Mr. Speaker, in moving this motion which stands in my name and which reads—

I want to point out immediately that this motion does not deny that the jury system possibly at some stage in the past in fact fulfilled a useful function. In fact, the wording of the motion implies that. There is therefore no difference of opinion on that particular point, and I mention it because I should like to see hon. members confining themselves to the allegation contained in this motion, namely that in present circumstances in this country the jury system has no further useful function to perform in our administration of justice.

When discussing a motion of this nature, I believe it will be useful in the first instance to investigate the origin and history of the jury system; secondly, to point out how the system has gradually been broken down, particularly in this country during the past 50 years; and then to ask ourselves the question: What really are the aims and objects in regard to this system, and to what extent does the system in the present circumstances still comply with those aims and objects? Then finally I want to quote what certain competent persons have said from time to time about this system.

Now, Mr. Speaker, in regard to the origin of the jury system there are certainly few subjects of research which have given research workers so many headaches and caused them so much confusion. In fact, there are researchers who have despaired and exclaimed that the jury system is so steeped in antiquity that it confounds all research. Others again believe that the jury system originated in Normandy, which in turn adopted it from the Scandinavian countries. Others again believed that the jury system is typical of and belongs exclusively to the Anglo-Saxons and that it is Anglo-Saxon by nature and in origin. Others believe that the jury system was derived from the courts which the Crusaders established in Jerusalem during the latter part of the eleventh century. Still others believe that the jury system derives from the Roman system where the Praetor, assisted by his Judices, heard trials. Under this system it is the practice that the Judices who assisted the Praetor were each supplied with three plates. On one plate there was only the letter “A”. It stood for the word “Absolvo”, or in other words, “Absolve” or “Absolved On the second plate there was a “C”. That stood for “Condemno”—condemn. On the third one there were the letters “NL”, which stood for “Non Liquet”, which meant that the matter was not clear; in other words, the case was not properly proved. After the trial each of the Judices, according to his judgment, put one of these plates into a container. The Praetor then withdrew them and gave his judgment according to which plates were in the majority. Now it is readily admitted that there is great similarity between the Roman system and the jury system, but in spite of that it has been proved conclusively that it is not true that the jury system was derived from the Roman system.

The most generally accepted theory in regard to the origin of the jury system is that it was introduced for the first time and in its most primitive form in England and was used by the Norman conquerers, and we must note that when it was introduced the intention was not to use it for the administration of justice, but to use it for administrative purposes. The Norman conquerors conceived the bright idea that one could use a purely religious institution like the oath also for administrative purposes. If they wanted to arrive at the truth for administrative purposes they considered that the best way of doing so was to put a man under oath—and at that time the oath had tremendous power—and that if he was under oath he would tell the truth. So it is alleged that this system was, e.g., used in the compilation of the well-known Domesday Book. People in the vicinity were placed under oath to give evidence as to the particular circumstances pertaining to that area. In other words, the first jurors, the first people who were so placed under oath for this particular purpose, were nothing else but witnesses. It was only in the eleventh century, after the old system of trial by ordeal was abolished, that the jury system developed further. You know that trial by ordeal was, for example, that a man had to carry a piece of hot iron for a certain distance, and if he managed to do so he was considered innocent; or there was trial by water, where he had to put his hand into a pot of boiling water and remove an iron ball, and if he succeeded in doing so his innocence was proved. The third system was what they called the “accursed morsel”. The idea was to give a man a piece of dry bread which he had to try to swallow. There was an accompanying prayer to the effect that if he was guilty he should choke. Well, this system had the advantage that the sentence was immediately applied to the so-called guilty person.

