon which the Committee divided:

Ayes—92: Albertyn, J. T.; Aronson, T.; Badenhorst, P. J.; Ballot, G. C.; Barnard, S. P.; Bodenstein, P.; Botha, J. C. G.; Botha, L. J.; Botha, P. W.; Botma, M. C.; Brandt, J. W.; Clase, P. J.; Coetzee, S. F.; Conradie, F. D.; Cronje, P.; De Beer, S. J.; De Jager, A. M. van A.; De Klerk, F. W.; De Villiers, 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, M. S. F.; Grobler, W. S. J.; Hayward, S. A. S.; Hefer, W. J.; Herman, F.; Heunis, J. C.; Hickman, T.; Janson, J.; Janson, T. N. H.; Kotzé, G. J. Kotzé, W. D.; Krijnauw, P. H. J.; Kruger, J. T.; Langley, T.; Le Roux, F. J. (Brakpan); Le Roux, F. J. (Hercules); Le Roux, Z. P.; Ligthelm, C. J.; Ligthelm, N. W.; Louw, E.; Malan, G. F.; Malan, W. C.; Marais, P. S.; Meyer, P. H.; Morrison, G. de V.; Mouton, C. J.; Muller, S. L.; Nel, D. J. L.; Niemann, J. J.; Nothnagel, A. E.; Palm, P. D.; Potgieter, J. E.; Potgieter, S. P.; Raubenheimer, A. J.; Reyneke, J. P. A.; Rossouw, W. J. C.; Schlebusch, A. L.; Schoeman, J. C. B.; Scott, D. B.; Snyman, W. J.; Steyn, D. W.; Steyn, S. J. M.; Streicher, D. M.; Swanepoel, K. D.; Terblanche, G. P. D.; Treurnicht, A. P.; Uys, C.; Van den Berg, J. C.; Van den Heever, S. A.; Van der Merwe, H. D. K.; Van der Merwe, S. W.; Van der Spuy, S. J. H.; Van der Walt, A. T.; Van der Walt, H. J. D.; Van der Watt, L.; Van Heerden, R. F.; Van Rensburg, H. M. J.; Van Tonder, J. A.; Venter, A. A.; Vilonel, J. J.; Vlok, A. J.; Vosloo, W. L.; Wentzel, J. J. G.; Wiley, J. W. E.

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

Noes—27: Bartlett, G. S.; Basson, J. D. du P.; Baxter, D. D.; Bell, H. G. H.; Boraine, A. L.; Dalling, D. J.; De Villiers, I. F. A.; De Villiers, J. I.; De Villiers, R. M.; Enthoven ’t Hooft, R. E.; Graaff, De V.; Jacobs, G. F.; Lorimer, R. J.; Miller, H.; 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 Hoogstraten, H. A.; Van Rensburg, H. E. J.; Wood, L. F.

Tellers: T. G. Hughes and W. G. Kingwill.

Question affirmed and amendment dropped.

Clause put and the Committee divided:

Ayes—91: Albertyn, J. T.; Aronson, T.; Badenhorst, P. J.; Ballot, G. C.; Barnard, S. P.; Bodenstein, P.; Botha, J. C. G.; Botha, L. J.; Botha, P. W.; Botma, M. C.; Brandt, J. W.; Clase, P. J.; Coetzee, S. F.; Conradie, F. D.; Cronje, P.; De Beer, S. J.; De Jager, A. M. van A.; De Klerk, F. W.; De Villiers, 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, M. S. F.; Grobler, W. S. J.; Hayward, S. A. S.; Hefer, W. J.; Herman, F.; Heunis, J. C.; Hickman, T.; Janson, J.; Janson, T. N. H.; Koornhof, P. G. J.; Kotzé, G. J.; Kotzé, W. D.; Krijnauw, P. H. J.; Kruger, J. T.; Langley, T.; Le Roux, F. J. (Brakpan); Le Roux, F. J. (Hercules); Le Roux, Z. P.; Ligthelm, C. J.; Ligthelm, N. W.; Louw, E.; Malan, G. F.; Malan, W. C.; Marais, P. S.; Meyer, P. H.; Morrison, G. de V.; Mouton, C. J.; Muller, S. L.; Niemann, J. J.; Nothnagel, A. E.; Palm, P. D.; Potgieter, J. E.; Potgieter, S. P.; Raubenheimer, A. J.; Reyneke, J. P. A.; Rossouw, W. J. C.; Schlebusch, A. L.; Schoeman, J. C. B.; Scott, D. B.; Snyman, W. J.; Steyn, D. W.; Steyn, S. J. M. Streicher, D. M.; Terblanche, G. P. D.; Treurnicht, A. P.; Uys, C.; Van den Berg, J. C.; Van den Heever, S. A.; Van der Merwe, H. D. K.; Van der Merwe, S. W.; Van der Spuy, S. J. H.; Van der Walt, A. T.; Van der Walt, H. J. D.; Van der Watt, L.; Van Heerden, R. F.; Van Rensburg, H. M. J.; Van Tonder, J. A.; Venter, A. A.; Viljoen, P. J. van B.; Vlok, A. J.; Vosloo, W. L.; Wentzel, J. J. G.; Wiley, J. W. E.

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

Noes—27: Bartlett, G. S.; Basson, J. D. du P.; Baxter, D. D.; Bell, H. G. H.; Boraine, A. L.; 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.; Kingwill, W. G.; Miller, H.; 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 Hoogstraten, H. A.; Van Rensburg, H. E. J.; Wood, L. F.

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

Clause agreed to.

Clause 15:

Before I put the clause, I want to point out that in clauses 14, 15 and 16 is embodied the essence of one principle, i.e. the jurisdiction of the regional division of the magistrate’s court where a person is charged with the offence of sabotage or under the Terrorism Act. I am not going to allow a repetition of all the arguments that I have listened to during the discussion of clause 14. I ask hon. members each to put his case very briefly when discussing clauses 15 and 16.

Mr. Chairman, I shall abide by your ruling. I have decided, in any case, not to repeat the arguments. I want to make it clear, however, that all the arguments that we have raised, are valid arguments in relation to this clause as well and that we would have repeated them if we had the opportunity to do so. However, I believe the hon. the Minister knows what our attitude is in this regard. I want to put two questions to the hon. the Minister. Can the hon. the Minister tell us whether the General Bar Council objected specifically to this particular clause or not and can he inform us of the reasoning behind the approach of the General Bar Council to him in relation to the particular clause? I also want to know from the hon. the Minister whether he has, at any stage, considered the possibility of establishing a special court to deal specifically with matters arising out of the Terrorism Act. I know that they have a special court like this in Rhodesia. Although the same circumstances do not prevail in South Africa, I believe it is a possibility which the hon. the Minister could consider, and if he does, he may well consider the deletion of the clause pending a decision in regard to the establishment of a special court. I believe that those special courts should be headed by a judicial officer of not less a rank than judge of the Supreme Court. I believe the hon. the Minister could possibly consider this aspect. I know—the hon. member for Durban North is also aware of it—that extremely long and complicated trials can arise and are indeed arising out of the Terrorism Act and such trials seem to be increasing in number. Therefore I want to suggest to the hon. the Minister that he could possibly consider what I have just said in relation to a special court being established rather than increasing the jurisdiction of the regional court to encompass the operation of the Terrorism Act.

Mr. Chairman, as far as the General Bar Council is concerned, they made representations to me with a view to increasing the jurisdiction of the regional court to 15 years. We did not discuss it with each other, but I would presume that they will quite probably not agree with this either. However, I cannot say with certainty, because they did not specifically state it to me in those terms. In respect of the hon. member’s second question, I am giving the matter my constant attention.

Mr. Chairman, this clause permits cases to be tried a very long way away from where they are alleged to have been committed, because any regional magistrate in the country could have the case allocated to him. One of the things which I think is a bad thing—and here I may be in conflict with the hon. member over there—is the question of allowing the Attorney-General to choose his judicial officer. That is what it, in effect, will amount to if he were entitled to say that he wanted a particular case to be sent for instance to the regional magistrate at Pofadder or wherever he chose. The most he can do under the Terrorism Act at the moment is to choose the province to which he wants to send the case. I think this is therefore a bad principle and suggest we retain the principle of territoriality.

Clause put and the Committee divided:

Ayes—94: Albertyn, J. T.; Aronson, T.; Badenhorst, P. J.; Ballot, G. C.; Barnard, S. P.; Bodenstein, P.; Botha, J. C. G.; Botha, L. J.; Botha, P. W.; Botma, M. C.; Clase, P. J.; Coetzee, S. F.; Conradie, F. D.; Cronje, P.; De Beer, S. J.; De Jager, A. M. van A.; De Klerk, F. W.; De Villiers, D. J.; De Villiers, J. D.; Du Plessis, B. J.; Du Plessis G. F. C.; Du Plessis, G. C.; Du Plessis, P. T. C.; Du Toit, J. P.; Grobler, M. S. F.; Grobler, W. S. J.; Hayward, S. A. S.; Hefer, W. J.; Herman, F.; Heunis, J. C.; Hickman, T.; Janson, J.; Janson, T. N. H.; Koornhof, P. G. J.; Kotzé, G. J.; Kotzé, W. D.; Krijnauw, P. H. J.; Kruger, J. T.; Langley, T.; Le Roux, F. J. (Brakpan); Le Roux, F. J. (Hercules); Le Roux, Z. P.; Ligthelm, C. J.; Ligthelm, N. W.; Lloyd, J. J.; Louw, E.; Malan, G. F.; Malan, W. C.; Meyer, P. H.; Morrison, G. de V.; Mouton, C. J.; Muller, S. L.; Nel, D. J. L.; Niemann, J. J.; Nothnagel, A. E.; Palm, P. D.; Potgieter, J. E.; Potgieter, S. P.; Raubenheimer, A. J.; Reyneke, J. P. A.; Rossouw, W. J. C.; Schlebusch, A. L.; Schoeman, J. C. B.; Scott, D. B.; Snyman, W. J.; Steyn, D. W.; Steyn, S. J. M.; Streicher, D. M.; Swanepoel, K. D.; Terblanche, G. P. D.; Treurnicht, A. P.; Uys, C.; Van den Berg, J. C.; Van den Heever, S. A.; Van der Merwe, H. D. K.; Van der Merwe, S. W.; Van der Spuy, S. J. H.; Van der Walt, A. T.; Van der Walt, H. J. D.; Van der Watt, L.; Van Heerden, R. F.; Van Rensburg, H. M. J.; Van Tonder, J. A.; Venter, A. A.; Viljoen, P. J. van B.; Vilonel, J. J.; Vlok, A. J.; Vosloo, W. L.; Wentzel, J. J. G.; Wiley, J. W. E.

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

Noes—29.: Bartlett, G. S.; Basson, J. D. du P.; Baxter, D. D.; Bell, H. G. H.; Boraine, A. L.; Dalling, D. J.; De Villiers, I. F. A.; De Villiers, J. I.; De Villiers, R. M.; Enthoven ’t Hooft, R. E.; Graaff, De V.; Jacobs, G. F.; Lorimer, R. J.; Miller, H.; 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 Eck, H. J.; Van Hoogstraten, H. A.; Van Rensburg, H. E. J.; Von Keyserlingk, C. C.; Wood, L. F.

Tellers: T. G. Hughes and W. G. Kingwill.

Clause agreed to.

Clause 16:

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

I do not intend to speak about this at any length. The arguments we have submitted previously about the question of jurisdiction in respect of sabotage and terrorism still apply as strongly here.

Mr. Chairman, there is one point in regard to this clause that has not been raised at all. In view of the fact that the Terrorism Act has a very complicated set of definitions and presumptions in section 22, the interpretation of the law is a very complicated matter. Of course, in the regional courts these cases will not be reported as the Supreme Court cases are. The fact that Supreme Court cases are reported every month, and are available to the whole legal profession, means that the legal profession, and the country as a whole, can find out what the law actually means. As an example let me mention french-Beytagh, who was sentenced to five years’ imprisonment in the Transvaal Provincial Division. There was a very important interpretation of the Terrorism Act in that case, an interpretation that was followed by every other judge in the country thereafter. A limitation was placed on what an act of terrorism means. The courts interpreted the definition and concluded that it was far more limited than it superficially appeared in term of the legislation. If such matters are heard in the regional courts there will be no way for them to be reported. In fact, there is no principle in our law giving decisions in regional courts any authority at all. The fact remains that no one would know what the decisions were and this would be to the disadvantage of all parties concerned.

Mr. Chairman, I do not think there is any substance in the argument of the hon. member for Durban North, because the cases he quoted will most certainly go on appeal, and the moment they go on appeal, they will naturally be reported. This is a different ratio altogether.

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

Clause agreed to.

Order! Before I call on an hon. member to address the Committee, I want to point out that the principle contained in this clause was fully discussed and agreed to at the Second Reading. In accordance with the practice of this House, I shall, accordingly, permit one member of each of the Opposition parties to state their attitude to this clause and the Minister to reply thereto. Further discussion must, in accordance with Standing Order No. 63, be strictly confined to the details of the clause and the amendment to such details.

Mr. Chairman, I shall abide by your ruling. In any event, I shall not speak at length. At this stage I should just like to make it known that we shall oppose all the clauses of the Bill. Since we have already put forward all our arguments during the Second Reading and the hon. the Minister has indicated that he is unable to accept any of our arguments, there is certain information that I should like the hon. the Minister to furnish me with.

In his reply to the Second Reading, the hon. the Minister said that the squatters’ right to receive seven days’ prior notice, for example, was only a concession. To date this has been a right they have had in terms of the Act. The hon. the Minister felt that the concession had been abused and that was why it had been withdrawn in terms of the Bill. The logic of the argument troubles me, for the simple reason that it seems to me that the concession that was made, is being withdrawn simply because the squatters made use of it.

There is a big difference between “use” and “misuse.”

I want to point out that in the court case to which the hon. the Minister referred, it was found that the squatters had made use of the concession and that in reality, it was the persons who took action against them who misused the concession. That was the finding of the court.

That was not the finding.

The finding of the judge was that the authorities took action in conflict with existing legislation.

He did not use the word “misuse”.

I just want to know from the hon. the Minister what the rationale behind the argument is. It seems to me that initially, the rationale was that the squatters could regard the concessions that had been made to them as a right and make use of them as such. In other words, if proper notice was not given within seven days, they could appeal against this and take recourse to the Act. It seems to me that they have now done this. They took recourse to the Act which certain bodies took no notice of, and because they did this, that concession is being taken away. The question I want to ask, therefore, is the following: What was the sense in granting the concession in the first place? Why was it contained in the Act and what role did it play? If it has no role to play, in the sense that whenever the parties that take action against the squatters do so illegally, the concession to the effect that an appeal may be lodged by the squatters is taken away, then I simply cannot understand why that concession was necessary. After all, there was the pronouncement made by a judge in that regard, in which the judge stated clearly that limited privileges and rights were open to the squatters in terms of existing legislation and that even those limited rights were not being respected by the parties who gave notice. Then the people appealed against this. In other words, they made use of this concession. Now the hon. the Minister alleges that because they made use of that concession, it has to be taken away. I simply do not understand that argument.

