reported that the Standing Committee on Vote No. 8.—“Plural Relations and Development”, had agreed to the Vote.

Mr. Speaker, I move—

Salary increases for public servants have just been announced. As hon. members know, these have also led to an increase in the salaries of members of Parliament. In addition, provision has been made for improved pension benefits in the Parliamentary Service and Administrators’ Pensions Amendment Bill. It is desirable, therefore, that attention should also be given to the position of judges.

This may be an appropriate moment to remind hon. members of the important part played by the judiciary in our community and the necessity for integrity and incorruptibility in our judges. The administration of justice in this country is above suspicion today and is an aspect of our society which not even the often prejudiced outside world can criticize with any justification. Therefore it is essential that we ensure that the conditions of service of those who serve on our Bench are such that the best available people may be attracted to it.

The hon. the Minister of Social Welfare and Pensions is presently piloting through a Bill in terms of which the non-taxable allowance payable in terms of section 1 of the Judges’ Remuneration Act, 1978, will also be taken into consideration in calculating the pensions of judges. The amendment proposed in clause 1 of this Bill is consequential upon that proposed provision.

Judges are often absent from their headquarters in the performance of their duties and then have to stay at hotels. Hotel tariffs differ drastically depending on the grading of the hotel and the town or city in which it is situated. Therefore it is found that the prescribed scales of compensation for the cost of accommodation are sometimes insufficient It is proposed that the regulation dealing with this aspect be amended to enable judges to claim their actual expenses in such cases. It has been found, however, that the enabling provision contained in section 2 of the Act is not wide enough to provide for such amendment This is being rectified in clause 2.

We regularly make use of the services of acting judges, for example, where judges are on long leave or serving on commissions of inquiry. Service as acting judge also provides useful experience, of course, for anyone who is later appointed as a judge. However, I am finding it more and more difficult to obtain the services of suitable advocates for this purpose. It is repeatedly advanced that the salary does not provide for the expenses which acting judges are forced to incur in order to maintain their practices as advocates. It must be remembered that acting judges receive the same salary as judges, but do not share in other benefits, such as a medical aid scheme. Additional compensation to acting judges to cover expenses incurred in order to maintain their practices therefore appears to be desirable. A provision enabling such an allowance to be prescribed by regulation is therefore proposed in terms of clause 2.

In clause 3, a salary increase of 12% is proposed for judges and acting judges.

Mr. Speaker, it is a pleasure for me, on behalf of the official Opposition, to express our full support for this measure, and also to thank the hon. the Minister on behalf of the parties concerned for the fact that he has proved that the State is still doing its very best, at least as far as the material aspects are concerned, to make things as favourable as possible for the occupants of the Bench. Without finding it necessary to go into the details of all the provisions, I want to say that the increase of 12% in the remuneration of judges is welcomed. We also welcome the concession which is envisaged with regard to travelling and accommodation expenses. Very important, too, are the concessions proposed in connection with the conditions of service of acting judges.

On behalf of the PFP, therefore, I support the Second Reading of this Bill.

Mr. Speaker, I want to begin my speech by quoting what has been said by Felix Frankfurter, a distinguished judge in the USA—

To begin with, I want to show how important the administration of justice and the occupants of the Bench really are in South Africa. No less a person than Winston Churchill said—

The statement I want to make is that no matter how good the legal system is, when our judges are lacking in ability and impartiality, the legal system fails. To have able judges is one of the most important prerequisites for an orderly community. No person can be sure of his liberty and of the freedom of his enterprise which enables him to make a living if the judges are not impartial and do not administer justice according to their own convictions.

Against this background, it can be said that our judges are appointed after they have gained many years’ experience as advocates. This is important. An advocate who acts for the accused in a court case has the whole power of the State against him. Sometimes an advocate has to appear for an indigent client, while his opponent may be someone who has all the money to apply all the legal remedies he can. Therefore an advocate must practise in order to gain experience of both sides of the case before he can hold the office of a judge, and can be sympathetic to someone who perhaps does not enjoy the best legal representation. It has been said—

What it amounts to is that a judge must have the experience to be able to be a great and mature person.

When someone has practised as an advocate for a few years, he is appointed as a judge, and then I think it is important to take cognizance of the oath taken by a judge. When a judge is appointed, he takes an oath in which he declares—

So the judge must also act impartially when there are legal proceedings between the State or its Ministers and the man in the street. The judge must be fearless, knowing that he has security of tenure, and he must know that poor and rich are equal before the law and therefore before him as well. He must not try to favour one person at the expense of another. However, this is something which can happen if the judge is not quite independent financially. Therefore we have to examine the Bill more closely in the light of the fact that the administration of justice must be independent and unprejudiced and that it must not be necessary for a judge to try to favour anyone. The law is not always so simple, and in order to illustrate this, I shall quote what was said by a certain judge as long ago as 1845, from which it is clear that it is rather difficult to be a judge. Mr. Justice Maule said in a case which came before him in 1845—

On page 6 of the latest annual report of the Secretary for Justice, Mr. Toon van den Heever, Judge of Appeal, is quoted as follows—

The Latin expression means with a certain measure of independence—he does not have to work—and status—

To put it differently: The remuneration is rather meagre.

The situation, therefore, is that the judge must be enabled to act in accordance with the oath he has taken. He takes an oath, but it must not be made impossible for him to comply in an unbiased manner with the requirements of the oath. We must not have incompetent judges; it is of the greatest importance that we should have very competent judges. I should like to quote something which I consider to be the best motivation for the high remuneration of judges—

It is important, therefore, that judges be drawn from the ranks of advocates who have a high intellect and who uphold high ethical norms. Judges must come from those ranks to ensure that our administration of justice will remain the best.

It is precisely because the Government wishes judges to be able to observe without any bias the requirements of their oath that this Bill is before us today. That is why we are discussing increased remuneration for judges. In this way, we find that judges receive a very great benefit in terms of the proposed new section 1, in the form of an extra allowance of R2 700 which is added to their salaries as mentioned in the schedule. No deductions are made from this allowance for pension purposes. However, when the pension is eventually paid, the allowance is in fact taken into consideration. Therefore this is a great financial advantage which I—and I believe all of us—consider them to be fully entitled to.

I just want to dwell for a moment on the proposed new section 2(1)(c). It relates to—

Acting judges have in fact become an indispensable part of our administration of justice, and for very good reasons. In the first place, an acting judge is a senior advocate who is schooled and can then be admitted to the fraternity of judges. They are the ones who can evaluate whether he qualifies for admission to that fraternity of judges.

However, it is also very essential to consider the second aspect There are certain judges who are taken ill or who go on leave, and their positions must be filled and their work must be done. When an acting judge occupies the position of a judge, he has exactly the same responsibilities and the same jurisdiction, and he must also take exactly the same oath, as any full-time judge. However, he is financially in a less favourable position, for out of his salary as a judge, he must also maintain his office administration, which actually means a great loss to him. All this he has to pay for out of his salary as a judge. This means that he is worse off than his fulltime colleague, while he has the same jurisdiction and has to bear the same responsibilities. For that reason, the proposed new section 2 is a very important step forward, so that we may have the kind of people on the Bench that we want there. As Lord Chief Justice Hewart said in 1924, and this is a very well-known statement—

That is what we are striving for in South Africa, and I think this legislation is another step in that direction. This is what we want, and for that reason I very gladly support this Bill.

Mr. Speaker, the hon. member for Pretoria West has, of course, basically said very little with which I can disagree. I must confess, however, that I think he did make quite a meal of the situation.

We in these benches will obviously support the measure before the House. We are particularly happy to support it because although it was only last year that a similar measure was introduced and passed in this House, it was three years before that that justice in South Africa had had any sort of increase at all. It was overdue last year, and I am therefore very glad to see that the hon. the Minister is obviously looking at the position of judges on an annual basis. I recommend to him that he should continue to do so.

Without any doubt the judges in our South African society play an extremely important role. This was demonstrated to us very visibly indeed over the past months and years. Recently three of our judges played a very leading role in South African affairs, one might almost say over and above their role as judges per se. I believe they are one of the corner-stones of our entire system in South Africa. They fulfil their function extremely ably and, I believe, extremely conscientiously and anything we can do to improve that situation we in these benches would welcome.

To react to individual clauses of the Bill, let me say that clause 1 now enables the allowance of R2 700 per annum of a judge to be treated as pensionable. In conjunction with a Bill that will be coming before the House in the fairly near future in regard to judges’ pensions, this is something which, of course, we welcome very much indeed. Clause 2 deals with certain matters of internal control. It gives the State President the right to make certain regulations, with which we agree. Finally, clause 3 sets out the increases in salary for our judges.

As I have said, Sir, we welcome this Bill and we once again urge the hon. the Minister to reconsider judges’ remuneration on an annual basis.

Mr. Speaker, we welcome the increased benefits proposed in this Bill for our judges. Our judiciary has earned the sort of respect locally and abroad which enhances the stature of the entire South Africa. Our judges are known to be amongst the finest in the world. It is so that many of them make enormous sacrifices in the sense that they have to give up lucrative private practices to become judges. This creates hardship and in our view anything that will alleviate this hardship should enjoy the support of the whole House. In the circumstances we shall not oppose the Bill.

Mr. Speaker, I merely rise to thank the hon. members of the Opposition for their support and the hon. member for Pretoria West for his fine speech.

Question agreed to.

Bill read a Second Time.

Bill not committed.

Bill read a Third Time.

Mr. Speaker, I move—

Mr. Speaker, we on this side of the House remain opposed to this Bill and shall record our objection to its Third Reading. It was most disappointing that, although the hon. the Minister has had the opportunity to be just towards accused persons—and I submit that legislation should lean towards favouring them—he, out of sheer cussedness, with respect, rejected a suggestion which would have improved the Bill and leaves accused persons with a great deal of uncertainty in that the assistance given to them will not be the assistance which could have been given to them. I refer to the clause which relates to an accused’s appearance in court within 48 hours of being arrested. The proposed amendment contained in the Bill which we now have to examine at the Third Reading is merely to the effect that the certificate of a medical practitioner will be produced. With great respect, Sir, that takes the matter no further, for the very simple reason that all the medical certificate needs to state is that the accused is not fit to appear in court That does not meet the case we have put before the House, because at that stage someone has already decided that the accused cannot come to court. The person who, at that stage, made the decision, is not a magistrate or a judicial officer. In terms of the Bill the prosecutor has to show the circumstances in which the illness came about. This is the hearing which we referred to and in respect of which hon. members, with all due respect, misdirected their arguments. Our amendment was very reasonable, because if it had been accepted it would have meant that the application would have had to be supported by a certificate of a medical practitioner in which particulars of the illness, or other conditions, are set out in order to satisfy the court that the arrested person could not be brought before the court. In actual fact…

Would you have supported the clause if the amendment had been accepted?

Let me finish. I shall deal with that as well. In actual fact, this amendment was drawn up, at the behest or prime suggestion of the hon. the Minister of Justice, by his law advisers. He can therefore have no quarrel with the drafting of the amendment or its meaning. The Minister, in fact, accepted our argument in his speech. What happened, however? Out of sheer cussedness, and acting, not like a Minister of Justice but rather like a Minister of pettiness and meanness, and because the hon. member for Houghton…

Order! The hon. member must withdraw the word “meanness”.

Mr. Speaker, I withdraw it. The hon. the Minister acted like a Minister of pettiness. This is exactly what happened, because when the hon. the Minister heard what the hon. member for Houghton had to say, he said the following—(Hansard, 3 May 1979)—

The hon. the Minister went on to say—

The hon. the Minister therefore actually agreed with our argument. He accepted our argument which was couched in the form of the amendment we moved on clause 1. He subsequently rejected it, however, stating that it meant a second hearing when it in fact did not mean a second hearing. In a later speech the hon. the Minister said (Hansard, 3 May 1979)—

With great respect, that is an incorrect statement. There is no second hearing. Someone has already decided that the accused cannot come before the court and there is only one hearing, in terms of the Bill, in which the prosecutor must tell the court why, either before the 48 hours have expired, or on the succeeding day, the accused cannot come to court That is the only hearing we are concerned with. It is at that hearing that we ask that a medical certificate be produced in which particulars of the illness or other conditions of the accused are set out If the court is at that stage satisfied, it can then make a decision to suit the case. That is what we are after. Instead of doing this, what did the hon. the Minister of Justice do? He accepted the amendment moved at that stage by the hon. member for Mooi River, an amendment which was originally drafted and put on the Order Paper by the hon. member for East London North. That amendment was nothing more than an example of sheer political opportunism. Its aim was not to administer justice, but to score a point off the official Opposition. It represented a complete volte-face on the part of the NRP. [Interjections.] Does the hon. member not agree with that?

I like the way you say it.

I shall demonstrate my point After Second Reading the hon. member for East London North rushed off to the hon. the Minister of Justice and asked him whether he could enjoy the same facilities as the hon. member for Hillbrow.

That is an absolute untruth.

Is it untrue?

Yes.

Is the hon. member calling the hon. the Minister of Justice a liar? [Interjections.]

I went to the hon. the Minister to apologize for my absence in the House the next day when the Bill was to be read.

Did the hon. member not ask him whether he could enjoy the same facilities I enjoy? [Interjections.] He did not ask him? [Interjections.] That is a very serious matter, because he is calling the hon. the Minister a liar.

We should call Alfie a promotor.

The hon. the Minister of Justice said the following (Hansard, 3 May 1979)—

The hon. member must listen to this carefully—

Now who is telling the truth? [Interjections.] After that volte-face the hon. member for Mooi River actually moved the following amendment—

After he and his party had supported the Bill, he rushed to the hon. the Minister of Justice to obtain permission for the same facilities as I have, and then moved an amendment calling for a certificate to be issued by a medical practitioner. Is that not a complete volte-face? [Interjections.] That was after he and his party had accepted the Bill. The hon. member for East London North, in fact, had waxed lyrical over this wonderful Bill.