Mr. Speaker, I say it is only after this system of trial by ordeal was abandoned in the second half of the twelfth century and the beginning of the thirteenth century that the jury system, or the system of jurors, as the Norman conquerors called it, was applied to the administration of justice. From the nature of the matter, this system was originally used for the giving of evidence. People under oath gave evidence and they were known as jurors. Later it happened that those put under oath also became the prosecutors. The jurors became the prosecutors as well. At a certain stage they were both prosecutors and witnesses. It was only later, towards the end of the twelfth century, that the jury system in England was used more or less in the form as we know it to-day, although of course quite in its initial stages. In the thirteenth century this system became properly established, so much so that when the Magna Charta was drafted and King John had to sign it in 1215, the system was established to such a degree that Chapter 29 of the Charta specially provided that, translated very freely, no free man shall be injured either in his person or in his property without the legal judgment of his peers and the law of the land. That is the idea behind the system. We can accept that during the thirteenth century the system had already been established in England, and therefore, Sir, when we discuss this system in the House to-day we must clearly realize that we are discussing a system which is more than 700 years old and which has a tremendous tradition behind it. From the thirteenth century to the second half of the nineteenth century the development of this system took place. Various rules were made and refined. There is the rule as to who may not be jurors, that a juror may not be a relative, that he should have no interest in the case, etc. etc. The other rules developed that the jury should be segregated and that nobody should come into contact with them. You will remember that it was this rule which was recently contravened in the well-known Moodie case, where somebody had been in the presence of the jury.

The rule of unanimity was developed. The jury had to be unanimous. In England all 12 members of the jury had to be unanimous, and there are many interesting tales about how they were forced to arrive at unanimity. They were readily deprived of food and water until they became unanimous. They were carted from one Assize to another until eventually they returned a unanimous verdict. Rules were developed as to how the Judge had to sum up to the jury and regarding what he had to tell them, and the rule developed in regard to what the Judge had to decide and what the jury had to decide—the Judge on legal points and the jury on the facts. All kinds of developments took place, but what is of interest to us is that from the early thirteenth century to the second half of the nineteenth century very little was done to derogate from the jury system, except perhaps for the establishment of the Courts of Equity in England. In 1854, in England, for the first time we find something being done to break down the jury system. The system in England right throughout until to-day has been that the jury sits in both civil and criminal cases, but in 1854 it was decided that where the parties to a civil case agreed, a Judge could be asked for and the jury could be eliminated. In 1873 there was further legislation derogating from the jury system, and again in 1883 and, lastly, again in 1933. To-day the position in England, where the system has been in operation for so many years, is that in criminal cases only 5 per cent of cases is tried by a jury. For the rest a Judge is preferred. Approximately between 5,000 and 6,000 cases are tried by a jury, whilst the average number of cases in the higher courts is between 110,000 and 130,000 per annum. In civil cases in England at the moment a jury is used in only between 2 per cent and 3 per cent of cases. In other words, in England itself the system has been broken down to such an extent after 750 years that it is practically only just by way of exception that a jury is used.

This country learnt to know the jury system for the first time shortly after the second British occupation of the Cape in 1806. De Mist instituted investigation into the administration of justice in the Cape Colony and submitted his report, and in 1827 the Royal Charter of Justice was promulgated, and Section 34 of this Royal Charter provided that criminal trials in the Supreme Court would be heard by a Judge assisted by nine jurors, a deviation from what the practice was in England, where the jury consisted of 12 members. Section 43 of the Charter specifically excluded civil cases, and what struck me while reading the Charter was that another section specifically provided that the fact that a person had no knowledge or comprehension of English would not preclude him from serving on the jury in the Cape Colony; he was compelled to serve despite the fact that he did not know English. In terms of this Charter, the Supreme Court was established in 1831 and provision was made for jury lists. Only in 1854 in the Cape Colony was this system also extended to civil cases. In 1852 the system was introduced in Natal for both civil and criminal cases. It also provided for a jury of nine men, but it deviated from the existing practice to the extent that instead of having unanimity a majority of seven would be sufficient to give a competent verdict.

The jury system was extended to the Transvaal and the Orange Free State Republics in the early 1850s, and it was incorporated in both constitutions, but it was limited to criminal cases. That is significant, and I think the explanation for it is that when the Trekkers left the Cape Colony in 1836 the only system they knew was the jury system in criminal cases, because it was only in 1854 that it was made applicable to civil cases in the Cape Colony, and so they took the existing law with them and applied it only in criminal cases.

