as Chairman, presented the Eighth Report of the Standing Select Committee on Manpower and Mineral and Energy Affairs, dated 28 July 1987, as follows:

Bill to be read a second time.

Mr Chairman, to begin with I should just like to make reference to the following: Hon members are aware that the Rules Board has been established on the recommendation of the Hoexter Commission. It was legislation, recently passed in Parliament, which brought the Rules Board into existence. In the meantime we have implemented the legislation and the composition of that board has been announced. Moreover, it held its first meeting on 3 July 1987. The function of the board is periodically to revise existing rules of court, to formulate, amend or repeal rules in respect of the Supreme Court and lower courts and, furthermore, to furnish advice on any matter about which the hon the Minister may consult them. It also makes provision for the formation of specialist committees to perform specific tasks; they are therefore statutory committees.

I think it is a good thing to establish the tradition of reporting back to Parliament on what has transpired in respect of negotiations relating to parliamentary legislation. It is a great pleasure for me to be able to report that we definitely have an instrument here that we can use. It is very clear that the Rules Board is fulfilling its intended purpose right from the start. At its very first sitting the board focused attention on the recommendations of the Galgut and Vivier Commissions. On that occasion the board worked quickly and attended to a number of matters. As a result, proposals have already been submitted to me in relation to amended rules for the South African courts. This means that our Supreme Courts, in particular, will be operating according to a new set of rules within a matter of weeks. This board is apparently highly geared to act pro-actively.

The chairman of the board, Judge of Appeal Mr Justice Vivier, deserves our unanimous appreciation. The board opens up new possibilities, and the Government has therefore decided to charge the Rules Board with the responsibility of paying particular attention to the question of costs. For this reason there will be a cost component on the Rules Board to perform, inter alia, the following functions: To make recommendations on the overall structure of advocates’ and attorneys’ fees and also to give consideration to the fixing of maximum fees. The committee will also be competent—if the powers do not exist in terms of the Act, we shall have to create them—to enquire into specific instances of excessive fees being levied and to make recommendations in regard to the imposition of sanctions in these cases. The board will also be competent to investigate specific cases of unnecessary delays. Furthermore, it will be able to investigate unnecessary delays in specific civil cases and even criminal cases resulting in the wastage of money and man-hours, something I should like to have investigated.

The important point I want to bring to the Committee’s attention this morning is that that very well-known doyen of judicial administration and the judiciary, Deputy Judge President Mr Justice Coetzee, is to retire at the end of July 1987. He has agreed to become the first full-time chairman of the Cost Committee. I want to repeat that Appeal Justice Vivier, who is the chairman of the parent body, the Rules Board, deserves to be congratulated on the dynamic way in which he is managing the Rules Board. It is also a great pleasure for me to announce that Mr Justice Coetzee will be succeeded by Mr Justice Louis le Grange.

Which one?

Before any of the hon members imagine that I am referring to Mr Speaker, I want to say that Mr Justice Louis le Grange is a senior judge in the Transvaal Division and that he will be based in Johannesburg. His seat will also be an indication of the expectations we cherish in respect of that post.

His seat is not going to move to Potchefstroom?

You are the one who moves around so much!

From time to time the dualism of the legal profession has been debated in this House. The hon member for Yeoville, for one, has made some substantial contributions in this regard. That is why I am very pleased that he is present in the Committee this morning. In evidence given before the Hoexter Commission, the traditional division in the legal profession was described as a relic inherited from the English legal system in which the “Benchers of the Inns of Court” determined in 1614—

In pressing for the merging of the professions, the following arguments have, inter alia, been advanced: In the first place, the division increases legal costs. The simplest of Supreme Court actions entails the costs of at least four legal representatives, advocates and attorneys, and the concomitant costs of consultation and the duplication of documentation. The insulting motivation for the division, to which reference was made above, no longer holds good, so it is said. Furthermore it is argued that many attorneys possess the same academic qualifications as advocates and that their proficiency in specialised fields such as company law, the law of patents and expropriation law is being proved every day.

On the other hand the merging of the professions is being opposed by pointing out that Supreme Court actions cannot be undertaken successfully without the expert knowledge of litigation and the teamwork of members of the Bar. Mention is also made of the apparently abortive past efforts of attorneys in the Natal Supreme Court. It is also alleged that attorneys are not in a position to approach the interests of their established clients with objectivity. Although the Hoexter Commission found, against the aforementioned background, that the merging of the professions could be reconsidered, the commission was of the opinion in 1983 that it would not be in the interests of the public to restructure the professions at that stage.

Since then it has become clear that the negative consequences of a divided profession, or at least the semblance of one, are still manifesting themselves. Meanwhile the arguments in favour of restructuring have increasingly gained ground, and this is particularly apparent from a departmental report addressed to me by Mr J Grobler. It contains an analysis of the background to the dualistic professional system and has given me a profound insight into the problems up to this stage. His exhaustive argumentation has brought various points of view into prominence.

There is also renewed pressure on the part of attorneys for the right to appear in the Supreme Court in respect of certain matters. In fact, they are already appearing in the income tax courts and other forms of specialist courts.

My personal feeling is that it is as plain as a pikestaff that a sophisticated legal system such as that of the Republic of South Africa will always have need of highly specialised legal training, knowledge and proficiency.

International legal and commercial traffic accentuates this need, and the advocates in South Africa admirably meet this need. I want to convey my gratitude to them for having maintained our international and national stature in this way.

Nevertheless, the Government cannot turn a blind eye to the reality of the effect this divided profession has on the costs of litigation. I have, on occasion, requested the professions to put their house in order, and I am not suggesting that they have not done so. However, the Government has reached the point where it must deal with this. We are convinced that an investigation must take place into the possibility of restructuring the legal profession in such a way that the skills of all members of the legal profession are used to the increased benefit of litigants.

I have therefore decided to entrust this task to the Rules Board for Courts of Law which, as I have already indicated, has already proved itself, within a short period of time, to be an extremely pro-active body. The terms of reference entail the following:

1. (a) right of attorneys to appear in actions in the Supreme Court, and …

I should like to emphasize the following portion of the terms of reference—

1. (b) briefs to advocates directly by the client.

It is customary for me to consult the professions in cases of this nature, but because the interests of both groups are at stake and it would take a long time to reach consensus, I have given effect to my decision in this manner.

Mr Chairman, it is an honour for me to take part in this debate and to speak about a matter which is very dear to my heart, namely the administration of justice.

I want to congratulate the hon the Minister who, I believe, sets the administration of justice above politics, on his achievements in relation to the administration of justice during the past year and on the objectivity he has displayed in the process. Of course the hon the Minister, like myself, is not unaffected by party politics.

I have taken note of the operation of the Rules Board which the hon the Minister has established, and I want to extend my congratulations to the hon judge who is acting as its chairman, and to the hon judge who is acting as chairman of the Cost Committee, on their appointments. I am thinking specifically of the Honourable Mr Justice Coetzee, who is now retiring. We in the Transvaal would like to pay tribute to this judge, whom we have always described as being “difficult, but respected. ”

As to the issues that have been submitted to the Rules Board for investigation, I am pleased to see that certain aspects of the Report of the Galgut Commission—that inquiry took place nearly ten years ago—may now possibly be implemented because I believe that these will have an effect on the costs of court cases.

I am pleased that a thorough investigation is being conducted into these costs. It is in the interests of every one of us, and in the interests of the administration of justice, that the costs of legal action should not be excessive. I want to add that this is a specialised profession and that clients expect specialised knowledge. As in all cases in which one avails oneself of the services of specialists, there are certain costs involved. When one consults a specialist or any professional person, one must be prepared to bear the costs involved.

There is a school of thought in South Africa that we should move towards a system in terms of which people are entitled to free legal advice. Although I do not begrudge anyone legal advice, I do not believe we should take socialism to the point of giving everyone in this country free legal advice. [Interjections.]

I believe the hon the Minister would do well to look at what the hon member for Losberg said during his maiden speech when he suggested that we investigate the possibility of an insurance system which could be introduced to insure against legal costs. The hon the Minister reacted by saying that this would have to be initiated by the private sector, but I appeal to him to refer this issue to a body, possibly the Rules Board or some appropriate committee, which could begin to implement this.

I do not want to commit myself at this stage to a statement on the other aspects discussed, such as the dualism question about which the hon the Minister informed the Committee, but I nonetheless want to issue a warning that we must not become so reform-minded and take this issue to such lengths that we develop a desire to reform everything that has served us well down the centuries. [Interjections.]

These days there is even talk of reforming the civil process in the sense of having people, as in the small claims courts, appearing in court without legal representation. I want to congratulate the hon the Minister on the small claims court system, because I believe it works well. I also want to thank the private sector for the fact that they have thus far been prepared to man these small claims courts without receiving any remuneration. I hope they will continue to do so, because I believe they are fulfilling a role in the administration of South African justice which is to everyone’s benefit.

I have already said that this party will issue a full statement at a later stage on the question of dualism in relation to attorneys and advocates. I have had the privilege of serving in both professions and I personally believe that there is a great deal of merit in separating these groups. It is true that cost savings could be effected in certain areas, and for that reason an investigation should be launched, but I believe it would be a sorry day if we were to reform this profession and bring about a merger or unify elements in this area, because this division has worked very well. [Interjections.]

As to the right of attorneys to appear in the Supreme Court, I want to point out that I am aware that attorneys have been striving to attain that right for a long time now. However, I want to ask those colleagues of ours to give some thought to the fact that they would be free to appear in the Supreme Court if they were to take up the advocates’ profession. In that regard, however, the risk they run is that if they were to go away on holiday, they are not paid during their period of leave and there would be no one to do the work while they strolled around on Durban beach or even while they were attending a Parliamentary session in Cape Town. [Interjections.] In that profession everyone looks after himself and one is only compensated for those days on which one does the work oneself. One does not even have partners who can do the work on one’s behalf.

I now want to turn to some other aspects. I want to pay tribute to the judges of the Supreme Court. Paying tribute to them does not mean that I do not also wish to pay tribute to the magistrates and the many regional magistrates who do equally good work. I see from the annual report that regional magistrates have played their part extremely well and have worked hard, judging by the number of cases they have dealt with. I believe the regional magistrates of the Cape Regional Division deserve the utmost praise because these 13 regional magistrates tried no fewer than 9 169 cases, whilst the 27 regional magistrates in Natal tried 9 056 cases. I think we should possibly consider transferring a few of those regional magistrates from Natal to this division in order to render some assistance here, because I believe this regional division is overburdened.

Moreover, if further bonuses are to be dished out, perhaps the hon the Minister should consider giving the Transvaal judges a bonus as well, because these 35 judges dealt with more than half of the judicial administration of the Republic during the past year.

Judges are not divine or infallible beings …

Order! I regret to inform the hon member that his time has expired.

Mr Chairman, I am rising merely to afford the hon member an opportunity to complete his speech.

Mr Chairman, I thank the hon Whip for the opportunity to complete my speech.

I think it is the duty of the hon members of every political party to protect and promote the image of our judiciary. I think it is the duty of the parties in this House to emphasize the integrity and the neutrality for which our judiciary is renowned, and to help augment that reputation so that South Africa as a whole may be even prouder of its judiciary than it is at present.

I also want to say, however, that the Government has a duty not to tarnish the reputation of the judiciary by appointing judges as commissioners in regard to matters which may be of a purely political nature and may serve only to score political points. If judges are appointed to commissions, I should like these to be commissions which investigate matters from which one would expect either criminal or civil cases to result, with purely political standpoints of one kind or another not being emphasized.

In regard to the tarnishing of the image of our judiciary, however, there is another group I should like to admonish seriously, namely our liberal academics. It is interesting to note how these people are trying to realise their own political ideals through the medium of the judiciary; how they are, in fact, using the judiciary today by advocating that judges should even refuse to apply certain laws, with which this group does not agree, even encouraging judges to resign rather than do so. One wonders who would attend to the administration of justice and who would defend the rights of those liberal-minded academics in the chaos that would subsequently ensue if all those judges who might have personal objections to some law or other, were to resign. [Interjections.]

However, I also want to tell the members of our judiciary that it is also their duty to strive to promote the image of our judiciary. I find it sad that upon retiring, some judges are apparently now availing themselves of the opportunity to reveal the role they played in the maintenance of liberty and justice, and it is not in the normal sense but in a political sense that they pride themselves on the role they have played in this regard. I want to appeal to them to refrain from doing so, because this is damaging to the profession which they have honourably served over the years.

Mr Chairman, I request the privilege of the second half-hour. The hon the Minister made two very important statements and I must say we are looking forward avidly to seeing what the new Supreme Court Rules look like and how they will simplify and expedite the administration of justice.

Regarding the second statement, the hon member for Bethal again appealed for responsibility in the reform of our administration of justice; that we should not easily discard systems that had stood the test of time. I could not agree with him more. I want to say, however, that if one had listened to the hon the Minister—I listened to him very carefully—one could not have had a more balanced review and appreciation of our legal profession than he provided here this morning.

If one has to judge whether an organisation is successful, one has to examine the movements, the activities within that organisation. One should see whether it adjusts to changing circumstances outside itself. Obviously those changes should not merely take place for the sake of change but should be significant changes which are really going to resolve the problems and also result in meaningful change in the community at large.

I want to suggest that if we apply that criterion, that is to say, significant changes and meaningful actions, and judge the Department of Justice accordingly, we certainly find that we are dealing with a very successful organisation. I should like to indicate quite a few fields of activity in which members of this department have been engaged during the past few years, and are seriously engaged in at present.

In the first place there was the takeover of Black courts—19 functions and 567 posts were transferred. The administration of estates and the maintenance of Black people were taken over and almost 19 000 estates registered in the year under review. There was the establishment and development of the multilateral technical committee which played a great part in bringing about cooperation in the legal field between the RSA and the TBVC states so as to ensure uniformity in law and procedures. Then there was the establishment of small claims courts. The hon member for Sundays River will refer to them as well as to the Rules Board about which we have just heard a very important statement. In addition there is the Witness’s Friend. The hon member for Port Elizabeth North will refer to this.

Furthermore we are dealing with the decriminalising of crimes; this involves nonmoving traffic offences. The fact is that only 1% of such traffic offenders appear in court. One could really make out a good argument that those people should not even be associated with the court.

We come now to the privatisation of legal work. A great deal has already been done about this but hon members on this side of the House feel very strongly that more is required. The hon members for Vasco and Uitenhage will refer to this matter.

Then there are the activities concerning sheriffs and messengers of the court. We have already had legislation on these but a very good argument may also be put forward—this is being investigated—that the serving of all documents should in future be carried out by bailiffs and messengers of the court.

In addition there are community service sentences which are receiving very urgent attention. There is also the establishment of a liaison division which is at present under the control of Mr Dave Swanepoel. This is a very important division which is responsible for two facets in particular—liaison with the media which deals with Press enquiries, and monitoring and replying reports. There is a crying need for this division and I hope it will be expanded further.

Then there are the reports of the implementation committee. This committee was established in consequence of the Hoexter Report which recommended that legal and administrative affairs be separated as far as possible in the department.

There is also the matter of security legislation—the hon member for East London City will refer to it—which has been returned to the jurisdiction of this department to an extensive degree.

Furthermore there are the far-reaching SA Law Commission Reports. One of the most significant of these deals with surrogate motherhood and the revision of the law of evidence. Each of these reports is receiving thorough attention. There are also the reports of the Galgut, Hoexter, Vivier and Smuts Commissions, each of which is receiving continuous attention.

One comment I have to make regarding the important Hoexter Commission, the recommendations of which are contained in so many reports and have been so many years in coming, is that not one of the recommendations of this commission is not being studied and replied to in depth at this stage.

These fields of activity have been developed above and beyond the usual departmental administration and the dispensation of justice. I wish to submit that they are both impressive and proof of an organisation full of vitality and initiative.

I also want to take the opportunity of congratulating the Director-General, Mr S S van der Merwe, not only on an excellent report but also the successful way in which he administers the department. He has already instilled an esprit de corps and a purposefulness among his staff which mean a great deal to this department. I want to refer in gratitude to the Chief Director, Mr Noeth, and Mr Booysen and Mr Bosch too and thank them for their contributions.

When one reads the annual report one is impressed by the agency services this department furnishes on behalf of other departments. In this way it carries the administration of this country to its remotest comers and brings it very much closer to the people. One can refer for instance to the agency service in respect of population registration. This registers births and marriages and deals with applications for identity documents and certificates of citizenship. To provide only one example: 254 000 births were registered by this department on behalf of the Department of Home Affairs. As regards revenue, this department collects many taxes and licence fees on behalf of the Commissioner of Inland Revenue. Over the year under review 2 250 0000 income transactions were carried out by this department.

Activities are also carried out in respect of welfare and pensions; no fewer than 149 000 pensions cases were dealt with. Manpower affairs are dealt with as well as those pertaining to agriculture; agricultural credit loans are dealt with by magistrates in rural areas. In matters concerning assistance to farmers, 35 000 cases were dealt with and 3 100 relating to the Land Bank.

Health matters are also dealt with. Magistrates are responsible for having the census taken as well as for legal aid and elections. I think we are all well aware of the enormous contribution they make in this regard—as they do in maintenance cases as well.

There are a few successes to which I think I should refer. In the first place there is productivity. It happens so frequently in the private sector that the criticism is expressed that the Public Service is unproductive and that this increases inflation. The department has a proud record in this connection and is able to prove it. Between 1982 and 1986 the number of transactions handled by this department increased by 42,01% but the staff by only 17,72%—proof of the productivity of this department. Not only are its officials more productive but they are also prepared to work longer hours. A good example of this is that in the case of the recent amount of R400 million made available by the State to help farmers, magistrates were prepared to lend assistance after hours and even on Saturdays. I should like to pay tribute to all the officials of the department for their great contribution to the administration of this country.

A further division which made a significant contribution to the improvement in productivity is the Master’s Office. The number of estates to be dealt with increased by 11% between 1982 and 1986 whereas the number of staff remained constant.

Another success worthy of mention is the adoption of the accrual system. In 68% of marriage contracts entered into within the last six months of the year under review the statutory accrual system was adopted. This is proof of the need for this system, and I venture to predict that it will soon approach 80%.

The training of officers of the self-governing and TBVC states was also a success.

I take pleasure in referring to three cases involving the merits and quality of our dispensation of justice: Firstly, the international reflections cast on our administration of justice; secondly, the need for security legislation and thirdly—the hon member for Bethal also referred to this—the appointment of judges as commissioners.

As regards the reflections cast on our dispensation of justice, we have had two reports during the past year in which aspersions were again cast on our judicial officers. One such report was that of Advocate Van Manen, from Amsterdam, who came to investigate the Passtoors case. This report covers 162 pages, half of which have almost nothing to do with the trial. Legal analysis indicates that it is not even worthy of comment.

Our legal fraternity was extremely critical of this report. It also elicited adverse reports in the Cape Times, the Weekly Mail and other newspapers. This comes as no surprise because, if one examines the trial itself, one finds that Mrs Passtoors’ legal representative had to concede that she was definitely guilty of treason or terrorism on the grounds of her admissions and of proven facts. He was merely raising a legal point. This was also confirmed by Prof Van Wyngaart, an international Belgian observer. Nevertheless it is a pity that, in spite of this report and its lack of merit, it once again featured so prominently in the media.

Another most disturbing report is the preliminary report by four members of the legal fraternity, who are members of the International Commission of Jurists. This report covers nine pages and was compiled after only three weeks in South Africa. Once again it is riddled with political statements but special cause for disquiet is that the report makes use of untruths. In this way there is reference to the case of a 13-year-old boy whose detention order …

Order! I prefer the hon member not to discuss the merits of that report in detail.

Mr Chairman, the point I wish to make is that attacks are launched against our judicial officers and jurists. These reports are even attacked by the Press; nevertheless they are acclaimed with banner headlines in newspapers. I want to suggest that our media regard these matters with greater responsibility. They should first examine whether a report has merit before simply making attacks on our judges public.

In November last year a very interesting doctoral thesis appeared on this subject. It is by Dr A J van Blerk and it is entitled “Criticism of the Courts: An Historical Examination”. In it he points out the dangers of such reports which are merely published by the media without meriting it.

†I would also like to refer to the rule of law and the need for security legislation. This Government is often accused of not caring about the rule of law. However, I want to submit that nothing could be further from the truth than this. The Government is committed to an orderly and stable system of jurisprudence which is fair and just and conforms with all the lofty principles of Roman Dutch law and of Western legal traditions. [Interjections.] I would submit that there is ample proof of this.

As far as security legislation is concerned the Government subjected its security laws to a very searching scrutiny by a judicial commission to establish whether these laws were still necessary or whether they should be relaxed or amended. The Government also accepted the recommendations by the Rabie Commission to the effect that certain important security actions should be subject to a board of review and to other testing mechanisms.

I submit that in our present situation there can be no doubt as to the need for security legislation. The fact of the matter is that we are in an extraordinary situation. We are confronted by an undeclared war. From outside our country our enemies plan and execute indiscriminate atrocities against civilians. We saw an example of this only yesterday. They are doing this with considerable financial and other aid from communist bloc countries.

As in any other country in the world the ordinary criminal law of this country is intended to counter normal criminal activities. Terrorist onslaughts such as the terrorist onslaught that we are facing are obviously not normal, ordinary criminal activities and cannot be effectively contained by the ordinary criminal procedural laws. Furthermore the legal principle is generally accepted that when the security of a state is at risk then that state may take extraordinary measures to ensure its safety. This I believe is clearly the case in our present situation.

I believe that in view of the onslaught against the country, in view of the excursion to Dakar and the PFP’s support for that excursion, and also in view of the ANC’s …

What is your Government’s attitude?

… declared intention to expand its activities—and we have seen the results of that—there rests an obligation upon the hon PFP members to tell the House and the people of the country in this debate what their attitude is with regard to the security legislation. I believe that that is a most reasonable request to make under the present circumstances. [Interjections.] We can disagree on the details, the ways and means and the mechanisms. However, I believe that there should be a clear understanding that we are going to take strong measures to combat the onslaught against this country and that can only be done by way of security legislation. I believe the PFP should state their views clearly in this regard. [Interjections.]

*I am referring to the criticism directed at the Government on the appointment of judges as commissioners. The General Bar Council recently criticised this. The rationale of this criticism is that the Bench should retain its independence and not become involved in politics.

The Law Society too.

I have said everyone should; this is definitely so.

One cannot fault that rationale. The Bench should not only be independent but should also be accepted as such. Nevertheless there are cases in which it is in the public interest for an independent person to be appointed to make a factual finding. Who is better qualified than a judge?

I should like to cite a good example in this regard—the recent Margo Commission of Inquiry into the air crash involving Pres Machel. This case has definite political implications and consequences, not only at home but abroad.

But not for a political party.

Definitely; there can be definite implications for it, depending on what happens there.

But not party politics.

Definitely; without doubt.

I want to ask whether this report would have received the international recognition it has received if an official had been chairman of this commission. Obviously not.

I suggest that these bodies levelling this criticism would have rendered a far greater service if they had come forward with cautious criticism which could have resulted in possible procedure by which judges could be appointed for this purpose. I suggest further that this ill-considered criticism, and in particular the publicity that went with it, did more harm to the image of our independent judiciary than any other action.

I shall conclude by thanking the hon the Minister for the able way in which he deals with this department. It is a pleasure to work with him.

Mr Chairman, I request the privilege of the second half hour.

Yesterday’s bomb blast in Johannesburg caused much concern and has aroused heated feelings and a lot of hurt. Accordingly, as has already been mentioned here this morning, as my hon leader and one other hon member from the PFP will deal with this matter during this debate, I will not do so myself.

We have just heard the hon member for Pietermaritzburg North discuss the question of the appointment of judges as commissioners. Directly following the report of the Commission of Enquiry into the Financing of Certain Advertisements, which was publicly handed over by the commissioner concerned to the hon the State President in theatrical style before the television cameras of South Africa, the Association of Law Societies and the General Council of the Bar have taken a view on such commissions and their composition. I would like, Sir, with your permission, to quote quite considerably from the editorial column of De Rebus, the journal of the Association of Law Societies, of June 1987. I also want to quote from a report in The Argus of 27 July 1987, and I will start with the editorial in De Rebus.