He is a lyrical, waxing rusher

Well, when fools rush in! I want to quote what the hon. member for East London North said and thereby showed up this volte-face and political opportunism. I quote (Hansard, 25 April 1979, col. 4974)—

Then, not content to merely wax lyrical about the Bill, he goes on in column 4975 to say—

Therefore he supports it fully, he waxes lyrical about it, he says it is “commonsensical”, but he moves an amendment very much along the lines of what we had said. However, he does not understand the Bill properly, because in column 4977 he says after some interjections—

Not being satisfied with that, however, he then rejects the argument on the basis of loyalty to the courts. In the final paragraph of his speech, the coup de grâce, he says—

Nowhere in his speech does he support the argument of the official Opposition. Nowhere in his speech does he concede the necessity of a medical practitioner. On the contrary, he supports it unreservedly. Then, after having heard our argument, however, he goes to the hon. the Minister of Justice, gets his law advisers to draft an amendment and then places an amendment on the Order Paper. [Interjections.] With great respect, Mr. Speaker, where is the sense in the argument of hon. members on my left? Then, to top it all, the hon. the Minister is cross with the hon. member for Houghton because of what she had indicated. I am told—and the hon. the Minister has far more experience in this House than I do—that it is the practice in this House that one can move an amendment and show one’s opposition to a piece of legislation. This is part of the practice and procedure of this House. That is all the hon. member for Houghton was saying. However, the hon. the Minister of Justice, being cross with the hon. member for Houghton, finds he has to weigh up the two amendments. And which one does he choose? He chooses the amendment of the hon. member for East London North, an amendment based on this hypocrisy. The hon. the Minister accepts that amendment and rejects ours. Then they wonder why we adopt the attitude we do.

There is a further reason why we are against this Bill, and that relates to clause 14 which deals with the admissibility of an admission by an accused. What are we concerned with here? We would not object to the prosecutor handing in an actual admission. Neither would we object to dispensing with the provision relating to an interpreter who actually signed the interpretation. I do not think we want to hold up the course of justice. But what we are objecting to is the shifting of the onus in a criminal case from the State to the accused. This is a most important provision in our law, a provision which should not be trifled with under any circumstances. The whole system of our law is based, firstly, on the principle that he who avers must prove. The hon. the Minister will support that contention. It is also based on the maxim that a man is innocent until he is proved guilty, and the whole onus of proving him guilty rests with the State. It is not for the accused to prove his innocence. It is for the State to prove he is guilty. Does the hon. the Minister want to change this principle in law, a principle which has been written into our law and which we inherited from Roman-Dutch law?

In 1977, when this very point was debated in this House, the United Party and the PFP strongly opposed the clause with regard to confessions, a clause in which exactly the same principle was involved. Has anything happened to make one change one’s attitude towards this? What, in fact, has happened to make one change one’s principles over a matter as important as this? It is clear from the wording that proof of an admission being voluntarily made only applies to extra-judicial admissions. The proviso in line 9, which refers to an admission being made before a magistrate, is referred to in subsection (2). In that case a presumption applies and the onus shifts. We must jealously guard this principle in our system of justice and not tear it apart bit by bit. We must not erode what is our inheritance and a fundamental principal of justice of Roman-Dutch law. We shall accordingly oppose the Third Reading.

Mr. Speaker, we have reached the end of a complete debate on the amendment of the Criminal Procedure Act, Act 51 of 1977. Although the amendments are not of a drastic nature, they are nevertheless important, particularly with regard to the effective functioning of the criminal procedures in our courts. We should all like to ensure that the standard of the administration of justice in South Africa will always be of the very best and that it will function as smoothly as possible in the interests of all involved. For that reason we are pleased that the responsible Minister and his officials bring to this House bottlenecks which may arise from time to time so that we may debate them and improve on them. Probably the most important amendment in this amending Bill is contained in clause 1. It deals with the problem of an accused who cannot be brought before the court within 48 hours owing to indisposition. This is a fact, and we are convinced that this is a real problem. There can be no doubt about this, and it is also a fact that the problem cannot simply be allowed to continue. We must consider the matter and do something about it As was to be expected, the official Opposition again sounded their familiar discordant note. With much gesticulation the hon. member for Hillbrow crossed swords with us and with the Opposition on his left. Unfortunately it is true that one has difficulty following the hon. member when he speaks. In fact it almost sounds as if he speaks neither of the official languages. Consequently we struggled a little to follow his argument [Interjections.] He fought with the hon. member for East London North, and I think the hon. member for East London North will react to the allegations he made. But I cannot help feeling that the hon. member for Hillbrow was really being a little petty because the hon. the Minister accepted the amendment of the hon. member for East London North and not his.

No, you are wrong. That amendment will be useless.

Using very strong language and very unfriendly words the hon. member for Hillbrow accused the hon. the Minister of “pettiness”, etc. I cannot accept that the hon. the Minister did not accept the amendment of the hon. member for Hillbrow simply because he does not like the hon. member and accepted that of the hon. member for East London North simply because the Minister likes him.

I did not say so.

I agree that the hon. member for East London North is a more likeable person than the hon. member for Hillbrow. [Interjections.] But the hon. the Minister is concerned here with the interests of the administration of justice in South Africa, and for that reason I believe that this cannot be an argument. The hon. the Minister accepted this amendment for one reason only, and that is because it was the best one. Now, however, the hon. member for Hillbrow says that he objects to the amendment of the hon. member for East London North because in the medical certificate which has to be submitted, the doctor could supposedly merely say: “The man is ill.” Surely this is nonsense. Surely if we as adults examine the procedure in a court, those arguments are unacceptable. Surely the doctor is going to testify there and the certificate which will be submitted, will have to state in detail what is wrong with the person. Moreover, surely the judicial officers on the bench will not simply accept it without further ado if it is said that “The man is ill”. Our magistrates are experienced in respect of this type of case. They would want to know from the prosecutor or the police official what was wrong with the person and why he could not be brought to court. This amendment states that if the court is not satisfied, it is still in its discretion to say that it does not accept the certificate and requires further evidence. The court will satisfy itself beyond doubt that the accused cannot appear before it For that reason the argument of the hon. member for Hillbrow that a medical certificate will be inadequate, really does not hold water.

The discordant note which I spoke of, was introduced into this debate by the hon. member for Hillbrow and continued by the hon. member for Houghton. It is interesting to note, when one reads their speeches, that the hon. member for Hillbrow was initially quite satisfied with the amendment which the hon. the Minister indicated he was prepared to accept, viz. that if a medical certificate is submitted, it would be sufficient Up to that stage we had only really been engaged in a legal argument in this regard. However, the hon. member for Houghton then began to discover that her image as a so-called champion of the freedom of the individual was going to be damaged. Then she cracked the whip and the hon. member for Hillbrow did a smart about-face. He then moved an amendment which he knows is unacceptable. He suggested, inter alia, that the permission of the accused be obtained before postponement could be granted. Mr. Speaker, can you imagine anything so ridiculous? The hon. member most definitely only did that to go along with the hon. member for Houghton in this matter and to satisfy her political friends. By rights there is most definitely no argument that can be advanced against this clause as it stands now.

You are making a fool of yourself.

The hon. member says that I am making a fool of myself. But that hon. member speaks like a fool. That is why he makes this type of remark.

The interests of any accused are fully protected in this amending clause. I am afraid to say that with these objections of theirs the hon. members for Hillbrow and Houghton have once again illustrated clearly where their sympathy really lies. Their sympathies are definitely not with our police and our judicial officers. These hon. members are not prepared to trust these officers. They are not prepared to accept that in thousands of cases in this country every day, these people are looking after the interests of all the persons involved, the interests of the accused, of the State and of the community.

The Minister accepted our argument.

They are not prepared to accept that these judicial officers are intent on ensuring that the administration of justice in South Africa is carried out correctly and that justice is done. But they are prepared to trust an accused, a person who is perhaps being charged with murder or rape. This is the implication of what the hon. member for Hillbrow proposed, viz. that if we could not bring the accused before the court within 48 hours, he should be discharged. The hon. member for Groote Schuur said that we could have the accused arrested a second time. The hon. members are not prepared to trust our police, the officers in our courts or our doctors. On the contrary; they say that an accused—who could have committed rape—must be discharged and should be trusted to appear before the court again.

I have to ask: What type of person is it who is prepared to do this sort of thing in South Africa?

I am convinced that the amendment in clause 1 of the Bill is reasonable. It does not establish a new legal principle, because the position is fundamentally the same as it was before. Consequently I think that the amendments now being effected are reasonable and well justified. For that reason we can support the Third Reading without hesitation.

Mr. Speaker…

Mr. Speaker, I apologize to the hon. the Minister, but I understand that the situation is that once he has spoken we do not get another chance. There are one or two things I should like to say in regard to this Bill, particularly as I was unfortunately not able to be present during the Committee Stage when the amendment that I had put on the Order Paper was accepted by the hon. the Minister. I should like to take this opportunity of thanking him for accepting that amendment.

When one comes to clause 1 of this Bill, the clause which hon. members of the official Opposition are fighting tooth and nail, one has to take certain things into consideration. In reaction to the speech by the hon. member for Hillbrow I must say that I find it extraordinary that he thinks that because one accepts the Bill, one should not move amendments during the Committee Stage. His own party has done this, of course, on countless occasions. They have often accepted and supported a Bill, but have still moved amendments during the Committee Stage.

[Inaudible.]

The reason why we moved this amendment was of course that, while we were listening to the debate, it sounded to us that this would be a reasonable amendment. It also became fairly apparent to us that, in view of the interjections made—and I am sure the hon. the Minister will deal with this himself—it was possible that this amendment might not appear on the Order Paper. Therefore, we as a party did it. We did it because we saw it as an improvement to the Bill as such.

In regard to Bills of this nature one should, I believe, adopt a certain attitude. Obviously, the official Opposition treats every bit of legislation that comes before this House with a great deal of suspicion. I would not say that they are wrong in doing so. I believe it behoves us as Opposition parties to treat every measure with some degree of suspicion and to try to establish for ourselves what possible damage it could do. That is our function.

However, as I said during Second Reading, one has to temper such suspicion with a certain amount of common sense. One must look at every Bill with the idea that if one were to oppose it the question would arise of what the situation would be if one’s opposition was successful and if one managed to get a particular clause of a particular Bill defeated. In this particular instance I believe that if we were not to pass this clause it would create a far more unwieldy legal situation or criminal procedure situation. It would cost the State a lot of money by way of having to uplift courts of law to hospitals, to prison cells, to wherever an accused might find himself, an accused who is in such a condition that he cannot appear before a court. As I have said, I think the official Opposition is right to look upon matters of this nature with a certain amount of suspicion. However, this suspicion has to be tempered by some trust somewhere, and I believe we have every right to place trust in our magistrates and in our judges. We have to believe that they will predominantly make the right decisions.

I should like to ask the hon. the Minister to react to one suggestion I am going to put to him. He has accepted the amendment requiring that the application made to court must be supported by a certificate of a medical practitioner. I should like the hon. the Minister to state in his reply whether he would approve of the acceptability of a certificate issued by any medical practitioner. If the accused should express a preference to have his own doctor attend to him in his situation, would the hon. the Minister find that an acceptable situation? Any time an accused expresses his desire of seeing his own particular medical practitioner, will he be entitled to do so without being compelled to make use of the services of the district surgeon in this regard? Obviously one would have to have certain provisos in this matter. If the particular medical practitioner lived a long way away and it would be very expensive to get him to where he is needed, this would be a different matter. However, should it happen that the accused in such a case has his personal physician at a reasonably handy distance and should then express his preference to have the necessary certificate issued by that particular medical practitioner, I should like the hon. the Minister to tell us whether he would find such a situation acceptable or not

Mr. Speaker, I shall be very brief. I want to support the hon. member for Hillbrow in his statement that we are going to oppose the Third Reading of this Bill, although an amendment was moved by the hon. member for East London North was accepted, an amendment which goes part of the way towards meeting the objections we had to the main clause that we disagree with in this Bill.

I now want to reply to the hon. member for Verwoerdburg who spoke earlier. He accused the hon. members on these benches of being distrustful of the behaviour of our police, our officials and our doctors and stated that that was the reason why we were opposing this Bill. To a certain extent he is correct. There is mistrust to a certain extent, and there is very good reason for mistrust because there have been numerous cases relating to the 48-hour provision in terms of which a person has to be brought before the court within 48 hours of his arrest. As I pointed out in the Committee Stage there have, in fact, been over 900 cases…

Are you prepared to trust the accused?

Trust whom?

The accused.

No, it was said that we did not trust the officials, the doctors and the district surgeons and that all our faith was placed in accused persons who are arrested for various crimes such as murder and rape. Anyway, as I have said, there have been over 900 cases in the last three years of people having been injured or wounded by the police in the course of arrest, and some of these cases must certainly relate to individuals who could not be brought before the court within 48 hours. The hon. member for Hillbrow was quite right in wanting far more than just a certificate stating that such a person could not be brought before the court. He also wanted the reason why such a person could not be brought before the court There have also been cases in very recent times in which we have seen that the behaviour of district surgeons has certainly not been all that it ought to be. One example is the Biko case.

What about this whole question of trusting the accused? The hon. member opposite seems to assume that everyone who is arrested must be guilty. We, however, do not assume that We go along with the old principle that the accused must be proved guilty and that he is innocent until he is proven guilty. The Criminal Procedure Act, which was amended two years ago, unfortunately reversed this to quite a considerable extent, very extensively changing the practice of criminal procedure in this country. We find that the law, as it was until this amending legislation was introduced, was quite adequate as far as the 48-hour provision was concerned. Nobody has yet really explained to this House why it is necessary to make this fairly radical change in a law which has served this country…

You just did not listen.

I did listen.

No, you did not.

Yes, I did. The hon. the Minister’s main explanation was that it was inconvenient in that one had to take a magistrate along to a hospital.

I said it was in the old law and was left out in 1977. It was in the old law exactly as it is now. You did not hear because you did not want to hear.

Well, it is amazing how we have managed all this time.

Since 1977.

Well, even since 1977. We have managed perfectly well.

Let me now refer to clause 14. The lawyers, who have by now had experience of the new Criminal Procedure Act of 1977, are not as impressed with the practical implications as far as accused persons are concerned. They do not find that the confessions provisions has worked quite as smoothly, as far as the accused are concerned, as the hon. the Minister appears to think it has, and indeed as the departmental report states it has. It is for this reason that the hon. the Minister wants to change the law as far as admissions are concerned, bringing them into line with confessions. We do not believe that the confessions provision has worked all that well, however. I have had conversations with lawyers who have dealt with cases in which accused have come straight from a period of detention, with no access to any legal advice, detention incommunicado for many months on end, to make a confession before a magistrate. Later however, when they have been defended, and have wanted to change their plea, they have not been allowed to do so. So we do not think that has worked in the interests of the accused. We believe, as I say, in the old system in which the onus lies with the State to prove guilt, and not with the accused. We believe that that is what is correct for South Africa, and we are not about to stand by and allow the law to be amended in order to bring the provisions relating to admissions in line with those relating to confessions. Therefore we are going to oppose the Third Reading of this Bill.