In 1910, at the time of Union, the position was that in the Cape Colony and Natal the jury system was used in both civil and criminal cases, whilst in the Transvaal and the Free State it was used only in criminal cases, and it is to be noted that at that stage it was still a requirement that the jury should be unanimous in its verdict. All nine men had to arrive at the same verdict. The first breaking down of the jury system took place in 1914. In 1914 this Parliament passed an Act establishing special courts. The Act provided that if the Attorney-General was of opinion that the administration of justice would suffer, he could report to the Minister of Justice to that effect, and then the Governor-General was empowered to establish a special court where the jury was excluded and which consisted of a Bench of two or three Judges, and it was made applicable in cases of high treason, public violence and riots. In those three cases the jury system was not used and provision was made for them to be heard by special courts. In 1917 there was a consolidation of the criminal procedure laws of the various provinces. Act 31 of 1917 consolidated the criminal procedure and in the first place it reaffirmed the establishment of special courts in cases of high treason, public violence and riots. But, interestingly enough, two other categories were added. The one was any crime in connection with the possession or sale of precious metals or minerals and the other any case concerning the provision of intoxicating liquor to Natives and Coloureds. Originally these cases had, of course, been excluded, and the only reason one can advance for the fact that they were now included here was the realization, even then, that the jury system did not operate properly in cases concerning the provision of liquor or the illegal trading or possession of precious metals and minerals. I hope to say something more about this later. In any case, the special courts were reinstituted.

However, they went a step further and whereas in the past in three of the provinces the verdict of the jury had to be unanimous, they now took over the Natal system and it was provided that a unanimous verdict by seven members of the jury would be competent. That is one of the good things which came from Natal. But the most important of all the provisions in the 1917 Act was that for the first time it provided that the accused could have a choice between trial by jury or by a court consisting of a Judge and assessors. This was a particular deviation and one we should take cognizance of. Up to that stage there had been no exception, except in the case of the special courts, but for the rest all criminal cases had to be tried by a jury. In 1917 for the first time we find that there is a change and that the accused now has the right to choose between trial by a jury or by a Judge and assessors.

In 1927 the jury system in regard to civil matters was abolished in the Cape Province and Natal. It is alleged that what gave rise to it was the train disaster which occurred at Salt River at that time. It was feared that heavy claims would be instituted and it was a well-known fact, in England as well as here, that when claims were instituted and the jury was given the opportunity to lay their hands on a public institution, whether it was the State or a municipality or an insurance company, they went out of their way to award as much compensation as possible. Consequently the Act was passed in 1927 abolishing the jury system in civil cases.

In 1935 the jury system was broken down even much more. In 1935 it was provided that in certain cases the Minister of Justice could order a trial to take place not by a Judge and jury but by a Judge and assessors. Then there is a long list of cases given where the Minister has that power. At that stage the cases in connection with the supply of liquor and the possession of minerals and gold were taken away from the special courts. From time to time further cases were added. In 1948 were added cases where a knowledge of minerology or bookkeeping was required. Then the Minister could also give instructions that the case should be tried in that way. Another matter which was added was contraventions of the Atomic Act, and in 1956 still another case was added. At the present moment these cases comprise the following, and it is worth while paying attention to it because it covers such a wide field. Under the present circumstances, as the law stands at the moment, the Minister of Justice has the right at any time, if the Attorney-General reports to him that he considers it is not in the best interests of the administration of justice for a trial to be heard by a jury, to give instructions that in the following cases the trial will take place before a Judge and assessors: murder and arson and attempts to commit those crimes; prosecutions in terms of Chapter I of the Riotous Assemblies Act and the Criminal Procedure Amendment Act of 1940; prosecutions in terms of Section 33 of the Atomic Act; prosecutions in regard to illicit trading or illegal possession of precious metals and precious stones; prosecutions in regard to the supply of intoxicating liquor to Natives or Coloureds; prosecutions in regard to insolvency; prosecutions in regard to which the facts concerning prescribed material in Section 1 of the Atomic Act will possibly be considered; prosecutions in regard to which facts will probably have to be considered for the proper understanding of which and expert knowledge of bookkeeping, accountancy, geology, minerology or metallurgy may be necessary; prosecutions in connection with a non-White if the accused is a White person, or in connection with a White person if the accused is a non-White; prosecutions in terms of paragraph (a) or (b) of Section 11 of the Suppression of Communism Act. If one looks at this list one realizes what a tremendously wide field it covers and in how many cases the Minister of Justice can take away the right of an accused person to be tried by his fellow citizens, and without giving reasons can say that it is not in the interest of the administration of justice and, therefore, he orders that the trial shall take place before a Judge and assessors.