Now, De Rebus as we all know, is the journal of the Association of Law Societies of South Africa. This is the editor writing:

I quote further:

The editor then quotes from a commission of enquiry which took place in England in 1966 to enquire into commissions of enquiry. He quotes as follows from Lord Salmon’s judgment there:

That is of commissions—

The editor himself then writes further:

That is the South African Association—

He then quotes J M Evans’s De Smith’s judicial review of administrative action as follows:

Lastly, the editor of De Rebus speaking for all the lawyers of this country, writes as follows:

That is the view of the Association of Law Societies.

A little later there was a conference of the General Council of the Bar and I want to quote from The Argus of 27 July:

Here again there are a few questions to be asked. What, for instance,—may I ask the hon the Minister—is his view on the opinion expressed by the Association of Law Societies and by the General Council of the Bar representing as they do virtually every lawyer, either advocate or attorney in the country? Has the hon the Minister the wit to understand that these expressions of opinion are no accident and that they relate directly to the hon the Minister’s recent actions and those of the hon State President, or will the hon the Minister brush these criticisms aside as he does all other criticisms of the Government? Surely it is time that the Government realised that if it continues to try to fashion the administration of justice to its own model it will, in doing so, destroy one of the few institutions in this country which should attract praise and respect. I believe South Africa cannot afford any further tampering with this system by the Government.

Let me turn to another topic. I should like to quote from the recent report of the Legal Aid Board, par 1.1:

Paragraph 1. 3. 2 states:

Paragraph 1. 4 of the report reads as follows:

Finally, paragraph 5. 1 reads as follows:

In other words, the Legal Aid Board—at the time of writing this report—could not honour its debts. It could not pay the moneys that it owed. What has been the result of this?

Services were curtailed in order to do so.

That is exactly what I am saying. The Legal Aid Board could not pay its debts.

The hon member is making a thorough misrepresentation of the situation.

The hon the Minister must not be silly. He must listen to what I am saying. [Interjections.]

Order! The hon member may continue with his speech.

What has been the result of all this? The result has been that the board has been forced to suspend certain crucial and important services which should be available to the man in the street. It is the ordinary citizen, Black and White, who is suffering as a result of this cut-back. It is an important fact that it has become apparent that a staggering 80% of all people serving prison sentences did not have legal representation at their trials. Eighty per cent of people who have been convicted and sent to prison did not have any legal representation at their trials. In two recent cases the Transvaal Supreme Court set convictions and sentences aside because accused parties had for financial reasons not been represented and had not been adequately protected in the magistrate’s court as a result of that.

The hon the Minister will be aware of Mr Justice Goldstone’s judgment in the case of John Gwebu. In passing I would like to ask him what action, if any, he has taken as a result of that judgment. Whatever he replies, if he bothers to reply to this point, the situation is that legal aid in this country is in a mess and in a state of crisis because of the finances which are not being provided to the board. As a result, the whole system of justice is being brought to into disrepute. I would like to know what, if anything, the hon the Minister intends to do to rectify this situation. Is he happy with the fact that 80% of convicted offenders did not have the benefit of a proper defence? Is he happy with the fact that the crucial services of the Legal Aid Board can no longer—because of a lack of finance—be rendered to the public? Perhaps he does not think about these things but, if he does, what is he going to do about it? Is the hon the Minister’s voice so faint in the Cabinet and is his opinion so seldom voiced that he will not be heard? Does he vote for billions to be spent on guns and the Defence Force in South Africa and for virtually nothing to be spent on legal aid? When I talk in terms of money the amount that is spent on legal aid is no more than a pittance. We should know that legal aid is the barometer of civilisation in many ways in many countries.

The answer lies with the hon the Minister. I am waiting for him to stand up today to tell this House what he is going to do to pull our legal system out of the quagmire of neglect into which it has fallen. I believe that he should either do his job or make way for someone else who would try harder.

I would like to move to a last point. I would be very grateful if the hon the Minister would take a few notes, because I am going to ask him to reply to specific questions. It is laid down in our law that judges of the Supreme Court cannot be removed from office except by Parliament. This provision is there to ensure that the judiciary remains independent of the executive and not subject to its influence while enjoying security of tenure of office. This is a sound provision and it should not be tampered with. Judges, however, do retire automatically when they attain the age of 70. This provision is also beneficial as it provides for ordered renewal and facilitates the proper progression through the ranks of the country’s most learned and senior jurists.

In the light of the above I wish to ask the hon the Minister a few questions. Firstly, is it true that the Chief Justice reached the age of 70 in January of this year? Secondly, is it true that Judge Rabie has been appointed Acting Chief Justice for a further period of two years? Thirdly, if my facts are correct I want to ask why an acting chief justice has been appointed on these terms, contrary to tradition and perhaps even in contravention of the law. Why has this appointment been made on an acting basis? Does the hon the Minister understand what I am saying? Is he following me because I will repeat it if he wants me to? [Interjections.]

Continue, I am listening.

The hon the Minister looked so puzzled that I was not sure that he understood what I was saying.

I want to ask again why an acting chief justice has been appointed on these terms, contrary to the tradition and perhaps even in contravention of the law when there are competent senior judges of appeal eligible to appointed to the office of Chief Justice. Is it furthermore not true that an acting appointment in these circumstances has never been made since the establishment of the Appellate Division in 1910? Is it therefore not true that this is the first time that we have had an appointment made in these terms? Finally, under what statutory authority has Rabie, A C J, been appointed? Does the Supreme Court Act of 1959 provide for this?

There are also other questions which arise out of this unhappy executive action. Is the hon the Minister for instance aware of the dissension this has caused in the ranks of the judiciary? Does he know what damage he is doing to the trust in the legal fraternity and the trust which they have hitherto had in him? Lastly, I want to know why he has done this. Is he trying to block someone from being appointed? If so, who is he blocking? Is he perhaps trying to delay the succession? If so, why and to what end is he doing so? Why is the hon the Minister tampering with the traditions of the judiciary which he professes to hold so dear? These are questions that I hope the hon the Minister will answer.

Mr Chairman, watching the performance of the hon member for Sandton during the debate on this particular Vote is very much like watching the rerun of a TV soap opera. There is nothing new and there is nothing original and he always tries to be as sensational as possible.

What about the Chief Justice issue? [Interjections.]

He is always arrogant, he is always personal and he is fast becoming an irrelevant mischief-maker.

I want to deal very briefly with what the hon member had to say relating to the appointment of judges as commissioners. The hon member made mention of the so-called Ball Commission. The rules stop one from dealing with it fully for the simple reason that that hon member is already appearing before a select committee of enquiry into a possible breach of privilege relating to that …

Mr Chairman, on a point of order …

Order! I am afraid I cannot allow the hon member to refer to that matter. [Interjections.]

What the hon member forgets is that the hon member for Yeoville actually asked that such a commission be appointed.

Mr Chairman, on a point of order: I submit that the hon member is disregarding your ruling.

Order! I am listening carefully to the hon member for East London City. I request him not to pursue that matter any further.

The hon member for Pietermaritzburg North referred to the question of the appointment of judges to form commissions of enquiry. I want to refer briefly to the matter. It is the established practice, not only in our country but in most civilised countries in the world that when one wants an unbiased, impartial report which unearths the facts of a matter, one appoints a judge to do it. He is a person who, because of his training and experience, is best suited to such a task. The judges do not become involved in political issues through being appointed to cases with political undertones, cases in which they have to unearth the facts, but far rather through the rumpus kicked up by people after such appointments and a finding they do not like. Then they not only disagree with the findings but make personal attacks on the judge in an effort to negate the effects of the finding. I do not think the hon member really deserves any further attention.

I want to deal with another matter, viz what one could describe as a deliberate campaign, particularly in the Opposition Press, in connection with the judgements our Supreme Courts have made on the emergency regulations. It is being presented in the Press as though the State, in the sense of the Government, and our judiciary are in conflict.

†Mr Chairman, we were treated to headlines such as “The Judges Strike Again” and “Emergency Laws Nonsense says Judge”. These were the order of the day. During this time there has of course been …

Were they true?

The hon member must just listen and he will find out. During this time …

Order! Once again I appeal to hon members. I am not prepared to allow the judgements of our courts to be discussed or criticised in Parliament in the course of a normal debate. That also applies to positive statements in this regard because in so doing the door is left open for criticism.

Mr Chairman, on a point of order: I think that if you give this ruling against the hon member, you will be going completely against precedent, because it is perfectly proper to criticize a judgment in this House, provided one does so in the right tone and with the right approach and in the correct manner without attacking the integrity of the judge. This has to be done by way of a motion. Sir, with respect, I should like to put it to you that if you rule that one cannot criticize a judgment, one cannot then even ask for legislation in order to change a situation which arises from such a judgment, which has happened in dozens of civil cases. I would ask you with great respect, therefore, to allow the hon member to continue with his speech. [Interjections.]

Order! The hon member for Yeoville himself has now motivated my ruling very well. I cannot allow hon members to criticize the decisions of judges on political grounds, because that would, in fact, be impeaching their integrity. I agree with the hon member that provided it is done on proper grounds, a judgment may be discussed in debate, but not on the political grounds.

Mr Chairman, I hope that the hon member’s defence of me has not given the kiss of death to my speech! [Interjections.] In fact, I do not intend discussing the merits of any judgment, but to deal more with the basis on which these judgments are given, as well as the basis pertaining to the State’s action in respect of these judgments.

*If you would just allow me to continue in the little time I still have left Sir, it will become clear.

†In a number of the judgments given in respect of the emergency regulations, the courts actually found against the State. This then led to an almost hysterical campaign to try to discredit security action taken as being illegal, the courts thereby being forced into a head-on collision with the Government. Not only is this a deliberate misrepresentation, but it also denies the fundamental basis on which our whole State structure is based, namely that of a separation of power. In terms of this the State’s functions are divided into legislative, executive and judicial powers. This is the very essence of our statecraft and the principle on which the independence of the judiciary is based.

*Consequently the perception which the opposition wants to create with regard to these judgements is indicative of a total disregard of the nature and function of the courts and the role that the Government plays in the maintenance of law and order. This becomes clear provided one first considers the part the Government is playing in the situation in which South Africa finds itself.

It is recognised law that the State not only has the right but also the duty to protect its peoples. It is also a generally recognised norm that modern states throughout the world incorporate this right into legislation. Matthews stated it as follows:

Since the earliest times our Appeal Court has also recognised this right. Mr Justice Innes in Krohn v the Minister of Defence in 1915, expressed it as follows:

This refers to the emergency measures that had been promulgated—

Secondly, one must take a look at the role of the courts at the present juncture. By way of summary it is current law that it is the fundamental task of a court of law and also one of its main duties in so far as it is possible within the law, to maintain a proper equilibrium between the powers of the executive on the one hand and the rights of the subject on the other. In the Bloem case Mr Justice Steyn, I respectfully submit, summed up the matter correctly when he said:

That is also the courts’ duty and function in a revolutionary climate. [Time expired.]

Mr Chairman, it is indeed for me, as it was for the hon member for Bethal, an exceptional privilege to be able to participate today in this justice debate. It is a privilege for me because, in the first place, I wish to pay tribute to the Department of Justice which has done do much valuable work over the years in the administration of justice in South Africa.

In the second place I should like to add in all modesty that I began my career as a lawyer in that particular department. I should also like to express my gratitude for all the assistance rendered to me and the experience I was able to gain there. I can assure the hon the Minister that he has in this hon member a very good ambassador for the activities of the Department of Justice.

I should like to deal with a facet which hinges on section 3(5) of the Criminal Procedure Act, namely the powers of the Minister of Justice in relation to the authority of the Attorney-General. I should like to do so on the basis of the problems currently being experienced in Zeerust with regard to the Group Areas Act.

The first case is that of an Indian—he is a medical doctor—who not only practises in the White residential area of Zeerust but lives there as well.

The hon the Minister is aware of that case as well as of the second. It concerns a woman who is or was married to an Indian, but a number of Indians live in the same house which is in a White residential area.

The third case is that of an Indian businessman who, we understand, also has a hotel in Botswana—this is not irrelevant to this problem—and lives in a White residential area. Furthermore there is a case of two Coloured families who also live in a White residential area in Zeerust, but I am not going to deal with the problem in regard to the latter case in this debate.

The Indians referred to live in a White residential area in Zeerust in contravention of the Group Areas Act. In November 1985 the first complaints in this connection were lodged by the Whites involved, and a dossier was opened. The hon the Minister of Justice mentioned in Parliament last year that a dossier had been opened, but since then the Attorney-General has refused to prosecute in all three cases to which I have referred. It was January 1987 before the interested parties were provided with a nolle prosequi certificate in terms of which the Attorney-General refused to prosecute.

The CP did a little detective work into the questions raised by the Attorney-General’s refusal to prosecute, and it seems to us that a number of considerations were at issue here. In the first place it has apparently been suggested with regard to the Indian businessman that he accommodated certain persons in the service of the State at his hotel in Botswana, and therefore a prosecution was not instituted in his case.

That is a real piece of gossip-mongering. [Interjections.]

In the second place it was said that the Indian physician only practised there, while our information is that he lives there and in the third case there are Indian families residing there.

With great respect, this side of the House would now like to know from the hon the Minister, as a matter of urgency, what his standpoint and that of that side of the House is in respect of prosecutions in the case of very clear contraventions of the Group Areas Act. Surely no sophisticated society can simply allow a law on the Statute Book to be contravened without doing anything about the matter. The fact of the matter is—we want to state this explicitly—that the hon member for Lichtenburg wrote a letter to the hon the Minister in which he, too, mentioned the problem of whether the State was going to institute a prosecution in this regard.

The legal position is very clear insofar as the decision of the Attorney-General is not a final and conclusive decision. Section 3(5) of the Criminal Procedure Act provides as follows:

In sum, the Minister does indeed have the authority to revoke the decision of the Attorney-General and order a prosecution himself. We should like to know from the hon the Minister whether he is going to reply to us in this debate and tell us if he is going to order prosecutions in these cases, because there can be no doubt that at least prima facie offences are at issue here. We cannot, in respect of such an important facet, tolerate a situation in which the hon the Minister, after he and his party said during the recent election that they were serious about the Group Areas Act, hides behind a decision of the Attorney-General in order not to institute a prosecution.

The sacred cows have been sent to slaughter.

What about the 1 200 in Hillbrow?

The hon the Minister is aware of the fact that he has the requisite powers in terms of section 3(5), and we want to know during this debate what he is going to do in this regard. We should like to tell the hon the Minister, in case he does not give us a reply during this debate, that the necessary steps have already been taken to institute a private prosecution.

What is at issue here is not only the question of whether the laws of this Parliament, which is the highest council chamber in the country, are disobeyed; it is also the credibility of the hon members who told the voters during the election that the Group Areas Act would be enforced. This is the test, today in this House, of whether the hon the Minister of Justice, on behalf of the Government and the NP, will in this House tell the people in this country whether or not they are serious about the Group Areas Act.

We do not want a situation similar to the one where there first had to be a bomb explosion before the hon the Minister of Defence would say whether they were in favour of the Dakar conference or not. We want a decision now. Only opportunists wait for a specific situation to exist before they react to it. We hope that the NP will not also be guilty of opportunism in this particular regard.

Mr Chairman, the hon member need not insist on an answer or fear that he will not receive one. He will receive it immediately—at this very moment.

What kind of utterly arrogant attitude am I dealing with here? [Interjections.] If I do not say at once that I am going to institute prosecutions, that hon member says they have already taken steps to institute a private prosecution. But good heavens, Mr Chairman, the Attorney-General is helping the hon member to institute the prosecution! [Interjections.] This very week, on Tuesday, I replied to a question here and told the hon member the Attorney-General had issued a certificate in terms of which the hon member could institute a prosecution. I now say to hon members on this side of the House— what day in August is it today …

It is not even August yet! [Interjections.]

It is almost 1 August.

The Attorney-General issued such a certificate on 16 June. There is a time limit on the issue of that summons and the institution of a private prosecution and to prove how serious he is and what a good case he has. Two months have elapsed since then; did the hon member institute that prosecution, yes or no?

We are waiting for you!

The hon member must answer me now. I shall not reply to him; he owes me an answer. [Interjections.] Did the hon member, this sacred protector of group rights in South Africa, or whatever he wants to call them, institute a prosecution? He had a private prosecution certificate. He has had it for two months—where is it? [Interjections.] Did the hon member obtain a prosecution? [Interjections.] Those hon backbenchers who do not know what this is all about must keep quiet! [Interjections.] When we require their chorus, we shall inform them. Meanwhile we can argue this case.

Order! The hon member for Losberg put a specific question to the hon the Minister. The hon the Minister is replying to it. I think the hon the Minister should be afforded an opportunity to reply to the question.

The hon member’s applicants—they are attorneys reacting to the information of the hon member for Lichtenburg—have had that certificate in their possession for two months. I want to tell hon members on this side of the House that the legal system of this country provides that, if the Attorney-General has taken a considered decision not to prosecute, a private prosecution may be instituted. That private prosecution certificate has been in the hon member’s hands for two months now. It is valid for three. Why did the hon members not institute a prosecution if they are the sacrosanct patrons of that principle? No, we unmask the true nature of such sanctimoniousness before breakfast.

I come now to another point. This hon member is a young member, a new member. He probably knows our statutory law—this I do not wish to deny—but the hon member would do well to seek guidance from someone like the hon member for Brakpan and even the hon member for Jeppe … [Interjections.]

I have already run away from that place!

Sorry—for Overvaal.

The hon member for Losberg should do that first, before stepping into a trap as he has done today. Those hon members will tell him at once that it is traditional for the Minister of Justice not to interfere in the activities of the Attorney-General. This tradition has been maintained since the twenties. It is the best protection possible for the profession of the Attorney-General that he does not act under the Minister’s prescription, regardless of what the legislation says. That is why it is so important that a Minister of Justice should maintain this convention, and only intervene in the most extreme exigency in the general national interest.

My predecessors upheld that tradition; it made no difference what their party was. Mr Vorster maintained and propounded it.

They also upheld the Group Areas Act.

I have had the opportunity of expanding that policy in that, regardless of the provisions of the section, I apply it with the greatest circumspection. [Interjections.]

Order! If hon members have private arguments, they had better settle them somewhere else and not interrupt the hon the Minister while he is replying. The hon the Minister may proceed.

He will intervene only in exceptional circumstances. In accordance with this, I took the following steps with the blessing of this House. When a problem arose in the past regarding the application of traffic speed control and the use of various instruments, I took co-ordinating action with the full blessing of the House regarding the Attorneys-General and under my chairmanship they developed a co-ordinated action and I monitored it. I am not apologising for this. I reported back to Parliament and the Attorneys-General are all happier people today thanks to that co-ordinated action, because it provided a general example. Since then they have co-ordinated their actions where possible on every feasible point without sacrificing their individuality and autonomy.

In this particular case I want to tell hon members something. Permit me first to add, however, the section also means that the Minister of Justice is the one man who may therefore enquire of the Attorney-General what point he has reached in his work and what his decision and reasons are. Reasons are sometimes furnished in the national interest, but usually not; this is the case for obvious reasons.

I expected such a debate about this case. When it was brought to my attention that the prosecutor refused to prosecute—according to the system it goes from the Attorney-General to the prosecutor—I requested the Attorney-General of the Transvaal to deal with the matter personally. The Attorney-General called for these three cases and examined the dossiers and I am under the impression that he even ordered a reinvestigation or a further investigation here and there. He came back to me and reported in full and on legal grounds he decided that there was no prospect of a successful prosecution. He took this decision on juristic grounds. I support the Attorney-General’s decision. That is why I told hon members in reply to a question that a nolle prosequi certificate had been issued. I am now absolutely shocked to hear that hon members are making use of this process. Hon members set it in motion but do not use it. If there has ever been a disregard of what is available to the public, this is it. This is utter disregard.

I hope the hon member—I am serious now— will come to conduct a discussion on juristic grounds with me because I am satisfied that this is the case.

In general, what is the position regarding the Group Areas Act? Why does the hon member have to politicise this debate now? The hon member knows as well as I do that prosecutions and investigations take place with prudence and wisdom, not because of the Attorney-General’s or my approach, but because this has been incorporated in section 41 of the Group Areas Act since 1961. Not one of those hon members ever found fault with it when they were with us.

But then the Act was still being applied. [Interjections.]

I shall leave the matter at that because, as I have said, if an Act is in the Statute Book, it has to be applied unless an imprimatur is placed on it by Parliament or otherwise, and the hon member is correct in that score.

Mr Chairman, may I put a question to the hon the Minister?

No, I am not going to reply to the hon member for Overvaal.

Yes, it is a very difficult question … [Interjections.]

I therefore agree in principle with the hon member that once an Act is on the Statute Book it should be applied.

Permit me to return to the hon member for Bethal who made a very meaningful contribution. The hon member for Bethal referred me to a proposal of the hon member for Losberg concerning insurance and I want to tell him, while I am referring to it in the debate, that in the mean time the problem has specifically come to my notice that if a judge should die and a case, for example a civil case, were three quarters heard, the enormous costs incurred might have to be incurred all over again. We could elaborate on this potential embarrassment to litigants and for that reason alone I think it would be sensible to examine the hon member for Losberg’s proposal. While he has had a bit of a drubbing on the one hand, I give him credit for a good idea. [Interjections.]

Under these exceptional circumstances I have already given instructions for an examination into the potential of insurance against legal costs to obviate this. For other reasons the entire question of legal costs is now to receive dynamic attention from inter alia the Rules Board, and the law societies are also looking into the matter. The same is happening in the scaling down of fees, etc. I think we are all satisfied with the very dynamic progress that has been made over the past six months.

As regards the small claims courts referred to by the hon member for Bethal, I am very pleased to be able to tell the Committee that in this connection too we have made progress which is encompassing the whole country as it were. This progress covers almost the entire country. I am holding in my hand a report dealing with those areas in which advisory boards and actual small claims courts have been established and they stretch from the Cape of Good Hope to way up in the Transvaal. This is certainly a very intensive action which is throwing our courts open for the hearing of minor cases. This is something for which I wish to thank the department very sincerely, and all those involved deserve the appreciation of the Committee.

The hon member referred to the right of attorneys and others to appear which could perhaps be suspended in consequence of proposals that people could simply go to court and present themselves there to have a case heard.

I think the hon member was referring to certain proposals I made to certain representatives of the legal profession at Jan Smuts on 24 April. I can assure the hon member that the debate initiated that day has had wide repercussions, so much so that advocates and attorneys are all involved in examining possible alternative procedures. They are not doing this to replace the stereotyped, the proven, but to eliminate the unnecessary, and no one can fault that. Once again the Bar and the Side Bar are joining in this.

I wish to assure the hon member that we shall try to remove all outdated aspects in existing procedures. We shall try to eliminate anomalies and streamline existing procedures to make them work. That is one process the Rules Board is engaged in at present.

Before expanding the other process of reform, of new ideas, like the small claims court, we shall obviously have to be careful because I agree with the hon member that we should not destroy something that works. We should only work on it if it can be improved; otherwise not. I agree with that but this does not mean we have to relapse into approaches and legacies from the previous century, which are now obsolete.

We form part of the Third World too. We are dealing with an upcoming class, that participates in our economy and such participation can lead to an increase in legal traffic in the form of people who desire adjudication. This adjudication should be increasingly available to Black people—members of Black population groups. We cannot get away from this because, if we do not provide it, it could result in them evolving their own system and laying down their own rules. I think the hon member will agree with me, so I am grateful to all involved in this, but I also wish to make the point that we should only throw out the baby with the bath water if we can win over three or four other babies to raise. Only then can we do this; otherwise not. With that I conclude this point.

The hon member also referred to the question of commissions and to liberal academics—a point I wish to discuss. I want to express my concern that there are academics in the country who malign South Africa and our legal system when they require a visa to go traipsing around abroad. When they want to attend a specific conference, they criticise everything proved to be conservative, conservative in the sense that it is fit and proper. In this way they earn new invitations for themselves, a new visa in a different country and their fares. I think this is contemptible. I think what I am saying now is based on reasonable grounds and I hope that those who may be affected by this will take note.