Mr. Speaker, I am very pleased that the hon. member for Hillbrow participated in this debate because in actual fact it disclosed the whole attitude of the official Opposition towards legislation in general and towards this Bill in particular. All I can say is that the hon. member is absolutely dissatisfied because an amendment of the NRP instead of one of the PRP was accepted. All I can tell the hon. gentleman is that jealousy will not bring him anything and pettiness will bring him even less. Talking about pettiness, I must point out that that hon. member must surely be the last person who should utter the word. I say this in view of the occurrences which we have witnessed here.

What happened here? I explained the position quite fully in the Committee Stage, but the hon. member once again started with a Committee Stage argument all over again despite the fact that we are now discussing the Third Reading. I asked the hon. member for Houghton whether they would vote against the Bill. I asked that question on purpose and I also explained to hon. members why I had asked it. We are all agreed that after a person has been arrested, he has to be brought before a court. I asked them whether they agreed and they could not deny that that should happen.

You stated the obvious.

Of course I stated the obvious because that is the only way in which one can get the PFP to agree to anything. One has to state a fact which nobody on earth can deny, otherwise they will deny it.

I also asked the hon. members whether they would agree with me that a man who was ill or had sustained injuries would not be able to appear before a curt That again was stating the obvious and I assume that they agreed with me. As a matter of fact some of them nodded their heads, if I remember correctly. I then continued that if the man could not appear because of his injuries or illness, the prosecutor had to inform the magistrate of the fact that the man could not be brought to the court What should then happen? Whether the hon. member moved an amendment or not the magistrate should then be satisfied that the arrested person can, in fact not be brought before a court. It is as simple as that The prosecutor is talking to the magistrate who wants to know where the accused is. The accused should have been brought to court, but he is not there. The prosecutor therefore has to satisfy the magistrate that the accused cannot appear.

It was under those circumstances that the hon. member asked me whether I would be prepared to accept a medical certificate. My reply was that I would of course be prepared to accept it

I went further.

No, the hon. member did not go further. The hon. member merely mentioned the medical certificate. I said that I would of course be prepared to accept it, but I also said that I would go one better if the hon. member wanted to draft an amendment to that effect I told him that he could go to my department where they would make all the facilities available to him. They would not tell him what amendment they required—I said that in particular—but they would assist him in drafting the amendment which he would like to put on the Order Paper.

You are wrong.

It is entirely wrong of the hon. member now to come to the House with the story that it was my department’s amendment. It was not my department’s amendment at all; it was my department’s draft of the amendment which the hon. member required. That is also what the hon. member for East London North and I spoke about. I told him that I was also prepared to have my department draft an amendment which he would like. I told him that after he had asked me whether they too could put an amendment on the Order Paper. I also pointed out that I could not make an offer to the official Opposition and not make the same offer to another Opposition party which was probably more important than the official Opposition, or at least just as important. [Interjections.] That is how these two amendments came before the House. Having removed all the obstacles hon. members could possibly put in the way of this Bill and all the difficulties they may have had with it, surely I, as the Minister piloting this Bill through the House, and this side of the House generally are entitled to expect that they would then support the Bill.

It is still not as good as the law was.

Sir, I just want to show you how absolutely petty that party is. If one looks at the speeches made during the Second Reading, one sees that in the very first speech made by a member of the Opposition only one objection was raised and that was against clause 1. That was the only objection that was raised. I indicated my willingness to remove whatever objection the Opposition had to clause 1. They took up my offer, but they are still voting against the Bill. Why? The reason is that they are absolutely petty and are not prepared to go along with the Government one single step, even if the Government is right That is the trouble.

The existing law is better.

One thing I also know is that when the hon. member for Houghton starts cackling like that it means one has tramped on her corns. [Interjections.] The hon. member came here today and exposed his pettiness by accusing me of being petty. I explained to him in the Committee Stage that his amendment was not only clumsy, but was also merely stating an obvious fact One does not state that in an Act. It is an obvious fact that the magistrate must be satisfied about why the accused person cannot be brought before the court. That is stating the obvious. One cannot put that into an Act. The magistrate would think we have gone crazy. He would say that that is his function. On the other hand, the hon. member for East London North came with the succinct amendment to insert “supported by a certificate of a medical practitioner”. It was as simple as that I was prepared to accept that because it dealt with the difficulty. Now the hon. members suggest that the medical practitioner may issue a certificate which is either untrue or with which there is something wrong.

No, no.

They suggest the medical practitioner’s arm may be twisted, or something like that. Quite frankly, Sir, I do not know what is wrong with the hon. members. I cannot fathom what has gone wrong with them. The one thing that is obvious to us, however, is that they do not want the NRP to have any amendments accepted at all.

*That is what really worries them. I come not to what the hon. member for East London North asked me. I do not want to become involved in their arguments.

†The hon. member for Hillbrow must now listen to me.

I am listening.

He can call me as many names as he likes. Personal vilification is one of the methods they employ. That we accept I want to tell him that in actual fact he has exposed the raw spot of the official Opposition, namely their absolute jealousy of the NRP. There is also their general pettiness. In actual fact we shall see today that in spite of the fact that we have tried to meet their objections, they are still going to vote against the Bill.

The test is: Which is the better law?

I come now to the hon. member for East London North. He moved the amendment that the words “supported by a certificate by a medical practitioner” be inserted. I want to tell him that I personally am quite prepared to accept any medical practitioner’s certificate. I am not prepared, however, to specify in any Act that it should be a general practitioner. If I did that, the practitioners who are employed by the Government could turn around and ask: “Why do you want to exclude us? You appoint us, but you do not trust us.” I am not prepared to write that into an Act. As far as I am concerned, it does not matter whether the certificate was issued by a Government doctor or a private doctor. As long as he is a doctor who is registered in South Africa, I shall accept his certificate.

Like the district surgeon in the Biko case.

Thank you very much! I want to tell the hon. member for Houghton that, until they have been found guilty, I am not prepared to accept that the doctors in the Biko case have done anything wrong. The hon. member’s prejudice, however, is very obvious. According to her everybody has done wrong except the hon. member herself, the great “holier-than-thou” hon. member for Houghton.

I just want to say to the hon. member for East London North that I hope he does not mind, but I am not prepared to introduce that in the Other Place.

I did not ask for it.

No, the hon. member did not. He just asked whether I was willing to accept any certificate. I have now indicated that I am willing to accept any certificate.

Question agreed to (Official Opposition dissenting).

Bill read a Third Time.

Mr. Speaker, much has been written about and there has been a great deal of speculation on the essence of this Bill. Many persons and bodies and various churches have made representations to the hon. the Minister and to the Law Commission to effect specific changes to the Bill. I have also received such representations, notably from ecclesiastical bodies. In view of the importance of the Bill, but also in consequence of the report of the Law Commission and the representations I have referred to, I wish to make a few brief observations on clauses 3 to 6 this afternoon. Clause 3 deals basically with the grounds on which a decree of divorce can be granted, namely when there has been an irretrievable break-down of the marriage, as contemplated in clause 4. I do not wish to dwell on the other aspects, the aspects of brain damage sustained by one of the parties and consequent continuous unconsciousness, and of mental illness that has to be confirmed by two psychiatrists. I wish to concentrate in particular on the aspect of an irretrievable break-down, something which has to be assessed by the court. It is important to ascertain whether the marriage relationship has broken down to such an extent that there is no reasonable prospect of the restitution of a normal marriage relationship between the two parties. If the court finds that reconciliation is possible it can, in terms of clause 4(2), inquire into the circumstances of the alleged break-down of the marriage relationship and the attitude manifested by the parties towards each other and their marriage relationship, and the court may also obtain evidence as proof of the irretrievable break-down of the said marriage.

In this regard three extremely important aspects are stated in clause 4(3). In the first place it has to be ascertained whether the husband and wife have not lived together as husband and wife in the same household for a continuous period of at least one year. In the second place it has to be ascertained whether one of the parties has committed adultery and whether the other party finds it irreconcilable with a continued marriage relationship. In the third place, if the defendant in the case has been declared an habitual criminal, the court may accept that as evidence of the irretrievable break-down of the marriage. Where one of these conditions exists, the court may decide that the marriage has broken down to such an extent that all that remains is a decree of divorce. I regard such a marriage as one that is already dead. I shall again refer to these so-called dead marriages later in my speech. Where it appears to the court that there is a reasonable prospect of reconciliation, the court may postpone the proceedings from time to time, that is to say more than once, in order that the parties may attempt a reconciliation. The methods that can be applied for reconciliation are for example marriage guidance counselling, psycho-pastoral care and spiritual assistance. In this regard I wish to refer very briefly to the importance of clause 12 in the consideration of clause 4. This clause is of primary importance to us, for whether or not the couple get divorced, a limitation is still being placed on the publication of details of that particular divorce action. Clause 12 reinforces the scope of clauses 3 and 4. In my view this concerns the “life or death” of the marriage. I think that is the essence of this whole matter. Many marriages that might still have been saved have been irretrievably destroyed through the sordid publicity and, at times, the wildest and almost pathologically bloodthirsty presentation thereof. Private affairs have been dragged into the court by the hair and disclosed in a manner that has sometimes been a crying shame. Usually it has been the innocent children and relatives who had to pay the penalty and who had to suffer under the merciless tongues of people who thank the Lord that they are not so bad.

The Bill makes provision for a new procedure that is also important Clause 4(4) provides that if it appears to the court that there is a reasonable possibility that the parties may become reconciled through marriage counsel, etc., the court may give them such an opportunity. I should almost say that even if there were no presumption that they might possibly become reconciled, it would still be a good thing to refer these people to a marriage guidance counsellor. In practice, there is such a thing as “divorce counselling”. If two people will not or cannot remain together, they can at least be helped to separate in a respectable manner. An aspect which, in my view, is too seldom being considered today, is that one can help two people whose married life has broken down, to separate in a respectable and Christian manner.

A method that is being applied to very good effect by marriage guidance counsellors, is to draw up an inventory of the situation of the parties involved. The result is often that the shock of reality drives the two parties back into each other’s arms. The essence of the matter is that attempts can be made to save marriages and there is therefore no justification for alleging that this Bill stands for “divorce on demand”. I think the Bill creates the possibility and the scope for an altogether new manner of approach, by the community, by churches and by other persons * and bodies as well.

As I have already said, much has already been written and many representations have already been made advocating the introduction of family courts. A strong case can and is being made out for this by various persons and bodies, particularly by the churches and family organizations. A couple will then appear before a family court before they end up in the divorce court. However, this idea of family courts seems to be impracticable for two reasons in particular, namely the shortage of staff in the first place and, the high cost this will entail to the country in the second. I can also state that it has been found overseas that only in 15% of the cases has assistance been successful and effective.

I now wish to make another proposal. I wish to bring this to the notice of the hon. the Minister because I believe that it is practicable and that it fits into the context of this clause. This clause provides that the court may repeatedly refer parties to a marriage counsellor. I can see no reason why the court should not be able to refer the couple to, for example, a pastoral care centre which could perform an advisory function which the family courts would probably not be able to perform. As far as this aspect is concerned, I just wish to inquire whether it would not be possible to clothe such a body with legal personality. The staff should consist of pastoral psychologists, clinical psychologists, gynaecologists, jurists, economists, ministers and marriage therapeutists; a multidisciplinary team of professional people, therefore, with one thing in common, namely that they want to save a marriage. Churches and organizations such as Famsa, the S.A. Family Organization offer their services virtually free of charge, and this is among the best available. Therefore, with regard to this clause, I wish to emphasize the reference aspect very strongly since this is of immense importance and also because it is brought with so many possibilities.

I think if we consider these clauses and read the representations, also looking at the recommendations by the Law Commission, it is also necessary, briefly to take a look in general terms at the relationship between the Church and the State and more specifically at the respective functions of the State and the Church as far as divorce is concerned. In referring to the function of the church, I wish to quote a brief passage from Die Kerkbode of 4 April 1979, in which the editor wrote—

I am in agreement with that and I do not think there are people who would differ with me on such a view. What is even more important, however, is that we should note that it is the function of the church to preach the Word of God. The role which the church can play in a preventive capacity, is just as important I have already referred to the sterling services being offered at the pastoral care centres. My humble submission is that these centres, like the services of organizations such as Famsa, should be tremendously extended.

There is yet another aspect which warrants our attention this afternoon, however, since it is equally important That is, namely, that the church should be mindful of the fact that it holds an immensely privileged position and has a fantastic advantage over other organizations and persons and bodies in the community. The doors of members of the church are open to the church; something that does not hold true in all other cases. For that reason, what I am now saying is perhaps the most important thing I am going to raise in this short speech, namely that on the level of normal experience between man and fellow-man, the sympathetic minister will hear the rattling of the disintegrating marriage well in advance, long before anyone else knows about it. The minister can “pick it up” in the same way as a magnet picks up needles or pins, if he moves among and with his people, lives with them, eats with them and mixes with them; in other words, if he associates with his people across the entire spectrum of human life.

Now, I wish to raise a problem this afternoon that I find disconcerting, and I wish to do so in the form of a question. Why is it that the church, which is in the privileged position which I have just referred to, often only hears of the disintegrating marriage at a stage when it is already too late, often when it is already too late to help; when the marriage is already dead? Is it because the functionaries no longer attend to their particular task of preaching the Word, of pastoral visiting, of counselling and of pastoral ministration as it should be? Am I interpreting the trend correctly, that a great many of these indispensable customs are to an increasing extent being described as old-fashioned and as unpopular? If that is so, it is a high price the church has to pay, far too high in these times in which we are living and in which it is so easy to expect that the State should do everything while the community may sit back and shirk its responsibilities.