In regard to this particular section I have just referred to, I want to point out in passing in what an invidious position it places any Minister of Justice, particularly in regard to cases where a White man has committed an offence against a non-White, or vice versa. Unfortunately it is a fact that in this country the jury is either too sympathetic or else is prejudiced in such cases. The facts have proved this. Now I can imagine that when a case like this occurs in a particular magisterial district, where it is a White man who is the accused and a non-White who is the complainant, representations will be made to the Minister of Justice to allow the case to be tried by a jury and that he should not make use of his right to have the trial heard by a Judge and assessors. Just imagine in what an invidious position any Minister of Justice is then placed. He is now in the position that if he agrees to a jury trial it is practically certain that the administration of justice will suffer. If he does not agree to a jury trial, it is taken amiss. I want to say frankly that while this particular section is in operation I pity any Minister of Justice who has to take that decision. I feel that if this is the case and when we know for a fact that unfortunately these things do happen, the obvious thing surely is to do away with this section so as to obviate the Minister of Justice being put into this invidious position every time.

Mr. Speaker, I have already mentioned the special courts of 1914 and 1917 and the exceptions which were made in 1935, but in 1954 we really find the coup de grâce being given to the jury system. Whereas formerly it was the rule for a man to be tried by a jury unless he specially asked for a Judge, the position now was just the opposite. In 1954 this Parliament provided that the normal procedure in this country in regard to criminal trials would in future be trial by a Judge with or without assessors, and that the exceptional case would be trial by a jury. Then a jury would have to be specially applied for. This is of course a tremendous blow to the jury system, and to-day we can really no longer say that the jury system is our system. Our normal system is trial by a Judge, without a jury.

But the jury system was also broken down from a different angle. We should remember that in this country we have magistrates’ courts which are sometimes given increased jurisdiction, and that we even have regional courts. If we realize that our magistrates can try any crime except three, viz. murder, high treason and rape, and if we think of the tremendous number of crimes tried in the magistrates’ courts with or without increased jurisdiction, as well as in the regional courts, then only do we realize to what extent the jury system has already disappeared. The ordinary magistrate’s court has a jurisdiction of six months or R200, and with increased jurisdiction it is one year or R400, and the regional court has a jurisdiction of three years or R600. Only very serious crimes do not fall into this category of three years’ imprisonment and/or R600 fines. The hon. the Minister said in the Other Place the other day that only 2 per cent of trials are still being heard by a jury, but I think that if we remember that in the magistrates’ courts, with ordinary or increased jurisdiction, and in the regional courts so many cases are already disposed of which would normally have been tried in the Supreme Court, I wonder whether the Minister’s figure should not be halved. My honest opinion is that if we were to make a survey of the criminal cases which were normally heard by the Supreme Court in the past, we would now find it to be less than one per cent.