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

1. (1) On page 2, in lines 14 to 20, to omit paragraph (b);
2. (2) on page 4, in line 21, after “cease” to insert “,save in respect of costs,”.

At the outset I should like to say that the clause has been drafted in such a manner that a number of separate provisions are consolidated for the sake of convenience into one clause. I wonder then if I may crave your indulgence to deal separately with the various paragraphs to which I have moved amendments.

The hon. the Minister, in reply to the Second Reading debate, failed to reply to a large number of arguments which were presented by this side of the House. I should briefly like to repeat them because I think the hon. the Minister should reply to quite a number of these arguments. We do not know where we are as a result of the fact that he has not replied to them. In the first place the hon. the Minister was silent on the question of control and supervision of sites to ensure that no squatting takes place. The hon. the Minister then also used in his argument the question of the Green Point Common. He asked the hon. member for Green Point what would happen if squatters were to start squatting on Green Point Common. The point is that if there was proper supervision there would be no squatting on the Green Point Common. It is a point I made in my Second Reading speech. I believe the hon. the Minister has not replied to it and I should like him to do so in some detail and to tell me whether any steps are going to be taken in so far as supervision and control are concerned or whether, despite of the fact that this Bill is now being passed by this House, there is still going to be no control or supervision.

The other point which I put to the hon. the Minister was whether he was going to take any steps against the organizations which, according to him, are organizing squatting. Does the hon. the Minister intend taking any steps against those organizers of organized squatting that he complains about? It is quite clear to me and to other hon. members in this House that this Bill will do nothing against that organizing, nothing whatsoever. The organizing will still carry on. Is that not the mischief that the Minister really wants to get rid of, namely the organization of squatting? The hon. the Minister was completely silent on that point and I believe it is a very pertinent point to which we are entitled to a reply.

Then there is the further point which I made, namely the consultation with the Executive of the CRC, or the Coloured or Black leaders. Did the hon. the Minister consult them about this Bill? He has not said one word about whether he has had any consultation with them at all. We on this side of the House believe it is very important that consultation should have taken place because, had consultation taken place, the hon. the Minister would have been armed with a lot of information which he probably does not have at present. He would then probably have been able to amend this Bill, to change it or perhaps not to introduce it at all.

Another question which we asked was what steps had been taken by the Minister to house squatters who formerly occupied sub-economic houses, but who were evicted from the sub-economic houses because they could not afford to pay the sub-economic rent. That is a very important point on which we have had no reply from the hon. the Minister.

Business suspended at 12h45 and resumed at 14h15.

Afternoon Sitting.

Mr. Chairman, at the lunch adjournment I had dealt with a number of questions which were put to the hon. the Minister during the Second Reading debate, questions to which he had unfortunately failed to reply. I then dealt with the steps taken by him to house squatters who formerly occupied sub-economic houses, but who were evicted because they could not afford to pay the sub-economic rents. The next point to which the hon. the Minister failed to reply, was the question about when he would introduce shell-housing. He failed to reply to that question. I think it is very important that we should know.

I cannot help it if you want to change a Second Reading debate into a Committee Stage.

Surely, this is all part of the transaction.

Yes, and I will deal with it now, during Committee Stage.

In other words, we cannot expect a reply from the hon. the Minister on this very important matter of shell-housing. I would have thought that this…

I will deal with it now.

I would have thought that this matter would have been uppermost in the mind of the hon. the Minister when he introduced this legislation, because he would have known that this was one of the important questions we would like to have had answered, a question the whole country would like him to answer. When is shell-housing going to be available?

I will deal with it now.

Yes, I am very glad to hear that. It is about time. A further question is this. In what circumstances will the hon. the Minister establish emergency camps and site and service schemes? He has also failed to reply to that question. I am perfectly certain that there must be circumstances under which he is prepared to establish emergency camps, but he has remained silent on that. That, I believe, is also very much part of this transaction.

Then, I would like to ask the hon. the Minister this. Does he deny that an owner upon whose land squatting takes place can recover possession of his land without recourse to the provisions of this Bill? I would like the hon. the Minister to tell me whether he denies that that is so. I ask him this because he has made a great song and dance about this. The hon. the Minister made this the main point of his argument as to why he had to introduce this Bill. He said it was because an owner could not recover possession of his land upon which squatters were squatting. My contention is that the hon. the Minister is wrong. He is quite wrong. Any owner can recover possession of property upon which squatters are squatting. He can recover it by recourse to law. In due course, and with due process of law, he would have to give notice. I do not understand why the hon. the Minister says that this Bill is necessary so that an owner can recover possession. I do not believe it is so.

Then, the hon. the Minister said that he had to introduce this provision of notice in order to obviate a court of law having to order somebody or some corporate body or some local authority to break the law in order to comply with the order. I think that is absolute nonsense. If the law is then such an ass as the hon. the Minister makes it out to be, surely that is what should be put right here. What should be put right, is …

But that is put right by the Bill.

Oh no! Not at all. That is not being put right at all. It is because the hon. the Minister has got himself into an impossible position by passing the Squatting Act last year that he has to allow the courts to give the person who is evicted from a squatter’s hut the right to recover possession of his hut if he does not get notice. That is what the position is.

The hon. the Minister himself is to blame for the position. Now the hon. the Minister says that in order to comply with the court order the divisional council of Stellenbosch had to break the law. That is absolute poppycock. The hon. the Minister went on to say that if that is what a spoliation order can do, where does one draw the line?

May I ask the hon. member if he will please explain why the statement that the divisional council of Stellenbosch had to break laws and by-laws is poppycock?

The answer is that because the hon. the Minister has a law which the divisional council thought they could apply without giving notice, they were the people who broke the law. Of course, the divisional council of Stellenbosch broke the law. That is what the court said. The court said that the divisional council of Stellenbosch had broken the law. I believe that the divisional council of Stellenbosch broke the law because they were probably encouraged to break the law by the hon. the Minister. Now the hon. the Minister asks me why the divisional council must break the law in order to comply with the court order. The divisional council should not have broken the law in the first instance. The squatter is entitled to recover possession of that hut. Why must the hon. the Minister make this law to prevent the squatter from recovering possession? [Time expired.]

He was never entitled to be there or to build the hut.

Mr. Chairman, I would like your ruling on two matters in the light of the statement made by you prior to the debate on the Committee Stage of the Bill now before us. In the first instance, Sir, you referred to the fact that you would allow a member from each party to refer to the basic principle involved, although this was fully debated during the Second Reading. I would like to point out, Mr. Chairman, and ask for your ruling on it, that when the hon. member for Rondebosch spoke he confined himself specifically to one aspect of a very long clause and I want to know if I am going to be ruled out of order if I deal with other aspects of the same clause.

Order! The ruling I gave at the commencement of the debate on this clause covers the whole clause.

Mr. Chairman, the second point is—and here I am in a dilemma—that the hon. the Minister in his reply to the Second Reading, referred to the hon. the Deputy Minister of Bantu Affairs and pointed out that he would be present so that the specific points that I raised in my speech and by way of a question would be answered during the Committee Stage. I know, Sir, what your decision is, and the hon. the Deputy Minister has already explained to me why he could not be here, but could I raise that particular question?

Order! The hon. member may not do so, because then he will be discussing the principle of the clause as the hon. member for Rondebosch has already done.

Mr. Chairman, you will appreciate the difficulty in which I find myself … [Interjections.] I am coming back to the Bill. It is just that, for the record, I want to make it clear that the specific question I raised regarding African squatters was referred back to the Committee Stage and now I am unable to raise it.

Order! The hon. member must resume his seat. I havé already allowed the hon. member for Rondebosch to participate in this debate on behalf of the PRP. I could not allow the hon. member for Wynberg to continue because he has addressed me on the principle of the Bill. Since he was not here at the beginning of the debate, I want to repeat that I told hon. members that, according to the practice of the House, I was prepared to give one member from each party an opportunity to put his party’s point of view and that I was not going to allow any other members to participate, or allow hon. members on the Government side, except the hon. the Minister, to reply thereto. Does the hon. member for Durban North want to take a point of order?

No, it is not a point of order, Mr. Chairman. I want to reply to a point that the hon. the Minister raised. It is not about the principle of the Bill.

Order! The hon. member can only refer to the details of the clause. He may not discuss any of the principles of the clause.

Sir, I am not going to discuss any of the principles of the clause.

Order! The hon. member may proceed.

What I want to reply to, is the point raised by the hon. the Minister when he said just now that the question of “misbruik” was on the part of the applicants, and that it was not a question of the “gebruik”—the use—of their rights, but the “misbruik” of their rights.

I could not quite follow what you said. Could you state it again? The hon. member’s own people are making too much noise.

The point I was making was that the hon. the Minister—by way of interjection—made the point just now that it was in fact the applicants who had misused their rights. He said it was not a question of them using their rights, but of them having misused their rights. That was the point he made. I want to answer him on that point.

Order! I cannot allow the hon. member to do so because he will then be discussing the principle of this Bill. The hon. member must resume his seat or does he wish to address me on the details of this clause?

Mr. Chairman … [Time expired.]

Mr. Chairman, I should like to continue where I left off when my time expired.

Order! I have given a ruling at the commencement of this debate. It is not my fault that the hon. member for Wynberg was not here.

Mr. Chairman, on a point of order: The hon. member for Wynberg might not have been here, but while he was addressing the Committee his time expired. Surely, he can now continue with his address? Surely you would like to hear whether he is going to address you on the principle or on the details?

Order! I have given my ruling that I shall allow one member to address me once on the principle of this clause and not two or three times. The hon. member may of course discuss the details of the clause. I shall listen to him very carefully.

Mr. Chairman, I shall be glad if not only you, but also the hon. the Minister will listen very carefully to what I have to say. Just now the hon. the Minister interrupted me in my arguments by asking me a question and because I replied to his question, my time expired. I hope they will all listen very carefully now.

The hon. the Minister says that he must have this clause in the Bill, i.e. the clause to which I have moved an amendment. I am referring to paragraph (b) of clause 1, which proposes the substitution of subsection (2) of section 3B as follows—

The hon. the Minister said he must have this clause because of certain circumstances which had arisen since the Act of last year. He gave a fairly lengthy list of reasons why this was necessary. It all appears in his Second Reading speech. I should like to refer to that list …

Order! The hon. member is trying to evade my ruling.

No, Mr. Chairman.

Order! Does the hon. member intend arguing with the Chair?

No, Mr. Chairman.

I have given my ruling. If the hon. member cannot address me on the details of the clause, he must resume his seat.

No, Mr. Chairman, I am not going to resume my seat, but am going to proceed with my speech. I am certainly going to continue my speech, because I want to deal with that portion of the clause which I want to have omitted from the Bill.

Order! The hon. member is trying to evade my ruling. He is discussing the principle of the clause.

No, Mr. Chairman, I am not discussing the principle. I am pointing out why it is necessary to accept my amendment. I say it is indeed necessary to omit the provisions which my amendment seeks to omit. I do not think that can be considered as dealing with the principle.

Order! As a matter of fact, the amendment which is printed in the hon. member’s name on the Order Paper entails the principle of the clause and that he has already discussed.

Mr. Chairman, I am asking for the omission of certain provisions and I want to tell the hon. the Minister why those provisions should be omitted. Surely, I am entitled to argue that?

Yes, and the hon. member did that in his first speech.

Mr. Chairman, on a point of order: May I ask whether the amendment moved by the hon. member for Wynberg is in order?

The amendment as it appears on the Order Paper is in order.

Mr. Chairman, does your ruling then mean that the hon. member is not entitled to discuss an amendment which is, in fact, in order?

The hon. member can discuss any amendment, but this amendment entails the principle of the clause. The Committee will have an opportunity to vote on the hon. member’s amendment.

Mr. Chairman, may I pursue the point of order? If the amendment is in order, then surely it cannot affect the principle, because if an amendment affects the principle of the clause, the amendment ought to be ruled out of order. I submit that the amendment of the hon. member for Wynberg has not been ruled out of order because it does not, in fact, affect the principle.

As a matter of fact, I have allowed quite a wide latitude to the discussion and to the hon. member when he moved his amendment. The amendment is in conflict with the principle of the clause as accepted at the Second Reading. However, in order to give hon. members an opportunity to vote against the principle, I have accepted the amendment, but for that reason only. When the hon. member for Wynberg moved the amendment, I allowed him to discuss it, but I will not allow him to discuss it further in the light of the ruling I gave at the commencement of this debate, and I will not allow anybody to evade my ruling.

Mr. Chairman, on a point of information: Am I to understand that although the amendment is actually out of order, you have ruled it in order?

That is what you have said, Mr. Chairman.

Mr. Chairman, is it now the position that although it is competent to debate an amendment, you have ruled that to be out of order on this amendment?

Order! I have allowed discussion, but if hon. members abuse that privilege, then I shall not allow it again in future.

Mr. Chairman, on a point of order: There is only a portion of the clause with which we do not agree. Surely, it should not be necessary for us to oppose the entire clause just because we do not agree with a portion of it?

Order! The point is that that particular portion is part and parcel of the principle of the Bill.

Therefore we shall have to oppose the whole clause.

In order to make it convenient for the Opposition, I have decided to allow the amendment so that they can vote in favour of the amendment and against the particular portion of the clause. However, if they wish to vote against the entire clause, they are free to do that.

Mr. Chairman …

Order! The hon. member for Mossel Bay may only discuss the details of the clause and not the principle.

Mr. Chairman, I have not risen in an attempt to participate in this abortive debate. I should like to suggest that on page 5, line 20, of the Afrikaans text, the word “nie”, where it occurs for the first time, be deleted. It seems to me that the phrase concerned is not grammatically correct and that it is in fact inconsistent with the English text. That inconsistency can be removed by deleting the word “nie” as proposed.

This is a textual amendment which, if necessary, can be made administratively. However, I thank the hon. member for having brought it to the attention of the Committee.

Mr. Chairman, I would like the hon. the Minister to tell the House what is meant by the expression “material and contents thereof” in the new section 3B(2). The section in question states that a building or structure may be demolished and “the material and contents thereof may be removed”. It is not clear to me …

Order! I cannot allow the hon. member to try to continue the debate by putting questions to the hon. the Minister.

I have always been under the impression, Mr. Chairman, that a debate is question and answer. Surely I am entitled in the course of debate to put a question to the hon. the Minister? Surely I am entitled to know what the actual meaning and intent is of the words “material and contents”?

The hon. member may proceed.

Thank you, Mr. Chairman. Will the hon. the Minister tell me what he means by “material and contents”? What material is referred to? Is this merely the material which has been used for the construction of the hut, or is there some other material involved? What about the “contents”? Does this mean all the possessions of the owner of the hut? What does it imply? Does it mean the man’s food and everything else that is in the hut? Is that going to be taken away from him?

What about the money he has saved?