I wish to thank the hon member for Pietermaritzburg-North most sincerely for his contribution. We could not have chosen a better chairman for the debate in this House; we raised him personally. He was of incalculable value to us but he has been called to other service. However, I do not think there could be any higher service than the chairmanship of the legal study group; nevertheless we convey our appreciation to the chairman. Without drawing him into our commendations, I wish to thank the hon member for Pietermaritzburg-North very much for stressing departmental achievements. This provides me with an opportunity to tell that team of officials sitting there that they have certainly saved this State millions— we shall never know just how many—by making productivity and effectiveness their prime target before asking a cent more from the State. I think it is the greatest achievement of the Department of Justice that its members could have succeeded in this with only a very small increase in their budget. I say to all judicial officers in this country that their achievements in recent years have been outstanding.

The hon member for Pietermaritzburg-North similarly occupied himself with the question of commissions. He very aptly made the point—he was subsequently followed by the hon member for Sandton—that this case should be assessed very cautiously because there were different stands and points of view involved here. I want to cite only one. Acting Judge President Mr Justice Boshoff made a comment in Mulder 1980 (1) SA 113(T) which I wish to quote.

†I want the hon member for Sandton to pay attention to this quotation because we have been inundated with quotations from his side. There are two sides to the case. He must try to understand this.

I will try to understand it.

If you understand it, digest it and return some dividends.

Usually what you say is rather indigestible!

I quote:

Judges are pre-eminently suited to give a verdict on facts; they are trained to base their findings on facts. I can also quote another case to the House in which Mr Justice Coetzee adopted a standpoint. It reads:

†The position of a commissioner should therefore not be politicised whether in a debate or elsewhere. I am not saying anything about the past. All I am saying is that judges are suitably placed through their training and background to adjudicate on facts. I cannot therefore subscribe to a view that we must never again use a judge.

Who said that?

The fact is that one has judges who are available and judges who are not available. It is also possible that one has judges like Mr Justice Margo who is excellently equipped for the task, bearing in mind the fact that he was also a pilot in his time if I remember correctly. He therefore knew exactly what the issue was all about.

*Consequently there is a wide variety of considerations but the fact remains that we also appoint other persons to a commission. Neither is it necessarily a judicial commission because a commission remains a commission whether a judge, a teacher or whoever serves on it. A commission also has specific consequences which are not final: The hon member on that side of the House argued that it would inevitably have to result in a conviction or the indication of a crime or whatever, but that is not so. It is merely an indication of the factual position of the cases on which the Government or whoever appointed the commission desires information.

I cannot therefore commit myself to saying today that we shall not appoint judges as commissioners again. The fact remains that we have to examine the availability of judges and all the prevailing circumstances when we are dealing with such a case. I want to add that a sitting judge definitely has an exceptional status and we cannot get away from that. I have come across it time and again that a sitting judge has exceptional status. This means that more than the normal status is attached to a factual finding. I cannot get away from that because it is a fact in this country that our judges and former judges hold positions of exceptional trust and respect.

The hon member and the Bar tell me:

I do not know of any appointment of a commission with a judge as the commissioner which did not pass this test. [Interjections.] I want to leave it at that.

Now for a following point. From time to time the PFP has requested judicial commissions when they thought the facts of a matter suited them. If the PFP find at the end of the commission’s inquiry, however, that the facts in the report are unfavourable to them, they reject the report. This happened frequently in the past and one can go down the list. There was the commission which investigated the Uitenhage incident, and even the Rabie Report. If it does not suit the PFP, they are mute and do not accept the report; they reject it. If they think the facts suit them, however, they request the inquiry. This is the type of ambiguity we come up against, but we would do better to view matters objectively.

I shall speak to the hon member for Pietermaritzburg-North …

You have done the same; you have not accepted every judicial commission’s report. There are many examples of this.

The point is that we do not condemn the judicial commissions for that reason. The PFP condemns them. Surely we did not say we accepted all recommendations. I have not accepted the recommendations of all judicial commissions. I amend some but I do not reject the commission as such; I recognise its value. When the facts do not suit hon members of the PFP, however, they reject the commission. I shall pursue the discussion with the hon member for Pietermaritzburg North later.

†There is one issue that I would like to raise with the hon member for Sandton. I really think that he has reached a new low in his public career, a new low because if he clutches at issues such as the appointment of the Chief Justice in order once again to make the headlines, he is a desperate man.

Oh, come on!

Yes, he is a desperate man! I really feel sorry for him. If a man reaches out, forgetting his own involvement in other situations … I now have to divulge it to the House. The hon member for Sandton was chief spokesman on justice when I consulted him on the extended appointment of Mr Justice James as Judge-President of Natal after he had attained the age of 70. He continued in that office for a full year. I consulted the hon member for Sandton on that issue.

I don’t remember that.

You did not object to it either.

I don’t remember that.

He continued in that office for a whole year. The hon member did not object to it in the course of numerous debates. He was also fully informed by me who was going to be the judge’s successor. I feel sorry that I have to mention this in the debate today, but what is to become of public debate if we discuss the appointment of …

You are not dealing with the proper question.

… the second most important officer in this country?

You did not consult anybody on what you have done now and you have been asked questions about it.

The fact is that it is possible and it is legal in terms of our statutory law— that I have established. Secondly, the Chief Justice is in that position; he has been appointed, he has accepted, and there has not been one single murmur or rumour against his appointment.

On the contrary!

Not a single objection was raised, because the entire legal fraternity in this country has the highest respect for Mr Chief Justice Rabie.

Hear, hear!

That is not the issue. Nobody is criticising Mr Justice Rabie.

I say it is legal. If the hon member does not object to it, then why discuss it at all?

We want to know why you are blocking succession.

That is not the issue! He is in good health …

What is the reason then?

He is in good health, he is available. There is a great shortage of experienced judges in this country. He has assisted us tremendously, and I want to ask the hon member not to take it any further because it is not in the interests of the judiciary and the highest tradition of independence of that august body of people. I therefore want to ask the hon member to drop the matter because it has been accepted by everyone else as being in the best interests of the administration of justice in this country.

But you just have not given us the reason. That was all I asked for.

I have told the hon member—he is available, he is in good health; it is possible.

I am with you, but there is a law that says that he must retire at 70.

There is no law that says that I could not do it; that is the point. [Interjections.] A precedent has been established and the hon member did not murmur when we appointed Mr Justice James. I hate to bring this into the debate. The hon member was well informed. The precedent has been established. He did not object to it then; why does he object to it now?

Why now question the issue at all? What is more, why raise it now, eight, nine months later, when the hon member had an opportunity to do so much earlier? I make the point that he was well aware of what the situation was.

I think I have dealt with the speeches of all hon members so far and I now give the opportunity for further debate.

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

Not now, Mr Chairman.

Mr Chairman, I should like to say, concerning a question put to the hon Minister, that the hon member for Losberg should perhaps tell this House what his party is doing about those of its members who contribute to persons of other colours living in White residential areas by renting properties to those people. [Interjections.]

I should like to refer to certain aspects concerning the alleged racial prejudice on the part of presiding officers in our criminal law administration, an allegation which has been made during the past few years in particular.

Hon members of the PFP and the hon member for Sandton in particular have referred on more than one occasion in this House to the so-called lack of fairness in our courts. He went even further and expressed the opinion that it was no wonder that Blacks preferred “people’s courts”, which applied their own kind of rough justice, to the established courts of our country. By making such statements, not only are these hon members attacking the administration of justice in South Africa and compromising the application of the law in our courts, but they are at the same time failing to express strong condemnation of the so-called “people’s courts”.

The fundamental characteristic of the Western democratic administration of justice is the principle that justice must not only be done, but it should be seen to be done. This is also an established principle in the South African legal system. In addition, every administrator of justice in South Africa honours this principle and strives to apply it as a self-evident facet in his daily practice until the end of his career. This principle is also enshrined in the oath of office taken by a presiding officer, whether magistrate or judge, on his appointment. He must adjudicate all cases by ensuring that justice is done to all persons on an equal footing without fear, favour or prejudice.

One of the criticisms expressed, however, is that members of the justiciary in South Africa are almost exclusively Whites. The accusation is then summarily made that, in the first place, justice cannot be done when a person of another race appears before such an administrator of justice as an accused. Furthermore, it is said that, because of prejudice, a White magistrate or judge imposes different sentences on the different race groups for similar offences. It is therefore alleged that justice is not seen to be done and that racial prejudice is to be found among judicial officers.

In this regard, I want to refer to the article by Barend van Niekerk in the SA Law Journal concerning which he was found innocent of contempt of court, but which led to the publication of various articles and reports about this matter. This unjustified criticism has enjoyed little attention so far, but Prof Adrienne van Blerk of Unisa has dealt with it effectively and scientifically in a thesis.

Van Niekerk investigated, for example, a total of 123 executions for rape from 1910 to 1960 and found that only two of those executed were Whites and that their victims had also been White. Furthermore, it was found that only five Whites had been executed for the murders of Blacks. It was then simply assumed that the executions of Blacks were the result of the rape or murder of Whites.

Prof Van Blerk found, quite rightly, that the latter allegation was absolutely incorrect and that subsequent research in this regard had shown that in the overwhelming majority of the cases in which Blacks were executed, the victim was also Black.

The most recent statistics in this regard were furnished by Prof Dugard of the University of the Witwatersrand in an article in the SA Journal of Human Rights 1985. Prof Van Blerk put these figures and the allegation into perspective, and I quote from page 78 of her thesis:

A further point of criticism against the bench is that an overwhelming majority of those accused who are sentenced to death are Blacks. Blacks are sentenced to death especially when they are found guilty of raping White women. Van Blerk quite rightly observed, however, that such a simplistic deduction usually loses sight of important factors, namely among other things the extremely distant relationship between the accused and the victim, the committing of other crimes such as breaking and entering, robbery and theft by the accused, the fact that the victim had been threatened with a knife and the degree of seriousness of any shock or injury the victim may have incurred.

Simply quoting facts and referring to one or two cases, without analysing the surrounding circumstances and facts of each case, is not only unscientific but creates a perception of racial prejudice which is completely unprovable and is falsely noised abroad. Prominent legal figures therefore help, through inaccurate allegations and untruths, not only to place the high standard of our administration of justice under suspicion but also to promote the campaign of lies which is at present being waged against South Africa on an unprecedented scale.

This was why, for example, a British member of Parliament, Mr M Taylor, insinuated during a BBC breakfast television programme seen by millions of viewers that a sentence imposed on a White person in South Africa for the death of a Black person had a racial motive and that the sentence would have been different if the situation had been reversed.

It is clear from these few observations that criticism of the bench’s alleged racial prejudice is unfounded, inaccurate and untrue. However, certain legal experts in South Africa have, knowingly or unknowingly, cultivated an absolutely false perception among people in this country as well as abroad which has caused immense damage to the image of our legal system. One cannot, like Prof Dugard, be concerned about the image of the South African legal system on the one hand, and at the same time be involved in the creation of that false image.

I should like to continue by referring to a report in The Sunday Star of 21 June 1987 under the heading: “Let it be seen that there is one law for all”. In this report, the following is alleged:

It is clear that the leftist Press participates in the process of issuing untruths in an obvious attempt to cast suspicion on the fairness of the courts. The message is therefore clear: Do not go to the courts for protection because they are prejudiced against Blacks; take the law into your own hands and form your own courts. In these courts there is no question of justice anyway. No legal system is perfect. All that this side of the House asks is that justified and well-founded criticism be levelled which is not based on untruths, and that this be done with the intention of making a constructive contribution to the improvement and development of our legal system.

A matter which was mentioned here and is often raised is that our judiciary consists mainly of Whites. The problem which critics really have with our legal system, therefore, is not so much that justice will not be done but that, according to them, it will not so clearly be seen to be done on account of the White judiciary.

Although one can understand that this perception has indeed taken root among some people as a result of their exposure to the misconceptions issued by the media, there are a few aspects which should be borne in mind. It is one thing to say that justice cannot be seen to be done so clearly in South Africa, but it is a completely different thing to accuse the judiciary of not allowing justice to be done because of racial prejudice.

Frequent reference is made to the various race groups in South Africa with their various cultural backgrounds, and it is regarded as a problem that White judges and magistrates associate their values, expectations and experience of life with the community from which they come.

It should also be remembered that the South African legal system originated in Europe, and that there has been little interest during the past decades among the other population groups in legal training and in participating in the South African legal system. Consequently there are very few Black legal practitioners in relation to the size of the Black population.

What is also not generally realised is the fact that among senior advocates—the traditional recruiting ground for the Supreme Court— there are only two people practising who are not Whites: Mall and Mohamed. The Government’s willingness to appoint suitable legal experts for all race groups can be seen in the appointment of Adv Hassan Mall. An appointment to the bench is an extremely responsible task, and one must guard against making appointments simply to increase the appearance of justice and, in the process, impairing the quality of the administration of justice and, ultimately, of justice itself. [Time expired.]

Mr Chairman, the hon member for Vryburg will forgive me for not reacting to the points he has raised. There is another matter, however, that I have to raise in the short time at my disposal. I also thank hon members who are members of my party’s study group on justice for the time they have afforded me to discuss a matter here that is close to my heart.

†Mr Chairman, I want to raise a matter which impinges very heavily on the hon the Minister of Justice, on his portfolio and on his responsibilities. That is the issue of the bomb blast in Johannesburg yesterday, and also certain issues which have arisen out of that bomb blast.

All hon members of all the parties in this House, I believe, have by this time expressed their condemnation of that bomb blast. I, on behalf of my party, condemned it yesterday as a cowardly and callous act of terrorism, and I did so in the strongest possible terms. To me it is both morally and politically reprehensible, and I trust that the perpetrators will be brought to book without delay. We have all said that, Sir, and I would have hoped that at a time when emotions are running high against the horror of that event we would have stood back—and this applies particularly to the leadership of this nation— and looked very seriously at the situation and endeavoured to bring a degree of calmness and objectivity into what is an intense and difficult situation. In particular, however— and I regret to notice that he is not present here today—the hon the Minister of Defence has attempted to convert a serious national situation into a party-political occasion. [Interjections.] That is what he has done, Sir. I want to say in particular that the attempt by the hon the Minister of Defence, to infer that I, inter alia, owe South Africa an answer for the bomb blast in the centre of Johannesburg yesterday, I find outrageous. I find it absolutely despicable! [Interjections.]

Absolutely despicable!

I believe this is party politics at its lowest level in South Africa. I must say that I reject with absolute contempt the attempt by the hon the Minister of Defence to link me and my party in any way to that bomb blast. I reject it with absolute contempt.

Order! May I, with respect, request the hon member now to link his argument to the Vote?

Well, Mr Chairman, I should imagine that the hon the Minister of Justice is the man who does the banning. He is the man who is involved in the whole security situation from the justice point of view. [Interjections.]

Order!

It hinges on him entirely, Sir. Moreover, the hon member for Pietermaritzburg-North said he expected us to respond to the situation. Therefore, Sir, I intend to respond so that there can be no doubt regarding our attitude, which is very pertinent in this matter. I am sure the hon the Minister of Justice will concede that this is necessary.

I want to make this quite clear, Sir. I have done so in this House before. I have also done so outside of this House. I want to make it quite clear that this party to which I belong is totally opposed to violence as a political weapon in South Africa. We are totally opposed to it.

What about Dakar? [Interjections.]

I said the other day that if we carried on as we were in South Africa on the route of violence there would be no winners; there would only be losers in South Africa. What is more, Sir, if we continue along the pattern of what happened yesterday, there will be no solutions to the political problems of South Africa. Sir, that is our basic attitude. It is our attitude towards much of the work which this hon Minister has to do in the administration of the Department of Justice.

For someone to say, however, in general or unqualified terms, that the PFP is in favour of talks with organisations responsible for acts of terrorism, I believe, is a gross distortion of PFP policy and of PFP attitude. [Interjections.] I want to make it quite clear that whether we say so or do not say so this party is not prepared to compromise with terrorism in the exercise of its functions as a political party in South Africa. [Interjections.] We are not prepared to compromise. [Interjections.]

Because we are not prepared to compromise let me make it quite clear that we would not be in favour of talks designed to create cosy relationships or joint strategies with any organisation one of whose strategies is violence or terrorism, whether it is called the “armed struggle” or not. We are not interested in that kind of game in South Africa. [Interjections.] We are a different kind of political party; we are opposed to violence.

There have been and will be times in the history of this country when South Africans are going to have to speak to one another whether they like it or not. There will be times when initiatives are going to have to be taken whether we like it or not. I can recall the late Mr Vorster encouraging Mr Ian Smith to take the initiative and talk to people.

Those talks should, however, not be designed to enter into cosy relationships or joint strategies; those talks have got to be a frank and blunt endeavour to try to find a way out of violence. They should be directed at getting rid of violence and terrorism and towards finding a formula in South Africa for starting the process of peaceful negotiations. [Interjections.]

Order! I am afraid I find it extremely difficult to appreciate the relevance of the hon member’s argument to this debate.

Mr Chairman, I understand that you may do so technically but I want to promise you that the hon the Minister of Justice will see its total relevance because for a large part of his life and time he has to deal with this problem from the point of view of his own portfolio. That is the reality.

I will be brief but I would like to say that whether one likes it or not we will have to talk. The Government is the party with the prime responsibility in this regard. Far be it from them to challenge the opposition and say that we are answerable I want to say that I hold this Government answerable. It must be answerable for the fact that although it has been in office for 39 years it has failed to provide and find a formula for peaceful coexistence in this country. [Interjections.] That is the problem and the challenge; I hope that the hon the Minister in replying to this debate and other hon Ministers in the course of further replies are going to say in practical concrete terms how they are going to change from the abject mistakes of the past. How are they going to bring all the people of this country together in a new era when our citizens can live together in safety and peace in our streets, cities and suburbs. [Interjections.]

It is the responsibility of this Government to tell us what they are going to do. We have given them certain guidelines over the years—to get rid of apartheid and start negotiation. I want to appeal to the hon the Minister, who I believe is one of the more reasonable and balanced Ministers in that Cabinet, that we should all realize the seriousness of the times in which we live. This is not the time for cheap party politics. It is a time in which I believe all the people of goodwill in this country, whether they are on that side of the House or on this side and whether they are voters in this country or not, are going to have to look at this country seriously and find some way in a spirit of goodwill to try to get rid of the scourge of violence and terrorism into which we are slipping as a society.

It is amazing that the hon member for Sea Point could rise to his feet here this morning and make these statements. I have problems in following and accepting the logic of what he said. When he said he and his party renounced violence, I had the problem of having to deduce from that that he did not have complete control over all the members of his party. From his rejection of violence I would assume he had accepted the offer spelt out so clearly by the hon the State President when he said he was prepared to talk to any one on condition that that person or body renounced violence. Surely that is logical; I do not think we differ with one another on that point.

Communists too?

It includes them as well.

Now the hon members of his party come …

Do you listen to Radio Today?

The hon member can forget about Radio Today. [Interjections.] He can also forget about “Radio Tomorrow”. We are involved in a topical debate. We are talking about the true facts that apply in this debate, viz that in reaction to what the hon the Leader of the PFP said, I find it strange that he can permit some of his people to negotiate, conduct talks and be prepared to have discussions with people who do not renounce violence, but are in fact responsible for the violence he condemns. Surely that is the cardinal point at issue here. That is the reply the hon member for Sea Point owes us. He is compelled to give this House a reply to that question before the end of this debate, either by doing so himself or through one of the other hon members of his party. I believe that I can request with great confidence that he give that reply through one of the members of his party. Let us specifically ask the hon member for …

Greytown.

The hon member for …

Dakar!

Surely, the hon member for Durban Central is going to take part in this debate. Let us ask him to reply to this question, for then we will have clarity on it. I have the greatest respect for the hon member for Durban Central who can give us an honest answer to this, and I look forward to hearing it.

To begin with, I should like to refer briefly to the January 1986 report of the South African Law Commission, which deals with the question of criminal accountability for crimes committed in a state of inebriation or under the influence of drugs. I should like to thank the commission for a very balanced report and I should like to ask the hon the Minister to make a statement in this connection in order to make the department’s standpoint clear to us.

I should like to have a brief discussion with the hon the Minister about another matter, viz the question of privatisation. I should like to put two questions in this connection. Is it our policy always to privatise as far as possible where this can be done without detriment to the relevant department and the country? If that is the case, we have no argument about it. My next question is whether we are in earnest about privatisation. That is the important question as far as I am concerned. When I ask whether or not we are in earnest about it, I mean that where it can be done, and where it is in fact possible, the hon the Minister and I would agree that what can be done immediately, should be done.

If I can give an example in this connection, I should like to refer to the State Attorney’s Office. The practical situation is that the principle of privatisation has already been adopted by the hon the Minister and his department as far as the Bar is concerned. In the case of the Bar it is customary that all the Government departments have their law advisers and, since it is essential that matters that have to be dealt with on a daily basis are dealt with by competent legal officials. When it is necessary to make use of practising advocates, this has been privatised and these cases are allocated to private practice.

The first question that arises is why there is a difference between the Bar and the Side Bar. I want to say immediately that with the point I am trying to make and the request I am making, that the State Attorney’s Office be privatised as far as possible, I do not want to cause any damage or destruction to those who already work as State Attorney or to the inputs made there in respect of the future promotion of such people. I feel that the same policy should be applied by both the Bar and the Side Bar. If hon members ask me why I think it is necessary to mention the State Attorney’s Office in Cape Town as an example, I shall say in the first place that it is interesting to see that it is the largest attorney’s office in the whole of Cape Town, consisting of a specialist staff of 21 plus an administrative staff of 28, making up a total of 49.

I checked the records and it is interesting to see that the largest private firm also has 21 professional staff members, but quite a lot more than 28 administrative staff members. It is an interesting question: Why is there such a difference? The number of professional staff members is approximately equal to the number of administrative staff members in the State Attorney’s Office and in private practice the ratio is approximately 1:2 or even 1:3 or 1:4.

Then one can see how many cases the State Attorney’s Office dealt with during the past financial year, 1986-87. They opened 2 957 new files in respect of debt collections, 1 955 in respect of deeds, and 6 010 in respect of professional litigation, amounting to a total of 10 922. When one adds that to the pending files—debt collections 4 353; deeds, 1 369; and professional litigation, 5 521, which make up a total of 11 243, it is a very big operation.

One wonders whether it is necessary for all that work to be done by the State Attorney’s Office. I want to reply to that immediately by saying I do not think it is, since I can think of no necessity for the State Attorney to do the normal debt collections of the Post Office, for example. I can think of no reason why the State Attorney’s Office should collect ordinary hospital accounts or why it should defend ordinary policemen and other officials when they have any problems in respect of an offence.

I can imagine that it is absolutely imperative and essential for the State Attorney’s Office to deal with sensitive matters. That is why I can make out a very good case for the continued existence of the State Attorney’s Office. It must not be neglected.

In this connection I have in fact, referred previously to the professional staff compared with the administrative staff, and I request that the matter be investigated. I believe there is a problem in the facts I mentioned, viz that there are so few administrative staff members. I truly think, with reference to all the information I obtained from private practices, that there are too few administrative staff members in relation to the professional members. If this ratio were reviewed, a better performance might be achieved.

I should like to make the point that the State-Attorney’s Office should continue to deal with the sensitive cases. I think the rest clearly fall under the category of what can be privatised in terms of the decision and the declared concept and policy of the Government. [Time expired.]

Mr Chairman, the hon member for Vasco made a plea for privatisation, in which I certainly support him, as I assume most hon members, if not everyone in this House, do. He also referred to other matters which I shall come back to in a moment.

The hon the Minister’s announcements in respect of the appointment of Mr Justice Coetzee, and also of the enquiry into the dualism in the legal profession, are positive developments. I am grateful that they are taking place simultaneously, because the findings of one will definitely affect the other. We shall have to be very careful of possible increases in legal expenses caused by the mere removal of the dualism that exists at present. I believe that that is possible.

I want to address a few thoughts to the hon the Minister concerning an announcement he made at the beginning of last year about the South African Law Commission’s enquiry into a possible Human Rights Charter for South Africa.

I miss the presence of the former hon member for Roodepoort, and the present hon member will not take it amiss if I say that, because Mr Cuyler made a great contribution to getting this enquiry instituted. The hon the Minister has proved himself to me and everyone present here. We know him to be a person who really cares for the South African legal system. He has a more sensitive perception than most of us and he has a feeling for the basic origins, meaning and substance of our legal system. I maintain, however, that our statute law has begun to undermine not only the Roman-Dutch legal system, but also the confidence there was in the legal system.