Now we must ask ourselves: To what extent does the jury system still comply with those cases? As hon. members know, the jury system means that an accused person in certain cases is tried by a court consisting of a Judge and nine jurors, actually laymen, and the underlying idea of the system is not that these nine laymen are more competent to judge than the Judge himself. The idea is not that nine heads are better than one, although it sometimes has that advantage, but the underlying advantage is that the nine jurors will be the peers of the accused. They come from that vicinity and are his peers, as it is called in England. Because they come from that area and know the people and conditions there and are better able to appreciate how people of that class will react in certain circumstances and what goes on in their hearts and minds, the idea is that in this way justice will be better served. That is the underlying idea. It is also said that the system has various advantages. It is said, inter alia, that one advantage is that by making use of this system one can get rid of unpopular legislation, that the jury is in fact a small Parliament established to get rid of such legislation. Secondly, they say, it tempers justice with mercy. Then it is said that a particularly great advantage is that it brings the ordinary man, the man in the street, into contact with the administration of justice. Another advantage they mention is that it relieves the Judge of his tremendous responsibility. I just want to say in passing that this may be so to some extent, but if we remember that the average jury in the final result is guided by the Judge when he sums up to them, I do not think it relieves the Judge of his responsibility if the jury thereafter arrives at their verdict. Everybody knows that when the jury give their verdict it is only a reflection of what the Judge has told them. Let us take the other example they mention, that it tempers justice with mercy. It sounds very nice, this idea of humaneness at a trial, but then we have to be very careful that it does not become a travesty of the law, and I fear that is what often happens. Instead of tempering justice with mercy, the jury in many instances makes a travesty of justice. I can mention a few examples. I just want to quote what Forsyth says in his book. It is an old book but a particularly good one on this subject—

And that is unfortunately what happens only too often. Mercy belongs to the executive authority. We should be careful that we do not make a mockery of the law in trying to introduce some human kindness when accused persons are tried. I want to read to you, Sir, what Judge Dowling said in a very well-known case in the Northern Transvaal when a White man and his son were charged with the murder of a non-White whom they had apparently attacked viciously. The evidence was overwhelming. The jury left the courtroom, came back and, instead of giving a verdict of guilty of murder, which very clearly should have been the verdict according to the evidence, they gave a verdict of guilty of common assault. Judge Dowling then said—

If the verdict of a jury is regarded as a surprise by a Judge, I feel that in that case the law has not been watered down by mercy; I feel that a mockery has been made of the law and we should guard against that.

But I want to confine myself particularly to this approach namely that the accused should be tried by his “peers” as they are called in English. In a country such as England where the jury system originated and where it still operates, you have a homogeneous population, although there are social classes, and I honestly believe that in such a country the jury system, in spite of its weaknesses, operates better than in South Africa. In England, if the accused belongs to the nobility, the jury does not consist of the ordinary man; the jury consists of his “peers”, twelve “lords”. If an ecclesiatic is charged, the jury does not consist of the ordinary man, but Bishops form the jury. If the ordinary man is charged, then “lords” do not serve as members of the jury, but it is the ordinary man who has to listen to the evidence and come to a decision. I do not think anybody in this country can rightly contend that people in this country are tried by their peers. In this country the administration of justice is in the hands of the Whites; the members of the jury are White. The majority of the people in this country are Bantu; a large number are Coloureds, a smaller but nevertheless large section are Asiatic. If we want to be true to this system that a person should be tried by his peers, we should in all fairness see to it that when a Black man is charged, he should be tried by a jury consisting of nine Black persons, because they are the people who know what goes on in his heart and in his mind; they are the people who know what the circumstances are; they are the people who know how he will probably react. How can we contend that a White jury knows the circumstances and the reaction of the Bantu? In that respect we have departed completely from the original idea of what a jury system should be. I am not pleading that we should have Black juries; I am not pleading that we should have Coloured or Asiatic juries. All I am doing is to point out that we cannot on the one hand adhere to this idea of a jury system, the idea that a person should be tried by his peers and on the other hand not allow people to have a jury consisting of their peers. When we do that we make a mockery of our jury system. But take even the case of the White people in this country. Can it be said of all cases that when a jury is empanelled the accused is being tried by his peers? I hope, when I point out at a later stage who may not serve on a jury, that I will convince hon. members that it is extremely doubtful whether an accused is always tried by his peers in the case of Europeans. I want to add that we should remember that in the majority of our criminal cases the accused are usually Black, Coloured or Asiatic. The cases where the accused is White are in the minority. We cannot, on the one hand, adhere to the tradition and the wonderful idea of “being tried by your peers” and on the other hand allow these things to happen. I feel, therefore, that we should get away from this jury system and that is the reason why I have introduced this motion.