Does it mean everything that he has in his hut—his furniture, food and clothing? I do not believe that the clause as it is drafted is clear. I believe that the hon. the Minister is going to run into further difficulty and he is going to come back to this House and tell us the same story next year, viz. that the court has ruled certain things. He will then have to tell us that whoever has to comply with the court order, will have to break the law. That is what I am afraid of. To clear up the matter at this stage will therefore be a very good idea.

I would now like to pass on to my second amendment. My second amendment deals with the question of “any order, judgment or other relief granted or given by a court in proceedings referred to in paragraph (a)” as set out in the new section 3B(4)(c). In terms of my amendment I want to insert certain words after the words I have just quoted. The reason why I want to insert the words “save in respect of costs”, is to make it quite clear, beyond any reasonable doubt, that when any court order, judgment or other relief that has been granted become null and void, that part of the court order or other relief which refers to costs awarded to the applicant, will not be affected. In other words, the costs awarded to the applicant will not fall within the scope of the new section 3B(4)(c). The hon. the Minister told us during the Second Reading debate that he can give the assurance that that will be the case. But I do not believe that the hon. the Minister can give this House that assurance, because the law does not say so, and we must remember that the hon. the Minister is a great stickler for the law. What is going to happen if this part of the law is not amended and judgment or other relief granted is set aside in terms of this legislation? We are dealing with a very delicate matter.

You are dealing with a very delicate man.

If the hon. the Minister feels delicate, he only has himself to blame. Unless this is done, we are going to find that by this very act of legislation, we are going to take away an award of costs from an applicant. I do not want to canvass the matter any further, except to say that the assurance, which the hon. the Minister gave, may be in order in so far as his own department is concerned. However, the hon. the Minister was at great pains to tell us that this does not only involve his department; it also involves the Department of Public Works and, in fact, any Government department that has land upon which squatters squat, including any other owner.

But I want to help you.

But your help is no good.

I gave the undertaking on behalf of the State.

Yes, all right, on behalf of the State, but how does that help me? If the hon. the Minister gives the undertaking on behalf of the State, how does that help when it comes to the Divisional Council? The Divisional Council is not the State. What control does the hon. the Minister have over the Divisional Council of Stellenbosch? None at all! The Divisional Council of Stellenbosch could have had him informed on the telephone yesterday …

Is the Divisional Council of Stellenbosch not an honourable body?

Yes, that Divisional Council is an honourable body. But to whom did the hon. the Minister speak? I do not know to whom he spoke.

I told you.

Did he obtain a council resolution? I am sure he did not obtain a council resolution. Probably the chairman, or more likely the Secretary, of the Divisional Council said he would see whether they could honour his assurances. However, that is not good enough. What about all the other owners? There are many other owners involved.

Name one.

There are owners…

Name me one who has gone to court.

According to the hon. the Minister’s speech in the Second Reading debate there were owners all over the Republic of South Africa who were having the greatest difficulty with squatters, and it was in order to give those owners of land throughout the Republic of South Africa the right to the sanctity to their title, in so far as their property was concerned, that this Bill was necessary. That is what the hon. the Minister said yesterday. He mentioned Houghton. He spoke about township development in the Transvaal. The hon. the Minister must know what he is talking about. He obviously has in mind owners of property which does not belong to the State. He has that in mind because that is what the big song and dance was about.

Are you talking about costs?

Yes, I am talking about costs. Of course I am talking about costs, the costs of actions. The costs that have been awarded to the successful party.

In how many cases have such costs been awarded?

But how does the hon. the Minister know where the cases are? I am sure the hon. the Minister does not know. He has not made a survey. Of course he has not made a survey! Let the hon. the Minister tell us then which cases he is referring to, because as far as I can make out, the only cases to which he has referred up to now, cases in which costs have been awarded, have been the Divisional Council case and the case of the Department of Public Works.

Now you have got it. Quite right!

Those are the only two cases he has spoken about in relation to costs. However, when he spoke about ownership, he was speaking about owners generally. That also goes for all the other hon. members on his side of the House. They made a tremendous song and dance about owners generally and said that we must allow the poor owner to recover possession of his property. They said this was the only way to do it.

[Inaudible.]

Yes, that is what he said. Of course he said that. Not only is that the impression he has given the House; that is also the impression he has given the whole of South Africa. The purpose is to assist owners generally. How can the hon. the Minister, however, give an undertaking that any owner, anywhere in the Republic, will be prepared to honour his assurance? How can he give such an undertaking? Of course he cannot. Therefore I suggest that the only way in which that assurance can be made sure, is by inserting these words into the clause so that it will then read—

That is all I am asking for. I do not believe it is very much. I think the hon. the Minister should agree to it. I am amazed that he has not agreed to it yet. Yesterday, when I spoke about it, he interrupted me and said: “Ah, but I have already made an arrangement.” [Time expired.]

Mr. Chairman, the hon. member for Wynberg has moved certain amendments which appear on the Order Paper. I assume it is in order for a member of another party to indicate what that party’s view is on those amendments. Therefore I want to indicate that the hon. member for Rondebosch, in telling the Committee that we are going to vote against the clause, has already made it clear—it follows automatically—that we shall be supporting the amendments of the hon. member for Wynberg. If I may, Sir, I should like to motivate our reasons for supporting those amendments.

Are you referring to the amendments to clause 1?

Yes, Sir.

The hon. member may proceed.

The first amendment refers to lines 14 to 20 on page 2 of the Bill. The relevant paragraph deals with an action that can be taken in removing or demolishing a certain shack. Then, a little later on, there is a definition of that and I shall return to that definition in a moment because it also comes under clause 1. This provision deals not only with the structure itself, but also with the contents of it. I suggest that anyone who demolishes a house, even if that house has been erected illegally, and, as legally provided, removes the contents without any responsibility to the owner of those contents, is in fact committing an act of theft. He can actually destroy the contents. I want to ask the hon. the Minister whether it is good law…

I think you have the vestige of a point there.

It is very kind of the hon. the Minister to grant me even that. I want to say to him that he has no case at all for the legislation we have before us. I want to ask the hon. the Minister to respond to the vestige of a point I have just made. Can I take it that he is going to respond to that?

Yes, I shall respond.

I believe that this is a very serious situation and that is why I believe it is very important for the Committee to support the amendment of the hon. member for Wynberg in respect of lines 14 to 20 on page 2.

The case is further compounded because there is no protection against the destruction, removal or theft of the contents since the persons who were residing there illegally—I concede immediately that it is illegal—is not present as a result of which there is no way in which he can protect not only the illegal structure in which he is residing, but also the contents which are his legally. Therefore, again, I believe this Bill is bad law and that it encourages the legalizing of the destruction of property and theft.

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

Well, Sir, I have tried to make my point.

You have made it very well.

Thank you very much.

It is a bad point, but nevertheless.

When we have regard to the description of the structure we read the following words in subsection (5)—

I would like to ask the hon. the Minister if he would go a little further and tell us what he means by this very vague description “similar structure”.

The last matter which I wish to raise under clause 1 is that I had hoped to raise some specific points regarding this clause in its specific detail as it affects certain classes of squatters. But I am unable to do this for reasons already stated, so I shall not go any further, except to express my very deep disappointment that I am not able to do.

Mr. Chairman, I should just like to obtain more particulars from the hon. the Minister. Is it possible for him to give us an assurance that attempts will be made, when it comes to the demolition and the removal of the material and contents, to inform the people concerned where their property is to be found.

Yes.

I should also like to know in what way the hon. the Minister can give the assurance, in view of …

I have already given the assurance.

Will the hon. the Minister just give me a chance? The hon. the Minister says “yes”, but I should like to know in what way, in view of what the hon. the Minister said yesterday with regard to the problem which they experienced in informing people who could not read or write. That is the first point. In the second place I should like to know from the hon. the Minister, in pursuance of an assurance which he has given, that when the details of the clauses are being discussed, the Deputy Minister of Bantu Administration and Education would be present, why he is not present? What has happened to the assurance given by him?

Mr. Chairman, I want to refer to the amendment on page 4 of the Bill with regard to the costs. Yesterday I understood the hon. the Minister to give the undertaking that the costs would be paid by the department in cases where the costs had been granted and which may be affected by this Bill. He gave the assurance that the costs would be paid. When the hon. member for Wynberg presented his case, the hon. the Minister asked him what other cases were affected. He asked that hon. member to name any other case where costs were granted.

To help you, there are none, but some have been threatened.

To help us, he says there are none, but that some have been threatened. He accepted the principle yesterday that where costs had been ordered he would not allow this Bill to affect such costs. He accepted that principle as far as the Government is concerned. Why then is he not prepared to accept this amendment if no other costs are affected?

It is a fair question. I shall reply.

There may be cases where costs have been granted and that the hon. the Minister does not know about it. Therefore I submit that he should accept this amendment. I shall be glad to hear from the hon. the Minister why he will not accept it.

Mr. Chairman, I realize that you have a very difficult responsibility but I hope you will nevertheless allow me to say something in regard to the rules of the House which you have to apply.

I may just point out to the hon. the Minister that in terms of my ruling he is quite entitled to reply to the arguments on the principle which were raised by the opposite side.

I should not like to contravene your ruling, and I hope you will stop me if I do. I have a measure of sympathy for hon. members opposite. Your ruling is of course absolutely correct However, I think the time has arrived for us in this House to reflect a little on the procedure which governs our debates. It is an established rule that if a provision is elevated to a principle at the Second Reading, that principle may not be discussed again during the Committee Stage. Hon. members opposite—I realize that they have the right to do so—elevated each of three simple clauses to a principle during the Second Reading debate, which lasted for more than a day. I replied to that, as far as was possible, during the Second Reading debate. But now those hon. members wish to repeat the entire discussion. As far as I am concerned, the onus rests on them. If they want to make speeches on each separate clause during the Committee Stage, they should refrain from holding discussions during the Second Reading debate on the principle of each separate clause. Would you say that my view of this matter is correct, Mr. Chairman?

Quite correct.

It is important for good order in debate.

Mr. Chairman, may I ask the hon. the Minister a question? In the light of what the hon. the Minister has just said, how is it then that he gave the assurance to the hon. member for Pinelands that he could raise certain matters again during the Committee Stage?

The hon. member for Pinelands is my witness. I said that any matter arising out of the three clauses of the Bill, matters that were not clear, could be raised again and that I would be in attendance to deal with them. I want the hon. member for Pinelands to correct me if necessary. I certainly did not suggest that he could discuss the Bantu Labour Bill during the Committee Stage of a Bill dealing with squatters. [Interjections.] I certainly did not.

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

Order! The hon. the Minister is still speaking.

Mr. Chairman, the hon. member wants to know whether he may ask a question. He may.

Mr. Chairman, what I want to ask the hon. the Minister is whether I did not get his assurance when, towards the end of his reply to the Second Reading debate, I raised the specific instance of African families whose main breadwinner was here legally, and put the question to him whether his family would be allowed to live with him? [Interjections.]

Mr. Chairman, the hon. member asked that question, but certainly, when I said that the hon. the Deputy Minister of Bantu Administration and Education would be present to deal with the details—and those were the words I used …

Where is he?

I am coming to that. Mr. Chairman, I could not give the hon. member any assurance. I did not try to and I did not intend to. I did not give any indication that he would be allowed to raise matters which were totally irrelevant to the principles of the Bill. I could not have given him that assurance. The suggestion that the hon. the Deputy Minister would be present to reply to questions dealing with other Bills is, I believe, so preposterous that I do not even want to reply to it. [Interjections.]

Why did you not answer my questions then?

Because they were irrelevant.

Why did you not just say that?

They were totally irrelevant to this Bill. This is a squatters’ Bill, not a Bantu employment Bill. [Interjections.]

Order!

Mr. Chairman, let us get back to something more worthwhile. The hon. the Deputy Minister was available. I understand—and the hon. member must correct me if I am wrong—that the hon. the Deputy Minister approached him and gave good reasons as to why it would be difficult for him to be present. The hon. member for Pinelands accepted that. That is the answer. [Interjections.]

*Mr. Chairman, I should now like to reply to the relevant and opposite arguments which hon. members have advanced so far. The hon. member for Rondebosch—I usually listen eagerly to him—made a very short speech, primarily on the question of the court cases which dealt with the seven days’ notice, a provision which is now being repealed. I want to remind the hon. member that I pointed out in my reply to the Second Reading debate that the provisions in regard to the seven days’ notice was being repealed with this Bill. I pointed out that they were not being repealed because of the court cases, but because practical experience had taught us that it appeared impossible in practice to serve the notices in question, owing to the recalcitrant attitude of the squatters. Their attitude made it impossible to serve a notice effectively and meaningfully. They refused to accept it. They pretended not to understand the language. They threatened to use violence. That was their attitude in regard to something which was in fact a concession. I know of no other criminal who receives prior notice that he is going to be prosecuted. I know of no other criminal who is granted seven days’ time to undo the crime which he has committed in order to escape prosecution. A murderer is not given seven days notice so that he can get away. [Interjections.]

Then why did you do it?

That is a very fair question, and I shall tell the hon. member why I did it. I did it because the position of the squatters is sui generis. There are no precedents in our law for squatters. I did it in an attempt to accommodate these people. I am also sorry for them. I am as sorry for them as any member on the opposite side, but with this difference that I do not consider them to be the only people with rights. I do not consider them to be committing no crime, while the owners on the property on which they are squatting are the criminals. That is the difference between the hon. members on the opposite side and me.

Nevertheless I felt sorry for the people and I wanted to give them seven days’ notice, not so much in order to accommodate them, but in order to give the officials of my department, the Department of Bantu Administration and Development and the Department of Public Works an opportunity to negotiate with the squatters within the space of those seven days. In that way it would be possible to establish what their problems were and in what way they could be assisted. That was what we tried to do.

I do not want to repeat the arguments which were raised during the Second Reading debate. However, I enumerated about eight examples of the way in which the squatters abused the concessions we made. The court cases were not important. The court cases did help me to reach a decision, but were a secondary, a lesser consideration. It frequently happens that when we send an official to serve a notice, he finds only a woman at the house in question. If he then asks her who she is, and she replies that she is the woman of the house, he serves the notice on her. However, an application is made to court to the effect that this was not a legal notice, because the woman was a reputed wife. I am a Transvaler. What is a reputed wife? It is something peculiar to the Cape. [Interjections.] It is only in the Cape that people do such things. This is the kind of thing that happens. [Interjections.] If the court had tried such a case, we would have lost. The official took the trouble to serve the notice on the woman of the house, but, she was only the reputed wife. The case is then disputed on this technical point, and we have to start all over again. We did not receive a positive reply to what was a generous concession on the part of the State. The State cannot be ridiculed, nor does the member for Rondebosch wish the State to be ridiculed. Or does he?

No, but nor do I want …

There you have it, the hon. member agrees with me, I have a retreat. The hon. member agrees that the State cannot be ridiculed. That is what happened with the seven days’ notice.