When we look at legislation which ostensibly becomes part of the law, a great deal has been done to return to the idea of the basic legal system. The Prohibition of Mixed Marriages Act has been abolished, but one still comes up against other statutory laws which are perceived to be part of the legal system, such as the Group Areas Act, under which one cannot settle as a family where one wants to.

There are problems concerning the recognition of the principle of citizenship. Members of the independent TBVC states qualify for citizenship, but when it comes to the implementation of this law—I have experience of this myself—there is an immense problem with its administration. Other people claim that the applications are accepted when one threatens to take things to court.

Influx control was abolished in an attempt to make the legal system and mobility more acceptable, but then it appears that other legislation is being applied, such as that on the prevention of squatting. Work and housing were considered for a long time, but this was abandoned; yet it is being used once again in dealing with these matters. The decision was taken not to proceed with enforced removals, but then one finds cases in which towns which were in the process of removal are deproclaimed, with the result that people are living there illegally. Although I have no knowledge of removals that have taken place, this is the threat hanging over these communities.

I can also refer to the security legislation. I want to avail myself of this opportunity to say that what we saw on television last night about yesterday’s bomb explosion and the events concerning landmines, cannot and should not be defended by anyone in this House. All of us reject that kind of action, but I want to express a further idea here, and that is that we should not seek to lay the blame on the opposition parties or the Government. Irrespective of whose fault this ostensibly is, it is a fact and we shall have to address this matter to get rid of this violence. We are not going to get rid of violence solely by means of counter-violence.

A second dimension is involved in this. In the election we voted directly for the principle of emergency powers, but it is not the need for them that is at issue. I think it was the hon member for East London City who referred here to the right and, in fact, the duty of the Executive to maintain the integrity of the Government and the security of the State. The question, however, is under what circumstances and within what system this should be done. If we, as part of the legislative authority, accept that the Executive has the duty and the absolute right to take action and that it could in fact, when it judges this to be necessary, detain someone for life without his ever being tried, the argument does not hold water.

The hon member for Pietermaritzburg North referred to the three “estates” of government and inter alia to the principle of the division of power. I think the problem is largely that the principle of the division of power is being eroded to an increasing degree. The Executive is acquiring an increasing degree of power in contrast to Parliament, and this House of Assembly is permitting that to happen. Via Parliament, the Executive is also gaining more and more powers which are in conflict with those of the courts. When we look back at what has happened in history, we see, for example, that during the American development the courts simply said they refused to accept certain legislation, despite what the legislature said. They said they regarded ensuring the preservation of individual rights as being their province.

The opposite happened in South Africa. Our courts’ right of administering justice became more and more restricted, and an ever more formal approach is being maintained there. The merit of a case is not tested. Even the testing of decisions of the Executive is restricted to a minimum, to what can be tested merely according to the procedure.

It is neither the judges nor the bench that are being compromised in this process, but the operation of the system. People who find themselves outside the parliamentary system are becoming more and more convinced that the bench is not an ally which is going to protect their individual rights. I want to plead with this hon Minister and suggest that it is his task, also as the representative of various members of the different branches of the legal professions, to express concern, and to feel concern, about the real future of the South African legal system.

There are more and more statements by academics who are involved with the principle of human rights. There are judges—hon members referred to this with agreement and also, in my opinion, with disapproval—who said after their retirement that they were being forced more and more to interpret in a merely positivistic way, and that they could not really play the traditional part the South African supreme court should play, viz that of being a kind of buffer between the Executive and the subject, and return a judgement as such.

There are the Lawyers for Human Rights and Masa, the Medical Association of South Africa, that are coming into prominence, and are beginning to worry about principles which are concerned with individual and human rights. The pressure is increasing, and yet, in extra-parliamentary politics, a process is developing in which Blacks in general, people who have no share in the system, are even rejecting the idea of a human rights charter.

I want to make a plea for the hon the Minister to see whether he cannot at least involve the courts in the process of continued detention of people under security measures by virtue of his portfolio. We accept that that kind of detention and security action is essential, and even that the principle of detention without trial may be essential for a limited time, but then, even if the person is not charged, a judge or the judicial bench should be involved at the earliest possible stage to decide at least on the desirability of the continued detention of such a person. This should not be exclusively in the hands of the Executive, or be delegated to officials. I want the hon the Minister please to give specific attention to this matter. [Time expired.]

Mr Chairman, there are senior hon members on this side of the House who have indicated that they have to leave because of special personal circumstances. I regard it as appropriate, therefore, that I reply to their speeches, perhaps replying at the same time to questions raised by one or two other hon members.

The hon member for Sandton referred to the whole question of legal aid. He justifiably expressed his concern about the fact that the demand, the applications to the Legal Aid Board for legal services, could exceed the available funds, as projected over a certain period. He did not put it quite that way, however. He said that the board was unable to fulfil its obligations. The point is that the Legal Aid Board made those projections precisely in order to fulfil its obligations; and to work within its budget, it curtailed certain legal services. Surely it is a responsible body that does that kind of thing. That is the first point. They did act in a responsible way.

Secondly, in accordance with the powers it possesses, it appointed a committee to ascertain whether it could generate its own funds in terms of the Legal Aid Act.

Thirdly, I am negotiating a particular budgeting procedure with the hon the Minister of Finance with a view to establishing a reserve fund. Until now I have not been able to interest him in a reserve fund, but I am convinced that that is the direction we should be taking. It is also true, however, that the question of legal aid is receiving special attention throughout the country from all quarters. The legal profession, which has more funds at its disposal, finances legal aid clinics; and we have the small claims courts. Litigation is alive and well in South Africa. It is a fact that the private sector is playing its part as well. Of course, the private sector has to play its part to an increasing degree with regard to legal aid. That cannot be the responsibility of the State alone.

One of the hon members argued that we were leaning towards socialism. We must beware, however, of wanting to do everything ourselves and leaving nothing to the initiative of the individual or the private sector. We should maintain a sense of balance in this matter.

What is the role of the Government, however? With the means at its disposal, the Government has performed astronomically. An amount of R2,9 million was allocated to the Legal Aid Board in 1983-84, and R9,5 million in 1986-87. In four years the Government’s contribution to the Legal Aid Board increased by 317%. There was an increase of nearly 100% in the 1985-86 and 1986-87 financial years alone. When we realised at the end of last year that we were heading for a deficit, I turned to the hon the State President and the hon the Minister of Finance for assistance; and without let or hindrance we acquired additional funds of approximately R2,5 million which enabled the board to balance its books. In the past, therefore, we also received some additional assistance if at the end of the period it appeared that the demand for funds exceeded the available funds. That is the attitude of a responsible government.

During the current financial year alone, our contribution to pro Deo counsel in respect of capital cases increased astronomically by R3 million. Relatively speaking, it is one of the best financed services in the country.

While other departments have been economising because hon members have criticised us about Government spending—they hold us responsible for inflation; that is a pet subject of the hon member for Lichtenburg, and sometimes I can understand his arguments— we have not neglected our duty in this sphere.

I appeal to the hon member for Sandton, therefore, to consider this matter in a very responsible way. We definitely had to act in a responsible way and curtail services. I have pledged my full support to the Legal Aid Board, which is an autonomous body, to act responsible way in this connection; but now the hon member is creating the impression that 80% of the people in South Africa’s prisons have no defence counsel. That was merely an estimate, but he used it as a definite figure. It was a coincidental estimate.

What am I going to do about it? I have already told hon members what we have done as far as figures are concerned, and I have explained that we attach tremendous importance to legal aid. We have achieved reasonable success with the witness’s friend project, and everyone is satisfied with it.

I have begun to wonder whether we should not also appoint a parate counsellor, especially in the magistrates’ courts and the lower courts, who can give people the necessary technical advice on how to plead guilty and what the consequences of doing so would be. I do not believe the hon member wants to argue that everyone should plead not guilty when they are guilty. Is that what the hon member is contending? I do not believe he wants to do that. The fact is that a large number of the people are guilty, and if they admit guilt they shorten the procedure. Very often the fact that they have been honest with the court and taken the court into their confidence leads to a commutation of punishment. Now he wants to take that away as well.

Moreover, has the hon member ever thought about how many courts we would need if we had to arrange for an appearance in respect of every case? Has the hon member considered how much that would cost the State? The fact remains that in principle we have to provide legal aid where it is financially possible.

I am satisfied, however, that we have sensitised the entire South African population—all responsible parties—to legal aid. So many people from the private sector are coming forward that I can only express my appreciation.

What have you done about the Quebu judgment?

The hon member was referring to the judgment of Mr Justice Goldstone, and I note that with appreciation. He justifiably expressed a measure of criticism. What did Mr Justice Goldstone do, however? He did precisely what we expected of him, viz to act as the guardian of the lower courts and of human rights. I want to tell the hon member for Sandton that. Does the hon member want me to do something about that now that we are functioning better? Must I reprimand the person who was involved in that and who neglected to say this or that? He has already received the sanction of the Bench and the Press, and so on, so what must I still do? [Interjections.]

The fact remains that we have the strongest form of sanction, and I refuse to intervene where the Supreme Court has set aside a sentence and expressed criticism. I refuse, too, to endorse that, because then I would be doing precisely what the hon member says we are doing—interfering in the administration of justice. That is what he wants to do. It is this kind of attitude—I nearly said hypocrisy—that sometimes drives one to distraction. [Interjections.] I think the hon member for Sandton really means well sometimes, and I know that he, too, is concerned about legal aid.

The hon member for Vasco referred to the Law Commission’s Report on the question of crimes committed under the influence of alcohol. I hope he was not being critical because the Law Commission is not working on certain assignments at all. If he would just sit down for a moment, I shall enlighten him about the prevailing philosophy which allows hon members on this side of the House to say with justification that this department is active.

We need public instruments that can bring about acceptance in the administration of justice—people with status, who know every profession—and that is why we refer our cases to the Law Commission and the Rules Board. They deliver the product to us and we administer it. In a short time they achieve something for us that would have taken years to achieve otherwise. That is why we do it, and hon members have provided evidence to the effect that we do not leave these products on the shelf.

They do very good work.

Yes, very good work. This is an example of a very sensitive report. It arose out of two points for discussion on the question of liquor that I encountered at NP congresses. If other parties come across meaningful ideas at their congresses, they are welcome to pass these on to us, because ultimately the law is the expression of the will of the public. They are welcome to do so, therefore, and I just want to extend that invitation to them.

In answer to the hon member for Vasco’s question, I want to say that the question has arisen as to what we should do about those recommendations. One of the recommendations was that a statutory offence be created. What this amounts to is that if someone commits a crime whilst under the influence of alcohol so that that can have a mitigating effect on the basis of which he can vindicate himself, a statutory crime will have been created of which he will be found guilty, and the punishment that must then be meted out could be the same as that for the main crime. That is what they recommended. It does, therefore, have quite an effect on the existing situation.

My feeling is that the Law Commission acted in a puristic way by not addressing the question of extenuation or non-extenuation. Section 350 was inserted in Act 56 of 1955, for example. The section read:

The question is what became of that provision? When the Criminal Procedure Act was incorporated in the Statute Book in 1977, that section was dropped.

In my opinion, the public wants to know that someone who committed a crime whilst under the influence of alcohol can be more severely punished. We have also had the Appeal Court judgement in the Chretien case in which it was decided that when a man who is so intoxicated that he does not realise what he is doing, fires a pistol shot with a jerking motion, and somebody dies as a result, the fact that he could not form the intention of doing so has a mitigating effect. Our public does not quite understand this. On the one hand, from a juridical point of view, we have to recognise and respect that Appeal Court judgement. On the other hand the public wants to know that this man will be punished if he is in a certain mental state. Who can ultimately express judgement on this issue better than the fathers of the nation themselves? The Standing Committee on Justice have proven themselves over a long period to be people who can come to a very clear decision on matters. The standing committee must please look into this question of alcohol and crimes committed under the influence of alcohol. I therefore refer the report of the Law Commission, with the legislation proposed in it, to the standing committee with the instruction to report on this report, the committee to return to Parliament with legislation. I think the legal people on this side of the House will enjoy looking into this.

I hope the hon member for Vasco is happy with the answer. I want to thank him very much for having given me the opportunity to say that. He raised another very important matter, viz the question of privatisation. There is another hon member who is going to participate in the debate as well, however, and if the hon member for Vasco will pardon me, I will relay a message to him about what we said. We are just waiting to hear what the other hon member has to say about this.

His reasoning on this matter was very sound, however. I myself was very interested to learn that we had so many staff members in Cape Town. I just want to say that they do very good work. I could not argue in favour of privatising the Master’s Office in Cape Town, for example, because that institution is practically up to date with its work on a daily basis. If I were at the congress now, I would have said we should applaud them. This is a very good stage at which to turn from the easy subjects.

The hon member for East London City argued that security legislation was essential. He invited the PFP by implication and also directly to put their standpoint on this. I am afraid, however, that the hon member for Sea Point missed the opportunity of making his standpoint on the issue of security legislation clear. He merely said that I, as Minister of Justice, had specific powers; but he did not tell me that it is good and proper that these powers be exercised under specific conditions. The hon member for Randburg went a little further. He said that under specific conditions people should be detained as a preventative measure. Does the hon member for Sea Point say likewise?

Naturally, under conditions of war.

No, I want to know what the hon member says the situation should be under the prevailing conditions.

But what part does the bench play in that?

The hon member is not saying that without qualifying it. He is acquainted with the legislation, after all, and revisions were made.

You need to clear up the conditions that caused the state of emergency.

Sir, if there is any more tilting at windmills here … [Interjections.]

The hon member for East London City made a well-reasoned and concise speech, and I suggest that the hon member for Sea Point read it.

I want to agree with one thing he mentioned. Given the circumstances it is the duty of the State, and consequently of the Government as the executive, to ensure that disorder does not take over and threaten the safety of the State and the public. It is not a sin to act preventively. That is speaking plainly. Juridically speaking, it is the duty of the State to ensure that legal institutions are not surrendered to anarchy. That is all the hon member was saying; and he invited the hon the leader of the PFP to say whether he agreed with that or not. It is a very simple question. The circumstances are not at issue here. The circumstances have already been created. The question is whether the hon member for Sea Point does or does not find fault with the fact that the powers have to be exercised. The hon member for Randburg said that they should and he went on to qualify this, but the hon member for Sea Point failed to use this golden opportunity to say where he stood with regard to security legislation in South Africa.

Proceedings suspended at 12h45 and resumed at 14h15.

Afternoon Sitting

Mr Chairman, having considered in the meanwhile the speech of the hon member for Sea Point and of course his invitation to me to give my point of view on certain rather vague issues, I want to say that what is really at stake is a party purporting to have been constitutionally elected and the same party participating in a crusade with uncertain objectives and even more dubious results.

What does that mean?

It seems to me that what the hon member for sea Point really wants is for me to soothe the conscience of his party and to condone an immense political blunder. However, this I refuse to do.

What does that mean?

Mr Chairman, I note that the hon member for Randburg is not in his seat at the moment, but I want to make some remarks in relation to what he said. He claimed, inter alia, that statutory law and its application were undermining confidence in the courts.

However, I believe that the contrary is true. The legal system is just as important an instrument in establishing and maintaining order and stability as any of the other institutions that have to perform this function. In fact, during the past few years the legal system has increasingly emerged as the one part of the political order that is accepted by most of the people in the country. I think the hon member should simply accept that.

The increasing extent to which the legal system is being used to test the validity of regulations, laws, detentions and so forth, serves to confirm what I am saying. This increasing acceptance will very definitely play a key role in the future constitutional dispensation. The hon member referred to the brief it holds in terms of the law commission and human rights. I repeat: The courts will play a decisive role in the future constitutional dispensation, precisely due to the overall confidence they enjoy.

I should like to associate myself with what the hon member for Vasco said, and to exchange some ideas with the hon the Minister regarding the position of the State Attorney vis à vis the Side Bar. The State Attorneys’ Division was brought into being by Act No 25 of 1925, and in terms of Act No 56 of 1947 the State Attorney was afforded the opportunity of opening offices outside Pretoria as well. Today, therefore, we find that there are six State Attorneys’ offices with 154 admitted attorneys as well as 33 articled clerks. According to statistics which may perhaps be a little out of date, there are only 132 administrative staff members. On the face of it, this ratio is hopelessly incorrect and I believe the hon member for Vasco referred to this aspect as far as Cape Town was concerned as well.

This reinforces my suspicion that the optimum service is not being rendered to the State in this area. The State Attorney renders a service to the State in relation to a wide spectrum of legal aspects such as deeds, collection contracts, litigation, patents and opinion work. The only things excluded are estates and divorces. There is no fundamental difference between the work the private practitioner undertakes and that done by the State Attorney. Up to 1981 there was one difference, namely that the State Attorney appeared at no cost to his clients, but unfortunately his clients could naturally not leave him and were obliged to stay with him. On the other hand, the private attorney has gained a reputation precisely due to his ability to charge clients for the services he renders. However, this is of course a very strongly competitive profession and there are also some restrictions placed on his fee structure.

We heard today that the hon the Minister was going to look into this specific matter. I should like to associate myself with what the hon member for Bethal said, specifically in relation to professional fees. I think it was a sound standpoint.

†General Dayan said during the Yom Kippur War that he would like all the lawyers on his right flank. When asked why, he replied: “Well, I want the right flank to charge, and boy, can those lawyers charge!”

*That is unfortunately a cross the profession simply has to bear; sometimes unjustifiably. I do think, however, that the question of fees should be investigated and that we should attempt to keep the fee structure as low as possible in the interests of the public.

There is no doubt that the State Attorney performs a very important function. I readily concede that the work of the State is of an extremely confidential and sometimes secret nature. Therefore, I do not want to insinuate that the State Attorney does not perform an extremely important function. However, we also find that the State Attorney issues briefs to private practitioners. There is a striking example of this in the Eastern Cape, where the State Attorney’s office is based in Port Elizabeth, whilst the court is based in Grahamstown. The State Attorney obtains the excellent services of a private practice in Grahamstown. I therefore want to appeal to the hon the Minister once again to investigate this matter in depth and to see in which areas he can delegate a little of the State Attorney’s work to the profession. With all due respect, it is not necessary to institute an in-depth investigation. This has been the case, historically speaking, and I think it is very easy to do. I think the State would then receive a far better, more efficient and cheaper service. I am prompted to say this by what is already happening in practice. As far as the third tier of government is concerned, one finds that all the city councils have the services of a firm of attorneys. Due to the fact that it has such strong competition, such a firm of attorneys generally renders efficient service at a very low cost, because the municipality or the local authority does not have to rent buildings or hire staff and thereby incur the expense of all the associated fringe benefits. I believe these practitioners render service of very high quality, and I want to ask the hon the Minister to give some serious consideration to this. I believe the hon the Minister will also find that the unrest situation of the past two years will begin to be reflected in an accumulation of civil litigation, and perhaps now is a good time to take a look at this aspect.

Finally, I just want to refer to the report of Mr Justice Werner Vivier on the most effective method of dealing with litigation in third party matters with a view to resolving them speedily and at the most reasonable cost. I want to ask the hon the Minister what is to be done in this regard—whether it will be accepted or not. What is he going to do about this report? I just want to say that I personally support the judge’s finding that the creation of additional special courts would be unpractical, unnecessary and undesirable. I know that I am stirring up a hornet’s nest, because the law societies have asked for special courts, but I think the judge has given the Government a crystal-clear explanation as to why, in his opinion, they are not desirable, and I agree with him.

Mr Chairman, may I say immediately in response to the hon member for Uitenhage that I could not disagree with him more in regard to the last point that he made, because I think that the report in regard to the establishment of the special court is not a satisfactory report. In fact, I think there is every reason in the world why there should be a special court for motor vehicle cases. There is every reason in the world why we should have a special procedure for this, and there is every reason in the world why it should not be necessary for counsel to have to appear in that kind of case at all. If there is going to be a change in regard to the right of audience, then that last point the hon member made becomes academic. However, the reality is that in 9 out of 10 cases the services of counsel in regard to motor vehicle insurance cases are utterly unnecessary.

No, I disagree with you.

Well, I would not expect him to agree with me; that may mean that he is wrong and I am right! Therefore, I want to say with great respect that I do not agree with the contention of the hon member.

I think some of his other points had more substance to them. Perhaps one will get an opportunity to deal with them, because I had actually hoped to deal with a large number of subjects. I would like to start off by paying tribute to the Law Commission which, I believe, in the past few years has done an absolutely outstanding job, and I would like to place on record my appreciation for these services.

Secondly, I am pleased that the hon the Minister is conscious of the fact that a great deal of time is wasted in the courts—the time of the public, of witnesses, of prosecutors, of the police and of legal practitioners. The waste of time that is being imposed upon the police has a bearing on the effectiveness of the Police Force in fighting crime and the waste of witnesses’ time is creating a reluctance to give evidence in a criminal case. I hope to come back to that.

Thirdly, I wish the hon the Minister would encourage the establishment of a computer-linked law report system in South Africa. This is an area where we are lagging far behind the rest of the world and where I think there should be some encouragement given.

Fourthly, I should like to hear from him on the question of the extradition problems which there are and which there are going to be because of the increasing pressure exerted upon South Africa.

If time allows, I should also like to deal with the new proposals in regard to traffic offences because although the existing measures need to be streamlined there are some inherent dangers in those that are being proposed.

Lastly—and I hope to come back to it—with regard to the high cost of litigation I welcome the announcement made by the hon the Minister about the enquiry but I must tell him now that I have some doubts as to whether the Rules Board is the correct body to undertake such an inquiry. However, the fact that there is an enquiry is a step in the right direction because here again we are lagging behind in South Africa.

Before I come to those questions, however, there is another matter that I should like to deal with which arises out of the hon the Minister’s somewhat cryptic remarks at the end of his speech. It also arises out of the speech by the hon member for Vasco and the speech by the hon member for Pietermaritzburg North—I am pleased to see him here— and also out of the continual interjecting this morning of the word “Dakar”. The word “Dakar” appears to be acquiring a secondary meaning here. I want to make a few points quite clear straightaway. Firstly, Idasa has nothing whatsoever to do with the PFP and neither Dr Slabbert nor Dr Boraine is at this stage a member of the PFP. [Interjections.]

Order!

You know, Sir, it is amazing how Pavlov’s theory works. [Interjections.]

Secondly, let me put it on record so that the hon the Minister does not refer to blunders again without knowing the facts that I for one did not know of the visit to Dakar until it appeared in the newspapers.

You are making a fool of yourself. [Interjections.]

The caucus of the PFP did not know either and it was also not consulted. [Interjections.] To my knowledge the leader of my party was only told about it on the last day of the session of Parliament and was not asked for his approval but was merely told. [Interjections.]

Order!

The members of the PFP who went on this trip did not do so on behalf of the PFP. I want to make that quite clear to avoid any misunderstanding. [Interjections.]

To clear up any misunderstanding may I just read what the policy of the PFP is.

Order! I have allowed the hon member some latitude, but he must not take this matter too far.

Mr Chairman, I am not taking advantage of the situation because I want to refer you to chapter 6 of the report of the Department of Justice and also to page 56 of the Law Commission Report. [Interjections.]

Order! The hon member may continue.

I want to quote from the Van Zyl Slabbert Report which recommended this to our party and which we accepted:

Throughout the election campaign, I said that I was not prepared to negotiate with somebody who had an AK 47 on the table. [Interjections.] I said it during the election campaign and I say it now. [Interjections.] Let me get something clear: I think what is developing in South Africa—and this is important to the whole structure—is that until now we have been faced with two attacks from the ANC. The one is the so-called armed struggle—that is the violence that is being used—and the other is the economic and cultural isolation of South Africa which is sought to be obtained. We now have a third one which to my mind I can best describe as being called Operation White Support. The concept is that it is now argued that the ANC is not such a bad crowd of people at all and that they do not really want to use violence. We do not understand them. They are intellectuals with great depth of intellectual leadership. They believe in a bill of rights. They believe in an independent judiciary. They believe in a democratic non-racial government, however they may define that. It is also said that they do not really want to nationalise everything overnight.