I also just wish to refer briefly to the role of the State in this regard. I do not think it is the function of the State to regulate and to regiment every facet of Society. If the church wishes to act as the conscience of the State—which is a good thing—then surely the State can also sometimes impress upon the Church what the Church’s primary function is; which is a healthy thing to do. In my humble submission the State has, by this new law of divorce, created the machinery whereby dead and live marriages that are brought to its notice, can best be dealt with. This Bill creates scope for both the State and the Church and society so that each can perform its function, since they need one another. On the one hand there are ethical-religious norms, but on the other hand there are also juridical, practical solutions. I believe that this legislation succeeds pre-eminently in ensuring that those functions can be performed.

I think this Bill lends itself admirably to meeting the demands being made upon it. For that reason I wish to congratulate the legal draftsmen of this Bill this afternoon on having succeeded in establishing such a practicable Bill for us, and I have much pleasure in supporting the hon. the Minister in his introduction of this Bill.

Mr. Speaker…

Order! The hon. member for East London North has already participated in this debate.

Mr. Speaker, it is a privilege for me to be able to speak after the hon. member for Brits. He has laid special emphasis on the attitude and involvement of the community in the law of divorce and I should like to follow up on what he said in that regard, since in my view the main merit of the Bill lies therein that it creates an opportunity for the community to become legally more involved with marriages and to prevent marriages from breaking up. This is a good thing, since marriages are an integral part of the community and it is a prerequisite for a sound community that there should be stable marriage relationships. This principle, namely that the community has an interest in divorces, has been recognized in our law for many years. In this regard I should just like to refer to some legal decisions. I should like to refer to the dictum of the hon. Judge of Appeal Mr. Justice Hoexter in the Appellate Division case of Belfort v. Belfort, 1961 (1), where he held—

I also wish to refer to the dictum of the hon. Judge of Appeal Mr. Justice Wessels in the case of Viljoen v. Viljoen, 1968 (3), also a decision of the Appellate Division, where he held—

Since marriage is an integral part of society and is essential for a healthy community, it cannot simply be dissolved by consent. But the principle that the community has an interest in marriage has, in my view, only an extremely limited application in terms of the existing legislation. When the courts have to decide whether or not a decree of divorce should be granted, they need merely ask whether the facts fall under one of the categories of grounds of divorce. The possibility of reconciliation is never considered. It is in no way the function of the court to decide whether there is the prospect of restoration of the marriage, but this Bill affords the community the opportunity by law of getting more involved with marriage by making use of the courts and seeing whether the marriage has in fact disintegrated to such an extent that there is no possibility of saving it.

This is being done in the first place by means of the definition of the grounds of divorce, namely that there is no reasonable prospect of the restoration of a normal marriage relationship. In other words, the definition is directed at saving the marriage and not at destroying it. Moreover, the judge is given a discretion and I suggest that this discretion should be exercized to save the marriage and not to dissolve it. The judge is given a discretion, moreover, to postpone the hearing in order that the parties may attempt a reconciliation.

The irretrievable breakdown of marriage as a ground for divorce also affords a practical remedy for which there is a need in practice but for which, at present, no provision is made. It affords a defence, as it were, to a person who has no defence on merit but who wishes to become reconciled. He can plead that defence. If it is alleged, for example, that he is guilty of adultery, he can admit that and say that it was an accident [Interjections.] But he may nevertheless raise the defence that there is indeed a possibility of a reconciliation. How often does one not encounter the situation in practice that on a return date, a man states in court that it might be true that he has beaten his wife a few times, but that he still loves her and that he really thinks that they can still be reconciled. I feel that in this specific case, of which there are many examples, this particular Bill will play an important role. In such a case the judge will be able to postpone the hearing to afford them the opportunity of becoming further reconciled, or he will hear evidence.

Various persons and bodies argue that this Bill will facilitate divorces. They argue in that way since, according to them, there will now no longer be matrimonial offences as such. I cannot do better than to quote from the report, page 11, paragraph 8.2, in this regard—

Various hon. members, among them the hon. members for Houghton and Hillbrow, have expressed themselves against the fact that in terms of clause 4 the judge is being afforded a discretion whether or not to grant a decree of divorce. The argument advanced is that this creates uncertainty since the judge, as they put it, can do as he likes. A good example is the argument by the hon. member for Hillbrow. He stated, inter alia (Hansard, 3 May, col. 5582)—

The presumption in an argument such as this is that this discretion is not subject to appeal. That is indeed not the case. The case can definitely be taken on appeal. If it is proved that the judge erred in regard to the facts or that he did not exercise his judgment as he should, that decree of divorce should indeed be granted and the appeal should be upheld. Furthermore, it should not take long before there are decisions that will furnish guidance in this regard. Consequently, the legal practitioner need not grope in the dark.

I wish to express myself very strongly in favour of the discretion provided for in clause 4, since it fits the nature of irretrievable breakdown of marriage as a ground of divorce. I concede that perhaps I am reading more into this than it actually contains. In concede, however, that whilst the judge’s exercise of the discretion is subject to appeal, it will be more difficult to appeal successfully against it than in ordinary cases where a court is bound to grant a decree of divorce.

As a result of this, the discretion discourages the parties from going on appeal. That is right It is better that the case should start de novo than that there should be an appeal. The reason for this is the ground of divorce as provided for at present The defence of res iudicata pro veritate accipitur will have an extremely restricted application in this case since the ground of divorce is no longer based on specific, limited, factual circumstances that are almost unchangeable, for example adultery and desertion. Adultery does take place. Desertion also takes place. This is not a continuing variable. The way the ground of divorce is proposed in the present legislation, it is the condition of the marriage that will serve as a ground for divorce. That is something that is very variable. It is something that can change within a matter of a week, for example when one party is informed of something the other party has done. In such a case the party receiving such information will become convinced that the marriage has disintegrated irretrievably. That means that almost immediately after a case has been dismissed, a person will be able to start legal proceedings afresh. It is therefore better that a person should be encouraged rather to institute proceedings afresh, fresh proceedings based on new and more relevant facts, rather than to appeal, which would in any case take longer than to institute proceedings afresh.

The Law Commission did not see their way clear to recommending family courts. That is also quite right I do believe, however, that a great deal can be done to bring the seriousness of divorce to the notice of the community. All courts should, in my view, have a specific court roll, exclusively for divorce cases. In the smaller provincial or local divisions of the Supreme Court it happens all too often that divorce cases appear on the same roll as do cases for the motion court. The result is that divorce cases are virtually fed through as if through a sausage machine, in the same way as cases in the motion courts. In terms of the proposed new dispensation, I think, every case will receive more attention and judges will therefore play a more active role in cases of this matter.

The hon. member for Yeoville has argued that clause 2 of the Bill contains no substantial amendment with regard to jurisdiction. I could not disagree with the hon. member more. I wish to suggest that the provisions in clause 2 extend the jurisdiction of the court considerably. Moreover, they also entail considerable consequences for legal practice.

In terms of the existing Act, the Matrimonial Causes Jurisdiction Act, Act No. 22 of 1939, a Division of the Supreme Court has jurisdiction in cases of divorce or the restitution of conjugal rights where a wife institutes proceedings against her husband if, for a period of one year immediately preceding the date on which the proceedings are instituted, the wife was ordinarily resident within the area of jurisdiction of that division. Furthermore, in a case where her husband has deserted her and has departed from the Republic, she has to prove that before his departure from the country he was domiciled within the Republic. Alternatively she has to prove that at the time when the divorce proceedings were instituted, her husband was domiciled within the Republic. In the third case, that of judicial separation, she has to prove that her husband was domiciled within the Republic on the relevant date. In all these cases, therefore, the wife has to place evidence before the court regarding her husband. In various cases this may cause a great deal of difficulty. It may happen that a wife who has not seen her husband for ten years, appears before the court. She does not know where her husband is. Her husband may be overseas or in the country; but she has no evidence as to where her husband’s whereabouts are. Nevertheless, in terms of the Act I have just referred to, she has to place evidence before the court that her husband is either domiciled within the Republic, or was domiciled within the Republic before he left the country, or has left the Republic.

The Bill before the House now affords considerable relief in this regard. In the first place, there is no provision that a wife who institutes divorce proceedings against her husband, should have been resident in the area of jurisdiction of the court for one year immediately preceding the institution of the divorce proceedings. It is only provided that she should have been resident within the Republic for one year. That effects a considerable facilitation of the process. Even if a wife has only just come to live in the area of jurisdiction of the court, she can immediately institute such an action. All that is required, is that she should have been resident within the Republic for a year. The Bill also lays down no requirement in terms of which she has to submit evidence on the whereabouts of her husband, where he is domiciled, or whether or not he has left the country; the only evidence she has to submit concerns herself. She has to submit evidence that she was domiciled in the Republic immediately before the cohabitation of her and her husband was terminated, or that she is a South African citizen or was resident within the Republic immediately before her marriage took place.

In my view the Bill represents not only a considerable improvement, not only in regard to the grounds of divorce, but also as regards the grounds of jurisdiction.

Mr. Speaker, the Second Reading debate lasted for a long time and I should like to thank all hon. members who participated in it, for their speeches. I think it could be said that during this very long debate we saw the Assembly functioning at its very best. During the debate there were no petty attacks. The speeches of all hon. members who participated were of the very highest standard throughout All of them were particularly well prepared and I think the public and all reform bodies can really feel satisfied that every possible standpoint which could be adopted on the new divorce legislation, was dealt with in the Parliament of South Africa on the basis of thorough study.

Since it is indicated on the Order Paper that amendments will be moved on almost every clause, one can most probably accept that every clause will be properly discussed during the Committee Stage. With a view to that I do not intend to deal on this occasion with all aspects raised by hon. members in the course of their speeches. Of course, I will deal with the aspects which, in my opinion, concern the principle of the Bill. Therefore I hope that hon. members will forgive and pardon me if I do not reply now to each point raised in this debate. But I invite them not to hesitate to put their questions to me again during the Committee State.

Any of us who have seen divorce courts functioning in practice, particularly in the case of undisputed divorces, and have listened to the stereotyped evidence which is rattled off, will realize how absolutely essential legal reform has become in this field. As far back as 1948 Judge of Appeal Van den Heever mentioned that the grounds for divorce which existed at the time—desertion in its two forms—meant in essense that one had to trace the extent to which the marriage had already broken down irretrievably. In other words, even in the case of desertion the court is inclined to investigate whether the marriage has broken down completely. That is why desertion can even occur when the joint household and cohabitation as husband and wife have become so impossible that they live apart in the same house. Consequently, where there is an irreparable breakdown of the marriage, the courts introduced the fiction that desertion had taken place.

It should also be noted that the Law Commission began its investigation as far back as 1975. The Bill was tabled in Parliament in May last year. This gave everyone interested in this matter a chance to study the Bill thoroughly. The commission also sent questionnaires to everyone, specifically to the General Bar Council, the Attorneys’ Association, the legal faculties of the universities, the Chief Justice and all Judge-Presidents—who had to distribute it among the judges—church bodies, women’s organizations, child care associations, welfare organizations and marriage guidance counsellors. Replies to those questionnaires were awaited and then thoroughly studied. One can therefore accept that the Law Commission in actual fact had the advantage of every possible facet of opinion on the Bill as it is before the House at present I make bold to say that as far as the thoroughness of their report and the Bill submitted to us is concerned, the Law Commission deserves our gratitude and appreciation for the protracted and intensive task that it performed.

There are people who say that the new ground for divorce, i.e. break-down, will facilitate divorce, and that it is now even possible for the guilty party, irrespective of his marital transgressions, for example that he insulted his spouse by committing adultery, to go to court himself to sue for divorce. This is unfortunately true. To those people who as a last despairing gesture hope that the law will be able to save their marriage ties, we can only say: No law in the world can save a marriage which has already collapsed. Only the parties themselves with help from Above can save such a marriage. The law itself is not there to save or to preserve a marriage. It is there to indicates to the world that we believe in the legality of the marriage and that two people have agreed to marry each other and live together in a society which believes in marriage as a God-given institution.

There are many good Christians who wrote to me objecting to the commission’s recommendations that judicial separation should be abolished. Their standpoint is that marriage is a God-given institution and that judicial separation is a juridical effort to give the parties a respite, as it were, which may be able to effect a reconciliation. They feel that one should not dissolve the marriage ties too hastily, but that one should rather try to break the tension. I have a great deal of respect for this argument. I, too, believe that the marriage is a God-given institution and that one should do everything possible to save a marriage in which two people have voluntarily decided to live together, to beget children and later to spend their old age together. I want to tell those people who addressed letters to me that judicial separation could, in fact, be regarded as an attempt to effect a reconciliation, but that people who are practicing lawyers—and I was one for 25 years—have seen how judicial separation is completely meaningless, to such an extent that where the parties are no longer together, an effort has been made to stretch the law like a rubber band. The essence of a marriage is, after all, that people should be together and live together in love and peace and tranquility. The only thing judicial separation achieved was to bring about further estrangement In course of time the parties, although they were still legally married, began to develop other interests. Experience has also shown that in actual fact judicial separation later merely resulted in other relationships by both parties and in adultery, which is completely contra bonos mores. In other words, in this specific respect they try to make something of the law which it was not made for, viz. to maintain a legal tie in some way or other where no bond of love existed any more.

I am pleased that thorough attention has been given in this Bill to the interests of the children of a broken marriage. The hon. member for East London City made an outstanding contribution on the position of the child in such a marriage. I can recommend to those interested in this subject, to make an effort to read the hon. member’s speech. It was intelligently prepared and intelligently presented.

The hon. member for Albany dealt with the more practical aspects of the regulation of supervision over and access to children. This is a matter which really deserves attention, too, because it remains an unpleasant fact that the children of a broken marriage are the parties who suffer.

When I formerly had the honour of being the Deputy Minister of Social Welfare I found to my surprise that up to 85% of the children in homes came from broken marriages and were not orphans in the sense that their parents had died and that they consequently had to be placed in a school or place of care. But they lived under such conditions that the State had no option but to say that neither of the parents was entitled to exercise supervision over the child. The State should rather give the child an education and try to give the child what it had been deprived of by its parents.