Mr. Chairman, I agree with the hon. the Minister, but at the same time I want to put two questions to the hon. the Minister. In the first place the hon. the Minister referred in his Second Reading speech, as motivation for the provision, to the court cases and to the powers which are being used. That is actually why I want to ask this question.

It is not true.

It is stated in Hansard. In the second place I want to state that I agree that the State should not be ridiculed, but does the hon. the Minister not also think that it is perhaps important that squatters should not be ridiculed either? [Interjections.]

Mr. Chairman, considering the calibre of the first question, I can only reply to the second. I want to invite the hon. member to look at my Hansard. [Interjections.] I still have here the document from which I read and from which I enumerated seven or eight examples of the treatment received by officials when they went to serve the seven days’ notice. These examples have nothing to do with the court cases. Here I have a document and it is in my Hansard. I said this in my reply to the Second Reading debate.

I am referring to the Second Reading speech, when you were explaining the Bill.

He cannot do it. We are not debating last year’s Bill now. We are debating this Bill. We are debating matters which happened after last year’s debate. I referred to eight cases. Now the hon. member is trying to suggest to me that I am relying solely on the courts. No, honestly, the more I debate with that hon. member the more concerned I become about his not being willing to meet me on the relevant issues. He is constantly running away. I want him to debate valid issues, issues we are dealing with here, with me. [Interjections.] I gave him a reply. I hope he is satisfied now.

†I now want to come to my very good friend, the hon. member for Wynberg. He made a very interesting speech. I was amazed to see how many arguments and points he was able to raise in his first speech. I want to deal with them almost one by one. He defended the hon. member for Green Point, who was in trouble last night, when I challenged and asked him whether, if a “squalor” of squatters—if I may say that—suddenly appeared on Green Point common, he would accept them. He then said to me that if I had proper supervision, they would not appear. That is quite true. That is why I could reduce the number of squatters by 5 427 last year. We rehoused 5 427 squatters and prevented new squatter camps arising because we supervised. In spite of the inadequacy of the laws, it was proved that under last year’s law we could prevent new squatter camps arising. They arose, but before they could be occupied, we destroyed them. We reduced the total number of squatters by 5 427. I did not prophesy that they would arise in Green Point. I asked, if they should arise, what the attitude of the hon. member for Green Point would be. I am still awaiting his reply. I am severely tempted to suggest that if squatter camps were to arise on the private property of some hon. members opposite, it would teach them a lesson. It might be useful if squatters settled on the land of that fine gentleman, the hon. member for Constantia. I would love to see his reaction. I do not know how much land the hon. member for Wynberg has. He lives in a beautiful place, but I am not sure whether he possesses any land. If he has, I think thirty squatters there would teach him a lesson. He will come back to me and talk differently. He will not say to me: “Give them service”. He will say: “Please, Marais, help me to get rid of these people as I cannot live in this house any more”. I want to say deliberately that they will not have squatters in their own back yards, but that they want them in the back yards of the hon. members for False Bay and Durbanville; there they are welcome. I know this problem. I lived in Johannesburg when we had to find residential areas for Coloureds, Indians and Whites.

I had some of the most liberal people coming to me, people who said that they had to have residential areas and that it was shameful that the UP was not giving them residential areas. Then, when one makes a good suggestion, a suggestion backed by all the psychological, sociological and ecological arguments one can wish to bring in, they say: “Oh, but that is too close to us; do not put them here. Give it to them over there.” Hon. members will know that that is true. That is the point we make. With great respect I want to say that that is the weakness in the argument of these gentlemen. Here their pose is so noble and so superior. They pose as being almost God-like in their approach to this problem, because the problem is not in Pinelands, Rondebosch or Parktown. The problem exists in areas distant from their own experience and they can afford to be pontifical and superior, but I, my department and the Government have to deal with the truth and with the facts and we cannot afford to pretend that we are not concerned with other areas as long as our own areas are left unaffected.

You have just proved that you cannot supervise.

The hon. member has said a lot and I am going to deal with everything that he has said. The hon. member asked me to deal with the people who are organizing the squatters. Is the hon. member one of them? That is a fair question.

How dare you ask me that! [Interjections.]

Why not? The hon. member has just told me that the people who are organizing the squatters are so respectable that a Minister of the South African Cabinet should recognize them and deal with them. All I want to know from the hon. member is whether he is organizing the squatters. The hon. member reacts by throwing his hands up in fury and saying: “How dare you make such a suggestion?”. I am going to ask the hon. member again …

I am going to ask you, before you can ask me. [Interjections.]

Order!

The hon. member must please sit down and take his medicine. I am now asking him a question and until he has replied, he cannot ask me a question. Is the hon. member one of the people organizing the squatters?

Of course not.

Now the hon. member can ask me a question.

What has the hon. the Minister done about taking steps against the organization which is organizing squatting in the country of which he spoke so glibly yesterday? That is what I should like to know. That is a subversive organization and we want to know what the hon. the Minister is doing about it.

I call the whole House to witness that I did not say that it was a subversive organization.

I know that it is.

The hon. member says that he knows that it is a subversive organization. I have introduced a Bill—we are discussing it now—which has the purpose of drawing the teeth of this subversive organization and now the hon. member opposes me. [Interjections.] The hon. member speaks up for the organization and he demands from me that I should negotiate with that organization, but when I start cross-examining him, he makes the statement that it is a subversive organization. The hon. member is asking the Government of South Africa to determine policy in negotiation with subversive organizations. It is only someone with the unlimited patience of a member of the South African Government under the hon. the Prime Minister who can endure that sort of nonsense. [Interjections.] I have no grudge against the hon. member, because he is doing his best. The hon. member also asked me a sensible question, i.e. what we are going to do to provide alternative accommodation for those squatters who have to squat when they have been evicted from their homes because they could not afford to pay the rent. Does the hon. member remember asking me that question?

The sub-economic rent.

Yes, the sub-economic rent. That was a good question. The hon. member was recovering when he put that question. I want to give the hon. member an answer. I gave the answer last year when I said that we admit that in very rare instances there are people who cannot afford even sub-economic rents. However, they are exceptions because sub-economic rents range from approximately R12 per month to between R13 and R15 per month. Any person who cannot afford that rent must have something amiss with himself and his family. Because this Government, this wicked Government …

Hear, hear!

Say, “hear, hear” by all means, but deny what follows. When any man is in such a destitute state this wicked Government will give him social welfare relief in some form or another, or he will get relief through the legislation which the hon. the Minister of Labour administers. The allowances that the State gives such a man because he is unemployed, defective, handicapped, mentally retarded or liable to be institutionalized are big enough to enable him to pay the rent at the rate at which we can give him housing, namely R12 per month and upwards. That is a simple fact that he did not know, so I do not blame him. However, now he knows and now I hope he will stop spreading this type of story.

That is not a rare case.

The hon. member says that that is not a rare case, but I am coming to that now. I have a problem with private enterprise and the Government has a problem with private enterprise. The problem is that they are not all paying people decent, liveable wages in all instances. When the hon. member for Rondebosch, this great champion of capitalism, who belongs to the party of the rich, gets up …

Order! I want to point out to the hon. the Minister that I am affording him the opportunity to reply to the questions which were raised, but he should not go too far.

When I am accused that people do not have the money to pay a sub-economic rent—and I shall not elaborate on that theme—private enterprise must put its hand into its bosom and pull it out to have a look at it. I can tell hon. members that people who are destitute and in need of support get allowances from this Government to enable them to pay sub-economic rentals. If there are people who are too poor to do so, it is because private enterprise is neglecting its duty. I am afraid that there are people for whom the PRP speaks, who rejoice in the fact that there are squatters because then they need not pay well, because they are not paying rentals. To them they say: “You can afford to live in a squatters’ camp. Why do you ask me for a better wage?” [Interjections.]

Why do you make unsubstantiated statements?

I am not making statements. I am replying to statements made by the Opposition. The statements came from the Opposition; the arguments and the exposures come from me. [Interjections.]

Private enterprise keeps you in business.

The hon. member raised the question of seven days’ notice, but I think I have dealt with that question adequately. These squatters are in essence—and I want to challenge anybody to deny it—breaking the law. The hon. member for Parktown said they are breaking the law because they are human. The hon. member for Houghton says there are squatters all over the world. There is crime all over the world and there is squalor all over the world. There is also disease all over the world, but that does not mean that I must accept disease as inevitable and squalor as inevitable and crime as inevitable. That does not mean that I must condone crime, disease and squalor.

Do you want to stop all that with bad law?

That does not follow. Let us for heaven’s sake get down to the basics of the situation. That is what I am doing; I am getting down to the basics. Squalor is universal, crime is universal and squatting is universal. I condone none of them.

Why do you not legislate against disease?

I will not accept crime as an inevitability that one does not fight in South Africa; I will not accept squalor as something one does not fight in South Africa and I will not accept disease as something one does not fight in South Africa.

What about breaking up family life?

I will not accept this evil of squatting as something inevitable that one simply tolerates in South Africa.

What about breaking up family life?

No wait. Then we come to the question of costs.

After all, it is only the squatters who have a “family life”.

This point was again raised by several members.

*Surely I said yesterday evening that there were only two cases involved here.

That you know of.

No, there are others that I know of. I am very pleased the hon. member said that. It was a very good interjection. I know of only two cases which were brought before the courts. The one was the case against the Department of Public Works in which a settlement took place, and in which the court awarded costs. I give the assurance, after a consultation with the parties concerned, that no one will be prejudiced by this Bill. The people to whom costs were awarded, will retain that right and the State will accept the responsibility. I come now to the question of the local authorities. I negotiated with the local authority in question. Let me rather put it this way: My department negotiated with them yesterday. They said that I could state in Parliament that we shall pay those costs. The hon. member for Wynberg says, however, that he cannot believe it. But I do not agree with him. I believe them.

But why chop and change so much?

I believe honourable bodies such as that, but he does not believe them. He said he did not believe them. That was, after all, his argument. However, his argument does not count with me, because I believe them.

But it was not a council decision.

Very well then, I shall go further. If that council does not honour that decision, I and others shall send a hat around to enable the costs to be paid. I am even prepared to give that guarantee. After all, I do not want to score a few cents. We do not want a few cents in the hat. We want to see that justice is done. However, the hon. member then came forward with an important point. He said that there could be other cases which I did not know of. That is true. But that is what I want to prevent. That is what the hon. the Leader of the Opposition … I almost said the former Leader of the Opposition, but I am anticipating matters. [Interjections.] The hon. the Leader of the Opposition taught me to say: “It is the mischief of the situation that we must deal with.”

Are you now speaking on behalf of the former Minister?

It could happen, life is very uncertain. No one knows that better than that hon. leader. [Interjections.] Sir, you gave your ruling, but I have the problem that I have to say these things over and over again.

Order!

Mr. Chairman, surely you are not going to stop me?

No, I just wanted the hon. the Minister to keep to the arguments hon. members have raised.

Very well, Sir. The argument is that there may be other cases. I admit that. There may be other cases.

Which have already been decided today?

No, there are not. There are only the two that have already been decided.

But you do not know about them.

Why would I not know about them?

There can be cases which are decided today, cases which you do not know about.

If there is a case which is decided today, then this Act applies to that case as well. And if there are cases which are decided before I give notice of this Act, my guarantee applies to those cases as well.

Before it is proclaimed?

This applies to every case which is decided in regard to costs before I give notice of this legislation, in other words before I have published it. Of course, the State will bear the responsibility for the costs—in terms of an award of costs; not just blindly.

I hope it will be proclaimed.

That was a very good question which my friend, the hon. member for Jeppe, asked me. I know him to be a person who asks very good questions. I was warned when introducing this Bill that people quickly wanted to make a whole series of applications to judges in chambers to obtain orders similar to that obtained from Mr. Justice Diemont in order to confront us with a whole series of faits accompli. The only reason we have this clause before us is to thwart those people and to cause their plans to miscarry—to frustrate their knavish tricks. That is the object of this clause. That is why my reply to the hon. member for Wynberg is “yes”. If there have been new cases since the Bill appeared on the Order Paper, this provision also applies with retrospective effect in respect of costs, for they were merely being wilful if they have instituted proceedings. They had no excuse for doing so.

The last question asked by my hon. friend was: What about the removal of material and even the contents of shacks which are being demolished?

That was not my last question.

The hon. member spoke so quickly that I could not keep up with him.

There are still three questions to which you have not replied.

The hon. member can rise again in a moment and remind me of them. Sir, if I find an intruder in my house at night, I have the right to throw him out of my house straight away, with the necessary force, not so? I want to ask the hon. member, who is a lawyer, whether he agrees that that is the truth. If I wake up at night and see a man in my bedroom who has no right to be there, I can compel him to leave with the necessary force. If he is obstreperous and refuses, I can even hurt him to get him out. If I kill him, it is a case of justified manslaughter. Under comparable circumstances I have, out of the goodness of my heart, fool that I am, said: “I shall give you seven days’ notice”. I meant it sincerely. I feel sorry for these people, but they treated this concession with contempt; they abused it. Should I then continue to make that concession? I gave them a concession which no other criminal in our legal system has. If they do not want to accept it, if they do not themselves wish to act in the spirit of that concession, what should I do? Sir, I have a great deal of respect for the hon. member for Wynberg as an officer of the court, and I want to ask him whether we should then make a farce of South African law. Should we now make a farce of the authority of the courts, the authority of the State, the authority of the law? Should we create opportunities to enable people to thumb their noses at authority?

You are the person who is tampering with this matter in regard to the courts.

I am the person who gave certain criminals a privilege which no other criminal in South Africa has, and I have received ill recompence for my pains. I am sorry, but this simply cannot be allowed to continue.

You introduced poor legislation!

I am sorry, Sir, but it cannot continue. That is the end of the matter.

The hon. member for Mossel Bay raised a very interesting linguistic point. Sir, you furnished him with a reply and I undertake, as you did, to look into it and, if necessary, the error will be rectified.

I think that I have already finished replying to the hon. member for Pinelands. I do not think I have to take it any further at this moment.

Mr. Chairman, I was referring to the actual amendments moved by the hon. member for Wynberg. In doing so, I referred to the fact that, as the Bill provides, material and contents of a building or structure may be removed. I made the point that this is bad law. The hon. the Minister then interjected and said in his good, sarcastic way, that I had the vestige of a point and that he would reply to me. I should like to hear his reply.

I am so glad. Thank you. I do not expect the hon. member for Pine-lands to read all the Hansards on the previous debate. If he had he would have known that, but I do not reproach him. I did not read them myself, but what hon. members said comes back to me as we proceed and then it becomes very interesting. When the authorities demolish a hut, acting either as the owner or on behalf of the owner, to assert the owner’s real, sacred, proprietary right, a right that does not attach to the owner, but attaches to the land permanently, great care is taken in the demolishing of the hut. The possessions are taken from the hut and are stored. The authorities try, but do not always succeed, to let the owners know—the property may only be a few sticks, a bath, a cradle or whatever it may be—that their possessions may be found at such and such a place. We keep it for three months, telling the owners that they can get it. Then, like the pawnbroker, after three months, we reserve the right after advertising to sell it in order to recover the costs. Knowing my people as I do, I am quite sure that we keep the property for periods longer than three months, in case the owner turns up. We have no desire to take people’s property. They have the desire to take the property of others, but we do not have that desire. In spite of that, they are given a fair chance to recover their property. On that note I shall end, by saying that we shall give them a fair chance to recover their property, but then they must still come forward, identify the property and claim it for themselves. If they do not do that, my hands are tied and there is nothing I can do.