I read from an article with the headline:

He says that the Government describes the ANC as a “death machine”. I want to know what the bomb in Johannesburg was if it was not a death machine! [Interjections.] What was it? [Interjections.] I ask a very simple question. The reality is that if in fact the ANC want to be the kind of good fellows that some people now make them out to be, they have a very simple way of doing it: Stop killing people! It is as simple as that. [Interjections.] Once they stop killing people they can be a legitimate political party. They can participate in the political affairs of South Africa, sit down and try to get support for their cause and take part in the negotiating process. [Interjections.] That is all that has to be done—nothing more and nothing less. It is that remedy that I think is open and it is also that remedy that I put forward as a challenge to those who now ask us to see the ANC and the bomb in Johannesburg, not as a killing machine, but as a political grouping seeking to oppose apartheid. [Interjections.]

Order!

Mr Chairman, let me make it clear that the fact that you are against apartheid does not mean that you are a supporter of the ANC. The fact that I am against apartheid does not mean that I am a supporter of the ANC. One can be against apartheid without playing “voetjie-voetjie” with the ANC. [Time expired.]

Mr Chairman, it is indeed an experience to speak after such a magnum opus from the hon member for Yeoville, one in which he actually took us into the PFP caucus. He has once again illustrated to us that there are as many parties as there are people. We were also able to discern the hon member’s reasoned viewpoint from his speech today.

There are a few other matters I should like to deal with. I should like to thank the hon the Minister of Justice at the outset for the part he played in relation to the appointment of the Honourable Mr Justice Jan Eksteen as Judge President of the Eastern Cape. This took place during the recess. I want to give him the assurance that that appointment met with great approbation among the legal fraternity. [Interjections.]

Order!

Because mention has been made of the problems in relation to witnesses in our courts, I want to refer to the fact that on 28 October 1985 a witness’s friend was appointed to our courts. This was initially done on an experimental basis in the larger centres. Thereafter it was extended, and at the moment it is possible for the head of any office to provide such services from within his own ranks. I also want to point out that this system has met with public approval. It has enjoyed extensive approval in both the public and the specialist Press, and as this system develops one will be able to eliminate more and more of the problems in this regard.

In relation to the matter of legal aid, which was also raised earlier today during this debate, the hon the Minister has made a detailed response. Perhaps it is as well to obtain an overall perspective, since we read in the report that approximately 60 000 applications were received by the Legal Aid Board during the year under discussion, approximately 18 000 of which were eventually referred to attorneys, whilst nearly 11 000 applications were rejected. Of these applications, 19 500 were settled through the mediation of the officials of the Legal Aid Service itself. That in itself, I believe, is laudable because although these people had legal problems, administrative provision was made for the solution of those problems of theirs.

Furthermore, in discussing these figures I do not want to neglect to mention the responsible role the legal fraternity plays in the handling of State funds whenever legal aid services are rendered to indigent persons. As hon members know, this specific system is particularly susceptible to abuse. However, in the cases under discussion the legal fraternity acted in a really responsible way.

Mr Chairman, is it perhaps possible for the hon member for Port Elizabeth North to tell us why the hon member for Sea Point’s face is rosy red whilst the hon member for Durban Central’s face is chalk white? [Interjections.]

Order! The hon member for Port Elizabeth North may continue.

Finally, Mr Chairman, I want to discuss an entirely different matter. It has to do with the issue of Latin being one of the qualifying requirements for entrance to the legal profession. In the light of the attitude which the hon the Minister displayed here this morning, in mentioning certain investigations that were to be conducted into matters relating to the profession, I believe the time may also have come for us to take a long, hard look at this prerequisite. The Barnard and Friedgut cases in 1982 and 1983 were judgements by the Supreme Court relating to Latin as a requirement. At that stage approval and recognition were accorded to the preliminary course in Latin. Thereafter, in the case of University of Cape Town v the Cape Bar Council which eventually reached the Appeal Court, the Chief Justice, who is himself a classical scholar, ruled that the standard required in terms of current legislation was, in fact, one step above matric level.

Since the promulgation of the Admission of Advocates Act in 1964, quite a number of changes have taken place in the field of the administration of justice and the study of law. In the first instance I believe one would do well to take note of the fact that many of our old sources have been translated. In this regard a great deal of work is being done by the Law Commission and by individual translators. In this connection one cannot neglect to refer to Gane, who translated the great work of Voet. A further phenomenon has manifested itself at the academic level in that the requirement of Roman law as a major subject no longer applies to the attainment of the LLB degree. The reason for this is that we have begun to develop various specialist areas within the whole field of law. For those students and eventual legal practitioners who would like to specialise in those areas of the law, it would most certainly be a good thing to have a thorough grounding in the Latin language.

However, the same requirement need not necessarily apply if they became involved in other areas of the law. There is also the practical problem that fewer and fewer schools are offering Latin as a subject. This naturally results in the challenge of the student having to qualify within the space of one year by successfully completing a preliminary course in Latin at a university. In reality he need only complete a brief, superficial course and that cannot engender in him a love of the language in the true sense of the word, or enable him to learn correct language usage or acquire any degree of language proficiency.

We also encounter the phenomenon that many of the common law components have already in a sense, been codified in that they have been entrenched in statutes. Moreover, South African law as we know it today has taken on an identity of its own. We have passed through the phase known as the “double reception phenomenon”. There was a stage during which reception of Roman law took place in the Netherlands, and at a later stage here in our country there was the reception of English law under the influence of English government. Today one may speak with absolute certainty and clarity of South African law.

What is more important is that perhaps the time has also come for us to move away from a vertical approach to study of law, that is to say the exclusively historical approach. I think a need has also arisen in our country for us to begin to adopt a lateral approach. We should therefore also take note of what is happening in the Western world in the field of legal developments. To that end, it would perhaps be more meaningful if we could acquire a reading knowledge of a modern foreign language. If these matters are kept in mind, I believe some fruitful work may be done, provided that the work is done thoroughly and is not merely a question of asking whether Latin should be abolished or retained. One must not attempt merely to ensure that one more hurdle is placed in the path of candidates, a hurdle which must be cleared before one may qualify for a particular profession.

Mr Chairman, it is a particular honour for me to take part in this debate on the Justice Vote, and I am proud of the fact that 11 of the CP’s 23 members are legal men.

I should also like to extend our congratulations to the Honourable Mr Justice Louis le Grange on his appointment as Deputy Judge President of the Transvaal, and to express the hope that his future there is a very promising one.

I also want to take this opportunity of paying tribute to the former Minister of Justice, of Police and of Prisons, Mr Jimmy Kruger, who recently passed away. We would like to honour his memory as an advocate, as an attorney and as Minister of Justice. We, and I believe South Africa as a whole, will remember him as a legal man who served our profession with great distinction.

I should also like to react to a statement made by the hon member for Sandton. It had to do with the position of the Chief Justice. He couched his criticism in woolly terms which created suspicion regarding the position of the most senior jurist in this country, namely the Chief Justice. We believe that was extremely insensitive. If the hon member deemed it necessary to react, he could have done so by way of correspondence or personal discussion. We on this side of the House, among whom there are so many jurists, take strong exception to the hon member having cast doubt on the Chief Justice’s position here.

It is extremely distasteful.

As far as the hon member for Yeoville’s speech was concerned, I can only say that it astounded me. What happened was that the hon member for Yeoville dissociated himself, in very clear and unambiguous terms, from Dr Van Zyl Slabbert, Dr Boraine, Idasa and Dakar, and consequently also from the “Dakarites”, two of whom are sitting in his party. However, his leader, the hon member for Sea Point, participated in the proceedings here today and gave this visit his blessing. What do we find? There is an enormous, unbridgeable rift within the PFP. The question is what the attitude of their caucus is towards this. Are they backing Dakar, or Schwarz? That is the big question. [Interjections.] It is clear that there are some hon members in the PFP who are prepared to negotiate with terrorists.

That party is not only, as The Citizen maintains, shooting itself in the foot, but in the head as well. I believe the PFP has become a discordant element in White politics as far as patriotism and the preservation of security in the country are concerned.

As the saying goes: “Silence is consent” and it is interesting to note that it took an enormous bomb to get even a murmur from the NP about the Dakar issue. [Interjections.]

Order! I think we must drop the Dakar issue now. The hon member may proceed.

Sir, I just wanted to add that it was the hon member for Yeoville who, for the first time, received a chorus of approval from NP members as a clear pointer in that regard.

I want to tell the hon the Minister that Idasa took the overall initiative in organising a great trek from here to Dakar. Yesterday evening they held a report-back meeting attended by 3 000 people. I now want to ask the Government what its standpoint on Idasa is. What is its standpoint regarding those who attract and organise followers and who negotiate with a bloody-minded terrorist organisation which yesterday was responsible for the largest bomb explosion we have ever had in this country? What is the Government’s standpoint regarding those who organised them, and what is its standpoint on Idasa, if indeed it has a standpoint?

What is the Government’s standpoint on the UDF? I want to know from the Government what difference there is between the ANC, the UDF and, to a certain extent, Idasa. We ask the Government to state very clearly …

And the AWB?

Someone has also mentioned the AWB. Does the hon member want to place the AWB in the same category as the ANC? [Interjections.] Mr Chairman, it is a matter of record. I believe it is absolutely scandalous, and the less said about it, the better. They will pay for it at the polls. [Interjections.]

I should also like to react to the hon the Minister’s remarks regarding the Group Areas Act. The hon the Minister was very quick off the mark after the question of section 3(5) and the nolle prosequi certificate had been dealt with here. The facts are simple. The hon member for Lichtenburg received a request from his voters to the effect that once the Attorney-General had relinquished the case on 16 June, he should bring this to the attention of the hon the Minister and, as the hon member for Losberg had done, advance the argument that the hon the Minister should consider whether this was not so unique a case that the Attorney-General’s ruling should be set aside. The hon the Minister mentioned two months. The hon the Minister was very quick off the mark, but that ruling by the Attorney-General is not two months old; it is six weeks old. What is, in fact, old if not ancient is the hon the Minister and the Government’s failure to enforce the Group Areas Act in areas such as Hillbrow … [Interjections] … where 50 000 people of colour are living in contravention of the provisions of the Group Areas Act. In the case of Mayfair, where the majority of residents are no longer White, the Act is not being enforced.

Apart from that, those who want to institute private legal proceedings have three months in which to do so. We still have plenty of time to institute those private lawsuits. The hon the Minister was so quick off the mark that he did not achieve anything. [Interjections.]

My contention is that the Government is making a farce of the Group Areas Act because it is not enforcing it.

Order! I have allowed the discussion to continue in so far as it related to the prosecution of people who were contravening the Group Areas Act and to those against whom charges had been brought. However, I cannot allow a discussion regarding the administration of the Group Areas Act under this Vote.

Sir, with all due respect, the hon the Minister is in charge of prosecutions in South Africa.

That is correct.

The complaint I am making against the hon the Minister is that he is allowing the Act to go unenforced and that no prosecutions are taking place.

Order! In so far as the hon member is referring to prosecutions, that is in order. In so far as he is referring to the administration of the Act, however, I cannot allow it.

Sir, I shall conclude this discussion on the Group Areas Act with the accusation that the Government and the hon the Minister are making a farce of it due to the fact that the Government has not, since making its election promises, been enforcing the Act, and this is a serious blow to the administration of justice as such.

I should like to make a few remarks about the overall position of liquidators and curators. There is a great need for liquidators and curators to be afforded legal recognition as a profession, as is the case with attorneys, auditors, estate agents and sheriffs.

The hon the Minister is aware of the enormous sums mounts of money these liquidators and curators deal with and the enormous responsibilities they have, as well as the necessity for their status to be elevated to that of a profession. They are asking for a regulatory Act, as in the case of attorneys and auditors.

I do not think it is a sound argument to say that most curators and liquidators are attorneys and auditors and that they are already governed by an Act either the Insolvency Act or the Companies Act. I think there is a need to comply with their request to create a regulatory Act for them as well, as we have done for sheriffs and the estate agents.

An association has now been established in the Transvaal which already has 64 members, and the Cape liquidators and curators want to join it. They are already recognised in certain respects by the Master, by certain standing committees and by the law societies. I want to direct an earnest appeal to the hon the Minister. Particularly in view of the fact that he has said that the professions should manage their own affairs, I want to ask him seriously to consider introducing a regulatory Act for curators and liquidators as well.

Mr Chairman, in this case I am acting on behalf of the patronus as well as the advocatus. This is probably the only forum in which one can act on behalf of the plaintiff as well as the defendant. One feels rather uncomfortable. I have advocates and attorneys in my constituency and I have to say a thing or two since the hon the Minister raised the matter. I feel the way I think some members of the Official Opposition are going to feel at the next election, when they will ultimately have to choose between their own loyalty and their loyalty to the AWB, because they will be directly confronted with a choice. [Interjections.]

I want to return to the Vote under discussion. The hon the Minister made an important announcement on the instruction given to the Rules Board for Supreme Courts, viz advise him on the costs of litigation, the competence of attorneys to appear before the Supreme Court and the question of the direct access of a client to an advocate.

Correctly or incorrectly one gets the impression that the whole debate, which has been going on for 20 or 30 years’ had its origins in the cost aspect and was recently revived because this aspect limited the public’s access to the courts. The courts under discussion here, are only those forums in which civil disputes can be settled. The specific forums under consideration are the Small Claims Courts with its jurisdiction limit of R1 000, the Remuneration Court, the Industrial Court, the Water Court, the Magistrates’ Court and of course the Supreme Court and the Appeal Court.

If costs are really a decisive factor in the present debate I should like to place a large caveat with exclamation marks and in capitals against the instruction given to the Rules Board. I motivate this caveat as follows: In the forums set out above attorneys are also competent to appear in court, except in the Small Claims Court, which is not under discussion, the Supreme Court and the Appeal Court. Yet frequent use is still being made of advocates in the magistrates’ court in which attorneys may in fact operate.

There is perhaps a specific twofold reason for this. In the first place it is possible that the attorney requires the expertise and the proficiency of the advocate there. Secondly, it is possible that this could save costs. Besides it is also known that the overhead costs of attorneys in the cities amount to 50% and in some cases even 73% of their income. In contrast the overhead costs of an advocate amount to approximately 10% of his income. Only on the surface would it therefore appear that it is rather unlikely that an attorney is able to provide a cheaper service than an advocate. The instruction that a client now be able to go directly to an advocate as well could certainly lead to the client only having to pay one legal representative. It is not all that simple, though, because the advocate now has to create a new infrastructure to deal with this whole matter. I am referring to the opening of files, keeping diaries, messengers and a whole new bookkeeping system. I think I am now beginning to come closer to reality.

If the issue of accessibility is the reason for this debate arising, there are a few facts which I should like to put forward for consideration. The in forma pauperis suit enables a litigant to have his case dealt with at a cost of R25. There is also the assistance rendered by the Legal Aid Board which makes provision for a litigant contributing in accordance with his financial means.

As regards the question of speculative fees, which in my opinion is a very interesting and an important method of approach, the attorney and advocate recover their fees only at the end of a successful lawsuit. This has the positive result that the advocate and the attorney will first ensure that they have a sound case before proceeding with it.

If effectiveness is the motive behind the debate—I believe I have at last arrived at the main consideration—I presume that this effectiveness will also be the premise of the Rules Board in the investigation it was instructed to carry out.

The present system has already been in existence since the last century in South Africa, with the exception of Natal. The dualism therefore exists in the Free State, the Transvaal and in the Cape.

†Natal, however, since the earliest days, had pursued the system of dual practice; in other words attorneys also practised as advocates. Thus we had a separate or divided system in the Cape, the Free State and also in the Transvaal, while Natal had the system of dual practice. In 1932 this whole system was terminated in favour of a divided system and in 1939 the Natal Advocates’ and Attorneys’ Preservation of Rights Act which started as a private member’s Bill, allowed all Natal attorneys who were already entitled to practise as advocates to remain as such until the end of their lives.

Apparently those who voted for this system did not do so because they thought the dual practice system a good one or a better one than the other one, but because they thought it unjust to deprive individuals of a vested right. Of course, this is in my opinion a wrong motivation, because the question of fusion or not should be regarded from the viewpoint of what is best for the profession and what is best for the country. Only then can the interests of a particular individual or occupation be considered.

*In any event, I am convinced that in view of the fairness of the South African legal system, this Rules Board is going to make a very definite and positive contribution to an eventual solution to this dilemma.

Mr Chairman, in its enquiry into the functioning of our courts the Hoexter Commission, which has been referred to a number of times during this debate, stressed the need for the courts to be accessible to the public. The commission found that two of the major factors hampering our courts were, as has been stated by a number of hon members, the costs of litigation and the delays in the administration of justice.

What has not, however, been emphasised during this debate is that both of these major factors in making courts less accessible to the public are attributable to the adversary system of litigation. This view is endorsed by Prof Michael Zander of the London School of Economics, who examined the English system on which ours is based. He came to the conclusion that no substantial impact would be made on reducing costs in litigation despite the recommendations of many committees and the attempts to reduce legal fees, until the adversary system was revised. His description of the adversary system illustrates his arguments. He says:

He goes on to say:

Criticism of the adversary system is nothing new. Despite debate on the subject over many years most of us are still agreed that this system does attain a high standard of justice. I am, however, of the opinion, as is Prof A G Baxter of the University of Natal, that it is necessary to consider the fundamental question of whether the adversary system, perfected as it has been by our common law, is appropriate in a society which has come to view adjudication not only as a method of settling disputes, but also of settling them fairly. As the cost and delay entailed in the adversary system is fundamental to fairness and accessibility, I believe we should continue to investigate whether this system cannot be adapted and modified so as to attain more speedy and less costly relief in civil disputes.

In this regard we have already made progress concerning the small claims procedure. I know that the Rules Board are looking at streamlining procedures so as to reduce costs and be more time effective. I do, however, believe that we have to go a lot further. There are many areas of litigation where the adversary system is entirely inappropriate. The hon member for Yeoville referred to motor vehicle assurance claims, and I believe that particularly in regard to these claims—it is not limited only to these claims; this is also so in the case of most damages claims which form a very substantial portion of the cases set down for trial in the Supreme Court—the adversary system, as presently practised, is not entirely appropriate. In practice—and I think any practitioner will bear me out on this—the vast majority of damages cases are settled either at the doors of the court or within a day or two of the trial proceeding to court, precisely because at that stage parties, either in terms of Rule 37 or because they are urged to do so by their clients, or because the fear of losing a trial presses them to do so, get into conference and they disclose, in terms of Rule 37 or by agreement, information which hitherto they had in terms of the adversary system kept secret from each other. I believe that, particularly in regard to this type of claim, such as MVA and many other damages claims, the procedure should be one of a series of conferences commencing at a very early stage in the litigation, and that the adversary system be resorted to only where conferences cannot resolve the issues. Parties should be compelled to confer, not as is at present the case where there are so many loopholes where one can hold the Rule 37 conference the day before trial or even on the morning of the trial, and where one can just slip in a piece of paper saying the parties have not been able to reach agreement on any point.

I believe parties should be compelled to confer because conference can resolve this kind of dispute.

Also in the field of divorce I believe that the adversary system is entirely inappropriate. What is more, it is entirely out of line with substantive law. It is incongruous to provide the same procedures in actions for the dissolution of marriage and, more particularly, the ancillary aspects of custody, maintenance and division of the matrimonial property, in the same way as we resolve disputes over contractual and delictual claims. In order to bring matrimonial actions into line with substantive law the first stage should be an in-depth inquiry into the circumstances leading up to the estrangement in order to establish—and here I quote from substantive law—“… whether there is a reasonable prospect of restoring the marriage relationship …”. If this possibility does exist the parties should be compelled by the rules of procedure to enter into a process of counselling monitored by the court. Where, on the other hand, the court is satisfied that the marriage has broken down irretrievably after the initial inquiry then I believe inquiry should continue to ensure that the interests of the children are adequately protected and that the matrimonial assets are equitably divided.

I think this is one area in particular where our legal system puts the parties on the wrong road. So many people and so many lawyers enter into divorce proceedings with the adversary system in mind. They are suing for divorce. They are suing for custody of the children as if they were suing for delivery of goods, instead of approaching divorce along the lines that we here have a problem where people have had a matrimonial mishap and we should try to enter a procedure whereby if we cannot mend the marriage at least let us arrive at a settlement which is going to ensure that the children are adequately looked after and that the assets which belong to that matrimonial regime are equitably divided within the means of the available finance and within the means of the available assets. Then, at least, those two people, even if they have to part, are able to live out the rest of their lives without bickering and without feeling they have been done down.

The present system does not lend itself to that approach to divorce at all. I would suggest that even if we cannot deal with divorces in terms of matrimonial courts—even if those courts are going to take a long time to establish—let us at least get divorce litigation onto the right road and get it out of the strict ambit of the adversary system and more into the inquisitorial system.

Finally, I should just like to follow on one aspect which has been raised by a number of speakers this afternoon. I should like to carry on from where the hon member for Yeoville left off. I want to commend him for stressing that this party is totally opposed to violence. It is precisely because we are totally opposed to violence that we are prepared to talk to anybody, particularly any South African political leader—be he inside or outside this country—in the hope—we are prepared to make every effort on our part—of averting violence. [Interjections.] We are prepared to talk to anybody in the hope of promoting negotiations. However, I should like to stress again that it is this party’s policy that we will not enter into negotiations on a constitutional platform while those AK-47s are on the table. That is quite correct.

What about the bombs?

If we can talk— obviously the bombs as well—to anybody whether they be ANC people or whether they be communists …

The AWB?

I could not care who they are.

Even Nats!

Even the NP we are prepared to talk to. [Time expired.]

Mr Chairman, I want to congratulate the hon member for Groote Schuur on the first part of his speech, although unfortunately I do not have the time to react to it. On the second part of his speech, however, I shall not congratulate him.

*In the limited time at my disposal I should like to emphasise the importance of an independent judiciary in a country like the RSA. I also wish to refer to the valuable work being done by the South African Law Commission.

Our courts have indeed built up a proud name over the years as an impartial and just state institution. They have this achievement to their credit notwithstanding the fact that the courts have to function in terms of the so-called Westminister system whereby the parliamentary legislature is the supreme authority and accords a subordinate position to the judiciary. This system compels courts to give effect to laws of parliament, and accordingly courts are unable to test the contents of laws for validity. Therefore, although there is a division of power between the judicial authority on the one hand and the legislative and executive authority on the other, the powers of the judicial authority are subordinated to the authority of the State. As we know, Parliament is sovereign.

The question I want to ask is the following. Since we are moving away from the Westminster system towards a system with federal characteristics; since we are moving in the direction of devolution, decentralisation and regional Government, and since we seek to protect the rights of minorities, will it not be necessary in a future constitutional framework—I emphasise that I am referring to a future constitutional framework—to elevate the position of the judiciary so that the courts could function as independent arbitrators were a conflict to arise between the interests of the State and the interests of a group, a community or an individual? To be truly independent, the judiciary must be equal to the Government and, like the Government, subject only to the Constitution.

In the fourteenth annual report of the South African Law Commission it is mentioned that the Commission is inquiring into and will be reporting on the definition and protection of group and human rights and the role the courts will play in this regard. It is interesting to note that the report mentions that research is being carried out inter alia into human rights viewed against the background of the principles of the sovereignty of parliament and the “rule of law”, and into the role of the judiciary in the protection of human rights.

Answers to these questions may be of decisive importance in negotiations in respect of a new Constitution, in regard to which the Black citizen, too, will have to be accorded a say up to the highest level. The Law Commission has undoubtedly been entrusted with one of the most important and also one of the most difficult issues in our present search for a new constitutional dispensation, namely how to define and protect group rights juridically. Legal protection of groups is hardly possible if groups or minorities are not capable of being properly identified.

The central question that the Law Commission will have to answer is whether we can assure the protection of groups without these groups being very clearly identified. Is it possible to make provision only for political, cultural or interest groups, and what would the quality of the protection of minorities be if only individual rights and vaguely defined group rights were to be protected in a charter?

Order! There are hon members who are really conversing too loudly. They must please refrain from doing so. The hon member may proceed.

These few questions illustrate the crucial importance of this inquiry by the Law Commission, and the fact that the Law Commission is more than capable of undertaking this important inquiry into group rights is attested to by the quality of the reports recently tabled. I just wish to refer very briefly to two of them.