When you read the literature on this subject, Sir, you find that everyone returns to the much-lauded advantage of the jury system, namely that it gives the ordinary man a share in the administration of justice that is supposed to be the particular big advantage of the jury system. The ordinary man is given an opportunity of playing his part in the administration of justice. When you analyse the facts, however, Sir, you find that we are also making a mockery of this. Take South Africa for example. The 10,000,000 Black people are eliminated; they do not have the privilege of sharing in the administration of justice, a privilege which they should have, if we want to follow this system strictly. The Coloureds do not have that privilege, and the Asiatics do not have it. But take the White people. How many White people have it? In the first place the entire female sex is excluded. Hon. members are aware of the fact that although women may serve on a jury, they can only do so when the accused is a woman or when the accused is a person under the age of 18 years, and in addition the entire jury must consist of women. You must have a panel of nine members and what happens in this country in actual fact? In this country—I speak subject to correction but I am almost 100 per cent sure—you will not be able to appoint a single jury consisting of women only. We have controlled that in Cape Town. You simply cannot get a jury consisting of women together for the simple reason that there is not a jury list in respect of women and for the simple reason that they do not apply to serve on a jury. In other words, the entire female population is excluded and do not enjoy this wonderful privilege of sharing in the administration of justice. What is more, they have not been excluded against their will. They want to be excluded; that is why they do not come forward and that is why in the whole of Cape Town you cannot get a jury of nine women. I believe the position is the same in Johannesburg, Port Elizabeth and Durban. I speak subject to correction but I believe that is the position. I am not even speaking about outside districts. In other words, the female sex do not enjoy the so-called wonderful privilege of sharing in the administration of justice.

I now want to show you, Sir, who else are excluded. All male persons under the age of 25 years and over the age of 65 are excluded. A male of 24 years 11 months dare not enjoy the privilege of sharing in the administration of justice and when he is one day over the age of 65 he is also excluded. But those are not the only people who are excluded. Every hon. Minister of ours is excluded and members of the Executive Committee. Not one of them may share in this wonderful privilege. All Judges of the Supreme Court are excluded; members of either House of Parliament are excluded; I believe there is probably good reason for that! Members of the Provincial Council and members of the Executive Committee are excluded; any officer of Parliament or of a provincial council; all ministers of religion are excluded. They may not share in this privilege. Advocates and attorneys duly admitted and actually practising, articled or managing clerks to attorneys, and enrolled agents in the magistrates’ courts, may not share in this privilege; all medical practitioners, dentists, chemists and druggists are excluded; persons who are serving or actually undergoing training in any land, sea or air force under the laws relating to the defence of the Union and members of any police force; members of the Public Service are excluded; deputy sheriffs and sheriffs’ officers; college professors and lecturers, school inspectors and school teachers are excluded; masters of vessels and pilots are excluded; persons continuously employed in any public railway are excluded; in other words, railway workers are excluded; people employed in tramway, electrical works, waterworks or sewerage works in connection with a hospital are all excluded; persons actually engaged as editors or reporters for newspapers; persons accredited to the Union as consuls are also excluded. Persons in the service of Her Majesty the Queen in any of her Governments are excluded; persons incapacitated by deafness, blindness or other permanent infirmity are excluded. Well, this is a very wise provision and I do believe that they should not serve on a jury. You cannot, therefore, hold it against the law-giver for having deprived these people of the right of sharing in the administration of justice. Others who have been excluded are secretaries of divisional councils, municipal councillors, heads and sub-heads of municipal departments, traffic police in the employ of local authorities. Mr. Speaker, who is left after all these people have been excluded? I have made a calculation and I took it that women comprised a little over half the population and that 30 out of 70 persons were under 25 or over 65 years. My estimate as far as these people are concerned was very conservative and I came to this conclusion that in the whole country, with a total population of 15,000,000, there were hardly 400,000 persons who could serve on a jury. That is not even 2 per cent. Only 2 per cent of your entire population have the wonderful privilege of sharing in the administration of justice.