Mr. Chairman.

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

No, Sir.

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

On a point of order: I have spoken twice and once on a point of order.

Order!

I started my speech before business was suspended at 12h45 and I continued after business was resumed.

Order! The hon. member for Wynberg started at 12h41—that is before business was suspended—then he started again at 14h15, which completed his first turn. Then he spoke from 14h27 till 14h34, i.e. for seven minutes. After that, he addressed this Committee from 14h36 to 14h46.

Mr. Chairman, I should like to respond, during what I think is my last speaking opportunity on this clause, to the reply of the hon. the Minister regarding the contents of the shacks that are demolished. Once again the hon. the Minister has taken unto himself more than he can really bear, because even when the State acts as an owner, it uses many instruments or servants in the carrying out of its work. The hon. the Minister is a brave man when he accepts responsibility in toto, and that I shall accept. However, there are other owners and occupiers affected by this clause. Therefore the hon. the Minister cannot accept total responsibility. I do not think he wants to. According to the clause as it stands now, the contents of that particular shack may be removed. I think the hon. the Minister spoke rather derogatively of a few sticks, a bath, a cradle, etc., but that may well be their total possessions on this earth. If the hon. the Minister thinks I am being emotional now, I am very sorry, but these are the possessions, the sole possessions, of that particular owner and he should enjoy some rights. Therefore I do not accept the reply of the hon. the Minister that those contents can be stolen when the shack is demolished. Whether the information I receive is right or not, I cannot say, but in visiting a number of these areas I have talked with former squatters who have told me that they have never ever regained those humble possessions which once belonged to them. Now this amending Bill goes even further and states that the material and contents thereof may be removed. I would appeal to the hon. the Minister—he says he cares and that he is concerned, and I accept that—to look again at the words of this clause and to look again at the words “and contents”. If the contents of the structure of these people are removed or stolen or despoiled or broken in any way in their absence, they cannot go to court.

They are given no rights whatsoever. No matter how illegal their act may be, I believe that any human being should have some rights in connection with his basic possessions. When a thief is taken into custody by a policeman, when a murderer is taken into custody, their possessions are taken and safeguarded. Here we are going to have people who are going to go into a man’s home, not only to demolish it, but in many instances, to make nothing of his possessions, because they may well be so humble, and that man has no recourse to a court of law. Nevertheless, a thief and a murderer can go to court. Is this justice? Is this the kind of fair play that the hon. the Minister was telling us about in such eloquent terms earlier in his reply?

Mr. Chairman, my final point is this. Even a terrorist has certain rights in the face of the law. However, the squatter here does not have any rights at all. That hon. Minister cannot take to himself the, responsibility of the total contents of that shack. Therefore, I ask him to think again, and, if he will not accept the whole amendment, to think again, purely about the two words “and contents”. There must be a better and a fairer way to do this.

Mr. Chairman, I must deal with this point at once. I owe the squatters nothing. They are trespassers and intruders. I owe them nothing. However, I do not want to evade responsibility. I will look into the matter which the hon. member has raised. I regard the department or whatever body that deals with this and takes control of the property of those people—referred to in legal terms as the negotiorum gestor—as the body who, almost inadvertently, accepts the responsibility in that regard. However, certain duties devolve upon them immediately. As I have said before, that is how I would like to see it be. If, as a result of this clause, that is not the position, I shall look at the matter again and, if necessary, change the measure in the Other Place.

Mr. Chairman, I want to raise two matters with the hon. the Minister. In reply to the hon. member for Wynberg the hon. the Minister said he appreciated very much the address by the hon. member and would deal with all his questions very carefully and meticulously. However, there are two questions to which the hon. the Minister has not yet replied. The first one is the question of whether he will have consultation, or whether he has had consultation, with the Executive of the CRC or with any Coloured or Black leaders. The other question was whether he was considering or whether he would be prepared to establish emergency camps and site and service schemes to maintain as much control as possible under the present circumstances, with due concern to the hygiene of the community’s surroundings and of the squatting community itself. The other matter I wished to raise with the hon. the Minister …

I thought you said there were three questions.

There were only two questions. I have another aspect to raise, and that is to support the amendment with regard to the question of costs. During the course of his reply just now the hon. the Minister said that even though cases were pending, as long as it was an order or judgment of court, he would ensure that no one would suffer by an order for costs.

Even in interlocutory actions.

Yes. As long as it was an order of court. In terms of this Bill, if it becomes law, I do not see how the hon. the Minister can get the Government, through its State funds, to honour that undertaking.

Then you do not know this Minister.

Yes, I do know this hon. Minister. I do not even have to know this hon. Minister to be sure of my point either. The position is this …

You know him rather too well.

Yes, the hon. Leader of the Opposition reminds me that I should know that hon. Minister very well. We have a cardinal principle in our law, a principle that the legislature is sovereign. Here is a piece of legislation which states specifically—and I quote from line 19 on page 4 of the Bill—

That is this Bill, once it becomes law. How then can the State or any Treasury make any payment on an assurance given by any hon. member of this House, be it a Minister or otherwise? After all, all expenditure has to be authorized, unless the hon. the Minister comes back to the House afterwards. Even then I am not terribly sure whether he would not have to have some form of amendment in order to give that assurance, because there has got to be authority to make the payment. I think it is essential because the hon. the Minister is not committing himself by adding these words. He will only be adding the words which, in fact, carry out what he has now given an assurance for. I do not understand the obstinacy of the hon. the Minister in not accepting a simple amendment which bears out what he himself assures. He said that he will only pay if it is an order of court, and paragraph (c) only refers to “any order, judgment or other relief granted or given by a court …”, so where is the justification in not ensuring that the Bill is complete? After all, we do not want laws where we have to rely on assurances. The whole objective is that we must not have the country run by regulation. Surely, the objective is that the affairs of our country should be administered in terms of the legislation of the country and not by regulations of the Executive or any other form of bureaucratic control which has no justification in law. That is the whole purpose of dealing with statutes of this nature. Here we have a simple amendment. The hon. the Minister spent well over an hour giving assurances of every possible nature, but he refuses to put it into the Bill. The hon. the Minister will not be committed to anything more than what he has given assurances for. I think it is a most strange way of dealing with legislation when part of what the legislation is intended to ensure, is carried out, not by virtue of the printed word, but by the assurances of a Minister. I do not believe that that is sound parliamentary practice and I certainly do not think it is a democratic way of handling a situation of this nature.

It is done administratively.

That is a silly, foolish interjection to which I am not going to react. If the hon. the Minister discusses it with his law advisers, he will find that I am right.

Mr. Chairman, I shall reply briefly to the hon. member’s speech. The object of the retrospective clause in the Bill is simply to prevent certain people I know of, who try to abuse the process of the court in order to embarrass the State, from submitting a series of new applications, even in the chambers of judges, as from the date notice was given of this Bill up to its promulgation, under an old Act which, in the opinion of the Government, was incorrect under the circumstances of the day. There have been only two cases of an order as to costs in the law courts before notice was given of this legislation and that is why I have given the undertaking that there will be no changes in the practical effect of those orders as to costs. The hon. member does not believe I can do this. But I can do it. After all, I can make an ex gratia payment. There are many examples of this, but then I shall have to approach Parliament for approval of that ex gratia payment. Surely the hon. member would not oppose it, would he? So what is his problem? This is what will happen and the hon. member must not worry.

The hon. member asked a question concerning emergency camps. We have already made an announcement. I do not blame the hon. member for not reading the old Hansards.

No, it is the hon. member for Wynberg.

Nor do I blame that hon. member for not reading them. I announced last year or earlier this year, I am not sure myself, that we were going to develop the new idea of core houses so that those people who are truly indigent and who really cannot afford to pay rent may occupy those houses at an absolutely negligible rental. Next I want to make an announcement arising out of a previous announcement to the effect that we would conduct an investigation.

Well, we did investigate the matter and determined its scope. Minimum standards were laid down and on the basis of these, we called for tenders. Since then, tenders have been received and at the moment we are on the point of awarding contracts for the building of core houses to accommodate those people who, because of their indigence, are unable to obtain an ordinary house.

The hon. member’s second question, the one concerning consultation, brings me to an interesting aspect. I should very much like to have consultations with the people concerned. Of course, the argument may be advanced that we are not dealing with a matter exclusive to the Coloureds.

But it does involve them, of course.

Yes, it does involve them. Last year, when we were dealing with the principal Act, I consulted them. They were not satisfied with the way in which we consulted them, however, but we did nevertheless consult them. I have not consulted them this year as the principle is not at issue. This is simply a measure to make the application of a principle that has already been discussed, more effective.

It is not pleasant for me to have to say that as far as the Coloured population is concerned, I find it extremely difficult to have consultations with them, because there is a group of Coloureds—they are in the majority in the CRC—who do not want to co-operate with us under the present dispensation. As Minister of Indian Affairs, it is my experience that if one has consultations, one should not have formal consultations on formally convened occasions only; there should be a continuous process based on goodwill. Meetings should take place often between the Ministers concerned and the particular authority of the Indian community. We have consultations week after week with the Indian community. They are always in my office and in the offices of my colleagues. We talk openly and freely with one another. However, we do not find the same attitude amongst the Coloureds and that makes consultation extremely difficult. I appeal to the Coloured leaders to relax and to make it possible for us as a Government to have consultations with them as an extremely important and valued section of the South African population, and not only on extremely formal occasions. Also at Government level they should associate with us so that we may be aware of each other’s objectives and ideals at all times.

On amendment (1),

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

Upon which the Committee divided:

Ayes—88: Aronson, T; Badenhorst, P. J.; Ballot, G. C.; Barnard, S. P.; Bodenstein, P.; Botha, J. C. G.; Botha, L. J.; Botha, P. W.; Botma, M. C.; Clase, P. J.; Coetzee, S. F.; Conradie, F. D.; Cronje, P.; De Beer, S. J.; De Klerk, F. W.; De Villiers, D. J.; De Villiers, J. D.; De Wet, M. W.; Du Plessis, B. J.; Du Plessis, G. C.; Du Plessis, P. T. C.; Du Toit, J. P.; Grobler, M. S. F.; Grobler, W. S. J.; Hayward, S. A. S.; Hefer, W. J.; Heunis, J. C.; Hickman, T.; Janson, J.; Janson, T. N. H.; Kotzé, G. J.; Kotzé, W. D.; Krijnauw, P. H. J.; Langley, T.; Le Roux, F. J. (Brakpan); Le Roux, F. J. (Hercules); Le Roux, Z. P.; Ligthelm, C. J.; Ligthelm, N. W.; Lloyd, J. J.; Louw, E.; Malan, G. F.; Malan, W. C.; Meyer, P. H.; Morrison, G. de V.; Muller, S. L.; Nel, D. J. L.; Niemann, J. J.; Palm, P. D.; Potgieter, J. E.; Potgieter, S. P.; Raubenheimer, A. J.; Reyneke, J. P. A.; Rossouw, W. J. C.; Schlebusch, A. L.; Schoeman, J. C. B.; Scott, D. B.; Smit, H. H.; 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.; Uys, C.; Van den Berg, J. C.; Van den Heever, S. A.; Van der Merwe, H. D. K.; Van der Merwe, S. W.; Van der Spuy, S. J. H.; Van der Walt, A. T.; Van der Walt, H. J. D.; Van der Watt, L.; Van Heerden, R. F.; Van Rensburg, H. M. J.; Van Tonder, J. A.; Venter, A. A.; Viljoen, P. J. van B.; Vilonel, J. J.; Vlok, A. J.; Vosloo, W. L.; Wentzel, J. J. G.

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

Noes—28: Bartlett, G. S.; Basson, J. D. du P.; Baxter, D. D.; Bell, H. G. H.; Boraine, A. L.; Dalling, D. J.; De Villiers, I. F. A.; De Villiers, J. I.; De Villiers, R. M.; Enthoven ’t Hooft, R. E.; Graaff, De V.; Jacobs, G. F.; Lorimer, R. J.; Miller, H.; Olivier, N. J. J.; Page, B. W. B.; Pitman, S. A.; Pyper, P. A.; Raw, W. V.; Slabbert, F. van Z.; Van Coller, C. A.; Van Eck, H. J.; Van Hoogstraten, H. A.; Van Rensburg, H. E. J.; Von Keyserlingk, C. C.; Wood, L. F.

Tellers: T. G. Hughes and W. G. Kingwill.

Question affirmed and amendment dropped.

Amendment (2) put and the Committee divided:

Ayes—28: Bartlett, G. S.; Basson, J. D. du P.; Baxter, D. D.; Bell, H. G. H.; Boraine, A. L.; Dalling, D. J.; De Villiers, I. F. A.; De Villiers, J. I.; De Villiers, R. M.; Enthoven ’t Hooft, R. E.; Graaff, De V.; Jacobs, G. F.; Lorimer, R. J.; Miller, H.; Olivier, N. J. J.; Page, B. W. B.; Pitman, S. A.; Pyper, P. A.; Raw, W. V.; Slabbert, F. van Z.; Van Coller, C. A.; Van Eck, H. J.; Van Hoogstraten, H. A.; Van Rensburg, H. E. J.; Von Keyserlingk, C. C.; Wood, L. F.

Tellers: T. G. Hughes and W. G. Kingwill.

Noes—88: Aronson, T.; Badenhorst, P. J.; Ballot, G. C.; Barnard, S. P.; Bodenstein, P.; Botha, J. C. G.; Botha, L. J.; Botha, P. W.; Botma, M. C.; Clase, P. J.; Coetzee, S. F.; Conradie, F. D.; Cronje, P.; De Beer, S. J.; De Klerk, F. W.; De Villiers, D. J.; De Villiers, J. D.; De Wet, M. W.; Du Plessis, B. J.; Du Plessis, G. C.; Du Plessis, P. T. C.; Du Toit, J. P.; Grobler, M. S. F.; Grobler, W. S. J.; Hayward, S. A. S.; Hefer, W. J.; Heunis, J. C.; Hickman, T.; Janson, J.; Janson, T. N. H.; Kotzé, G. J.; Kotzé, W. D.; Krijnauw, P. H. J.; Langley, T.; Le Roux, F. J. (Brakpan); Le Roux, F. J. (Hercules); Le Roux, Z. P.; Ligthelm, C. J.; Ligthelm, N. W.; Lloyd, J. J.; Louw, E.; Malan, G. F.; Malan, W. C.; Meyer, P. H.; Morrison, G. de V.; Muller, S. L.; Nel, D. J. L.; Niemann J. J.; Palm, P. D.; Potgieter, J. E.; Potgieter, S. P.; Raubenheimer, A. j.; Reyneke, J. P. A.; Rossouw, W. J. C.; Schlebusch, A. L.; Schoeman, J. C. B.; Scott, D. B.; Smit, H. H.; 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.; Uys, C.; Van den Berg, J. C.; Van den Heever, S. A.; Van der Merwe, H. D. K.; Van der Merwe, S. W.; Van der Spuy, S. J. H.; Van der Walt, A. T.; Van der Walt, H. J. D.; Van der Watt, L.; Van Heerden, R. F.; Van Rensburg, H. M. J.; Van Tonder, J. A.; Venter, A. A.; Viljoen, P. J. van B.; Vilonel, J. J.; Vlok, A. J.; Vosloo, W. L.; Wentzel, J. J. G.