I want to tell hon. members of a case in which I was involved. Many years ago I was counsel in a disputed divorce. The whole case revolved around the possession of the couple’s four-year-old child. I can no longer remember whether it was a daughter or a son. For four days we unravelled and analysed these people’s private lives in a cold and impersonal court, just to obtain control over the child. The one wanted to prove that the other was guilty and consequently should not obtain supervision over the child. The upshot of the case was that we tried to reach a settlement. The child had already been away from the father for six months, and we then arranged for the child to spend only a portion of the weekend with his father. The father was busy that Saturday but he said that he would like to fetch his child at three o’clock on Sunday afternoon at the Paul Kruger statue, would like to keep the child with him until 8 o’clock that evening, and would then return it to the mother. My part in the court case was then concluded, and I had earned my money. I then returned home. That Sunday afternoon after lunch my wife suggested that we go for a drive. We happened to drive into the city and when we were approaching the Paul Kruger statue, I told her about my interesting client and the incident in court on Friday. I said that I should like to see what would happen that afternoon at the Paul Kruger statue when the mother had to bring the child to the father. We drove around the square and then stopped, more from shock and surprise. My client and his wife stood there, the wife had the child by its head and the father by its feet, and they were shouting at each other so loudly that people had stopped in the square to stare at them. The child was crying. This is what could happen in these broken marriages if children are involved. The child is the party that suffers. For that reason I am very pleased that this Bill gives full attention to the child and puts his interests first in the case of a divorce.

With all sorts of amendments, the hon. member for Houghton has tried to change the judicial discretion from a “may” to a “shall”. I want to tell the hon. member—I have already said so—that she made an excellent speech. I am aware that the hon. member, as a woman, is very interested in this Bill. I want to tell her that I am not wedded to the words “may” or “shall”. But I am experiencing a problem. At the moment the law is granting the court a discretion either to dissolve or refrain from dissolving a marriage, even if it has broken down completely. If I understood the hon. member for Houghton correctly, her argument is that once it has been proved to a court that one’s marriage has broken down completely, one ought to be entitled to legal certainty. In other words, if one has proven that one’s marriage has broken down completely, the judge should have no option but to dissolve the marriage. And yet the word used in this Bill is “may”. Two reasons may be advanced for that. When, in the first place, you give a judge a discretion, it is a judicial discretion. This means that he cannot exercise that discretion arbitrarily. In other words, if the claimant has proved to the court that his/her marriage has broken down completely, I would be surprised if a judge did not grant a divorce, for he has to exercise a judicial discretion. If he exercises his discretion in terms of the word “may” by not dissolving the marriage, one may be quite certain that the facts compel him to say that in spite of the break-down of the marriage he thinks that the marriage ought not to be dissolved.

I can imagine several situation where the discretion against the dissolution of a marriage could be exercised. I want to illustrate my concern on the basis of an example. At the moment the Law Commission is finally determining the issue of the division of matrimonial property between husband and wife. Once this has been done I assume that one will almost have a set of legal rules dealing with matrimonial property and how it should be divided. Then I also want to tell the hon. member for Houghton that I am not inclined to accept her amendment at present. But one could examine the situation again. If it has to be put imperatively, one could reconsider it. I do not want to make promises, because promises are like piecrust, made to be broken, as the old saying goes. Allow me to mention just one example. A husband and a wife work on a farm belonging to the husband’s father. But the understanding is that they have to keep him on the farm until he dies. He will leave the farm to the son. In the process the wife works her fingers to the bone for her husband and her father-in-law, over a period of approximately 30 or 40 years, say. Suppose a problem arises in the marriage and the marriage breaks down. The father is still living and consequently the farm cannot yet be left to both. But the marriage is dissolved. What is the woman’s position? Is a court not entitled to say that she lived for 30 or 40 years in the hope that she would receive half of the farm? Now that she is worn-out with toil—and the old man is still living—the marriage is dissolved. There is not much of an estate and she leaves without a stitch. Three weeks later the old man dies and the farm goes to the husband. I am just mentioning a few possibilities. In that case I can imagine that the court will say that although the marriage has broken down, both of the parties worked. The court may decide to wait till the old man dies. The same can happen with pension cases where a man lives in hope, which we call spes in legal parlance. This a court cannot determine. One cannot divide hope, but if it is really a possibility, a court can say that the case must be postponed until such time as the possibility has been realized. Then there can be a better and more equal division of assets. For these specific reasons I am of the opinion that we should leave this to the court’s discretion.

The hon. member for Johannesburg North made a very interesting speech and also referred to clause 4(2). He said that it was unnecessary. He said that once break-down has been stipulated as a ground for dissolving a marriage, all these provisions are in actual fact unnecessary. This may be true. But we come to clause 4(4) and there is criticism on that score, too. The hon. member said that subsections (3) and (4) could quite simply be deleted. But he actually destroyed his own argument with his own reply and a subsequent remark which he made. He said that the vast majority of divorce suits are undisputed. He explained here how rapidly a judge sometimes has to go through 80 divorces per day. In such a case the court cannot go into the break-down of a marriage in detail. The court will not call for evidence to see whether the marriage has really broken down. That is why those guidelines are there. What are these guidelines? I quote—

This is very simple, Sir. The Law Commission accepted it. It is not a law of the Medes and Persians; it is what is called “an assumption of fact”. In other words, if you can say in all sincerity and under oath that you have no longer been living together as husband and wife for the past year, the court accepts from mature experience that that marriage is finished and has broken down. Another guideline is a case in which the defendant has committed adultery. This is again the assumption of a fact, the fact of adultery. In an undisputed divorce the court accepts that adultery has caused that marriage to break-down completely.

This is all these guidelines mean. You can now ask your client how long they have not been living together. If he should say “six months”, you would tell him that he will have to prove that his marriage has broken down. Then he will have to submit a little more evidence to the court than in the case where he has already been separated from his wife for a year and they no longer live together. In its wisdom the Law Commission thought that where people have knowingly and deliberately no longer lived together for a year, that marriage has probably broken down completely. For that reason I am not disposed to accede to requests that these guidelines be removed.

Sir, I now come to clause 4(4), which deals with postponement. There was an objection to this as well, and I want to say that I also objected to it I want to agree with the hon. member for Johannesburg North. The Bill reads as follows—

I must say that I am inclined to consider an amendment, whether we should delete the words “from time to time”. The argument is that if there is reason for postponement, surely there cannot be breakdown. If the court arrives at the conclusion that the marriage can be saved, the court must ask itself the second question: Has this marriage really broken down? Has it broken down irretrievably? In other words, the provision actually defeats its own purpose. Sir, one could however get cases, with young people in particular, where the court could think that the marriage in question may have broken down completely, but that the parties are still very young and could still be reconciled. For that reason the case is postponed for a short period. I do not think that one can postpone this type of case from time to time. If you postpone it from time to time, what are you playing with? Then you could just as well, as the hon. member for Pietermaritzburg North said, begin a new action with new circumstances. For that reason I am inclined to allow one postponement. Consequently let us not say “from time to time”.

The hon. member for Yeoville made an exceptionally interesting speech on domicilium. I am in complete agreement with him. I think this is a section of our law which will have to be examined. One need only read clause 1 to see how complicated the aspect of domicilium is. I think it is high time that we turned our attention to the possibility of whether we should not fall into line with other countries as far as domicilium is concerned. As far as I am concerned, I want to tell the hon. member for Yeoville that I shall make it my business to refer this matter to the Law Commission so that we can get a greater degree of legal clarity on domicilium. The other points raised by the hon. member will be raised again during the Committee Stage and consequently we can argue about them at a later stage.

The hon. member for Randburg made an interesting speech, too. I did not make notes of his speech, but I can tell him that I shall take the trouble to read his speech.

I was very grateful that the hon. member for Brits spoke. He introduced a note into the debate which had to be heard, i.e. religion and the church. He asked whether the pastoral care centres of the churches could not be used by the courts instead of family courts. The family courts have to ensure that a breakdown does not occur and that a marriage does not dissolve. He said that the pastoral care centres of the churches could be used for that purpose and that those centres be granted juristic capacity. Those pastoral care centres are already doing a great deal of good work in keeping marriages intact and people together. Consequently this is a very interesting idea and I shall most definitely give my attention to it.

In the course of my speech I have already referred to the speech of the hon. member for Pietermaritzburg North and I have already expressed my appreciation for it.

Finally, I want to come back to the Press. When the Law Commission’s initial report was sent to me, the Press Union requested me to grant them an interview. They put their standpoint to me, a standpoint which I considered worthwhile examining and considering. I expressed the opinion to them that, although they had made interesting submissions, I would prefer the Press to put their case to the Law Commission, since the Bill was drafted by the Law Commission. I then arranged with the Leader of the House for the Bill to be held in abeyance to afford the Law Commission an opportunity to convene and to give the Press Union a hearing. The commission did so and published a second report in which this aspect was dealt with. I just want to indicate that I agree with the Law Commission on their second report. During the Committee Stage I shall introduce the necessary amendments requested by the Law Commission.

I do not think it is necessary to deal with this Bill any further now. Once again I want to thank hon. members for their very interesting speeches. One can really enjoy being present at as well as participating in a debate of which the level is of such an excellent quality.

Question agreed to.

Bill read a Second Time.

Mr. Speaker, when this debate was adjourned I had been dealing briefly with a quotation of a remark made by Dr. Ehrhardt, the famous West German Finance Minister. He stated that the economic recovery of Germany was no miracle; that it was simply owing to the employment of all the talents available within a free, competitive system. I believe this is a very important lesson and example which, to some extent, we wish to achieve or emulate through the introduction of this improved legislation.

While we will deal with some of the details of this Bill during the Committee Stage, notably with the machinery proposed in this Bill, I believe it is right to say that the success or failure of this measure depends less on the actual machinery provided than on the manner in which the board appointed in terms of this Bill will discharge its duties. I believe that in a Bill of this nature one cannot in fact prescribe everything in detail by statute, and that one has to rely very largely on the discretionary powers and the intelligence of the board which is to be appointed to administer this legislation and to achieve its purposes. There are a number of difficult problems which the board will have to consider from time to time. There is no simple pattern or design which may be followed in achieving the purposes of free enterprise and in reconciling them with some of the other conditions which are necessary for a healthy economy.

I believe that the first thing we must look at will be the question of whether the exercise of the board’s powers will be conducted in such a manner that there is no discrimination between one class of the economy and another class of the economy, nor even between the private enterprise and the public sector. The hon. the Minister has already given us some assurances in that regard. It is his hope, and we hope it will be the board’s intention, to look as accurately and as critically at the operations of the public sector in the economy of the country as it does at the operations of the private sector.

Or any sector.

Or any sector. I believe that if one reads the Bill it is possible to refer, for example—perhaps an absurd or extreme example—to import tariffs. Import tariffs are in fact a restrictive measure. If one looks at the definition of that term one sees that it can be described as an act or omission on the part of any person—notably the hon. the Minister of Finance—which by directly or indirectly restricting competition, has or is calculated to have the effect of enhancing or maintaining the price of any commodity. Now, the protection of infant industry is an obvious case in point.

Special trade-offs?

Yes indeed. I believe this is in fact a more obvious example, and perhaps a slightly exceptional example of the way in which an Act of this nature and its definition can be misinterpreted or misapplied. There are more difficult examples which the board will have to take into consideration in carrying out its mandate.

Still referring to the public sector, I think the board will have greater difficulty when it looks to what one might describe as monopoly conditions in respect of, for example, transport. It has long been the policy in this country to allow a large measure of monopoly in the operation of railways, airways and pipelines, for example. Now, where a case could possibly be made out for railways, less of a strong case could be made out in respect of airways, and even less of a strong case in respect of pipelines. These are all matters which, if the board is to administer its mandate even-handedly, will possibly require its careful consideration. The same applies in the field of communications, for example, radio and television, as well as telephones. A case could possibly be made out for the maintenance of our State telephone system. It may be harder to justify in respect of radio and television. Indeed, it may happen that a stronger case could be made out for commercial radio or commercial television run by independent companies in competition with the State.

And newspapers too.

We will come to newspapers. There is the question of State capitalism. Without wishing to go into any detail on this matter, I want to say that there are certain corporations, for example the Industrial Development Corporation, which have been responsible for certain mergers or have acquired certain companies which action may or may not be in terms of their original mandate and may or may not be designed to achieve a position of control in respect of certain trades, industries or commodities. This, again, is something which I think a board of this kind, if it is to enjoy the confidence of the people, must look at even-handedly and without fear or favour, irrespective of whether it concerns a State corporation or private enterprise.

There is another aspect which I think will have to be looked at very carefully. I refer to the special position of small or specialist businesses. If we look at the economic development of our country, we see that a very large sector of the population has not yet had the opportunities to enjoy full economic vigour, that is to say, to participate fully in the private enterprise economy of the country. There is obviously room in South Africa for the small businessman, notably from those sectors of our social structure whose members have not yet had the opportunity to go into capital formation and to create larger enterprises and who will enter the economic scene in South Africa increasingly as small businessmen.

Could you describe “small businessman”?

I am thinking specifically of Black and Brown people entering the economy of South Africa and participating increasingly and more fully in that economy. I think this is something which is desired by members on all sides of the House. We hope to see this development and I think that, when we talk about the economy of South Africa, we have to bear in mind how this emerging sector of our economic life can best be accommodated within the system. I hope the hon. member for Von Brandis is with me.

Sir, the protection given to small businessmen could in fact involve what the Mouton Commission refers to as vertical price fixing. Vertical price fixing, properly known as resale price maintenance, is something which is generally regarded as being undesirable in a free economy. There are, however, conditions in which it may in fact be necessary. There are some countries which prohibit resale price maintenance, or vertical price fixing, while there are others, including some of the most liberal exponents of the free enterprise system, which specifically allow it.

In the USA, for example, resale price maintenance is seen as the American tendency to protect small business, even at the expense of economic efficiency. If in America it is thought necessary to protect small business even at the price of immediate economic efficiency, the question arises why this happens and why this is something that must be borne in mind in a country like South Africa. There has recently been an upsurge of interest in the protection of small business undertakings. The reason is, I think, very largely the lessons learnt in countries like America, Japan and some other countries where small business has come to be seen as a vital component in the long-term growth of a vigorous economy. In the USA about 95% of all business undertakings are classified as small business. They are responsible for the employment of about 40 million people. In Japan 99% of all enterprises are classified as small business and provide employment for 31,5 million people. What are the advantages then, apart from the capacity to proliferate and to employ large numbers of people, of a small business? If the hon. the Minister will bear with me a little longer, I hope to show in a moment how very relevant this argument is to this Bill.