Although the report on committal to prison in respect of debt concludes that civil imprisonment for debt should be finally abolished in the magistrates’ court as well, and this recommendation is going to hamper the debt collection procedure considerably in that the deterrent of imprisonment will fall away, this adoption of a standpoint on principle by the Law Commission attests to its objectivity. In this way the commission proves its preparedness even to make unpopular recommendations if the present procedure is diametrically in conflict with basic principles of law.

In the second report to which I want to refer, the report on time limits for the institute of actions against the State, we find that the commission is of the opinion that the limitations on the right of the individual to take action against the State may lead to injustice, but at the same time the commission appreciates that a balance should be maintained between the interests of the individual and those of the State. Accordingly the commission comes forward with the recommendation—one which attests to realism—that within six months after the date on which a liability arising out of a delict is claimable, the State must receive a written notice. In this way the commission shows that it accepts that there must be uniformity, but at the same time recognises that it is necessary that the applicable prescriptive terms must also apply to the State. It is therefore maintaining a sound balance between the interests of the individual and those of the State.

Both these reports attest to the outstanding work done by the commission. I am therefore confident that the commission will also give very responsible consideration to group rights and the role of our courts. In this future constitutional development the courts will have to acquire a stronger position than they have under the Westminster system. It is necessary in a country like South Africa, where there is so much potential conflict, including conflict between groups, that provision be made for an independent arbiter. If we develop this role for our courts, it will ultimately be in the interests of all of us and in the interests of true democracy.

This does not imply that in a new dispensation circumstances could not arise in which the rights of the individual would have to make way for the interests of the community, as is indeed the case at present. Clearly it is necessary, if circumstances require it, that there may be a state of emergency in which the individual’s interests have to yield to those of the community and the State. That goes without saying.

However, I foresee that in future we shall have to establish an equal partnership between the judiciary and the executive and legislative authorities. If that is done I have every confidence that we shall succeed in achieving our ideal of the protection of minorities and the elimination of domination.

Mr Chairman, the hon member for Roodeplaat must excuse me for not reacting directly to what he said, but I shall in fact be dealing with matters that have a bearing on what he said, namely the role of the hon the Minister’s department in regard to the enforcement of security legislation. At this stage it is hardly necessary to reiterate the standpoint of the PFP on security legislation and its enforcement, or to indicate the strength of our objection to the fact that it makes inroads upon the administration of justice, that it undermines our administration of justice, that it reduces the scope of application of the administration of justice, that it creates an alternative dispensation of punishment and prohibition, and that it undermines the role of the legislature and Parliament in particular.

If one has been a member of the Standing Committee on Law and Order for a time, as I have, one notes the extent to which the law which applies in that department is created outside the standing committee and the parliamentary system, and not within the parliamentary system. I simply wish to have that placed on record.

I am concerned, too, about the functioning of the security legislation and the way in which it is sometimes enforced. I am concerned that the functionaries—these are the people, sometimes within and sometimes even outside the department, in whom the authority to enforce these laws is vested—do not always have the correct authority, judgment, perspective or, last but not least, the strong personality to deal properly and correctly with those matters. As long ago as 1985 Mr Justice Kannemeyer made mention of this in his report when he discussed the situation in which the Security Branch of the SA Police approached a magistrate in a rural area and made a recommendation to him concerning a certain prohibition that had to be imposed in respect of some occasion. On page 162 the judge had the following to say about this:

Mr Justice Kannemeyer goes on to say, and this is important:

This is true and understandable. Particularly if a relatively senior member of the Security Police were to approach such a magistrate, it would have to be a very strong man who expressed his own opinion and perspective on the matter. I am of the opinion that that situation is even more relevant today, specifically as a result of the existing emergency regulations. The emergency regulations limit the role of the judiciary and extend the role of an administrative functionary in the Department of Justice, but also in the Department of Law and Order. Usually it is magistrates who deal with these matters.

Today I wish to appeal to the Minister to arrange for in-depth discussions to be conducted in his department among magistrates, senior officials and the hon the Minister himself. In this way they must try to reach unanimity, afford more perspective and, in particular, study such limitations and prohibitions objectively and fully so that the functionaries of the Department of Justice who are involved in the implementation of security legislation act in their own right and do not simply become appendages of the Department of Law and Order. If that is the case, then the legislation that insists that a magistrate’s permission is obtained in certain instances is, in the nature of the matter, a dead letter. I fear this is already the case.

There are endless examples of prohibitions being imposed that have been pointless and shortsighted and have given rise to additional problems. Here I want to refer in particular to the question of funerals. Mr Justice Kannemeyer also referred to that but I do not wish to quote him again since I do not have the time to do so. Time and again restrictions on the holding of funerals are imposed, but three-quarters of them are totally ignored. All that the restrictions achieve in the vast majority of cases is to create a further potential area of conflict. I really want to appeal to the hon the Minister to take the initiative in initiating an urgent discussion of this matter in an effort to prevent the situation from continuing. It is pointless, as far as that kind …

[Inaudible.]

Yes, I know. The hon member is now referring to the Police, and I know that in many instances the Police do so themselves. However, there are also many instances when the magistrates do this. I am not proposing that the Police should always have to apply this. My question then, however, is why they apply those restrictions in the first place? All they do is create the impression that the people who infringe the restrictions have won. That is the last thing we want to achieve.

Mr Chairman, it is a pleasure for me to take the floor after the hon member for Green Point has spoken, and in doing so I want to refer to one of the remarks made earlier today by the hon member for Sandton.

†The hon member for Sandton stated earlier today that it was a good test for civilisation when one asked whether legal aid was given to an accused. I want to say that there is a better test. There is a higher test, a test in which practically all of the countries north of our borders have failed and a test which all of the communist countries have failed dismally. That test is to what extent a country is prepared to afford the protection of its legal system to people opposed to that system. We have passed that test and we have passed it with flying colours, because not only do we afford the protection of our legal system to people opposed to the system but also to people who are out to destroy that very system.

In this vein I would like to refer to a report in a newspaper in which it was stated that the South African Youth Congress launched a nationwide campaign to save the lives of 32 people awaiting execution as a result of unrest-related killings, and that they intended to highlight the plight of the prisoners awaiting execution so that Western governments could bring pressure to bear on the South African Government to stop the hangings. In the light of what I have said, I would like to invite the hon the Minister to comment on these reports.

*Whilst bombs are being thrown in order to destroy our system, this House, this hon Minister, this Department of Justice are engaged in refining and developing the legal system. Langenhoven in his wisdom said long years ago: “Wie oor sy baadjie wil prosedeer, kan dalk sy broek verloor. ” Since 1 October 1985, when the small claims court commenced functioning, one can even institute an action involving a pair of trousers. Statistics indicate that the small claims court is a dazzling success. Apart from the 17 functioning courts at present, the intention this year is to establish a further 25 courts to serve an additional 53 magisterial districts.

The following statistics are interesting. In June of this year, in 17 centres in which small claims courts were functioning, 3 000 people applied for legal assistance. Approximately 600 cases were dealt with by those courts. Something which specifically interested me, and bothered me to a certain extent, was the question of the degree of legitimacy of these courts in the eyes of the public. I was concerned about that because, judging by the initial newspaper reports, one almost gained the impression that the courts had been introduced as a form of public entertainment. In my previous post, and at the time as chairman of the advisory board of the court in Port Elizabeth, we instituted a jurisprudential investigation into the perceptions that litigants themselves had of this court, submitting an incisive questionnaire to litigants, all litigants who had made use of this service in the first six months after the establishment of the court. These findings are to be published in due course.

I want to mention a few questions appearing on the questionnaire: Were you given sufficient opportunity to put your case? Did the commissioner properly investigate the case? Was the commissioner fair? The surprising result was—I think the hon the Minister will be very glad to know this—that 76%, 77% and 82% of the people did believe that they had had a good and fair hearing in that court. In response to the question about whether the commissioner was someone with sound knowledge and insight, 87% expressed their satisfaction, and that is a feather in the cap of those who give of their time, knowledge and insight in the cause of justice at this level of litigation. Eighty three percent said that they would again make use of the small claims court.

A final question was whether people would make use of the services of a senior law student if they were available. The reaction of those who lost their cases is not all that important; what is important is that 86,5% of the plaintiffs who won their cases said that they would like to make use of such assistance. This means that the public has need of a legal adviser when involved in litigation. We shall have to take note of that and structure court procedure and our professional assistance to people in our ordinary courts in such a way that they have an opportunity to obtain such assistance. Since costs are the major problem, it is with profound gratitude that we take note of the activities of the Rules Board. We shall, however, also have to consider allowing people to practise on a limited basis. There is no reason why someone who has the necessary qualifications to act as prosecutor in a criminal court cannot also defend an accused in such a court. Let me therefore state briefly that there is no reason why someone who has only a BJuris qualification, and does not qualify as an attorney or advocate, should not also practise in the limited capacity of representing accused in criminal actions.

Speaking as I have of the small claims court, and having been chairman of the committee responsible for the implementation of this court, I should like to express a word of special thanks to the hon the Minister. I want to give hon members the assurance that there would not have been such a court had it not been for the hon the Minister’s support and enthusiasm. That court could not, in effect, have been established because the necessary funds were not available. It was, however, the hon the Minister’s virtually relentless resolve that such courts had to be established, even without funds being available, which made it possible to do so. In the difficult times ahead, times in which the legitimacy of our legal system and the values attaching to it are frequently going to be questioned, we may safely trust the hon the Minister and his department to take the lead in pushing South Africa’s legal system to even higher standards of excellence than those pertaining at present.

Mr Chairman, I thank the hon member for Sunday’s River for a very valuable contribution. Since we are now on such friendly terms with each other, I just want to say that I have already, on one occasion, mentioned the hon member’s contribution to the law commission which was so highly commended here today, and I therefore need make no further reference to that. Many hon members have already attested to that fact. We are very pleased to have the hon member in this House so that we may make use of his knowledge and experience.

I want to reply to him first, since that will furnish me with a convenient starting point. One of the points he raised dealt with the question as to why someone who had a BJuris degree and could act as a prosecutor after he had undergone some basic in-service training, as it were, could not also furnish certain basic legal services such as conducting a defence or rendering legal advice. The law society originally set itself a very high goal, that of encouraging all its members ultimately to obtain an LLB degree. After deliberations— we were privileged to be involved in the initial discussions—they came to the conclusion that there was a certain emergent group in our communities which would appreciate the useful services of those rendering them even if they were less highly qualified. They are working on this at present, and I am greatly appreciative of their efforts in this regard. That is what the hon member for Sunday’s River was referring to.

On the one hand, therefore, we must protect our sophisticated legal system by means of eminently qualified, highly experienced and outstanding legal practitioners. That is why I referred appreciatively this morning to the relevant contribution of the advocates’ profession and to the status they have earned for South Africa at an international level in both the legal and commercial spheres.

I am aware of the fact that the hon member for Yeoville is still engaged in matters of arbitration at an international level. I am not canvassing any more work for him, because he does not need it.

Thus there are some of our advocates who literally travel the world and are welcomed and greeted with respect in the courts and arbitration courts of the world. We dare not ever forfeit that privilege.

On the other hand we must make timely efforts—I am inclined to say that we have in fact done so—to devote some attention to those emerging needs that are peculiar to the Third World. We shall not, as has happened elsewhere—I do not want to say “in the rest of Africa”—allow civilised values to be destroyed because the legal system has not kept pace with prevalent needs. This could possibly have happened if the legal system had fallen into the hands of those who have no respect for values, for what is right and wrong and for what is fair and just. That is why I am all the more appreciative of the standpoints some hon members raised in this House.

The hon member for Roodeplaat made a very useful contribution, and hon members would do well to note that at a time when we are being accused, even by hon members of this House, of jeopardising basic liberties and so forth, this hon member has advanced a convincing argument regarding the extension of basic rights and liberties. That is the mark of a civilised world; it is a sign of a balanced attitude in South Africa when we say that we shall take steps, take preventive action, precisely in order to protect our legal institutions and those basic values and liberties; we shall not hesitate to do so.

That is also my reply to the hon member for Green Point, who made a very responsible contribution to the debate this afternoon. It is also my reply to every other hon member on that side of the House, particularly hon members of the PFP, who are hesitant to tell us that we should take preventive action and that that is necessary in order to avoid being forced to take more authoritative action. This is being done specifically to prevent that and to protect our institutions. I want to come back to this at a later stage.

The hon member for Sunday’s River questioned me about this campaign. It is a pity the other hon members of the PFP did not follow the example set by the hon member for Yeoville when he spoke out strongly in favour of the maintenance of law and order and the justification of punishing those who take the lives of others. Here and there I heard a condemnation of “necklacing” and so forth. If I remember correctly, the hon member for Yeoville spoke out unequivocally against this on another occasion.

I must express my regret today at the glorification of the so-called “political martyrs”. Their actions are being condoned by campaigns presented by certain sections of our media purely as newsworthy items and so forth.

The truth is, however, that those who are now being detained in maximum security prisons and facing the ultimate penalty, are being labelled as political offenders. I do not know of any political offence on our Statute Book which could be described as a capital crime. If necessary, I could furnish the names of those people. Those 32 people whom it is alleged should now be saved—people involved in 12 separate cases—include four condemned prisoners who murdered an aged farmer and his wife. What role did politics play in that? And those campaigners make no reference whatsoever to the fact that seven of the twelve cases involved are directly related to necklace murders. One of these cases relates, inter alia, to a car bomb explosion in Durban in which three people lost their lives, whilst the remaining four cases all have to do with the most brutal murders imaginable, for example stonings and murders in which the victims were stabbed up to 40 times.

Therefore, certain pertinent questions now arise. Is it a political offence to set someone alight or to stone someone? Or is it murder and nothing less than murder? I want to appeal to people to take note of the fact that even in the USA a so-called “anti-necklace Bill” has recently been passed. Therefore, let us in this Parliament—as I also heard said yesterday in the House of Representatives— clearly express our utmost repugnance at such of practices. By so doing we shall be ranging ourselves boldly and persuasively, not on the side of any political dispensation but on the side of the maintenance of law and order and the preservation of civilised norms and values in South Africa, and only then will we be able to hold talks with those who, at present, do not enjoy representation in the highest council chambers in the land. Only then will we be able to do so. In this regard I associate myself with what the hon member for Yeoville said. A fundamental difference between him and the other hon members of the PFP lies in the fact that the hon member for Yeoville says that people must abandon violence before any consultations whatsoever can take place with them.

In contrast, the hon member for Groote Schuur said here this afternoon that they would speak to anyone in order to prevent violence. What about those who are still committing acts of violence? Would the hon member speak to them as well?

Yes, in order to try to persuade them otherwise!

So there is a fundamental difference between that hon member and the hon member for Yeoville, Mr Chairman.

†That brings me to the hon member for Yeoville. I have great appreciation for the hon member’s point of view.

Hear, hear!

With all due respect his incisiveness in his analysis of the issue I believe, Sir, the question that still remains is whether the subsequent condonation by the hon member for Sea Point of the Dakar crusade has indeed received the blessing of his entire party. I am not going to argue that point any further …

It has indeed. I think you should accept his bona fides.

Sir, I think this argument should be left for another, more senior debate. [Interjections.] I do maintain, however, that until now no other hon member of the PFP has dissociated himself from the condonation—not condemnation but condonation—of the Dakar crusade. I believe that condemnation in the strongest possible terms by hon members of the PFP individually is what is necessary. That is what they owe us.

*Mr Chairman, in dealing with the speeches of those hon members who took part in the debate, I shall now turn my attention to the contributions made by the hon members for Uitenhage and Vasco. They put forward a strong case here for privatisation and so forth. There is, however, a difference between privatisation and the farming out of work. Privatisation takes place when a service is being rendered by the State is handed over to a private concern in order to provide it on a profit basis. That is privatisation. In that way the private sector can reap the benefits. So, whenever money is to be made in this way, the private sector should receive that money. Privatisation therefore costs the State nothing.

In contrast to this we have the handing over of State work. This entails the farming out of work. The State therefore pays someone else to its work. We pay advocates, engineers and architects to do work for the State. That is the farming out of work. So, the question that arises is who pays for this. If the State has to pay to have this work done, the question that arises is what is in the best interests of the taxpayer. That is one of the factors. There are, of course, other factors such as security and efficiency.

Having said all this, I want to say that the Department of Justice is bent on privatising whenever these three factors, and others, can be accommodated. We have, for example, privatised a section of our typist and data services. I could go on to quite a few other examples. The most important thing, however, is that we have privatised the services of the messengers of the court. If there is any money to be made, the public itself pays, not the State. So, we were quite easily able to do this.

It is true that the work of the State is increasing in volume. So provided the other factors are complied with, we shall give attention to the earlier representations of the hon member for Uitenhage, in particular asking us to take a look at this matter. We launched an exhaustive investigation and came to the conclusion that there were, in fact, certain departments whose work the private sector would willingly do. I am in the process of negotiating with those departments, and in private conversation with certain hon members I have given them the names of those two departments and have told them there is a good measure of appreciation and understanding. We have therefore come a long way, and that ought to mean a great deal to the private sector because in my opinion these are two departments which can pay. They make their own money—they do not print their own money, but they make it—and I am under the impression that this could be very, very useful.

As far as the report of the Vivier Commission is concerned, the Government has decided that the commission’s recommendation that special courts should not be created for the hearing of third party claims, should be accepted for the present, pending the effects of the new rules in relation to the finalisation of third party cases, and that the idea of a special court should be considered in conjunction with other new ideas relating to the South African law of procedure if such a need still exists. Let us therefore see how far we get. Apparently not all the hon members have been informed, and this applies to the hon member for Yeoville in particular, as to why the Vivier Commission made such a decision. That commission pointed out, on pages 38 and 39 of its report, that 75% of all third party cases are settled within the first 12 months. This is done according to a system of investigation and negotiation. Within 24 months after the lodging of the formal claim, more than 96% of all cases are settled. An extremely small percentage of claims ultimately end up in court. Consequently, we have accepted the Vivier Report.

That report also indicated to us that we should give consideration to interim payments to those who have been injured. That suggestion has my wholehearted support and it is one we should address in earnest to see whether, within the legal framework and in conjunction with the hon the Minister of Transport Affairs, we can facilitate matters for the public, because this is the one area that has been identified in which assistance is required.

†The hon member for Port Elizabeth North talked about Latin. During the Second Reading debate on the Admission of Advocates Amendment Bill earlier this year when this, I almost want to say “inevitable”, subject was broached, I said that we could not refrain any longer from giving this important matter our attention. The Department of Justice in fact received numerous requests advocating the abolition of Latin as a requirement for admission as a lawyer. This question and issue also received wide coverage in the media. In the light of the very real and valid arguments in favour and indeed against the abolition of Latin as a requirement, all of which have been so bandied about recently, it has become necessary to look more for a long term solution to this problem.

There is no easy solution to this problem and only a thorough investigation, weighing argument against argument, seems to be the direction towards which we have to move. I therefore propose to deal with the matter in the very near future. It seems to me that the Law Commission is well placed and equipped to deal with it in a manner that will satisfy all of us. They will be tasked with this matter, therefore, and a special committee will be assigned this task. I am not passing the buck to that commission. As has already been testified this afternoon we use these instruments to bring about reaction and, hopefully, satisfactory results.

*The hon member for Overvaal also saw fit to enter the debate. I believe the hon member feels a little upset. I can understand that he would feel upset. When one has lost a debating point, one does feel cut up about it, and I do think the hon member lost. I think the hon member should accept that this round is mine. I say that in all humility. [Interjections.] That is the generally considered opinion, and I know when I have won a round. All we would now like to know is when those hon members are going to institute those legal proceedings. I should like to see that happen. The ball is now squarely in their court. We should now like to see what protection they have to offer.

I have told those hon members what our standpoint is regarding every act on the Statute Book, and the hon member is aware of the fact that the provisions are being enforced as prescribed by the Act, within the bounds of what is fair and just. The hon members know that section 41 of the Act is by far more applicable.

How are they being enforced? I asked the former Senior Prosecutor …

They are not being enforced.

That hon member, who is my namesake, says they are not being enforced. Let him give me the details regarding where they are not being enforced within his area.

He has them!

They are not being enforced in Losberg and Zuurbekom.

The hon members must give me those details. How are they being enforced? I asked the prosecutor at one stage how they were being enforced. Wisely let me say. He told me that not a single person had appeared in court in this connection during the period 1981 to 1984. Nevertheless, there were 400 to 600 illegal occupants who voluntarily vacated their residences after the following action was taken: Summonses, written notification and negotiation. I want to submit that to the hon member for his consideration. When one implements a law, one need not become heavy-handed about it. One need not let the world know of everything that has been done and institute legal proceedings. I have just told the hon member what happened.

That brings me to the very reasonable debating issue the hon member for Green Point raised here. I shall study his speech. For his information, let me tell him that the present restrictions on funerals are being implemented in terms of the emergency regulations that administered by the hon the Minister of Law and Order and his department. The matter to which Mr Justice Kannemeyer referred at that time, was an prohibition in terms of the Internal Safety Act. I want to conclude my remarks on this point by telling the hon member that in relation to those areas in which the law is being enforced, we have received very little criticism, if any at all, regarding the decisions of magistrates. In any event, we have based our right of review on the inherent powers of our courts. These have so fully developed that magistrates know which guidelines they must follow. They know they must have sufficient details on which to base a decision. That was the result of the Kannemeyer report. Why, then, are we asking for a report now? We are adopting those guidelines. Did the hon member adopt them? I am very glad the hon member quoted them this afternoon with approval. Why did he not do so at the time? I am pleased the hon member has done this and I shall regard that as a point in his favour. That is why I am giving him a civil answer and pointing this out to him. [Interjections.] These officials exercise their discretion as they deem fit, as prescribed by the specific statutory provisions.

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

My time is running out, and I have a great deal more to say.

Whenever the hon member for Green Point has such a question to ask or a point to raise, he should just make sure under which head he is doing it. [Interjections.] I am not prepared to answer a question.

Mr Chairman, could the hon the Minister indicate whether he will take a question at the end of his speech?

I want to come back to the hon member for Overvaal. He asked me about the Government’s attitude towards Idasa. I want to out the following as a general standpoint to the hon member. Every action linked to extra-parliamentary activities aimed at bringing about constitutional change in South Africa, whether by violence or unconstitutional means, receives the attention of this Government, and appropriate action will be taken.

The hon member also enquired about the position regarding the UDF. He has a very short memory, because the UDF has been declared an affected organisation.

But you are negotiating with the UDF and with Gumede!

What position is Mr Archibald Gumede in today? [Interjections.]

But you are negotiating with them!

My hon friend does not have any imagination. He does not know how this struggle is being waged. [Interjections.] He is without ingenuity and does not even know how to pull teeth. [Interjections.]

The hon member for Bloemfontein North made a very interesting contribution. I think he should take note of the fact that we have indeed received certain representations to the effect that the entire question of the dualistic system is foreign to our common law. It has been inherited from the British system. I have also been advised that the British are hastily reviewing the matter.

I think the hon member will understand my saying that I do not want to take this point any further now. The fact remains that he presented a logical argument and indicated that he trusted the Rules Board to deal with this very delicate matter. I cannot endorse his point of view more strongly than by saying that we should consistently emerge from the process with a better system which will better serve the litigants, but which above all will not prejudice our cherished legal heritage, provided that heritage is in our interests.

†Finally, I have two minutes left to deal with the hon member for Groote Schuur.

What about the liquidators?

It is a pity that the hon members for Yeoville and Sandton are not present.

The hon member for Sandton is here.

Yes, I see him now. He must have been demoted; suitably demoted, let us say! [Interjections.] I shall tell hon members why. The hon member for Groote Schuur argued his case very ably, and the system that he advocates has one inherent quality, namely that legal representation is not necessarily part of it.

Not at all.

Not at all, he says. It is not part of it.

No, it certainly is part of it.

It is not necessarily part of it, is it?

It is necessarily part of it.

The system that he advocates is a system in which the legal representatives do not argue as adversaries. The system he advocates is one in which the presiding officer in his own right participates in the activities in the arena; in other words, he may call for evidence or he may decide not to do so. That is inherent in the system. In other words, legal representation as in the small claims court will not be a necessity.