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

Amendment negatived.

Clause put and the Committee divided:

Ayes—85: Aronson, T.; Badenhorst, P. J.; Ballot, G. C.; Barnard, S. P.; Bodenstein, P.; Botha, J. C. G.; Botha, L. J.; Botha, P. W.; Botma, M. C.; Clase, P. J.; Coetzee, S. F.; Conradie, F. D.; Cronje, P.; De Beer, S. J.; De Klerk, F. W.; De Villiers, D. J.; De Villiers, J. D.; De Wet, M. W.; Du Plessis, B. J.; Du Plessis, G. C.; Du Plessis, P. T. C.; Du Toit, J. P.; Grobler, M. S. F.; Grobler, W. S. J.; Hayward, S. A. S.; Hefer, W. J.; Heunis, J. C.; Hickman, T.; Janson, J.; Janson, T. N. H.; Kotzé, G. J.; Kotzé, W. D.; Krijnauw, P. H. J.; Le Roux, F. J. (Brakpan); Le Roux, F. J. (Hercules); Le Roux, Z. P.; Ligthelm, C. J.; Ligthelm, N. W.; Lloyd, J. J.; Louw, E.; Malan, G. F.; Malan, W. C.; Meyer, P. H.; Morrison, G. de V.; Muller, S. L.; Nel, D. J. L.; Niemann, J. J.; Palm, P. D.; Potgieter, J. E.; Potgieter, S. P.; Raubenheimer, A. J.; Reyneke, J. P. A.; Rossouw, W. J. C.; Schlebusch, A. L.; Schoeman, J. C. B.; Scott, D. B.; Smit, H. H.; Snyman, W. J.; Steyn, D. W.; Steyn, S. J. M.; Streicher, D. M.; Swanepoel, K. D.; Terblanche, G. P. D.; Treurnicht, A. P.; Uys, C.; Van den Berg, J. C.; Van den Heever, S. A.; Van der Merwe, H. D. K.; Van der Merwe, S. W.; Van der Walt, A. T.; Van der Walt, H. J. D.; Van der Watt, L.; Van Heerden, R. F.; Van Rensburg, H. M. J.; Van Tonder, J. A.; Venter, A. A.; Viljoen, P. J. van B.; Vilonel, J. J.; Vlok, A. J.; Vosloo, W. L.; Wentzel, J. J. G.

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

Noes—28: Bartlett. G. S.; Basson, J. D. du P.; Baxter, D. D.; Bell, H. G. H.; Boraine, A. L.; Dalling, D. J.; De Villiers, I. F. A.; De Villiers, J. I.; De Villiers, R. M.; Enthoven ’t Hooft, R. E.; Graaff, De V.; Jacobs, G. F.; Lorimer, R. J.; Miller, H.; Olivier, N. J. J.; Page, B. W. B.; Pitman, S. A.; Pyper, P. A.; Raw, W. V.; Slabbert, F. van Z.; Van Coller, C. A.; Van Eck, H. J.; Van Hoogstraten, H. A.; Van Rensburg, H. E. J.; Von Keyserlingk, C. C.; Wood, L. F.

Tellers: T. G. Hughes and W. G. Kingwill.

Clause agreed to.

Clause 2:

Mr. Chairman, I rise merely to say that clause 2 is the one which, to a certain extent, transfers the responsibility of influx control in respect of the Coloureds to employers. The amendments contained in this clause, are in actual fact no more than consequential and streamlining amendments. Therefore, one cannot say much about them. I rise merely to say that we shall oppose this clause as well.

Clause put and the Committee divided:

Ayes—87: Aronson, T.; Badenhorst, P. J.; Ballot, G. C.; Barnard, S. P.; Bodenstein, P.; Botha, J. C. G.; Botha, L. J.; Botha, P. W.; Botma, M. C.; Clase, P. J.; Coetzee, S. F.; Conradie, F. D.; Cronje, P.; De Beer, S. J.; De Klerk, F. W.; De Villiers, D. J.; De Villiers, J. D.; De Wet, M. W.; Du Plessis, B. J.; Du Plessis, G. C.; Du Plessis, P. T. C.; Du Toit, J. P.; Grobler, M. S. F.; Grobler, W. S. J.; Hayward, S. A. S.; Hefer, W. J.; Heunis, J. C.; Hickman, T.; Janson, J.; Janson, T. N. H.; Kotzé, G. J.; Kotzé, W. D.; Krijnauw, P. H. J.; Langley, T.; Le Roux, F. J. (Brakpan); Le Roux, F. J. (Hercules); Le Roux, Z. P.; Ligthelm, C. J.; Ligthelm, N. W.; Louw, E.; Malan, F. F.; Malan, W. C.; Meyer, P. H.; Morrison, G. de V.; Muller, S. L.; Nel, D. J. L.; Niemann, J. J.; Palm, P. D.; Potgieter, J. E.; Potgieter, S. P.; Raubenheimer, A. J.; Reyneke, J. P. A.; Rossouw, W. J. C.; Schlebusch, A. L.; Schoeman, J. C. B.; Scott, D. B.; Smit, G. H.; 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.; Uys, C.; Van den Berg, J. C.; Van den Heever, S. A.; Van der Merwe, H. D. K.; Van der Merwe, S. W.; Van der Spuy, S. J. H.; Van der Walt, A. T.; Van der Walt, H. J. D.; Van der Watt, L.; Van Heerden, R. F.; Van Rensburg, H. M. J.; Van Tonder, J. A.; Venter, A. A.; Viljoen, P. J. van B.; Vilonel, J. J.; Vlok, A. J.; Vosloo, W. L.; Wentzel, J. J. G.

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

Noes—26: Bartlett, G. S.; Baxter, D. D.; Bell, H. G. H.; Boraine, A. L.; 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.; Kingwill, W. G.; Olivier, N. J. J.; Page, B. W. B.; Pitman, S. A.; Pyper, P. A.; Raw, W. V.; Slabbert, F. van Z.; Van Coller, C. A.; Van Eck, H. J.; Van Hoogstraten, H. A.; Van Rensburg, H. E. J.; Von Keyserlingk, C. C.; Wood, L. F.

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

Clause agreed to.

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

I do not intend to pursue this matter. I did deal in the Second Reading with the question of agents who act for and on behalf of ships which are stranded or which may have been salvaged, and where expenditure is incurred on behalf of the crew, either in housing and feeding them, paying their wages or repatriating them. I was under the impression that that would be covered, but on further study it became clear that they would not be covered in such an instance. Therefore I have placed this amendment on the Order Paper so that an agent acting for a master, in cases where the master himself does not have the money in his pocket to pay the crew, and he gets an agent to pay the crew or to repatriate them or buy them food, would similarly be covered as the master himself would be covered.

Mr. Chairman, I am very glad indeed to see printed on the Order Paper an amendment in the name of the hon. the Minister. During the Second Reading I raised the question of the rights of mortgagees, which rights I believed would be adversely affected by this clause in that the priorities given to the new damage lien added a further risk which could not have been contemplated by the mortgagee. I regarded this as unfair. I felt that the mortgagee’s rights should be protected and accordingly, as we regarded this as an important incursion into private rights, we voted against the Bill at Second Reading. On 21 April I placed an amendment on the Order Paper which would have had the effect of protecting the rights of mortgagees who held unsatisfied mortagages. Whereas, accepting in principle that there was nothing wrong for the future in establishing a pecking order for liens and giving certain liens priority, I felt that it would be totally wrong to upset existing mortgagees and existing mortgages. Obviously the hon. the Minister has looked at my suggested amendment which has been on the Order Paper for some days and he has seen the error of his ways, because it appears that he has taken the idea behind my suggested amendment and has reworded it. His amendment has exactly the same effect as mine. Obviously the hon. the Minister prefers his own wording, but it means exactly the same thing. Now that the hon. the Minister has got the message and is no doubt going to move his amendment, I am prepared to support his wording because I believe that it too satisfies our objections which we put forward in the Second Reading. Accordingly I shall not move the second amendment printed in my name on the Order Paper. The hon. the Minister in his speech in the Second Reading expressed the opinion that it was necessary to protect the rights of mortgagees, thereby giving encouragement to foreign investors. Clause 1, which we supported, does exactly that and the amended clause 2 will also now protect the rights of investors.

I move the first amendment printed in my name which reads as follows—

The effect of this amendment would be to ensure that the delicate question of maritime liens would not be further complicated by the establishment of an order of priority among the four liens mentioned in the proposed new section 51A(2)(a), (b), (c) and (d). I think I understood the hon. the Minister to indicate during my speech at Second Reading that it had not been his intention to give priority, for example, to (a) over (d), but to leave the existing situation to stand, and that the purpose of the Bill was purely and simply to create a new lien when damage is caused by a South African ship and to accord priorities for the four liens, maintained in clause 2, over any other liens.

I think that my amendment would clarify the intention of the hon. the Minister, and I hope he will be prepared to support it.

Mr. Chairman, the hon. member for Orange Grove has just made a few remarks that were so sarcastic …

I was not being sarcastic!

… that I am not at all that sure any more that I should proceed with this amendment. I should like to explain to the Committee that in reality there is no need for the amendment which is printed in my name on the Order Paper, an amendment which I placed on the Order Paper merely as a result of the desire expressed for it by the hon. member for Orange Grove.

Since this matter was raised during the Second Reading debate I think that quite a number of interesting matters emerged, which I feel ought to be discussed and elucidated here. I was a little surprised when, during the Second Reading debate, the hon. member for Orange Grove expressed his misgivings concerning the revision of the four said liens, and concerning the fact that liens ought to be accorded priority over mortgages. The principle of liens is a recognized principle in our legal system. It is as fair as can be. Let us take a ship as an example. If any person effects repairs to a ship and therefore incurs expenses in raising the value of the ship as a result of the repair work which is done to it, it would be unfair if the mortgagee derives the benefit of the increased value of the ship, while the person who did the repair work and incurred the costs in connection therewith, suffers a loss. Therefore it is right and fair that there should be a lien with regard to a person who increases the value of a commodity. He ought therefore to have a claim beyond that of a mortgagee.

If we take cognizance of the four different kinds of liens mentioned in clause 2, we see that this criterion can be applied to each one of them. From this the conclusion follows that it is right and fair that any person, in each of the four said cases, ought to enjoy a lien and preference over that of a mortgagee. During the period in which I practised as an attorney, it was in fact my experience that, when there was any doubt as to what right a person did in fact have, one could safely ask oneself what was right and fair. Nine times out of ten—or even more often—one would probably find the right answer without necessarily knowing precisely what was stated in the Act. The same applies here. Because the four liens for which provision is now being made in clause 2 are accepted by the civilized world, we are therefore simply inserting the said four liens in the legislation. However, I shall also explain to hon. members that the courts actually have jurisdiction over far more liens. In our case, however, there is merely a need at present to codify these four liens.

The hon. member for Orange Grove wanted to know from me whether parties interested in this matter were consulted on this legislation. In the Second Reading debate the hon. member suggested that we were only considering a few interests and had not done the necessary consultation. I should like to give the Committee the assurance that we did in fact consult the following bodies on this matter, viz. the Maritime Law Society, the Society of Master Mariners, the South African Shipowners’ Association, the South African Ship Insurers’ Association, the Department of Industries and the S.A. Railway Administration.

The hon. member also wanted to know whether these liens had had their origin in common law or in Admiralty Law. I do not want to elaborate on this, in fact I have already replied to it briefly in the reply to the Second Reading debate. The fact that liens are accorded priority over the rights of mortgagees, has its origin in common law, and is general knowledge. I also said so in my Second Reading speech, to which I have just referred. These four liens have their origin in Admiralty Law and are contained in the British Colonial Courts of Admiralty Act of 1890 which provided that the law as it applied in England in 1890 shall be our law. Since these rights may have international consequences and the present Act does not set out what the current position in our country is, codification is at present essential for us. It will bring about certainty for South Africans and overseas organizations, and because the Merchant Shipping Act controls merchant shipping in general, this is the logical place to look for such a provision. Codification will therefore clear up the position and not cloud the issue, as the hon. member suggested.

The hon. member also referred to the sequence of priority with these four liens which is being introduced in the Act. In this regard the hon. member moved an amendment which I consider to be entirely superfluous. I should not like to include unnecessary and superfluous provisions in the legislation. We specify the four liens clearly in the legislation and no provision whatsoever is made as to what right should have priority over another. As a result it is obvious that the judge before whom the case will be heard will have to decide, according to the circumstances and once again on the grounds of fairness, to which of these rights priority should be accorded. Therefore I agree with the hon. member that there is no preferential provision in the Bill. It is not our intention to indicate to which right priority should be accorded over the others. It is clear and unambiguous and it is not necessary to make any addition. I should like to give the hon. member the assurance that the law advisers were consulted in regard to this matter and that the situation is as I have sketched it. Consequently the hon. member need have no problems in this regard. I therefore move the amendment printed in my name on the Order Paper, as follows—

I should like to elaborate on this amendment for a while. The fact of the matter is that the Colonial Courts of Admiralty Act of 1890 provided that the courts of South Africa could deal with matters of this nature. In this English Act the provision was inserted that the jurisdiction which the High Court in England had at that time in regard to admiralty matters would also be the jurisdiction of the South African courts. This jurisdiction was laid down in laws passed in England in 1840 and 1861. For the sake of interest I should like to quote from the 1840 Act in which the jurisdiction of the courts was originally laid down in respect of the subjects over which there shall be jurisdiction. It reads as follows—

From this it can be deduced that as long ago as 1840 it was provided that the court in England could adjudicate upon cases of this nature—i.e. in regard to liens such as those we are including in this proposed legislation—in that it would have jurisdiction over them. The High Court had the same jurisdiction in 1890. That jurisdiction was then transferred to our courts in terms of the Colonial Courts of Admiralty Act of 1890; in other words, our courts today have the jurisdiction to decide on these matters. However, it was not specifically codified that these liens which we now wish to introduce into the Act would necessarily be accorded priority over mortgages. All that is happening is that the courts are being given the jurisdiction to decide on these matters. The result is that if this provision pertaining to the four liens is included in the Act and a case between a mortgagee and certain lienholders—say in respect of the four liens to which we are referring here—is brought before a court, the judge will have to decide which lienholders should be accorded priority over the mortgagee. As a result of the circumstances, which I have already explained, I want to assert in all fairness that as we see the circumstances one will in all probability be able to expect that people who incurred the expenses in respect of these four items which we wish to include in this provision will be accorded priority over mortgagees because of the common law priority in respect of liens. However, we have been asked to clarify this matter in our legislation, and therefore we have now inserted the provision.