Small business is important for a variety of reasons. Firstly, it offers great scope for personal initiative, for innovation and for the development of new products, techniques and services. Secondly, by the very nature of his business the small businessman is best suited to offer specialized goods and personal services to the consumer. Thirdly the small business is a very important employer of labour. This is of particular importance to South Africa where we are having to look for additional opportunities to create employment for our people. Statistically it can be shown that small business is pro rata more labour-intensive than the large enterprise. Fourthly the small business is the breeding-ground for entrepreneurs who in due course will become the main spark-plugs in the economy. For these reasons I think one has to regard small business, and the protection of small business, as a very important aspect in the future development of South Africa, especially with regard to the employment of greater numbers of South Africans of all colours and the creation of economic opportunities for a greater number of people. For all these reasons I am suggesting that if, for example, vertical price-fixing should be necessary for the success of increasing numbers of small businesses in the economy and for creating a climate for small businesses in South Africa, this might in fact be a more important consideration than the simple one of removing resale price maintenance restrictions within the economic system. I am not saying at this moment that the one argument is stronger than the other, but I am saying that this is the kind of problem which is a highly relevant, highly sensitive and sometimes very difficult one, and whether we take the one line or the other will depend very largely on the philosophy, the skill and the experience of the Board for the Promotion of Free Trade Competition. I am trying to show the House that these decisions will determine whether, with the implementation of this legislation, we successfully achieve the healthy economic conditions which the Bill is designed to achieve.

That is a dangerous economic philosophy you are now propounding.

I have no doubt that for the hon. member for Von Brandis having an open mind, having to consider two questions and having to balance the one against the other is a dangerous philosophy, because it is far safer already to have made up one’s mind about one thing and to refuse to consider any alternatives, because then one has no problems and one is entirely safe. I agree that mine is a more dangerous philosophy. I nevertheless recommend it to the hon. the Minister.

There is a further question. Is domination per se, i.e. domination qua domination, the actual issue we need to track down and destroy or is it the improper exploitation of domination…

Or its abuse.

Yes, or its abuse. We are, in fact, looking for an abuse of power, power which grows from size and is then abused. This is an important factor to remember because there are certain branches of the economy which depend for their success, for their economic effectiveness, on the economy of scale.

It may be that a particular industry which is the only one of its kind in the economy may, if it does not abuse its power, offer the consumer the best economic product at the most economic price, even though this particular industry is monopolistic in the strict sense of the word. I believe this is very important. The Mouton report draws attention to that aspect as well. On page 79 it refers to the per se prohibition of dominant positions. I quote from paragraph 177—

The Mouton Commission then refers to a number of examples and says that it is quite clear that the mere suppression of a dominant position, the mere prohibition of a cartel and the mere prohibition of a monopoly or controlling situation are not the essential purpose. They are not in themselves the sins which are sought to be hunted down, but rather the abuse of such positions where they exist. I think this is another very important point to be borne in mind when we consider the position and the duties of the board which is to be created.

We agree on that.

Splendid! I now want to come to a matter on which we may not all agree. I have been invited by the hon. member for Simonstown to refer to the question of newspapers. I have heard the word “newspapers” whispered or mentioned several times while this particular Bill has been under discussion. I therefore think it would be right to deal with this matter very briefly. The comments I have heard suggest that newspapers, naturally the English-language newspaper groups in particular, may be a target of this Bill, and that this Bill is partly designed to strike at the English-language newspaper groups. Judging by the comments I have heard, it is certainly the wish of some people that this should be so. We have already stated the position of our party on this matter. We believe that the newspaper groups should be as subject to the provisions of this Bill as any other economic enterprise in the country. There is no reason why they should enjoy special immunity or special protection, and if there are conditions, prohibitions or restrictions which apply to monopolistic practices in other enterprises, they should apply equally to newspapers. However, it would not be right for them to apply to newspapers in a special sense, while not applying, as such, to other enterprises. In other words, while we believe that the newspapers should be subject to this Bill and the control of the board in exactly the same way as other economic enterprises, we do not believe that it would be right to apply this Bill—or to ask the board to exercise its powers in terms of this Bill—to newspapers in a manner different to that which applies to the exercising of monopolistic powers or restrictive practices by other companies.

What makes you say that?

I am merely saying that fair is fair and that the Bill must be applied equally in all spheres. We stand for the board fairly applying the principles involved.

They must be subject to the same disciplines.

Yes, exactly the same conditions must apply.

No more and no less.

Yes, no more and no less.

I just want to follow your argument.

Let us be clear about what we are talking about News is a commodity like soap, tungsten and beans. It is a commodity in respect of which there should not be a power structure leading to an abuse of power or restrictive trade conditions. If one looks at the news situation, treating news as a commodity in South Africa, one finds, firstly, that there are some large English-language and Afrikaans-language newspaper groups, and a few private companies and private newspapers, none of which, as far as one can see, are monopolistic. There is no way…

No.

I shall not prejudge the situation.

Do you think we should do the board’s job now?

No, I do not think we should do the board’s job now. I merely wish to state the general principle. A monopoly situation surely involves the control of at least 51% of the shares of a company. If one finds that the handling of the news, which is a commodity, differs or is competitive between the newspapers within a single newspaper group, that hardly looks like a restrictive practice. If there is no evidence that the channel for acquiring news is in the hands of a single company either, one also has to ask oneself whether there is a monopoly condition. I believe that looking at news in the broader sense, which we must do as we would do in the case of other commodities, we realize that we have in South Africa the radio, television, several English-language newspaper groups, several Afrikaans-language newspaper groups and a large number of independents, together with technical and other journals, all of which have their own editorial policy, can say what they like and can obtain their news from wherever they like and can compete with each other. I believe that what I am doing is describing a highly competitive non-monopolistic situation. It is not for me to decide this, but I am merely responding to suggestions, made in the course of this debate more in the form of interjections and asides than by actual argument, that the Press is particularly vulnerable to this type of legislation. I merely wish to say that I do not think it is so and have seen no evidence to suggest it, but by all means let the board investigate the Press and decide, as I say, on the same terms and according to the same rules, whether there is a monopoly or restrictive practices in respect of news in a broad sense in South Africa, and then take appropriate action. I have no worries or concern on this score.

What about the capital involved?

The shareholding may have been changed!

That, surely, is for the board to look at. It is one thing to say that the shareholding has been changed, but it is another thing…

Do you not believe that one commodity can be more sensitive than another one?

I certainly believe that one commodity can be more sensitive and I would suggest that this would certainly affect the order of priority in which the board gives its attention to matters, certain of which are deserving of more urgent attention than other commodities which are of a less sensitive nature. This I would certainly agree with. I am merely saying that when we look at a commodity, we must look at the commodity as a whole and treat it as a commodity which is either subject to restrictive conditions in a country as a whole, or is not subject to restrictive conditions. Hon. members will recall that the mere existence of a powerful company situation—we have agreed on this already—is not in itself a contravention of free enterprise, unless it can be shown that the power is being abused. If one looks at the definition and applies it to the conditions which I have just described, one obviously sees no cause for anxiety. At least I see none. I would be very interested to see the outcome of a proper, scientific, accurate inquiry into the situation. I believe it would perhaps disappoint some of those who are so prone to suggest that there are malpractices or monopolistic abuses in the system of news publication in South Africa.

I conclude merely by saying that we support the Bill. We think it is going to achieve a very good purpose. We believe that the Bill itself creates the machinery which may be suitable for this purpose and we certainly wish to see it achieve every possible success. However, the effect of this Bill in achieving its purpose will depend very largely, not merely on the machinery created here, but on the manner in which the Bill’s functions are carried out. As I have tried to indicate, there are a number of very difficult problems to be solved and a number of imponderables to be balanced. Certain concepts must be formulated, I think, perhaps almost like a system of case law, on the basis of the decisions or recommendations the board must make, so that business in South Africa may be guided along in the knowledge of what the practices are, what is permissible and what is not permissible. This is also necessary so that in planning for the future business development in South Africa, businesses may advance with a certain knowledge of what kind of decisions are likely to be taken by the board when it considers such problems.

I believe that we need a favourable wind. I believe that this Bill will in fact serve to provide the kind of sail which will catch the favourable wind. Having said that, we wish this Bill god-speed. We hope it is going to work very well and achieve precisely the kind of free enterprise system which we in South Africa all believe is going to solve the economic problems of a growing population.

Mr.Speaker, the hon. member for Constantia has referred to the Press. He is the first participant in this debate who specifically mentioned this subject. I do not intend to discuss it in detail, but I want to say that in my opinion, the hon. member advanced a peculiar argument by referring to the various companies which exercise control over the various newspapers and then saying that there is not necessarily a monopoly. Surely it is clear that even if ten different companies controlled ten different newspapers, a monopoly would arise if those ten different newspapers were ultimately controlled by one company, in which one person owned enough shares to exercise control.

That has to be proved.

Yes, of course it has to be proved, but the possibility of a monopoly is not excluded.

The hon. member, as well as the hon. member for Yeoville, spoke at great length about the position of the small businessman. It is clear that they were thinking in particular of opportunities for the Black, Yellow and Brown members of the South African population. I believe that what they have in mind is something which all of us in this House and in the country would like to achieve. I just wonder whether this Bill can do anything to bring about that situation, other than merely to implement the free market system. I do not think one should be too hopeful that this measure may suddenly initiate a new movement and lead to the development of equal opportunities and conditions.

The hon. member for Constantia also referred to the advantages of the small business enterprise. He referred more specifically to the question of labour and employment opportunities. He also quoted figures with regard to the USA and Japan. However, we must not be too quick to compare these two countries with South Africa. We have a relatively large area with a very small community, relatively speaking, to serve. In terms of the free market system, therefore, it may be necessary to have larger power concentrations to promote the welfare of the people of this country. In the times in which we live, there are also great advantages attached to the concentration of economic power. It can facilitate production, management and administration, as well as distribution, which may then lead to lower prices. Larger power concentrations enable business undertakings to contribute more to research, which is essential in the times in which we live. It also offers an easier opportunity for capital formation to bring about new investment, which may create further job opportunities. In general, the concentration of economic power also offers the workers of such concerns greater stability, of course.

The Bill which is before the House seeks to establish an effective competition policy. Everything is aimed at free competition. There are two basic premises with respect to free competition. The first one is found in the market situation where there are many buyers and sellers of a particular product. This implies free competition, but there is a limitation, and that is that there must be legitimate competition, without illegitimate practices, such as improper soliciting and so forth. As against this, one also finds the market situation where there is basically a monopoly. One then has the situation of one party against many. One has a monopoly, not only from the supply side, but also from the demand side, and it is important to bear this in mind. There may be one seller with a multitude of buyers. This is also something which creates a monopolistic condition. However, there may also be a multitude of sellers with only one buyer. I think this is something to which urgent attention should be given, especially with regard to the chain store organizations. The economy requires free competition, for the specific purpose of preventing exploitation. The participants in the market situation should be offered a choice in order to combine with it an efficient utilization of economic resources.

The Maintenance and Promotion of Competition Bill seeks to broaden the base of the economy. The method that has been followed is the establishment of a Competition Board. This body can in the first place take remedial action and rectify abuses in the market. Secondly, it can also take preventive action by conducting prior investigations and taking action if this is necessary. The object of this council, therefore, is to lay down guidelines to establish a sound economic policy. I hope that it will soon be possible to formulate a clear set of rules, so that there may also be certainty in law and clarity for the businessman as to how he should run his business. Monopolies are much the same as babies, generally speaking. No one really likes them before he has his own. The point of departure, therefore, is that power concentration in the economy is not good or bad per se. It must always be measured against the interests of the community. Interference in the free market situation must be restricted to a minimum—also by the Competition Board which is to be established. Where interference does occur, it must be aimed at promoting and not restricting competition.

This brings me to the composition of the Competition Board. It is a good thing that the Board of Trade and Industry is represented on it so that its expertise may be retained. It is also a good thing that the Department of Finance, which has to implement the policy, is involved. It is very gratifying to see that the intention is that the majority of the members of the board should come from the private sector, and that the chairman will not only come from the private sector too, but will also be a full-time member.

The equal measure in which the State is being subjected to this legislation, in terms of the provision of clause 2(3), is also striking. This brings me to State participation. The hon. member for Newcastle devoted a long speech to this subject. It is not only the right, but also the duty of the State to participate in the economy under certain circumstances. I do not think this duty should be underemphasized. Acceptable State interference can broadly be defended on the basis of strategic interests. However, one can also divide it into three categories. The first category is where the capital outlay is too big for the private sector to be able to participate in that specific activity. One thinks here of the S.A. Railways, Iscor at the time of its incorporation, Escom, Sasol, and perhaps the IDC. The second category is purely strategic, whether of a military nature or with a view to protecting the energy resources. One thinks here of the Armaments Board, Sasol, the Uranium Enrichment Corporation and Escom. The third kind of participation deals with the social aspects, i.e. where the State has the duty to provide housing, for example, when there is a shortage of accommodation.

The provisions of clause 6(1)(a)(i) are another pleasant aspect of the Bill. I hope this will also be the point of departure for the conversion of the existing State monopolies into private initiative as far as this is practicable, so that capital may be released in this way, to be used for other strategic purposes, perhaps, such as a Sasol 3. In the process, the State could recover an enormous amount of capital. It could also be that it would have to record and write off losses. However, I think it would be justified to write off these losses as expenditure in the strategic interests of the country. The report of file Mouton Commission was published in March 1977. The Bill was published in December 1978. There was opportunity for discussion after the Bill had been published. The fact that private initiative took part in the drafting of a final Bill is to be welcomed. I think that commerce and industry very greatly appreciate this.

I gladly support this Bill.

Mr. Speaker, last week the hon. the Minister of Economic Affairs introduced this Bill, a Bill which, I believe, will have very far reaching consequences in many fields of the South African economy. I think that, to the surprise of some of us, all parties in this House have supported this Bill. The Government spokesmen naturally supported the Bill as hon. members of the governing party. In our opinion many of them have expressed their most welcome belief in a free-enterprise society which, in South Africa, is too often being hamstrung, as we see it, by excessive restrictions and even by governmental competition. The party to which we belong, for reasons given so ably by the hon. member for Walmer, believes in a highly competitive society with Government interference being kept to the absolute minimum and with Government participation as a competitor being restricted only to essential commodity production. In this respect, as the hon. member for Randburg has mentioned, we can see a case being made out—especially in the past—for such Government or quasi Government institutions as Sasol, Iscor, etc. We think that in the initial stages those sorts of industries should perhaps be Government controlled. However, we would personally welcome any steps taken by the Government to free some of those activities from Government control and to make them available, perhaps more profitably, perhaps more efficiently, in the private sphere.