When we realize what the position is, I think the time has arrived that we get away from the jury system. We must get away from the idea that you should be tried by your peers. Let us return to the actual facts and realize that hardly 2 per cent of the people of this country can serve on a jury.

I have shown the House how the system has been whittled down; I have shown that there are special courts to-day; I have shown in respect of what a great field the hon. the Minister of Justice could simply eliminate the jury system. I have shown you, Sir, that at the moment the jury system is the exception and that the normal system is a judge with two assessors. I have pointed out what a tremendous number of criminal cases were heard in magistrates’ courts and regional courts, and I have pointed out that these alleged advantages of jury system simply do not exist once you analyse the position and examine it closely.

In conclusion I want to read a few extracts to show what people have already said in this country about the jury system. The first extract I wish to read is from the Cape Law Journal. This is what the editor says pursuant to a remark made by Sir Henry de Villiers—

If the system is good we should extend it and if it is bad we should abolish it. The editor goes on to say—

That is pursuant to a remark made by the Chief Judge of the Cape Province in 1885. I wish to refer to another article by the editor of the South African Law Journal, 1906—

I now want to read another extract from the South African Law Journal of 1916—

I want to read what Mr. Morice, Q.C., had to say about the jury system. I think at one stage or other he was also a Judge in some British territory outside the Union. He said this—

That was written shortly after 1917—

Finally I want to read what Sir Patric Devlin wrote. He is one of Her Majesty’s Judges in the High Court of Justice. He is a fervent advocate of the jury system but this is what he has to say about the system—

This is one of the greatest advocates of the jury system who points out the weaknesses of the system.

Various Judges have at various times expressed themselves on the jury system. I just want to quote what Judge Sutton said. He said this—

I agree that even in the few remaining cases where the jury system still applies it simply does not fit into the circumstances prevailing in this country, and for that reason I believe it is our duty and our task as law-givers to face up to the facts and to get away from the idea that this system has a long tradition when we are convinced that it does not work in South Africa. There is practically nothing left of it; it simply does not work and for that reason I have no hesitation in suggesting to this House that the jury system has served its purpose and that it can serve no further useful purpose in our administration of justice.

I regard it as a privilege to second this motion moved by the hon. member for Klerksdorp (Mr. Pelser). I take pleasure in doing so, and I do it for the same reason that he does, namely that the jury system has become obsolete as a concept and as a system. It is, as the hon. member for Klerksdorp has said, a very old institution which deserves a certain amount of veneration because of its age. But the fact that it has reached a great age still does not compel us to adhere to it. It is true that when the jury system was evolved it resulted in a new system of law, and that may probably be one of the reasons why it has endured for so long. Possibly we all know what a new system of law the jury system brought about in England when it was introduced there, but there may be some of us who are perhaps not aware of what a good thing the jury system was when it was first evolved and applied. If we just have regard to the system as it existed in England before the jury system came into being, we can realize in what high esteem this system was later held. The hon. member for Klerksdorp has indicated how the jury system may have had several origins. I will not weary the House with that. I am one of those who believe that it was evolved from the Anglo-Saxon countries, but at the time when the jury system was evolved the legal process in England was a very remarkable one. It was a process of people’s courts, a process in which the population played a role, and it operated more or less in the following way. If, for example, A alleged that B had done him an injustice, the Judge decided beforehand which of the two would lose the case, and if the person was not satisfied with that decision, long before the evidence was given, he had to come there and state that he was not concerned in the injustice. He had to swear on oath that he had not done an injustice to A— assuming B was the accused—and if he swore that he did not do an injustice to A, that was the end of the case. But it was not always so easy, because A swore that B had in fact done it, and then a conflict ensued. Then both of them had to find people, not to come and swear, in respect of the injustice, whether it was committed or not, but they had to swear that A or B, whichever one they came to assist, was a good man, and the oath so sworn simply meant that B—let us assume that B was the defendant and that the Judge had decided that he was the person who would have to lose the case—then these oath-helpers only came to swear that B was a good and decent man and that he would not make a false oath. It is interesting to note that they swore that this oath was pure and not perjury. That was all they had to say. The type of oath sworn depended on the nature of the case and on the defendant or on the accused person himself. It is possible that the Judge decided. or that the people’s court decided, that he should not come with only one oath-helper. Sometimes he had to bring as many as 48, which was the maximum, but he could also bring fewer, although the minimum was 12. And then there was, moreover, a whole system to evaluate the worth of a man’s oath. The oath of a baron was worth more than that of an ordinary baronet, that of a baronet was worth more than that of a squire, and that of a squire again was worth more than the oath of an ordinary man. There was a whole schedule, and then they only added up the oaths to determine who had won and who had lost.