But now the hon. member has come forward with his amendment and expressed the idea that it would be a good thing if we were to insert a provision stipulating that existing mortgagees would not be affected by this provision, in regard to these four liens which we are now introducing in clause 2. In other words, these are mortgages which have already been registered against a ship and which have been paid off partially or not at all. The provision is there to ensure that the position in respect of those mortgages as it was, will continue to exist. I have my own doubts as to whether this was at all necessary, but there is the slight possibility that it may be. There is the possibility that the presiding judge may not decide in accordance with what the provision, which we are now inserting here, stipulates. Naturally it would then be fair to afford the existing mortgagee the necessary protection in this measure. Although I doubt whether anything like this will ever happen, the possibility does exist. That is why I am prepared to move an amendment—in fact, I have already done so—to the effect that the position in respect of the existing mortgagees remain as it was. However, I called in the law advisers and told them that they should state it very clearly for me in this amendment. This amendment should then provide with great certainty that we do not now create the impression that lienholders have no priority whatsoever over the mortgagees. The position as it was must remain, however, viz. that a lienholder who ought to be accorded priority according to the judge shall continue to enjoy that priority, regardless of this proviso which the hon. member wanted and which I am now proposing we should add to this clause.

For the sake of interest I shall quote further from the book by Halsbury, Laws of England, in which he has the following to say in paragraph 1314—

In other words, all these aspects are, according to Halsbury in his book, “recognized by English law”. I felt that I should say that I believe that this is what would happen in any case, for the sake of fairness and according to the circumstances, but because the possibility exists that a mortgagee might be prejudiced, I am prepared to accept the amendment in this way.

All that now remains is the amendment moved by the hon. member for Durban Point. I have problems with the hon. member’s amendment because we are of the opinion that the master of a ship should be the only person who should request such expenses. It was not our intention—in fact, I think it would be unwise—to extend the possible authority to cause expenses to be incurred in respect of the ship beyond “on the instructions of the master of the ship”. In my opinion the problem could be solved by providing that the costs requested by another person shall be ratified by such a master. After these have been charged to the account of the ship, as a result of the ratification of the master, it should of course be in order. I do not think that there will be any further problems in this regard. Therefore I do not want to accept the amendment of the hon. member for Durban Point Another factor which is important in this regard is that if one refers to the master of a ship, one knows precisely to whom one is referring. The concept “agent” can however leave a measure of doubt. I do not know who is regarded as the agent, but apart from that the concept “agent” still creates confusion and may draw a circle which is far wider …

I am not using the word “agent”.

Which word did you use then?

Any person who acts on the instructions of the master.

Perhaps the hon. member is not using the word “agent”, but what it amounts to is that such a person is acting as the agent of the master. One now has to establish whether such a person was in fact authorized to act. As a result of all the uncertainty attendant upon this, I think we should rather adhere to the concept “master”. In my opinion it would create uncertainty, and would also be unwise, to go further than the instructions of the master.

What would happen if the captain of a ship were picked up out of the ocean and did not have any money on him? How would he then be able to pay his crew that had been saved? Surely he has to be able to get hold of the money somewhere. That is the case I should like to cover.

If he has to find the money somewhere, he accepts responsibility for the money which he received to pay his crew with. Because he accepts that responsibility, he will be protected under the lien which we are making provision for here.

I am not prepared to accept the two amendments. I have already reacted to the amendment moved by the hon. member for Orange Grove in which he wanted to insert a specific provision to the effect that there may not be a priority in regard to the four liens. There is no priority, and the hon. member’s amendment is therefore unnecessary.

Mr. Chairman, it is apparent now that the hon. the Minister has been doing a considerable amount of homework in this regard. In fact, if he had presented his case at the Second Reading as he has now, we would have got together a little earlier to resolve our difficulties.

I expected you to know more about this!

I am duly grateful to the hon. the Minister for the fact that he has agreed to meet me in this regard. I believe that it is necessary to bring this in. The hon. the Minister himself said that it is necessary to bring certainty into the law where no certainty exists and by doing this he does so. I think that it is important that bondholders should have this certainty even though there is only the faintest possibility that this eventuality will ever arise. I am grateful that the hon. the Minister has accepted the point of view as set out in the amendment that I moved in which I asked that in the new section 51A(2)(a), (b), (c) and (d) it be clarified that none of them have any particular priority over the other. I am quite prepared to accept the advice given by the hon. the Minister’s law advisers to the effect that this is not necessary, and his assurance that none of them do have priority and I will accordingly withdraw my amendment.

Amendment moved by Mr. W. V. Raw negatived.

Amendment moved by Mr. R. J. Lorimer, with leave, withdrawn.

Amendment moved by the Minister of Transport agreed to.

Clause, as amended, agreed to.

Mr. Speaker, I move—

As hon. members are aware, when the Road Transportation Bill was introduced into the House during the 1975 parliamentary session, it was referred to a Select Committee. At a later stage that Select Committee was converted into a commission of enquiry, and the Bill we have before us today is the result of the functions of that commission.

Hon. members are already in possession of the commission’s report which was tabled on 24 March 1977. Mr. Speaker, I do not think it would be unfitting, at this stage, to express my thanks and appreciation to the Chairman and the members of the commission for the extremely competent manner in which they carried out their directive. Indeed, the wide field covered in the report attests to this fact.

There are, it is true, two minority reports, annexures E and F of the report. In principle I do not, of course, agree with the viewpoints adhered to in the minority reports, and at a later stage, when those provisions in the Bill are dealt with, I shall express my view in that connection.

With the exception of clauses 1(2)(h) and (i) and 4, 5 and 6, the Bill under discussion is a verbatim reflection of the draft Bill which was attached, as an annexure, to the commission’s report. Hon. members have already had the opportunity to study the report, the attached draft Bill, annexure D, and the Bill I have introduced in the House, and since the members of the commission reached general consensus, it is certainly not necessary for me to deal with the Bill clause by clause.

Here we are dealing with a Bill which envisages the substitution of an Act which has already been in operation since 6 June 1930 and which has, since then, been amended about 16 times to adapt to changing circumstances. The endeavour at present is to place an Act on the Statute Book which will meet all present-day requirements in every respect and which, we trust, will be able to combat future problems. With this statement I do not, in any way, want to create the impression that it will never again be necessary to introduce amendments. Human beings are fallible, and in the changing world in which we live we cannot predict with certainty what tomorrow will hold for us.

The Bill before the House aims, inter alia, at bringing about greater freedom of competition between the various forms of transport, and in that connection, and also in other spheres, there are a number of new principles I should nevertheless like to refer to—

1. (i) At present, for example, it is necessary for a decentralized industry to apply to the local transportation board, in whose area it is situated, for authorization to convey its products. Such application is then considered on merit and either granted or refused. To make it possible for a decentralized industry to market its products on a competitive basis it can now, if it complies with the requirements of clause 1(1)(ix), convey its own goods on a country-wide basis, without authorization, by means of one goods vehicle, the carrying capacity of which does not exceed 8 000 kg and of which the decentralized industry is the owner; this can be done in terms of clause 1(2)(v), and in terms of clause 1(2)(q) the Railways is allowed, by personal choice and without the necessity of a permit, to offer its road transportation to such decentralized industries.
2. (ii) Likewise a business, which must now apply for exemption from the obligation of having to take out a motor carrier certificate, can convey its own goods, in terms of clauses 1(2)(w) and 1(2)(y), without authorization within certain declared areas, and in terms of clause 1(2)(1) it can convey its own goods without authorization on a nation-wide basis by means of a goods vehicle of which the carrying capacity does not exceed 1 000 kg.
3. (iii) In addition carriers, as defined in clause 1(1)(v) can undertake, without authorization, the conveyance of goods within certain declared areas referred to in clauses 1(2)(w) and 1(2)(x).
4. (iv) The definition of “motor-car” in clause 1(1)(xx) is such that it authorizes the conveyance of nine persons, including the driver. This brings about uniformity in relation to the provincial ordinances.
5. (v) Certain specified goods which, because of various factors, it is difficult to convey by rail, are already conveyed freely by road; however, notwithstanding this, they are still subject to control measures. Clauses 1(1)(xii), 1(2)(z) and 2(d) provide that such goods can be conveyed on a nation-wide basis without authorization and that these goods shall be known as “exempted goods”. After careful consideration of what kinds of goods are subject to the said factors, and possible other factors, a list of the goods must be published in the Government Gazette.
6. (vi) On condition that a tractor is merely used to pull another vehicle, it is excluded from the definition of “motor vehicle” in terms of clause 1(1)(xxi). This concession is to the benefit of all conveyers because no permit has to be taken out for that purpose.
7. (vii) In terms of clause 1(2)(n) school children and teachers can make use of their own school bus or a bus which, in terms of an agreement, conveys the school’s children to and from school, in order to undertake journeys, without a permit, in the course of normal school activities.
8. (viii) Hon. members will note that a further concession is envisaged for businessmen in clause 1(2)(k), i.e. the use of their own “motor vehicle” to transport their goods on a nation-wide basis without a permit. I want to mention at this stage, however, that I shall move, in the Committee Stage, that the expression “motor vehicle” in this clause be changed to “motor-car”, the reasons being the following: From the report of the commission of inquiry, which hon. members already have to hand, it is clear that the commission did not have in mind a vehicle larger than a “motor-car”, i.e. a vehicle designed or adapted for the conveyance of not more than nine persons, including the driver. I am in agreement with this provision, but I cannot agree that a businessman should be free to transport his goods on a nation-wide basis, without a permit, by means of any kind of motor vehicle, i.e. also by means of a goods vehicle with an unrestricted carrying capacity. It is clear to me that the word “motor vehicle” was accidentally substituted for the word “motor-car”, thus fundamentally changing the purpose of the clause. If this were not the case, the clauses to which I have already referred and in terms of which businesses could operate within restricted areas, would not have been necessary. Likewise clauses 17, 18 and 20, in terms of which applications must be made for private permits for conveyance by road to and from places situated outside the declared areas, would not have been necessary, the conveyance of goods in the course of trade, industry or business being completely exempt from all control measures.
9. (ix) Clause 3(1 )(g) provides that when the holder of a public permit applies for the raising of tariffs, the National Transport Commission can cause an inquiry to be instituted, by independent experts, into the financial circumstances and operating practices of such holder. This would greatly aid the commission and local road transportation boards, which have thus far been dependent for information on the “Tariffs and Subsidies” division of the Department of Transport, in determining economic tariffs for bus operators and, at one and the same time, equitable fares for the conveyance of passengers.
10. (x) I have just pointed out that clauses 4, 5 and 6 differ from the corresponding clauses in the draft Bill which is an annexure in the report of the commission of inquiry. The difference lies in the fact that in the clauses under review in the Bill now before the House, provision is made for any local road transportation board, at the request of the Minister, to co-opt one or more persons as a member or members of that board for as long as it pleases the Minister. The member thus co-opted can, at the request of the chairman, take part in the proceedings of any meeting of that board and cast a vote during such proceedings. The clauses also provide the conditions concerning the appointment, remuneration, termination of service, etc., of such co-opted member or members. The purpose of these clauses is to make provision for the fact that members of interested parties can be appointed to local road transportation boards on a co-opted basis, particularly in those instances where they can make a real contribution towards satisfactorily settling matters in connection with an application. Thus, for example, any person or persons with specialized knowledge can be co-opted from the private sector to be of assistance to a local board when it comes to the consideration of particular applications.
11. (xi) Existing legal provisions virtually prohibit the granting of new motor carrier certificates if the existing transportation facilities are regarded as satisfactory and adequate and are carried out at a reasonable transport remuneration. Applicants will therefore know precisely what they are expected to put forward as an acceptable case, and this will also be fair to those at present undertaking transportation services.
12. (xii) In clause 26 provision is made for the withdrawal or amendment of public permits to make room for the establishment of a rail service that has to undertake the mass transportation of passengers. The holder of such permits will be properly compensated for his losses, and the function of the committee, referred to in clause 27, will chiefly be to facilitate the substitution of road transportation by rail transportation as smoothly as possible. By way of negotiation, the committee can see to it that such permit holder’s services in the respective area are feeder or distribution services or that he furnishes a new or supplementary service elsewhere. He is therefore not deprived of his livelihood.
13. (xiii) The compulsory imposition of the maximum sentence after the third or subsequent conviction of an offender is also being done away with. Local boards and the National Transport Commission are now, however, being authorized, in terms of clause 37, to summarily withdraw a permit if the holder of such permit, on two or more occasions, is found guilty of having undertaken unauthorized road transportation and if the offence is committed within three years of the most recent conviction.
14. (xiv) In terms of existing legal provisions those in commerce in bordering countries do not qualify for exemption from the obligation to take out a motor carrier certificate. The Customs Union agreement between the Republic of South Africa and the BLS countries—i.e. Botswana, Lesotho and Swaziland—does, however, contain a provision in terms of which the parties will treat one another’s citizens, in respect of the conveyance of goods by road, in a way which will not be less favourable than the way in which any of the member countries’ own citizens are treated. In order to give effect to this it is now provided, in clause 43(1)(a), that those involved in commerce in bordering countries, mentioned by proclamation, can also apply for private permits to convey their goods by road over territory of the Republic.
15. (xv) 43(1)(b) contains a compulsory provision to the effect that all applications for public or temporary permits must be granted for the conveyance of persons or goods between proclaimed railway stations in the Republic and neighbouring States mentioned in the proclamation. This provision will facilitate transportation across borders and stimulate international trade relations.
16. (xvi) In clause 44 provision is made for concluding international road transport agreements between the Republic and bordering countries. In this connection the recent independence of Transkei and the development of the homelands in the sphere of road transport have, of course, also been borne in mind.

In conclusion I want to refer hon. members to clause 1(2)(h) and (i). Hon. members will note that the wording of the said clauses in the draft Bill, as contained in the commission of inquiry’s report, differs from the wording of the Bill I have introduced, specifically in the sense that, amongst other things, there is no reference in the latter to ownership of the motor vehicle. On the basis of representations I have received, I concede that there may be circumstances in which the owner or his spouse is not, for some or other reason, in a position to drive the vehicle himself, the purposes of a lift club consequently being thwarted. This deviation from the draft Bill now results in the fact that the owner or his spouse does not necessarily have to be the driver of the vehicle. However, what I cannot go along with is that a motor vehicle which, in terms of the definition in clause 1(1)(xxi), can be any kind of vehicle, i.e. also a bus or a lorry, can be used for the purposes of conveyance envisaged in clause 1(2)(h) and (i). However, the concession granted here is being granted to enable persons, by means of a motor-car, to undertake conveyance on a reciprocal basis on behalf of someone else. After consultation with the legal advisers, it was decided to amend the concluding portions of these clauses with a view to obtaining greater clarity. The necessary amendments in this connection will be moved by me in the Committee Stage with a view to correcting the terminology in these clauses.