The NRP spokesman proclaimed his vision of a free enterprise society, and as is the case with most things that have been brought before this House, or with most proposals that have been made by hon. members of this House, the NRP spokesman claims that the NRP was the first to think about it and the first to propose it, and that they in fact are South Africa’s most original thinkers in almost every possible field.

Of course, yes.

Thank you very much, John. [Interjections.]

The PEP or the official Opposition, presented, I believe, a most interesting spectacle, not so much for what their chief spokesman said, but mainly because of what he left unsaid or the things he would have liked to say. Hon. members will remember that he gave the Bill his blessing and that he made a number of carefully selected and well phrased remarks extolling the virtues of private enterprise. However, in listening to him, it seems to me that his definition of private enterprise is dependent on his greater belief that it can be dangerous and disadvantageous to have too much competition in a private enterprise society. He said there was too much competition and that there were too many small people taking part in economic activities. He said this could push up costs and, in certain instances, could lead to an excessive importation policy. It seemed to me, listening to him, that he was speaking with some personal knowledge when he said that concentrations of economic power were not always wrong and could be very healthy indeed. He warned of the dangers of oversimplifying the problem of overconcentration, but he did not give, what I would call, specific examples of oversimplifications of the dangers of overconcentration. I would have liked to have heard from him, and from him particularly because he probably knows more about overconcentration than most of us in the House, about concentrations of economic power. However, he neglected to give us that information. He said that he hoped the board would not act capriciously and ad hoc and that he hoped it would not only be an investigating body. He emphasized particularly the many provisions in the Bill regarding the appeal mechanism. I could possibly be wrong, but I got the impression that every single fibre of the hon. member’s being was against the provisions of the Bill, but that he felt it would be wholly inexpedient, having regard to who and what he is, to oppose these provisions. Naturally the hon. member expressed concern at the definition of “public interest”, a term which he felt was insufficiently defined.

Then we had the devil’s advocate, the hon. member for Yeoville, in a fascinating role. I was not quite sure whether he was the devil’s advocate or Mr. Harry “Heinz” Schwarz with 57 varieties of personality to suit all possible occasions.

Mr. Speaker, on a point of order: Is the hon. member allowed to refer to another hon. member by name?

I beg your pardon, Sir. I meant the hon. member for Yeoville. He stated that he was opposed to concentrations of economic power and felt that they should be the exception rather than the principle. When I asked him why he did not support me in trying to break up the monopoly that exists in the English-language Press in South Africa, he maintained that it was because it was because of my attitude, and not the principle, that he was unable to support me. He is known to be a man who never puts personalities before principles. His attitude surprised me. It made me feel that perhaps economic concentrations of power in the Press world were examples of exceptions as opposed to the principle. This attitude surprised me, more especially as the hon. gentleman is the recipient of not ungenerous treatment by the bodies concerned.

I welcome this Bill for a number of reasons, which I shall try to set out. First and foremost, I welcome the establishment of a Competition Board. I believe it is both necessary and desirable and in my opinion it is long overdue. I like the power the board is given to investigate all aspects of the policy of economic competition. I like the procedures it can follow. Let me mention some of them. In terms of clause 7(1)(a) it has the power to summon any person to be interrogated, and interrogations will take place under oath. I like the powers given to the investigating officers. In terms of clause 9(2) they have the power to inspect and search premises, to demand information, to examine and make copies of documents and to demand an explanation for any entry to be found in the documents. I like the provisions of clause 9(5) showing what actions constitute an offence. Such actions are obstructing or hindering an investigating officer, refusing an explanation and giving false information. I particularly like the retrospectivity of clause 11(1)(b) in terms of which the board may at any time negotiate with any person or body with a view to making an arrangement doing away with, terminating, preventing or altering any acquisition which has been made, either wholly or partially, and which in the opinion of the board is not justified by the public interest I can think of a number of such situations and I shall deal with some of them just now. I like the provisions of clause 14 whereby the Minister is, on the advice of the board in terms of clause 12, empowered to act I like the provisions of clause 14(1)(c) whereby, by notice in the Gazette, the Minister can declare a restrictive practice or acquisition unlawful and require any person or body “to take such action, including steps for the dissolution of any body, corporation or unincorporate, or the severance of any connection or of any form of association between two or more persons, including any such bodies, as the Minister may consider necessary”. These are wide powers given to the Minister and I welcome them. Lastly, I like the penalties very much indeed. The first penalty is a fine of R2 000, or imprisonment for 12 months, or both. The second is a fine of R10 000, or imprisonment for two years, or both. The third is a fine of R100 000 or imprisonment for five years, or both.

One thing puzzles me. If I like the provisions of this Bill, which I do, may I ask why the hon. members of the official Opposition support the Bill? Is it perhaps for purposes of expediency and their fear that, should they oppose the provisions of the Bill, this could aggravate things in a very, very sensitive business area such as that to which the hon. member for Parktown referred? I was not surprised when today the hon. member for Constantia showed that, on reflection and after the week’s interruption of proceedings, he was clearly worried. What did he do today? He came to the crux of the worry of the PFP in respect of this Bill. There was a sudden realization that in terms of the powers given to the Minister under this Bill, the very life-blood of their party may well be investigated. He did an egg dance with regard to the Press. He said he believed that the English-language newspaper groups in South Africa were highly competitive groups. He said that by all means the Press should be investigated and that if a monopoly or restrictive practices were to be found operating, he and his party would be the first to stand on the side of law and order and the first to support the abolition of such monopolistic and restrictive practices.

What is wrong with that?

He added, of course, that as far as he was concerned, there was no evidence whatsoever that such a terrible thing as a monopoly should exist in any one of the groups to which he referred.

I have also had a little time to think since the debate on this Bill was adjourned, and I imagined one or two things while travelling to town by car today. I thought, for example, that, if I had been a fly on the wall in the PFP caucus room when this Bill came up for discussion, I would have seen a number of interesting things. As I remember that caucus room, I think I would have seen the hon. member for Bezuidenhout sitting at the head of the table as chairman of the caucus. From where the chairman was, I think I would have seen right in the middle of the caucus room—neither to the left nor to the right—the hon. member for Parktown.

The new leader.

Then I think I would have seen, slightly to the right of the chairman’s position, the hon. member for Yeoville. Well to the left of the caucus room I think I would have seen the hon. member for Houghton. Then I looked in my mind’s eye at what must have happened in that caucus room.

You mean your fly’s eye!

I think the hon. member for Bezuidenhout would have opened proceedings by saying: “Well, gentlemen, I call on the hon. member for Parktown to tell us what he thinks our attitude towards this Bill should be.” I think the hon. member for Parktown would probably have said: “Well, having regard to who I am and what I am, perhaps I sit a little bit too close to the fire; so perhaps I should ask the hon. member for Yeoville to say something on this matter.” I think the hon. member for Yeoville would have said: “We must stick up for the small man at any time. We must stick up for the small competitor. It is good for our image.” At that stage there would probably have been an interruption by the hon. member for Houghton who would have said something like the following: “I object, Sir! We must stand strong on principle. This is a Draconian measure with Draconian offences and penalties. The lights of economic freedom in South Africa are going out one by one. These savage penalties are aimed at our Press friends and it would be most unwise for us to support the provisions of this Bill.” At that stage the hon. member for Bezuidenhout would probably have said: “Well, gentlemen, it would seem that we have reached an impasse. Under these circumstances I want to call on the Leader of the Opposition to get on to the telephone.” [Interjections.] I think the Leader of the Opposition would probably have said: “No, no, no, not again, please!” I think thereupon the chairman of the caucus would have said: “I did not mean to McHenry; I meant to Harry Oppenheimer.” Then I think the hon. member for Houghton might have interjected and would probably have said: “If we are in difficulties, call on Maxie, he will fix it; and call on Gordon, he will finance it.”

I hope the very first step that will be taken by the Minister under the provisions of this Bill will be to instruct the board to investigate the Argus and Saan monopoly in the English Press world. Together, the two newspaper groups, as I had occasion to say before, control, it seems, 90% of all English-language daily newspapers and all the English-language Sunday newspapers in South Africa. If ever there was a monopolistic combine, then prima facie this is it, and, worse still, no one knows who the real beneficial shareholders are in each group…

Who controls it?

… or who controls it As the Sunday Times wrote at the time of the Luyt/Graaff bid for Saan, newspapers are institutions that play a vital role in society itself in informing the public and assisting the community to form its opinions on the issues of the day. This being so, I think it is absolutely imperative that both the owners and the controllers should be identified and made known and should not be hidden by the anonymity of nominee companies and trusts. If one has a look at the share registers of the Argus and Saan group, one will see that it is almost impossible to find out who are in fact the owners and controllers of those newspaper groups. They have a great number of nominee shareholdings. There are shareholdings in the names of pension funds, insurance companies and other institutional investors, many of whom seemingly do not have a large control in those particular companies.

Order! The hon. member can advance that point as an argument, but he cannot discuss it in detail. He must return to the Bill.

These are matters the board will have to consider, and I am hoping that the board will consider very seriously monopolistic conditions in the sectors I have referred to. I hope the Government will introduce legislation, as a result of the board’s findings, to make it obligatory for nominee shareholdings to be disclosed, because this is a thoroughly unsatisfactory situation that exists. I believe that in previous debates in the House I have made out a case for this. I am using this occasion to appeal for the last time to the hon. the Minister to make it the first priority of this board to investigate this wholly unhealthy and, I think, monopolistic situation. I think this could possibly be a situation which will open the eyes of South Africa to a state of affairs that will shock the whole country. I could be wrong, but for a long time there has been a feeling that this is an unhealthy state of affairs. I believe this is the first job that should be entrusted to this board. What is more, in terms of the provisions of the Bill the Minister is given the power to look at the records of companies and I want to say advisedly that the board in its deliberations and investigations should look at the back records of the companies concerned as if it were conducting some form of criminal investigation, and with the thoroughness that goes with a criminal investigation. If I am correct in saying, as I have said before, that this monopolistic situation constitutes a threat in many ways to the security of the country, that is the sort of thorough investigation that should be undertaken by the board.

With these remarks, I welcome the Bill and the provisions contained in it, particularly the provisions to which I have referred. I look forward to the board at the first opportunity investigating the conditions to which I have referred.

Mr. Speaker, I shall not speak for more than a moment. This is not a Bill on which I had intended speaking at all, but I think that the hon. member who has just sat down has made a particularly offensive speech. After the few moments during which I listened to him and in the light of some of the speeches I heard a while ago, I believe that, if anybody has the monopoly on nonsense in this House, it is that hon. member.

Publish it in Punch.

He dared to try to caricature that which he imagined took place in the caucus of another party.

That is what you did in that Punch article on your country.

I should like to say that, if that hon. member had any influence over the affairs of this country, we would be bombing Luanda, occupying Maputo, infiltrating Rhodesia and blowing up the United Nations. [Interjections.]

Order!

That is the sort of discussion that goes on in that hon. member’s caucus.

The hon. member remarked on the provisions of the Bill. It is interesting to note that the only provisions that really seemed to impress the hon. member were the provisions relating to interrogation, the provisions relating to entering and seizing and the provisions of a penal nature—and the higher the penalties, the better. That is the very issue that divided that hon. member from his colleagues many years ago when the Schlebusch Commission sat. The hon. member went far beyond the Bill when discussing it. He discussed what he hoped the Competition Board would debate and decide upon in the years that lie ahead. The hon. member was peripherally almost out of order when he called for an investigation into the Saan-Argus group. I do not wish to enter into that argument at all. I believe that that investigation is the same as the investigation of any monopolistic group, whether it be the Afrikaans Press, the English Press or any organization which it is believed is creating a monopolistic condition.

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

I am sorry, but you may not [Interjections.]

†I believe that since he made that call it should be said, at least from these benches: Investigate the Saan-Argus group by all means, investigate it for motives that may not be pure, pile on the pressure—as hon. members on that side, aided by the hon. member for Simonstown, have done—on the English-language Press, pile on the pressure on the Press which has exposed the corruption in this country over the past months, but no matter what pressure is piled on the English-language Press in South Africa, it will not destroy the freedom of speech of that Press, because the freedom of speech of that Press is the freedom of the ordinary individual in South Africa.

Mr. Speaker, the debate on this specific legislation has ended on a rather interesting note. The peculiar part was the participation in this debate by the hon. member for Sandton.

†It was quite an interlude, but it did not add anything to the sensible discussion of the Bill before us.

*Naturally, we have to consider and debate the legislation with a view to obtaining clarity for ourselves on what the long-term economic objectives are that we are seeking in this country. I think hon. members have done just that and I wish to compliment them in that regard. In the second place I think it is important that we should ask ourselves what is the economic system we prefer to accomplish those objectives. In the third place it is important that we should ascertain, after having made a choice in respect of the system we prefer, whether possibilities exist that malpractices may flow from the system and the use thereof and, if so, what are the remedies we have to employ to prevent or avoid them. I think there will be general agreement if I summarize the long-term objectives on our part by stating that the most important is surely the maintenance of a satisfactory and acceptable growth rate. In order to accomplish this specific objective, there is a mutually complementary role to be played by the public sector and the private sector in that, briefly stated, it is the responsibility of the public sector to create the climate within which the private sector can invest its funds and utilize its labour so that we can ensure the optimum growth rate. In the second place I think it is important to state that the public sector has a role to play in this regard in creating the infrastructural services of the country in general so that they can be placed at the disposal of the private sector for utilization, once again in order to realize this economic objective, which is a high priority in our country. The second longterm objective which, at this stage in particular, should enjoy a very high priority, is the provision of employment opportunities for a growing population. There is nobody who is not alarmed at the present high level of unemployment in the country. According to the most acceptable method of calculation of unemployment in the country, the percentage of unemployment among economically active people in South Africa is 9,5%. The highest percentage, namely 11,9%, obtains among the Brown population. Among the Black population it is 11,1%; among the Indian population, 9,5%; and among the White population, 3,6%. Once again: It seems to me that if we want to achieve this economic goal, it is crucially important that the private sector should play a role in this specific connection if we wish to escape the accusation that the State is controlling too large a part of the economic life and from time to time has too large a number of economically active people in its service.