[Inaudible.]

He now sees the loophole in his argument. The fact remains that one cannot on the one hand cry for legal representation in all situations and on the other hand promote a new system.

But in our present system …

Our small claims system provides for legal advice and guidance, but not for legal representation.

I am not suggesting that.

Well, that was the example he used.

That is your conclusion.

Mr Chairman, the way I interpret it, the fact is that the hon member is arguing a case which does not necessarily entail legal representation.

That is under the small claims procedure.

Even in divorce cases and in the family courts it will be possible to dispose of matters without legal representation, because their interests will be looked after—and that is a philosophy—in another manner.

Dozens of women appear in court unrepresented …

Order! I cannot allow a dialogue. The hon the Minister may continue.

In conclusion, it was a very interesting contribution, but I suggest that the hon member address himself to the hon member for Yeoville, especially in relation to criminal matters. We introduced some principles of the adversary system into our Criminal Procedure Act some time ago. We were thoroughly opposed to disposing of legal representation in order to curtail certain procedures and we are still disposing of matters in a manner which allows people to feel that justice has been done. We must be careful not to try to retain systems on the one hand, claiming that the Government should come forward and make vast contributions of money and, on the other hand, propagate systems that have elements that do not tally and coincide with the argument of the spokesmen on justice.

I thank all the parties for having participated in the debate.

What about the liquidators?

The hon member for Overvaal wants to be liquidated.

You are liquidating me.

We shall liquidate him on another occasion and I shall write to him fully.

Vote agreed to.

Vote No 16—“Prisons”:

Mr Chairman, by way of introduction to the debate I want to say that we have with us here today Gen Sephton, who until a short time ago was Chaplain-General and who was subsequently promoted to the rank of lieutenant-general. He was then the Chief Deputy Commissioner responsible for the Treatment Services branch. It is a pleasure for me to convey the Government’s gratitude and appreciation to him and his wife for their valuable service and for what they have meant to the Prisons Service and to the country.

It is a pleasure for me to announce, on this occasion, that his successor is Major General Paul Freysen, who has been promoted to the rank of lieutenant-general with effect from 1 December 1987 and appointed Chief Deputy Commissioner: Corrective Services.

Mr Chairman, before I say a few words about the Directorate of Prisons, I believe it would be appropriate for me to make two observations on the hon the Minister’s last speech.

One is concerned with the Group Areas Act. The hon the Minister knows that there was a court judgement which laid down that before someone in illegal occupation of premises could be evicted, alternative accommodation had to be made available to him. That judgement was returned as long ago as the early eighties, and one simply cannot apply the Group Areas Act if one does not introduce legislation in Parliament to eliminate the effect of that judgement, yet the Government does nothing about the matter.

Order!

Sir, I should just like to add …

Order! No …

Sir, I have seen in previous Hansards that hon members are allowed to make one or two brief remarks before proceeding to the Vote under discussion.

Order! I have already allowed the hon member to do so, but he must not go too far.

Allow me to make one more brief comment, Sir. We still find it astounding that the NP took a categorical stand on the Dakar safari for the first time today. [Interjections.] We still find it astounding that this happened after the bomb attack and the speech of the hon member for Yeoville.

We wish to associate ourselves with the good wishes which the hon the Minister offered Maj-Gen Sephton on his retirement at the end of the year. We wish him everything of the best for a pleasant retirement.

We should also like to congratulate Gen Fraser on his promotion at the end of the year. May he enjoy success and good fortune in his new task.

When one pages through the Hansards of the recent debates on this Vote, one finds throughout an exceptional appreciation of the Directorate of Prisons in this part of the hon the Minister’s portfolio. Responsible people refer with great praise to the responsible actions of the members of this directorate and the scientific approach they have to their work. There are hon members who congratulate them on allowing themselves to be guided by objective advisers and criteria. There are hon members who praise the quality and extent of the service provided and the considerable contribution made to the welfare of the community by that service. There is always one nagging exception, namely the hon member for Houghton. Maybe it is a relief for the hon the Minister today that, after being quite severely chastised during the debate on the Justice Vote, he will now enjoy a little peace if the hon member for Houghton is not here to criticise him any more.

I wonder what the hon members of the PFP would do if they were to read, for example, a report like the one I have before me entitled: “The Prison Crisis in England”, where prison officials belong to trade unions. According to the report, 72 per 1 000 of the prison population there escape annually, while the equivalent statistic for South Africa is less than one third of a percentage point. It is a fantastic figure if one takes into account that there are many open-air escapes by prisoners while they are doing farm work and that kind of thing, and few from the prisons themselves.

One out of 3 000.

The report reads:

At one stage during the late seventies it was said:

It is not racist South Africa which is being referred to when it is said that the prisons were built in the previous century; it is Britain.

In the RSA gang activities are decreasing as a result of the classification of prisoners, and important research is still being done in this regard.

I must say, though, that even the hon member for Houghton—even though I have to say this in her absence—has mellowed a little recently, particularly since the hon the Minister invited her to Robben Island to see the coast, the sea life and the birds. Perhaps it would make her even mellower in future if she realised that the cultural and historical value of Robben Island is still held in high regard by the hon the Minister’s department.

In this regard, I should like to place on record my personal gratitude and appreciation towards the hon the Minister, especially for the assistance he and his officers gave me when I was involved in matters concerning prisoners while acting on behalf of certain individuals. In the circumstances the matter was dealt with in a sympathetic and pleasant manner, as was the matter in which I and the former member Mr Louis Theunissen were involved.

The directorate, as one of its officers put it, does not choose its clients. They come from all levels of society. Provision must be made for all of them. If one goes to the farming colonies, one encounters the most modern and scientific farming methods. Their workshops in Baviaanspoort are really a pleasure to visit. They are as clean and sparkling as operating theatres in hospitals. Material to the value of nearly R9 million was processed there during the financial year. The provision of light and air and the security precautions are the best I have ever seen.

Prisoners even learn Braille there, and periodicals are reproduced in Braille in order to provide the blind with reading matter. How constructive and productive it is to have prisoners do this work so that their people who experience this problem in their lives can read their periodicals in Braille!

If one examines the graph on page 102 of the annual report, one will see that deaths other than those resulting form natural causes and assaults comprise not even 50 out of a daily population of more than 110 000. It is an outstanding report. It is interesting. It is survey of the past 75 years, and is impressive study material. It would actually have been better if we could have had more time to debate and discuss this exceptional report, this exceptional achievement by this directorate.

There are only certain aspects concerning which I should like to ask the hon the Minister a few questions. One is the Aids issue. We know that important steps are being taken to deal with this matter, to ensure that Aids is not transmitted and to subject those entering prison who might have come into contact with Aids to a thorough examination. I should nevertheless like to know from the hon the Minister if he assures himself at all times, by means of consultation with his colleagues in the Department of National Health, that this dreaded disease cannot spread further because of the circumstances in prisons.

Another point I should like to raise is the question of civil imprisonment. The hon member for Roodeplaat referred to this and it is mentioned in the report of the S A Law Commission. This is not a case of civil imprisonment. There is no civil imprisonment in South African law. Persons who do not pay debts which they are instructed to settle by a court order are held for contempt of court, not as a result of civil imprisonment. If the hon the Minister were to consider abolishing that kind of penalty, he would have to remember that he might cripple the whole section 65 procedure. We should prefer, however, to reserve judgement on that legislation until the hon the Minister produces draft legislation in this regard.

As far as we are concerned, we congratulate the hon the Minister and his department on a very successful report year and wish him everything of the best and good fortune in the years ahead.

Mr Chairman, the hon member for Brakpan could not help referring to the Dakar Safari during this debate, and suggesting that it took a bomb to get this side of the House to react to it. [Interjections.] I want to tell him that that is very cheap politicking and give him the assurance that this matter will be debated for a very long time and that this side of the House is going to take the initiative in that connection. [Interjections.]

In addition I should like to associate myself with what the hon member for Brakpan said and congratulate General Willemse, the Commissioner of Prisons, on an excellent report. Not only is it very good technically, but it also deals comprehensively with the whole spectrum of the department’s service and illustrates that the service of this department and the nature of this organisation are sophisticated. It also contains a great deal of research and I am convinced that this report will be of great value to criminology students. Recently I received one of the latest reports of the British Prisons Service, and if one were to compare it with this report, this one outshines it by far as far as contents, presentation and research are concerned.

I should like to thank the Commissioner for and congratulate him not only on his good annual report, but also on the highly professional style and efficiency in the department, in which he sets the example. I want to thank him as well as Generals May, Reitz and Sephton in this connection.

I cannot but refer to the friendly and efficient service Colonel Bruyns has rendered to Members of Parliament over the years, and I should like to thank him for that.

A great deal of progress has been made on various levels during the past year, and I should like to refer to it. A whole number of hon members on this side of the House will do so as well. The hon member for Vryburg will refer to the medical treatment, the hon member for Umbilo to discipline and the hon member for Pretoria Central to progress with reference to the treatment of juveniles.

I should like to refer to the new classification system which was instituted and which provides for four categories, whereas provision was made for only three categories in the past. I am also referring to the amended privilege system which was introduced, which means that prisoners in the highest category, which includes approximately 15% of the prisoners, may enjoy additional privileges. This includes TV, videos, keeping of pets in specific circumstances and the pursuit of hobbies.

Giving these new privileges to prisoners may be questioned, but I want to give hon members the assurance that the latest information and experience show that this scheme is a great success. The fact is simply that prisoners have to behave themselves to be able to enjoy and retain these privileges, and that is why experience has shown that their behaviour has improved considerably as a result of these privileges. This has been the case to such an extent that it was decided recently that it was no longer necessary to lock the individual cells which formed part of a group cell at night. A few years ago this was completely inconceivable.

A further development is the uniform ration scale which was instituted and which complies with the international standards in this regard.

The prison libraries have been increased considerably from 137 to 153, and the stock of books by 20 000 to 180 000.

The number of educationists in the department has increased from 18 to 29, which indicates the priority the department gives the educational aspect. The prisoners who took part in these programmes numbered 3 372.

Appointments also improved considerably during the year. Inter alia 74% more people were appointed than were appointed during the previous year.

These are only a few of the many positive aspects which can be singled out. The important thing to take into account is that these positive results were achieved despite the fact that the department was weighed down by immense financial restrictions. The amount used during the reported year was approximately only half of the increase in the inflation rate. If one takes that into account these positive factors are truly remarkable.

The prisons service’s primary task remains the task of custody. This has not been neglected. The number of escaped prisoners has dropped further, in this case to 1 007. This means that over the past 10 years, there has been a decrease in the number of escaped prisoners every year. In 1976 it was still as high as 2 000, compared with just over 1 000 at the moment. If one takes into account that the number of prisoners has increased considerably during this period, this record is even more impressive. In addition one must take into account that we have an extremely high ratio between prisoners and prisons service staff. The ratio is as high as 1 to 6, and this includes all prisons service staff; not only those involved in custody. This must be one of the highest ratios in the world. This can mean only one thing, viz that we have a very high quality of custody in our system—that we have reliable and conscientious people in this connection. I should like to pay tribute to every member and officer who is involved in this. They work long hours, also over weekends, and I do not think there is enough appreciation for what they do.

†Mr Chairman, one of the major problems in our situation is still the overcrowding of our prisons. In this reported year the average daily prison population increased to an alltime high of 11 401. This is about 2 500 more than in the previous year. This problem of overcrowding is, however, a worldwide one. I take the view that we are going to solve this problem as a result of the actions of the department in the medium term. According to The Los Angeles Times the prison population in the United States grew by more than a 150% between 1974 and 1987. By comparison, our prison population only grew by 18% over this period. The percentage of overcrowding is also decreasing. The tendency is that it is coming down. In December 1984 it was 37%. It increased slightly in December 1985 to 39%, and in December 1986 it was down to 35%. I would submit that this is owing to actions on the part of the department by way of an active building programme. More than 3 500 new units were established in the past year, and the building programme is obviously being given a very high priority in that something like R68 million is being budgeted for the increase of prison accommodation.

Another aspect is the fact that alternative punishment by way of community services and otherwise is also being given the highest priority. Already there are indications that this is having the required effect, because the number of short-term prisoners—those serving a sentence of less than six months—has already dropped percentage-wise. This is an indication that alternative punishment is being used rather than the short-term prison sentence, and that is a very good thing.

It is also clear that the parole system is being used in a responsible way to reduce the prison population.

Some 67 000 prisoners were freed on parole during the last year reported on. This was mostly the short-term prisoners. [Time expired.]

Mr Chairman, I want to refer very briefly to the hon member for Overvaal and the hon member for Brakpan who accused the Government of not having anything to say on the Dakar matter. Perhaps they do not know—although I would be surprised if that is the case—that it is being kept for the hon the State President. I suppose a very high-level instruction was issued that said: “Don’t steal my thunder!” [Interjections.] Hon members on the other side of the House obviously find it very painful but I hope the opportunity will come for them. [Interjections.]

The hon member for Brakpan referred very briefly to my colleague the hon member for Houghton who cannot be here today. There has been a death in the family and she is unfortunately unable to attend this debate. The hon member referred to the fact that she had been quite tough in her criticism at times but was rather more soft lately because—this he suggested among other things—she was invited to tour one or two of the prison institutions recently. I want to assure the hon member that there is possibly no hon member in this House or even anybody in this country who has taken a more intense interest in prison conditions and circumstances and the administration of prisons generally in this country and who has made attempts so consistently and over such a long period to visit our prisons and inspect the conditions there over the years. I think the hon the Minister will confirm this. I think she has contributed in no small way with her constructive criticism and suggestions to the improvement of conditions over the years.

I do think that conditions have improved very significantly. I really believe that this department works very hard to maintain acceptable standards in the way in which they conduct their duties. This I appreciate. They do it under circumstances that are not always easy because we are a tension-laden country with an excessively high prison population. They therefore have to perform at a very high standard to produce the favourable results that they do achieve from time to time.

As part of a small group of hon members of Parliament I was privileged last Friday to participate in a tour of the Pretoria Central Prison. We inspected their facilities, observed most of the activities and saw and spoke to a great variety of prisoners. I sincerely hope that I am not embarrassing the hon NP members when I say that they also exchanged a couple of words with prisoners who may have had some ANC connection at some stage or another. [Interjections.] I may also mention—possibly in their defence and to balance the situation—that we also exchanged a few words with a member of the AWB. [Interjections.]

*I found the situation there very interesting. I found it interesting to talk to these people and to observe their experiences, especially those of prisoners who had been imprisoned because they had been found guilty of politically related offences. As I have said, there were people with ANC connections there, and it was interesting that no less than three of those people had had some connection with the SA Defence Force at some or other stage. In a certain sense that probably reflects the tension that is an essential part of our society. It is saddening that the high calibre of human material one sometimes sees in those places has to be wasted for the period of imprisonment. I am not saying that people should not spend time in prison, but this is a situation that saddens one. We spoke to them, as to other prisoners, to determine whether there were complaints or problems. The complaints generally did not indicate any significant irregularities. I think in general the standards are reasonably high.

There is only one aspect I want to mention at this stage, and that is the complaint procedure in our prison system. Some of the prisoners mentioned this. Naturally the complaint procedure is that officers come around and ask whether there are specific complaints. The prisoner than has to give his complaint, and the officers make a note of it, after which steps have to be taken or a decision is taken that no steps are necessary. Some of them feel that they should have an opportunity to explain their position themselves, especially as far as the more intelligent people there are concerned. They want to explain their position themselves when they make their representations about some or other matter. We discussed it with the staff there, but I also want to draw it to the hon the Minister’s attention that I am of the opinion that the idea of creating a situation in which these people have the right to explain their position themselves—rather than telling an officer what their problem is, after which the officer had to enter the complaint in a column or line in his complaints book—has merit. The prisoners should have the right to submit a letter to the commanding officer of the prison, and this letter must then be placed on file.

The reservation expressed in connection with a system of this kind, was that it would lead to excessive and profuse complaints being submitted by some of these prisoners. I want to react immediately in this connection and say that the same principle would apply as that which applies in respect of the complaints book. If a prisoner makes a habit of submitting ridiculous complaints to his commanding officer, naturally he will be undermining the credibility of all serious complaints he may have at a later stage. I think people will become aware of this very quickly, and if someone has a pile of complaints in his file in the end, and it is clear to the authorities that these complaints do not hold water, he will be undermining himself in that way. I think consideration should be given to creating a system of this kind initially as an alternative for those who wish to make use of it.

As far as reports and other information we received are concerned, I once again want to raise the question of the availability of measures in respect of remissions of sentence and parole, also for people who have been found guilty of politically related crimes. The question of public violence should also receive attention.

As we have said so often in the past, and as the hon the Minister on the opposite side has agreed from time to time, I want to say that the prison authorities are in a very good position—they have the expertise to judge whether or not a specific prisoner can be rehabilitated, whether he has been rehabilitated, whether he can be considered in any objective sense for release on parole and whether he can be considered for remission of sentence. I want to request once again that we do not create artificial categories of prisoners who are not considered for these benefits simply because of the nature of their offence. I can give hon members the assurance that something like public violence sounds serious on the surface, but technically every stone that is thrown constitutes public violence. Some cases are very serious, but some are really only concerned with people who allow themselves to be incited in a short-sighted way, and then do ridiculous things. One should not lose sight of this. Therefore I do not think that such artificial categories should be created.

In conclusion I want to raise one more point, one I have mentioned before. I think it is a mistake for the Prisons Service to be subjected to the authority of any functionary of the Department of Law and Order in respect of the handling of detainees in connection with public safety. I think the sooner we put an end to that practice, the better. The prison authorities have the knowledge on how to deal with prisoners and detainees, and there is ample opportunity for consultation. I do not think a contribution is made to a civilised and meaningful dispensation if the Commissioner of Police, for example, has the final say concerning the treatment of detainees in our prisons. I think the Department of Prisons is far better qualified to do so. [Time expired.]

Mr Chairman, it was my privilege a few days ago to visit the Central Prison and the Pretoria Prison with the group mentioned by the hon member for Greenpoint. I must say that I have the greatest appreciation for the commanding officer and his staff for the efficient, professional and correct way in which they practise their profession and for the high standard they maintain. It was clear that the main objective is still to send a better person back into the community than the one that was received by the prison. I wish them and other members of the department every success in this important task.

The hon member for Green Point said that in the process they had also met certain members of the ANC. That is correct, but we met them in the prison and did not go to Dakar to talk to them. [Interjections.] In addition, we listened to some of their complaints and did not try to grant credibility to the ANC. Nor did we try to negotiate the transfer of power to the ANC. [Interjections.]

I should like to confine myself to the medical treatment of prisoners in South Africa. As has been said today, one should keep in mind that prisoners come from all levels of society and that people from outside the country are also imprisoned; diseases therefore spread more easily, especially when people are confined together in a relatively small area. This creates a health threat for both the prisoners and the staff. Inevitably this places a great responsibility on the Government.

Medical services in South African prisons are of a high quality, however, and problems that may arise in this connection receive constant attention from qualified doctors. This takes place in close co-operation with the Department of National Health and Population Development. The staff are assisted by trained nurses in the service of the Department of Prisons. The duties of a doctor include inter alia the examination of all new prisoners as soon as possible after their admission—in terms of regulation 93—and inspections of kitchens and food supplies above and beyond the inspections by health inspectors. Doctors therefore not only have a great deal of authority in the prisons, but also a great responsibility and an important task. Because there are certain restrictions on facilities, a doctor is authorised in terms of regulation 111(3) to refer a prisoner to someone outside the prison for further consultation and medical treatment. During the period from 1 January to 31 December 1985, for example, 13 054 prisoners countrywide were referred to doctors outside the prisons, and this does not include referrals for consultations by specialists or treatment by physiotherapists, for example. This service is rendered despite the great expense incurred and the escape potential involved.

It is also a fact, however, that the Acquired Immunity Deficiency Syndrome made its appearance in South Africa a few years ago. It is a contentious and complex subject about which there are divergent standpoints from the social, medical and religious points of view. The first case of Aids in a South African prison was diagnosed in March 1987.

Perhaps the picture is a little more alarming if we look at what is going on outside South Africa. Cases of Aids have been reported in 85 countries, but the World Health Organisation is of the opinion that up to 100 countries have been affected and that between 5 and 10 million people throughout the world are carriers of the virus. More than 30 000 cases were reported in the USA, but it is suspected that a further 1,5 million people are carriers of this virus. The problem is that there is not enough guidance and information available about this illness. It is suspected that as many as 2 million to 5 million people are carriers of this illness in Africa. This huge number is ascribed to the fact that most African countries are loath to launch effective information campaigns. In Uganda, where 22 different dialects are spoken, their information is translated into only 10 languages, even though the country has a population of 14 million. In Zambia the Government has forbidden all Press reports on Aids and has assumed a passive attitude towards the problem.

The SA Prisons Service is handling the situation in close co-operation with the Department of National Health, and is doing so in a responsible way. As in the British Prisons Service and the American federal prisons, condoms—which the hon member for Parktown regards as a solution to this complex problem—are not supplied to prisoners and in this way unacceptable sexual behaviour by prisoners is not condoned. The example was given of Spanish prisons, in which condoms are made available to the prisoners to combat this disease. There was no indication, however, as to what percentage of success, if any, was attained. Fifty per cent of Spanish prisoners are carriers of this disease at present. Condoms cannot prevent pregnancy in all cases and therefore will not be able to prevent Aids from spreading.

In South Africa, high-risk individuals are identified in that records of previous convictions are looked up to find offences of immorality and drug abuse. These prisoners are then separated from the others to await testing. In the same way established Aids carriers and Aids sufferers are separated from the rest of the prison population and provision is made for centralised detention in a regional context at those places which have the most suitable facilities.

An information campaign was begun in our prisons in 1985 to enable staff to inform prisoners about Aids and the way in which this disease spreads, in a responsible way. It is clear, therefore, that a great deal of emphasis is being placed on an education campaign, and that is where we differ with the hon member for Parktown. If the education campaign can succeed in essence, the problem of Aids can be combated to a great extent. One can be reasonably confident in expecting that prisoners themselves will prevent the disease from spreading, since it would affect them first, as a result of being increasingly informed on Aids and the dangers involved. All prisoners are not irresponsible in all respects. Prisoners are also examined by doctors, not only after admission, but also on their own request, as well as before being transferred to other prisons and before being released. A decision was also taken some time ago in deliberation with the Department of National Health and Population Development that as a preventive measure, prisoners could no longer donate blood, which was something that they could do voluntarily until that stage.

In conclusion I want to convey my thanks to the hon the Minister and the Prisons Service for the balanced and responsible way in which they are dealing with this emotional matter. I have full confidence that despite these loose predictions, South Africa’s prisons will not degenerate into so-called “Aids factories”.

Mr Chairman, to start off I should just like to express my sincere thanks to the hon the Minister and the officials of the Directorate: South African Prisons Service for arranging a visit, during the past week, to the Victor Verster Prison for me and other hon members of the party to which I belong. I want to associate myself with the hon member for Brakpan’s observations on the neatness and the efficiency of the administration of the prisons service.

For the population at large the prisons service is, without a doubt, the least familiar portion of the institutions involved in law enforcement in South Africa. Overwhelming publicity is given by the media to the initial work done by the police, and subsequently to what happens in the law courts. Once an offender is sentenced to imprisonment, however, and has left the court, media interest shifts its focus to the next criminal investigation. Only in cases in which the death penalty has been imposed does the media still focus any attention, for the most part, on the person who has been sentenced after the trial is over. Offenders receiving ordinary prison sentences simply vanish behind the proverbial prison doors and seem to be quickly forgotten.

As far as members of the public are concerned, the spectators, justice has been done and they no longer focus their attention on the case. The fact is, however, that it is then that one of the most important processes or parts of the legal process begin, ie that of implementing the sentence imposed on the criminal. If this is not done properly, the same offender, after having served his sentence, finds himself back in the community, possibly posing the same, or an even greater, threat to the interests of that community. If the sentence is properly implemented, a reliable member of society, who will prove an asset to that society, is reintroduced into the community.