What this will amount to in practice is that the existing restrictions on the formation of lift clubs will be removed in the sense that it will no longer be necessary for members of a lift club to drive their vehicles themselves. As a member of a lift club I can therefore allow my wife or any other member or person to drive my vehicle when it is my turn to provide transportation as a quid pro quo.

The restriction that only the owner of a vehicle may drive the vehicle for the purposes of a lift club has therefore now been eliminated, and the following requirements are the only ones which members of a lift club must comply with—

1. (i) Each vehicle used for the purposes of a lift club must be insured as such in terms of the Compulsory Motor Vehicle Insurance Act, 1972;
2. (ii) the authorized insurer must be notified, in terms of the provisions of the Motor Vehicle Insurance Regulations, 1972, that the relative vehicle is being used for the purposes of a lift club; and
3. (iii) only motor-cars, combis, station wagons and similar vehicles, with a passenger-carrying capacity of not more than nine persons, including the driver, can be used for the purposes of a lift club.

Mr. Speaker, I do not think it is necessary, at this stage, for me to go into the Bill in any greater detail. As I have said, it differs little from the draft Bill which was prepared by the commission of inquiry and about which there was, generally speaking, consensus amongst the members.

Mr. Speaker, we are dealing with a subject here which has long been a bone of contention in the ranks of commerce, industry and the transport industry itself. It is a subject about which many debates have been held over the years, a subject in connection with which many commissions of inquiry have already been appointed. The late inquiry, the one which gave rise to this Bill, was initially the task of a Select Committee and afterwards of a commission. They did not have an easy task to fulfil. Over a period of nearly two years the commission heard and studied evidence. More than 80 organizations, bodies and persons either submitted memoranda or gave evidence. As can be expected from such an inquiry, there were differing opinions. Our task was to sift all the evidence, and to find what was of value.

Before I turn to the Bill itself, I want to express a word of appreciation to the chairman of the commission, the hon. member for Tygervallei, my colleagues and other members who served on the commission. I do not want to do so merely as a formality, because I have served on dozens of commissions and Select Committees and I want to say sincerely that I have great appreciation for the way in which the chairman of the commission fulfilled his task.

Hear, hear!

He made a thorough study of the subject, a study not only of South African conditions, but also of conditions abroad. The hon. member had a more than average insight into and knowledge of the problem, as a result of which he was able to furnish the commission with guidance. What is even more important, is that as chairman he never tried to impose his opinion onto the commission. He allowed free discussion and where there were differences, we talked the problems over week after week, even month after month, and eventually reached unanimity on 99% of the administrative matters. Where we did differ, it was in a friendly way, on principles and not on a personal basis. Therefore we were able to fulfil our task as a team looking for solutions to the problems which faced us. Once again I want to thank the chairman, who gave the lead. I also want to thank my own colleagues, even the hon. member for Maitland—who now and then behaved almost like a liberal—for the assistance they gave me in carrying out my task. [Interjections.]

† Mr. Speaker, there are two aspects to this Bill and I want to deal with it in those two divisions. The first is the administrative aspect which deals with the regulation of road transportation and the second one is the political aspect with which I want to deal as a separate item. I can understand that there were many people who had perhaps hoped for some revolutionary change. They were the people who would ask: “What are you going to do? Are you going to abolish all regulations which protect the Railways? Are we going to now have free transport?” There was the hope that this would come about. There was pressure for freer competition from the whole transport industry, but I think it is only fair to say that whilst we had tremendous pressure from some quarters to remove all protection from the Railways and have free road competition, we had from the same sources almost equally strong pressure to create a “closed shop” so that nobody else could easily get a new licence to compete with the existing transport organizations. I do not believe that one can demand rights for yourself, but then want to close the door to anybody else competing with you and sharing those same rights.

However our task was not to give way to pressure from any side or any organization, but to seek those decisions which were in the national interest. I think there were three basic considerations which we had to face. The first was the question of protection of the Railways. Let us not beat about the bush and look for pretty phrases; there is in fact protection for the Railways built into the old Act and into the Bill before us. There are attempts to say that it is not really protective, but in fact there is protection. This was the first issue which had to be considered, viz. to what extent, if at all, one could enable private initiative to compete freely with the S.A. Railways in respect of road transportation. The Railways themselves, in their evidence, said quite frankly that if certain conditions could be met, they were quite happy to have completely free competition in road transport. However, the conditions were naturally that they, as a Railway organization, would be allowed to charge economic tariffs for the services they rendered and that regard would be had to the cost of the infrastructure since the Railways had to carry the interest load on their total capital investment. The road carrier has no such investment liability and makes no contribution, other than his normal licences and taxes, to the infrastructure, the roads on which his vehicles operate. There were other aspects, but the basic one is the question of economic tariffs and the simple fact that in South Africa the Railways operate certain services at a loss. In the case of passenger traffic they had a loss of some R200 million. There were also losses on the transportation of essential items such as foodstuffs, mineral ore exports, etc. If the Select Committee, the commission and Parliament had decided that there was to be no protection, the Railways would either have had to put up their tariffs to an extent which South Africa could not have carried without suffering a tremendous blow to the cost of living, or there would have had to be subsidization by the central Government. However, that is not a matter I shall be permitted to discuss when speaking on this Bill. Suffice it to say that there is no subsidization, except in very limited areas, which could make it possible for a responsible commission to recommend that there should no longer be any protection. We therefore came to the conclusion that there had to be a measure of protection.

The second question was whether regulation of road transportation in general was necessary and to what extent it was necessary. The overwhelming weight of the evidence proved to us that in fact one had to have a measure of regulation and that one had to keep control over the whole transportation set-up.

The third question was that of the cost of, and the contribution made to the infrastructure, to the road system itself. Unfortunately we did not have statistics or data on which to found any real decisions in this regard. On the strength of these three issues it was clear to us that one had to maintain regulation and that one had to have a measure of protection for the national carrier. Therefore, it was with some disappointment, I expect, that some quarters read the Bill before us and decided that it was the same old mixture as before: pages of definitions and exclusions, and all the paraphernalia of applications and hearings. This is true to some extent, but I am of the opinion that there is fundamental difference in the Bill before us. The old Act was a total prohibition on road transportation and if one were to carry anything by road, one had to do it by way of exemption from a prohibition. In other words, the philosophy was one of prohibition and it was a privilege to receive an exemption from the prohibition. Even the permanent public certificates of carriers were “exemptions” and not licences. The new Bill has reversed the spirit of that approach. The new Bill introduces permits instead of exemptions, i.e. it accepts that road transportation is now a permanent part of the structure of transportation and that it has a place, recognized in law not as a temporary privilege or an exception, as a permanent and worthy partner in the transportation of goods and people in South Africa. In that spirit and within the structure of control which the commission recommended, we tried to make as many relaxations and concessions as possible. Then there is the concession of a 40 km radius for public permits and an 80 km radius for private permits. A very important one which will benefit hundreds and hundreds of people but which seems to have missed attention, is that one-ton “bakkies” and lighter vehicles will not be required to have permits. This means that the small country shopkeeper, the farmer with a shop on his farm, can take his vegetables to the market in the morning and can bring required goods back to his shop provided he does so in his own vehicle and it is a vehicle of one ton or less. The hon. the Minister also referred to the exemptions granted in respect of decentralized industries, schools, lift clubs and others.

However, the real impact of the measure is not in the Bill itself. The Bill is necessarily a permissive Bill; it is an empowering Bill—“permissive” is perhaps a rude word these days. It creates boards, and another Act creates a commission, and it is the spirit in which the commission and the boards carry out the provisions of the Act that will determine whether the spirit of our approach is put into practice or whether it is sabotaged or murdered by a reversion to the bureaucratic belief that in fact the boards are simply a rubber stamp to give effect to objections from the Railways. Unfortunately the impression has been created and it was clear from the evidence that witnesses believed that the boards were a rubber stamp to meet Railway objectives. I realize that this is of no interest to those who are having a caucus meeting in the IUP benches, as they continually do when other members are trying to talk.

As you did two nights ago.

I can understand that they do not have the ability to follow serious arguments on matters of importance. [Interjections.] The issue will be decided by the attitude of boards and of the commission. It is there that the Minister has a responsibility. I want to appeal to the hon. the Minister to give a clear lead to those who have to implement this measure, a clear lead emphasizing the spirit of movement towards a freer transportation system as opposed to a closed attitude. I hope the hon. the Minister will speak to the Railways Administration about it because the Railways, too, will have to play their part in not automatically lodging objections against every application that is made. If the hon. the Minister, together with the Railways Administration, gives that lead, I believe the Bill before us will bring about a tremendous improvement.

There are numerous detailed matters which I might have dealt with had it not been the dying hour of a Friday afternoon. There is the question of “authorized officer”, viz. the question whether a railway policeman should be authorized to interfere with private enterprise permit holders, when the Railways themselves in fact represent one of the competitors.

This matter was debated at length and, on the evidence, we decided that, although it was wrong in principle that an employee of one competitor should be entitled to take legal action against, and to prosecute a competitor in the same field, in practice we did not have specific evidence of victimization. Even those of us who felt that this was wrong in principle, had to come to the conclusion that the weight of evidence indicated that one could not manage without the assistance of the Railway Police unless one recruited a very large additional staff, and that in fact there was no evidence that there had been frivolous prosecutions.

The hon. the Minister dealt with many of the other definitions involved in road transportation. He referred to the definition of “hired motor vehicle”, to the permit procedure in respect of a mechanical horse and trailers, and so on. The procedure in the case of applications for increases in bus tariffs is an important aspect on which the commission spent a great deal of time. I believe that the recommendation now incorporated in the Bill is a good one. I refer to the fact that there can be a proper financial study of the books not only of the operating company applying for an increase in bus tariffs, but also of any holding company or associated company, and that the decision will be made not on the basis of an emotional public hearing, but on the basis of economic facts. There must, however, still always be the knowledge that justice is seen to be done. Time will have to prove that that will in fact be the case.

I shall not deal now with the question of the intended Railway services and the removal of permits. That is a matter with which one of my colleagues will deal. This question was very controversial and I believe that the answer that has been found is satisfactory. We can deal with this matter at greater length in the Committee Stage.

That leaves two unsolved problems on the administrative side. One is the problem of the “empty leg” of a journey and the other, associated with it, is the problem of coordination. Despite the long time we spent on this investigation, more than 30 meetings over two years, it was not possible to come to conclusions or to undertake the proper study needed. There was not time to get all the evidence, not only locally, but also from all over the world where the same problem exists, viz. the problem of how to deal with the “empty leg” of the journey, where the vehicle is full travelling one way and empty coming back. Whilst we have made certain recommendations involving telex communications, etc., that problem and also the problem of co-ordination has not yet been solved. I believe that, as the commission has recommended, we shall have to look at that again.

I turn now to the other aspect of the Bill, viz. the political aspect, the issue of race and colour in the passenger services. Basically, these are the questions of who may be granted permits, who may be employed on passenger services and who may be carried in specific vehicles. It is common cause that all the different political parties—the Government itself, this party and the PRP—are committed to moving away from discrimination based on race and colour. I believe we have here an opportunity to apply that principle and to modernize this legislation by moving away from aspects which can lead to discrimination. I think it is regrettable that, instead of doing so, we have included a blatantly racial definition, viz. the definition of “class”. The definition has been improved. The old definition was to the effect that “ ‘class’ shall include race”. The new definition provides that “ ‘class’ includes population group”. Although that is perhaps not as blatant, it still highlights and emphasizes the criterion of population groups in respect of so many aspects of this legislation. That in itself is not fatal. What is wrong, is that there is no provision to prevent the definition being applied in practice in a discriminatory way. An opportunity for discrimination is created by inserting such a definition without including a safeguard to prevent its being applied in a discriminatory way. I want to say at once that I am not suggesting and that we do not believe that one can simply wave a wand and thereby remove all regulations and allow all buses to be used by all passengers everywhere and that then everybody will be happy and there will be no further problems. That is not a realistic approach. It is certainly not the approach of this side of the House.

In fact, that is why we differed from the PRP and why there were two minority reports. Their view, which they can put for themselves but which appears in their minority report, is that all reference to population groups should be removed. In other words, they entirely reject the recognition of different groups. I do not think I am doing them a disservice when I put it like that. I do not have the time to quote their minority report.

We recognize them, but we do not think it should be a factor …

They entirely reject, in respect of the control of transportation, recognition of the different communities with their different problems, needs and circumstances. They rely on economic considerations and are opposed to other considerations being taken into account. We do not accept economic considerations as a basis for dealing with specific human problems where such considerations can lead to a different type of discrimination, viz. discrimination against the poor in favour of the rich. By contrast, we accept the fact of different communities. We accept that there are different circumstances and different needs to which one cannot simply close one’s eyes and say they do not exist. Our concern is to ensure that, where these differences exist, they are not used as a basis for inequitable and unfair discrimination.

Let me give an example of an instance in which, I believe, discrimination would not be unfair: Where certain applications are received in respect of places such as Soweto, KwaMashu, Chatsworth or Babalegi where there are recognized communities, I do not believe it is inequitable to take into account, when granting a transportation permit, the community being served and the community to which the applicants belong, provided the services being offered are of a standard comparable to that of services offered by other applicants. That I do not see as inequitable discrimination. It would be if it were applied unfairly and without regard to the quality of the services offered. We therefore accept that there are circumstances in which the identity of a community and its members must be taken into account.

On the other hand we are totally opposed to the restriction on employment, to the Government telling transport operators whom they may employ, and we are equally opposed to the commission or boards determining seating arrangements on buses and the population identity of their passengers. Where there is a community of entirely one population group, obviously their buses will carry only that group. Where there are mixed communities, the people who know the community best are the local authority and the operator. The local authority is responsible to an electorate which elects it. They are the people closest to the problem, and the operator is the person who deals daily with the problem. Therefore we believe that the local authority together with the operator is the level at which the regulation of who shall be carried on a bus should be determined. We also believe that the operator should be the sole person to decide on whom he should employ.

I repeat that our objective is to remove unfair discrimination and to make sure that race is not used as a base for this. Therefore we take an entirely different approach from either of the other parties. We believe the best way to prevent discrimination is to ensure that all communities which are affected participate in decision-making. Then one will ensure that there will be no discrimination.

I do not have the time to complete the argument, but it is Government policy that where there are decisions of joint concern, boards and bodies should be representative of all communities. The hon. the Prime Minister has said that this is Government policy. We believe that the best way to ensure that there is no unfair discrimination is to see that that proclaimed policy of the Government is carried out and that when a decision is taken affecting any community, that community will be represented in the decision-making which affects it. I therefore move the following amendment—