A third objective that appears important to me is that we should have an acceptable distribution—and I wish to emphasize that—of national income in the country. I emphasize that—in contrast to the popular cry of the distribution of wealth—because I think it is specifically connected with the opportunity which every person in this country has of participating in the economic life and so enlarging his specific part of the national income. I wish to make one specific point in this regard. Whether we like it or not, the ability of certain sections of the population to participate in the economic life on a competitive basis, is more limited than that of other sections.

I wish to emphasize that where various sections and various sectors participate in the economic life, the process of the reconciliation of interests from day to day is the responsibility of the State. Therefore I wish to state that I am by no means apologizing for the fact that it is the responsibility of the State from time to time to perform this resolving function wherever there are conflicting interests and conflicting sections. If we in this country were not prepared to accept that there is not always equal bargaining power for the various sections, but that there is inequality, the existing inequality would become still greater. I also wish to state that I am not apologizing for the fact that for this very reason, the public sector has to perform the function of establishing equality in a society in which there is not always equality.

A further important economic consideration is that we have to ensure an acceptable geographical distribution of economic activities in the country. Once again: If we wish to realize this economic objective, an objective which underlies the total development of our country, the development of our resources and our human material, it means that the public sector—in this particular connection the State—has a contribution to make in ensuring a more acceptable geographical distribution of economic activities. I have not the slightest doubt that it is the task of hon. members coming from the various regions in this country, to advocate from time to time that the several regions should be strengthened and developed with regard to economic activities and their own participation therein.

The next important objective we want to strive for is the improvement of the social welfare of the entire population of our country.

Finally—the fact that I mention this last, underlines its importance, because once again this forms the basis of our ability to realize other objectives—it should be our objective to build up sufficient resistance to external economic and political influences.

If I can now obtain unanimity among members on these objectives—I do not think there are people who would, generally speaking, differ with me—we immediately come to the options we have in respect of economic systems that can best promote these objectives. I have very little doubt that we have already reached consensus on what system is the best. We choose the free market system as the one we wish to maintain in South Africa. I wish to make a fundamental postulate in this regard. There can never be any suggestion of an absolute free market system in our society. There can never be any suggestion of absoluteness in respect of the freedom of the market mechanism, for the simple reasons I referred to a moment ago and wish to reiterate, inter alia, the unequal bargaining power that exists in our society among sections of our population and sectors in the private sector itself.

If I interpret and sum up the speeches by hon. members correctly, then it appears to me that this legislation has at least succeeded in achieving consensus or unanimity on various matters in a debate that has often been stormy. We have, for example, reached consensus on the economic system we prefer. In this particular regard I am referring to the contributions by the hon. members for Park-town, Newcastle, Maitland and Amanzimtoti.

I have very little doubt that this particular system is the system in accordance with which and whereby we can best promote the economic interests of our population. It would also appear to me that there is consensus on the fact that in a free market economy there can be no absolute freedom, but that the State must necessarily act as the regulator in specific circumstances with regard to the protection of the interests of particular groups on the one hand and, on the other hand, the restraint of the activities of other groups in given circumstances. It then becomes abundantly clear that what is intended with this legislation is, in the first place, to emphasize and underline our choice in respect of an economic system and in the second place, also to establish the regulating mechanism and to ensure that when abuses and unfavourable conditions result from abuse of the system, or people within the system, there will be a mechanism to regulate the matter by remedying or preventing it, as the hon. member for Randburg stated a moment ago.

Various speakers have, in the nature of things, emphasized what the benefits of concentration of economic power can be and, moreover, often are. Let us have no doubt about that. There are specific and very definite benefits attached to the concentration of economic power in given circumstances. On the other hand there are also very definite benefits—and the hon. member for Constantia has referred to this—attached to the retention and maintenance of the smaller businessman in our economic system.

The fact is that, given the circumstances in which we live and in which the economy has to function, all these things have particular merits. As the hon. member for Alberton has quite effectively indicated, the disadvantages of the over-concentration of economic power in the hands of a limited number of people are not confined to the economic field. It is very clear that it also has a political facet or connotation. In this particular regard I agree with the hon. member that in this country—I am merely stating the fact—a struggle is being waged in this field to a great extent and that it has a political significance.

There are groups and people who control the economic life of the country to a great extent and who also wish to control the political life. We should have no doubt about that I am not always so sure whether this is not perhaps the essence of the existing political division in the country. It is of course true that those who have the political power but who do not always have the same economic power in their hands, will strive also to control that power to a greater extent. When we discuss those matters, therefore, it is, I think, vital that we should be prepared to regard the subject of our discussion clinically and that we should not bluff ourselves with regard to the intentions of people who participate in the economic and political life in South Africa.

There are various groups of participants in the economic life of our country. There is agriculture, there is industry, mining, and commerce. Then, too, there are also the workers and the consumers. It is a fact of life that here, as elsewhere, the several interest groups are organizing themselves within specific organizations with the primary object of promoting their own interests. We are therefore really concerned with the emphasis of interests in our economic life. Very often—perhaps in most cases—the interest groups who have so organized themselves, clash with one another. For that reason it is necessary once again that steps be taken and mechanisms be created whereby a process of reconciliation can be initiated.

The responsibility of the State in reconciling the interests of these several interest groups, which are often in conflict, is unavoidable. This measure, the present Bill, is, therefore, in my view, indispensable. One thing I should like to emphasize is that the time has come for us to take cognizance of the warning that in this House we should not be a party to the propagation of the interests of one interest group at the expense of another. I wish to issue the serious warning that in our representation here, we as the rulers of the country should adopt a balanced standpoint about the respective place that each sector of the economy and each part of our population should have in our economic life.

Speaking of interest groups, I wish to go one further and refer to the increasing consciousness in the business world—something which I find laudable and which has not been going on for so very long—of the special obligations towards the community within which they operate and also towards the workers in their service. There was a time, not so very long ago, when the approach was that it was the responsibility of the State to see to all the social services of the people in this country. In recent times a welcome new note has been sounded, however; the acceptance of these responsibilities by the private sector as well. As I see it, this, represents a very important and very welcome shift in emphasis in comparison with the earlier approach whereby every effort was directed solely at making the highest possible profits. On this occasion I wish to record my sincere thanks to those who have taken the lead in this new trend.

Furthermore, it has also become evident that there is consensus among members on the role of competition in the free market system and that we agree with one another that it is essential that healthy competitive conditions should be maintained in the economy. It is also obvious that we also agree that the State does have a role to play. I venture to state that we have made a great deal of progress in this debate with regard to a common view of our economic life, something that was refreshing in many respects.

There is also a great deal of unanimity on the participation of the State in the economic activities of the country, although there can be arguments about the extent to which the State should participate in these activities. I have no quarrel with the approach by the hon. member for Randburg; that is also the basic approach of other hon. members. This is that over and above the regulating functions of the State in the role of conciliation which it has to play between the conflicting interest groups, it also has another function to perform and that is to venture upon the field of strategic supply to the country and to concern itself with this matter. In the nature of things, the State also has to concern itself with the provision of those services which the private sector does not wish to undertake in any case, since it is either too capital-intensive or yields too small a return, or both, and the State is also mainly responsible for social services in our country.

†Let me say immediately that I not only agree with, but also subscribe to, the principle—not in theory only, but in actual fact—that there should be a reasonable distribution of production factors between the State and the private sector. That presupposes a reasonable allocation of these factors between the two sectors. The hon. member for Walmer referred to the increase in the percentage share of the public sector in the total investment as compared with the decrease in the share of private business enterprise between the years 1946 and 1974. I do not believe one can really assess the correctness of the distribution on this basis, because the hon. member will immediately concede that the relative share of each sector will also be determined, from time to time, by the circumstances prevailing in the country. And therefore, although I do not argue with the principle of proper allocation, I think the hon. member will concede that one could discuss or argue about the relative share of each of these sectors in the economy. He also requested that I refer this matter to the Competition Board or to a separate commission of inquiry for investigation. I should, however, like to point out that huge amounts of capital were spent in the 1960s and also the early 1970s on the expansion of the country’s infrastructure. I would like to stress that it is now up to the private sector to make the fullest use of the facilities which have been created in this manner. From this flows a very important observation, and that is that when we were experiencing high growth rates, we were, at the same time, experiencing very serious bottlenecks in the existing infrastructure. It, in turn, has of necessity meant that the public sector has had to construct harbours, to expand harbours to build railway lines and to create other facilities of this nature. I would like to stress further that I have observed a new confidence in the economy of this country. I have a feeling that there is general consensus about a greater confidence in the future of this country, not only in the shorter term but also in the longer term. I have had discussions from time to time, on this particular matter with people who have, in fact, invested in our country. I think I would be quite correct in making the point that there are, with very few exceptions, no persons from other countries who want to reduce their investments in South Africa. I meet with people from other countries, particularly in Europe, where they have socialist economic policies and tendancies. They look to South Africa as the future place for investment, a place where they can rid themselves of the restrictions of their particular systems.

I therefore think it is also obligatory that we should do everything in our power to assist these possible or would-be investors in South Africa, because they would also be investing in the future of our country. As has been pointed out by hon. members, amongst others the hon. member for Amanzimtoti and also the hon. member for Mooi River, a reemphasis has been placed on the value of the free enterprise system. If I have to single out a major policy objective pronounced in the budget as a short-term instrument for economic and fiscal policy, it is that the budget, quite apart from stimulating the economy, should be private-sector orientated.

I am very pleased to hear that.

I am so pleased that the hon. member has reason to be pleased about something.

We have been asking for that for about the last 5 to 10 years.

I agree whole-heartedly. I think the hon. member would endorse the fact that I have been an apologist for this point of view since I have been in this House. I should like to agree with the hon. member in this respect, but I should like to suggest to the hon. member for Walmer that I do not think an investigation is required. What I do want to suggest, is that a very meticulous scrutiny of the priorities in this regard is required to be made from time to time. I believe that the Priority Committee is possibly the instrument that will ensure that there will be a proper allocation of production factors between the various sectors in the economy. I trust that we shall from time to time discuss this in the future when we discuss my Vote in this House.

I should like to express my appreciation to my colleagues for their co-operation in this regard. We would not have been able to include certain public sector undertakings like the S.A. Railways, the Department of Posts and Telecommunications, co-operative societies and State corporations within the ambit of this Bill had it not been for the cooperation of my colleagues and also the fact that they share my own vision of what we want to achieve in the economy of my country.

A number of hon. members referred to extensive consultations which took place with the private sector before this Bill was finalized for submission to Parliament. I should like to make another observation in this regard and that is that I have constantly believed that the State would not be able to fulfil its role effectively if it did not appreciate and understand that the public sector and the private sector and their respective functions are complimentary to each other and not opposing forces in our economy. I think that the more we succeed in extending the basis of consultation between the private sector and the public sector, the better we will serve the common objectives that we have for our country in terms of its economic objectives. I want to say that this procedure of consultation is, as far as my own department is concerned, the normal practice and not the exception. In the implementation of these provisions the proposed Competition Board will not adopt a rigid approach, but will, over a period of time, by means of evolution and consultation develop general guidelines which will be related to the economic structure of our country. This has been welcomed by several hon. members, including the hon. members for Parktown and Maitland.

*In this particular connection I wish to state that I foresee that the effectiveness of this Competition Board will depend on three things. In the first place, it will depend on the members who are going to serve on this board, their view of the economic system and their practical experience of it In the second place, it will depend on the co-operation that can develop between this board and the private sector, not merely co-operation in the sense of a once-only determining of competition guidelines for the economy, but co-operation as an on-going process from which these guidelines will flow rather than to be imposed on the economic life of our country. As far as that is concerned, I wish to commit myself, in the choice of the people who are going to serve in this board, to act as circumspectly as possible and to ensure that the quality of the people will be such that in the execution of their functions, they will serve the objectives which all of us endorse, to the fullest extent.

†There is another matter over which hon. members expressed their satisfaction, and that is that the public sector is also subject to this legislation. However, I do not believe that they are satisfied just because the public sector is included. I believe they are satisfied for the same reason that I am satisfied, namely that I do not believe that we should in this regard have one law for one sector and another law for another sector.

We treat all alike.

Yes, all such cases are treated alike. I agree, of course, with the statement by the hon. member for Constantia and the hon. member for Simonstown that we should treat all institutions alike. In reply to a question I put to him, the hon. member for Constantia agreed that “certain commodities” were more sensitive than others, and since, in his view, they are more sensitive, they should receive high priority when it comes to an inquiry. I wish to suggest to him that certain commodities are so sensitive that different guidelines to those that apply in the case of other commodities will have to apply to them. I further wish to state with all due responsibility, and I hope hon. members agree with me, that when one deals with commodities that apply in the world of ideas and that are concerned with opinion-forming, we are dealing with an even more sensitive commodity.

Do you set other criteria then?

Then I set other criteria. Let me just first make my point. Then the hon. member can comment on it.

Are you going to give that mandate to the board?

No, I am not going to give any mandate to the board.

Then what is your opinion worth?

I assume the Competition Board will have enough insight and understanding of the matters they have to consider. The hon. member for Groote Schuur need not be so sensitive. I think he is himself a sensitive person. I should therefore treat him differently from, for example, the hon. member for Simonstown.

I wish I had the ability to understand the hon. member for Yeoville. He is the one man who also supports the legislation, but for an altogether different series of reasons than the reasons of the other hon. members. He must pardon me if I state—and I am not saying this to him in an unkind spirit—but he is the man who always wants the best of two worlds. The hon. member must pardon me once again, because I do not mean it in a hostile sense, when I say it appears to me that he has a special function to perform in those benches, namely where others do not do so, to wrap the cloak of the interests of ordinary man around him, and he does it very effectively indeed.

I am myself an ordinary man.

He does it very effectively, because I sometimes get the impression that it has an impact. He succeeds in creating that image. In this regard I wish to quote the hon. member, where he asked (Hansard, 2 May 1979)—

Do you agree with that?