It is against this background that the Directorate: South African Prisons Service should be seen. It takes a person of exceptionally strong character to come into close daily contact with people whose conduct has deviated so radically from accepted norms that they have had to be removed from society, and still to personify the acceptable norms of society. And for that person then to correct a prisoner’s understanding of and respect for the norms of society as well, is indeed a gruelling task.

I am saying all this because I think it is important for us to express unstinting gratitude when speaking about the Prisons Service. From personal observation, and on the basis of statistics in the report of the Prisons Service, there is a matter which, in my opinion, deserves special mention. I am referring to the question of labour in prisons.

As in the case of virtually all other institutions, the Prisons Service is under increasing pressure to make do with the funds available. What must be borne in mind is that in the prisons set-up provision must be made for all essential services to prisoners. Educational, social, psychological and ordinary health services must be provided. This is a community within a community. In the isolated environment in which the prisoner finds himself, a lack of facilities for professional training and spiritual and physical care is a much greater and riskier deficiency than it would prove to be in society as a whole. The numbers of prisoners are increasing, and there is apparently an increase in the length of prison sentences generally being imposed at present. And there are continual modernising trends in professional and family life in the overall community outside the prisons. Consequently the Prisons Service is compelled to obtain more and better facilities. Accommodation of an acceptable quality must be provided and modern facilities for the effective rehabilitation of every prisoner must be created.

In this connection I want to suggest an in-depth examination of the possibility of making greater use of the manufacturing and production capabilities of the prisoners themselves with a view to obtaining money for the facilities of the prisons service in general. From personal observation and from what I have heard it is clearly possible for the Prisons Service to be more self-sufficient and self-supporting if this were to be allowed.

I want to emphasise that I am not advocating that the production yield in prisons should be employed for paying the salaries of the staff of the prisons service; hon members probably know what allegations would be made about the Prisons Service if that were to be done. I think, however, that it is only right that prisoners should, as far as is possible, pay for their own care and rehabilitation.

Crime as such already puts tremendous pressure on society as a whole in the spheres of policing, insurance and the overall administration of justice. To still have to obtain money from society as a whole in order to provide accommodation and various other facilities for offenders whilst they are in prison, seems undesirable as far as I am concerned. I understand that the present-day policy is not to expand production in prisons to such an extent that more products are produced than are necessary for the day-to-day use of every relevant prison.

I want to request the hon the Minister to reconsider this policy. The truth is that the most pressing need in the rehabilitation programme of prisoners is that of continually engaging them in activities which inculcate discipline and a general sense of responsibility. Provision can pre-eminently be made for this by allowing prisoners to involve themselves in production on a larger scale with a view to furnishing and marketing more products.

It is true that there are several factors that have to be borne in mind in considering such a policy. One of these is the production potential of the prisons. There is every indication that production in all quarters still purposely has to be curtailed because the potential for production exceeds what is utilised at present. In this regard one can refer to the relevant annual report of the Directorate. On page 77 it is apparent, from a comparison of the 1986-87 report with that of the previous year under review that there was a 26 142 kilogram decrease in the meat production in prisons. This is a clear indication of the extent to which farming production in prisons is being curtailed.

The actual production is only a fraction of the production potential of the prisons. On the same page there are additional statistics to which I briefly want to refer. In regard to pigs—I am referring specifically to agriculture—there were 112 fewer pigs in the relevant year than in the previous year, 1 118 fewer sheep, 201 fewer goats, 20 584 fewer chickens, 11 fewer mules and a decrease of 31 in various other species.

Are there any baboons?

No, you are not there.

I understand that in the United States of America projects already exist in terms of which prisoners are allowed to work during the day, at normal salaries, in nearby factories, returning to the prisons again in the evenings. That is a variation on the same theme. In this way the private sector is involved in the rehabilitation process, at the same time making an important contribution and benefiting from the work done by the prisoners.

If a portion of the prisoners’ earnings were to be employed for the provision of accommodation and other facilities, one would achieve the same objective as the one I have referred to.

Order! Hon members must not converse so loudly.

To give a practical illustration of the point one could refer to the increase in the amounts budgeted for the services which could be covered by the proceeds of prison labour. Let me refer briefly, in the agricultural context, to the relevant memorandum, according to which there is an increase of R84 000 for that purpose in the budget. In regard to building work there is an increase of R2,782 million and for workshops, R2,9 million. That is an overall increase in the budget of R5,766 million. Against the background of those amounts, this policy deserves to be reconsidered.

Mr Chairman, permit me to thank the hon member for Roodepoort for his positive remarks, particularly in regard to the staff of the Prisons Service. Many of them live in the Pretoria Central constituency and I know them. I can support the statement that they are good, friendly, well-trained and professional people.

This afternoon I should more specifically like to confine myself to incarcerated juveniles and children. As far as I am concerned it is a gratifying phenomenon, in this context, that at an international level increasingly more recognition is being given to the fact that a child is an individual in his own right. The basis for this is that the child is entitled to everyone’s respect, including that of his parents. The child is entitled to the protection of the law that applies in his specific community. In the Republic of South Africa children are extensively protected by the Children’s Act and related legislation. Many welfare organisations supported by the State, with money voted for the purpose by this Parliament, look after the social and other needs of the specific categories of children in need of assistance.

People who commit criminal acts against children, the so-called child-abusers, are prosecuted in our courts. Such contraventions are regarded in a very serious light by the State as the agency which administers justice. On 19 June 1987 the hon the Minister of Justice announced that it had been decided that those who were guilty of acts of violence against children and were serving jail sentences would not, in future, be entitled to parole. The hon the Minister also decided that in special instances certain people’s cases would only be considered by him personally and referred to the release board. I thank the hon the Minister for this step. It is very important, in fact essential, to combat these crimes against children.

Like societies in other countries, South African society is fully aware of the need to protect children and their unique interests. In this regard the Government is always prepared to address the shortcomings that do come to light from time to time, but the unfortunate part of it is that there are radical elements which exploit and manipulate these children in order to promote their own aims. In the process children are brought into conflict with the law and incur the displeasure of society.

Apart from the fact that, in a sense, radical elements unfairly exploit these children, it is also true that juvenile crime is on the increase throughout the world. Statistics on juvenile crime and juveniles in prison are not all that freely available from the rest of Africa and, in particular, from certain areas behind the Iron Curtain, but it is important to look at two countries as an example. In France, which is an advanced European country, a country no longer wrestling with the problems of development unique to South Africa at present. 5 880 juveniles were found guilty of crimes during 1985-86 and had suspended sentences imposed on them. Of these, 1 144 juveniles were under the age of 16 years. During the same period prison sentences were imposed on 6 400 juveniles, and 1 178 of these juveniles were children under the age of 16 years. The offences for which they were sentenced ranged from armed robbery, rape and manslaughter to non-violent crimes such as theft.

In the USA equally significant statistics come to the fore. In 1985 94 209 juveniles—a considerable number of people—were admitted to various state institutions. The daily average number of juveniles held in these institutions during 1985 was 19 006. The average period for which juveniles were in custody in the state of Montana in 1984, for example, was 33,5 months. In 1984 36 juveniles died in acts of violent assault.

The fact that other countries are wrestling with this problem of juvenile crime probably does not solve South Africa’s problems, but it does illustrate the fact that the critics of South Africa and its Government should not make a great fuss about it only being in South Africa that this complex problem occurs. They must not pretend that it is only in South Africa that children find themselves in prison and in other similar institutions. Nor must they imply that the Government is making no effort to address these problems. The truth is that South Africa has never denied that there is a crime problem prevalent here.

As is the case elsewhere in the world, however, there are no obvious solutions. But this Government does have a very clear-cut policy on juvenile crime and the treatment of juveniles by means of the legal system, a policy embodied in legislation. There are several provisions in the Criminal Procedure Act which protect juveniles. The State, Mr Chairman, therefore realises its very great responsibility in this regard.

For the purposes of the discussion of the hon the Minister’s Vote, I should also like to examine the treatment of juveniles and how this takes place in prisons. What is shocking is that we are living in a society in which some mothers and women who are expecting babies, and who should actually be responsible for the care of their tiny babies and children, are guilty of such gross misconduct that they become a threat to free society and are therefore arrested, tried and sentenced to imprisonment.

In contrast to this, the prisons service receives these “clients” and is morally obliged to provide these mothers and their children with accommodation. In South Africa this matter is dealt with with the utmost circumspection, and it is also with the utmost circumspection that their detention and the vicissitudes of their daily life are catered for.

The detention of juveniles is provided for in terms of section 1 of the Prisons Act, No 8 of 1959, which describes a juvenile as someone under the age of 21 years. Juveniles who have to be sentenced to imprisonment by our courts as a result of the seriousness of their offences—when such people are sentenced one must know that every avenue has been explored; that the reform school could do nothing with them and they were sent to prison—are separated from adults as far as possible. There is also a specific and proven system of classification having a criminological basis. We must also remember that in the case of some of these juveniles, their appearance is no indication of how hardened a criminal they are, of the nature of the law they have contravened or the act they have committed.

I am also gratified—it has been a privilege for me—to have paid a visit to one of those juvenile prisons, and I was delighted to hear the Minister announce, yesterday evening, that another similar juvenile prison would be built at Pollsmoor, the second of its kind in South Africa and the first of its kind in the Cape. It would perhaps be of interest to look at what the purpose of this prison for juveniles is. Firstly a minimum level of education, up to and including std 4 level, is a requirement.

Attention is given to the meaningful use of time, something which aims at positive orientation after release. Attention is given to the fulfilment of the religious needs of these people, and care is also taken to promote their sound physical development.

Permit me to congratulate the hon the Minister and the Prisons Service on the fine spirit and sense of responsibility with which they look after these juvenile offenders entrusted to their care.

The success being achieved in this effort, which is aimed at rehabilitation, will contribute to South African society getting back a much better product than the Prisons Service initially obtained.

I want to wish the hon the Minister and his staff everything of the best and express my thanks for the privilege I had of participating in this debate.

Mr Chairman, it is a pleasure for me to follow up on the hon member for Pretoria Central who dealt in an excellent manner with the topic of juvenile prisoners. I should like to deal with the topic concerning the maintenance of law and order and discipline in our prisons.

One of the fundamental principles of any prison system is the maintenance of a disciplined and orderly prison community and in this regard the International Minimum Standard Rules, which are accepted by the Republic of South Africa, also endorse the use of the force necessary to bring prisoners under control in order to prevent injuries to others or malicious damage to property.

I should like to congratulate the hon the Minister and the Director-General as well as the Commissioner and every officer and member of the South African Prisons Service upon the decisive way in which discipline and law and order are being maintained in our prisons. Violence in prisons occurs throughout the world. We hear of revolts, prison murders—of staff members as well—devastation of prisons and so on in foreign prisons.

On 30 June 1986 there were 99 642 prisoners in South African prisons, of whom 64 544, that is 64,8%, had served prison sentences of two years or more. From prisoners’ offences it is clear that the Prisons Service are dealing with all the elements that are not acceptable to normal society, and who have committed shocking crimes.

On 13 July 1987 various prisoners had served sentences for 48 234 offences of a violent nature. These violent crimes include offences such as murder—5 898, attempted murder—1 505, culpable homicide—4 256, infanticide— 3, robbery—17 053, assault—10 314, rape and attempted rape—8 680, indecent assault— 257, abduction, kidnapping and child theft— 173 and necklace and related murders—40.

Daily we read how crimes of violence are increasing. These people are those who have individually threatened the maintenance of order and discipline in the free community. Violence is part of their daily pattern. In prison they are differentiated into communities which as a unit are the primary factor which has to be reckoned with in the maintenance of order and discipline in our prisons. The whole of society’s perpetrators of violence therefore find themselves in the prison milieu, and that makes one realise how demanding the daily task of a member of the Prisons Service is.

In spite of this, incidents such as those which occur abroad, are unknown in South African prisons. Generally speaking a spirit of peace, order, tranquility and discipline prevails in our prisons. The question one cannot help asking is how the Prisons Service manages to maintain the climate of order and discipline so well.

Its members work unarmed in the prisons. They work long hours, which include weekends, holidays as well as after hour standby duty. It is a task which has to be performed 24 hours out of 24 and it is therefore important that prisons should be adequately manned.

The conclusion which one arrives at is that the order and peace in this climate is being created by select personnel who have to carry out their task under difficult circumstances. The members themselves are subject to discipline and are therefore able to apply it to the prison community as well. To make them equal to the task the members receive training. They receive a basic training, continual in-service training as well as opportunities for self-study. We therefore find that members continually try to equip themselves better to carry out their task to the best of their ability.

Research is an indispensable link in keeping abreast of progress in this field so that preventative measures can continually be refined. A further measure which ensures the order and discipline in prisons is the custodial classification system with respect to prisoners serving sentences of two years or more. On 2 January 1986 it replaced the old classification system.

In spite all these preventive measures, sporadic incidents still occur in which individuals or smaller groups of prisoners commit violence or threaten to do so. For this purpose the Commissioner determines the safety measures which will apply to prisoners and in terms of which members will be authorised to be armed with firearms and other weapons and to use them when a prisoner attacks another prisoner—a member or a prisoner— or threatens to do so. Prisoners who commit violence or who threaten violence can be subjected to solitary confinement and coercive measures for as long as they may be necessary, but for not more than a month. Members are limited to the use of only the necessary degree of force.

Violence is manifested in various forms which necessitate the enforcement of remedial actions. It can vary from assault on prisoners to assaults on members or the adopting of threatening attitudes, when prisoners often outnumber the members, intentional damaging of property and so on. In order to restore order in such cases and to prevent a situation arising which could develop to the stage where personnel and detainees are either injured or even killed members of the SA Prisons Service rely upon, and are trained, in the use of minimum force. Teargas is an example of minimum force which is used in such cases after requests to settle down have been ignored. It is also the most effective alternative to the use and deployment of more stringent measures. In all cases in which it was necessary to use force to restore order, investigation is instituted into the causes of violence by prisoners, the justification for the use of force to restore order and the means employed for that purpose, as well as all other relevant factors. Injured members and prisoners receive immediate medical treatment. Where it is found that unauthorised conduct was involved the necessary steps are taken against those concerned.

In many Western countries special prisons exist for prisoners with behavioural problems. In South Africa prisons are also classified, for example as medium or maximum security prisons. Possibly consideration should also be given to special prisons in South Africa in order to accommodate the most problematic prisoners with behavioural problems. Such prisons would then concentrate in paying special attention to prisoners who refuse to conform to standard prison procedure. In a country such as Canada, where institutions designed for such special purposes and manned by specially trained personnel already exist. In some cases only sections in a prison have been equipped for this purpose.

The aim in such facilities is not to embitter prisoners’ lives, but to exercise maximum control and to minimise opportunities for assaulting and even killing other prisoners or members of the Prisons Service. The normally high standard of physical care must of course be maintained. The referral of such intractable prisoners with behavioural problems to a special facility will, besides the other advantages, also result in elements being removed from the maximum security prisons that make it easier to cope with the remaining inmates. It can make a further contribution to the success of South African Prisons Service in its striving for an orderly prisoner community.

Mr Chairman, occasionally I shall be speaking in telegram style and I hope hon members will understand. In that way I shall not omit any hon member. Right at the outset I must praise the hon member for Umbilo for a very valuable contribution. Quite rightly he asked how the prison services managed to deal with a situation we conceded was a sensitive one because the prisons are overcrowded and there are violent criminals—more in some prisons than in others. If one has been in close contact with the wardens—and I have had the privilege of doing so over the past eight years—one realises that we are not only dealing with an excellent management but also with a scientific management which even involves the wardens in the responsibility of overall management. The Prison Services are a matter of pride for him, regardless of his skin colour. To have pride in a institution such as the Prison Services requires solidarity, management and leadership. In fact it requires a capable Commissioner of Prisons with a Deputy Chief Commissioner to assist him and capable people all down the line.

Hear, hear!

We thank these people very much. They facilitate our task considerably.

I said the wardens were “involved”. That has been made possible because the greatest degree of delegation takes place from the highest level downwards. The wardens are therefore equally accountable and responsible for the performance of their task. One is therefore speaking here about a style of management which is used in dealing with this tremendously large organisation with its potential for problems and crises. One has to ask oneself what form this style of management takes. It is a refined scientific style of management which does not remain static. I invite hon members, when they find an opportunity, to acquaint themselves with the Prisons Service’s planning which as a style of management guides, identifies and formulates specific strategies and strategic goals as well as development projects. The service associated with this operational planning and specific objectives, as well as external influences and internal preparedness, is continually being adjusted, tested and improved. In the process achievement becomes a goal for them. On what basis does it happen? The emphasis is placed on priority being given to performance of the right tasks in a situation of limited manpower and capital. I want to repeat that the performance of the correct tasks is important. One must not waste and dissipate one’s energy on bureaucratic red tape. One can turn it to one’s advantage in terms of manpower, capital and time if those tasks have been correctly performed. The performance of the correct tasks and the correct performance of tasks are therefore important. I invite hon members to acquaint themselves with this matter.

The hon member for Umbilo raised other interesting ideas. We shall take a look at them and ensure that we are not discovering the wheel all over again. Perhaps we shall then contact him again.

Hon members must allow me to move further down the list of speakers. I want to refer to the hon member for Brakpan, who raised quite a number of matters. I want to tell him across the floor of the House that he kept his word when we confided in each other concerning a very delicate situation last year. This is, as far as I am concerned, a wonderful example of how hon members ought to negotiate and deal with each other. We must trust each other when it comes to the national interest and the greater importance of a matter, which does not lend itself to mere politicking. I thank the hon member for Brakpan that I am able to speak to him in this spirit across the floor of the House today.

The hon member referred to the question of civil imprisonment and committal to prison and asked what we were going to do. I also think this is a matter which should be dealt with by Parliament. Various points of view have been aired. It is true that this relates to the economy and that it can affect commercial intercourse. Somewhere there is indeed an inhibiting effect on commercial intercourse in trading as far as imprisonment for the non-payment of debts is concerned. Although that is not the true basis such a perception does indeed exist.

Having taken all things into consideration, the also striving to be impartial in our administration of justice, I think that I shall refer that report—let us decide to do so—to the Standing Committee on Justice. There is a draft Bill appended to the report. The standing committee will have the authority to come back and make a recommendation on that legislation. I think that is the right way. I thank the hon member for Roodeplaat for having raised and discussed this matter.

I think the Bill on proceedings against the State will come before the Standing Committee soon or at least one of these days and I shall therefore make no further reference to it.

The hon member for Brakpan will allow me to reply to the hon member for Vryburg when we come to the specific ailment to which he referred, but I am only asking for a minute.

The hon member said that we had not applied a specific Act, the Group Areas Act. We have applied it, as the hon member himself said today, but we applied it as it stands on the Statute Book. Today the hon member argued that we should amend the Act. In other words, we applied it as it stands on the Statute Book. That is what the hon member said. [Interjections.] The other hon member will not understand that. [Interjections.] The significance of that statement therefore that there was a slight misrepresentation during the recent election. The CP then said that we were not applying this Act, while the point is that we did apply it as it stands on the Statute Book. [Interjections.]

That brings me to the hon members for Brakpan and Vryburg who questioned me on this matter concerning this specific ailment. I want to say at once that this disease is being dealt with most circumspectly by the Prison Services. Captions such as “Prisons alert” and so forth have illustrated the situation. I think these hon members deserve a full reply. The first case of Aids was identified on 5 March 1987. To date ten Aids cases have been identified in the service, of which eight were those of Aids carriers and two of Aids sufferers, three of the cases are White men of whom one has in the meantime died and one has been released, while one case is a Coloured man and the rest—six of them; three women and three men—are Black.

One prison service is geared towards identifying high-risk cases of Aids, as is the case with every other dangerous disease. Warrants in respect of all new admissions are checked for contraventions with regard to illegal entry into the RSA, immoral conduct and drug addiction. A questionnaire aimed at identifying these high-risk cases is completed upon admission. Separation of these cases also occurs and they also receive treatment: I want to leave it at that. We are dealing with this matter in interaction with the health authorities.

Another matter which is receiving our attention is the following. While the SA Prisons Service has the power to reconsider the conditional release of high-risk cases who are not well, I want to put it to hon members that we had a closer look taken at this matter because it is not right that such people should be released to come into contact with the public without the necessary precautionary measures having been taken. We are at present negotiating with the other departments on this matter.

The hon member for Pietermaritzburg-North raised a whole lot of matters and as the chief spokesman on this side of the House I believe he deserves a full reply. He referred to the high prison population. It is true. It is our most urgent problem. It is a serious problem because the prison population towards the end of March this year was more than 118 000. The question that arises is how to deal with it.

From time to time we have had cases of amnesty being granted, which brought a measure of relief. At the moment there are approximately 3 000 detainees in terms of the emergency regulations, if I am correct, or perhaps fewer. The fact remains that it has not had any significant effect on the increased numbers.

The question is how to deal with it. We cannot simply keep on providing accommodation. As it happens we have at acquired control over a new institution at Groenpunt— that is not the Green Point of the hon PFP member, but the Groenpunt of the Prison Services. There was immediate relief when the overcrowding rate of more than 200% was reduced to slightly more than 40%. We cannot, however, continue to do it in this way and I think we must start considering steps which are being taken elsewhere in the world to deal in a positive way with the problem of crowding in the long term.

Hon members are aware of the Release Advisory Board, with a judge as chairman and another judge as secund. They furnish us with advice on prison matters, releases and so forth. I asked them to furnish me with advice on applying the concept of so-called “bursting”, as it is applied in the USA, in South Africa. The term “bursting” implies a preceding level of occupation which ought not to be exceeded. If we have reached an optimum level of occupation—that is taking facilities such as costs, light, air and so forth into consideration—the question arises whether the people who cause this number to be exceeded, could not be released. That implies the selection and identification of a specific type of prisoner who could be released in such a way. Obviously matters such as the following will have to be taken into consideration: The type of criminal offence, the period already served in prison, the prognosis—is the prisoner dangerous and is it a serious offence or not—the prisoner’s conduct, adjustment, and the question of whether or not it is his first offence.

This causes us to think along the lines of amnesty, because with amnesty one is also dealing with prisoners who have served a long sentence. Usually they receive credit and have a short period still to serve. A system of “bursting” implies, however, that a prisoner is perhaps released sooner than would otherwise have been the case. People who would have been entitled to release in the near future anyway are mainly the ones who come into consideration in this regard. We shall deal with it and implement it as an almost automatic step in order to ensure that we do not reach the critical levels of prison occupation.

I thank the hon member for Roodepoort for the interesting contribution he made. We cannot continue to build prisons because we cannot keep all of them busy. The fact remains that we are able to make provision in another way. Today for example the question of supervised parole was argued. I heard hon members talking about supervised parole, more outside work and more productivity, and so on. We can endorse all of those things. If we reach a critical level in our prison system which we cannot deal with, given the manpower, we are running into danger. If we can deal with it without endangering the public we should consider it. The criterion, however, is whether it would constitute an even greater danger to the public. I shall therefore take the matter further in the near future.

The hon member for Green Point raised a few points here. I merely want to tell him I am satisfied that the complaints system is being correctly applied in the Prisons Service.

I am satisfied that it is being applied fairly,, and orders have been given that access to prisoners is possible daily, and that access by the prisoner to the commanding officer and even higher can occur fairly and speedily. Anyway, I shall write a letter to the hon member to thank him for the very thorough contributi9on he made to the debate.

I have already spoken about the contribution made by the hon member for Vryburg, and this now brings me to the hon member for Roodepoort. He made representations about the high rate of self-sufficiency in many spheres in the Prisons Service. It enables us to keep a prisoner at R10 a day in comparison with the rest of the world, where it costs R50 to R60, and even far larger amounts. Consequently we are already cost effective. The hon member quoted from the 1985-98 annual report. I do not know whether the hon member is a farmer, but if he is a farmer— there are too many lawyers and clergymen and too few farmers in the CP—he would have known that recently there have been tremendous droughts. Does that hon member know that the Prisons Service also suffered a great drought? Did the hon member think that we might have detained fewer prisoners as a result of the drought?

We want to adjourn now!

Hon members says that they are adjourning the House and under the circumstances I have no choice but to say that we have had a good and useful discussion. It is one minute before six thirty, and I now propose that the discussion has been disposed of.

Vote agreed to.

Business interrupted in accordance with Standing Order No 19.

House Resumed:

Progress reported and leave granted to sit again.