But even that was not enough. One of the litigants who felt that an injustice had been done to him by the number of oaths which had been built up against him could always say: They are all perjured, and then there really was trouble. Then they could proceed to the Judgment of God, to which the hon. member for Klerksdorp referred, but the hon. member touched on it only lightly, and to give hon. members an idea of how good the jury system was after that, I think I must give the House an idea of how good the Judgment of God was. There was the judgment by means of the hot iron. A hot iron was put into a person’s hand and when he dropped it after nine yards his hand was bound and opened up after three days, and if there was a blister on his hand it meant that person had committed perjury. Or it was the trial by hot water. The accused either had to put his hand or his whole arm into hot water, as ordered by the people’s court and according to the crime committed and the charge which was laid. and if when the man withdrew his hand or his arm. and it was unscalded, he had not committed perjury; then his oath was pure and not perjury. Or it was trial by cold water. They threw a man into the water, and if he sank he was guilty but if he floated he was innocent.

And if he swam?

Then he floated. In any case, the question never arose of guilt or innocence, but the point at issue was whether the person who took the oath had committed perjury or not. And certainly the most picturesque of these Judgments of God was the judgment of “the accursed morsel”, to which the hon. member for Klerksdorp referred. An ounce of cheese or an ounce of bread was given to a person who was charged with perjury. If he choked it meant that he had committed perjury, but if he swallowed it then he had not. And this, Mr. Speaker, was the ordinary court procedure, and peculiarly enough, it worked very well, because when the court was dealing with a criminal he could get no oath-helpers because nobody would commit perjury on behalf of someone whom they knew to be guilty.

But it did not work well in every respect because there were people who considered this to be a primitive procedure. In the course of time the jury system developed. This is an old Anglo-Saxon institution which developed in England. When the Norman kings came there, a new process was evolved alongside this old process, quite independently, and that was the procedure of the inquisition. The king, when he laid a charge against his subjects that they had trespassed on his land or that they had not paid enough in taxation, or for any other reason, saw no chance of looking for oath-helpers or of proceeding to apply the Judgment of God, because he had to govern the State and often an end had to be put to the litigation. He therefore took a short cut to the truth. He sent out an official with instructions to assemble a number of neighbours and put them under oath and then to question them, mainly in regard to some or other matter with which the king was concerned, and generally this was in regard to matters of taxation.

You know, taxation was not always a duty; it was a privilege, and it was regarded as a donation to the State, and then they agreed in the general council of the king that they would give the king a gift, say, the 40th penny (that was customary) and then everybody paid the 40th penny—at least they were supposed to but they did not always do so, and with the approval of the council the king then sent out an official with the high-sounding name of an inquisitor, i.e. one who was curious, and he held a session which was called an inquisition.

This session took place in the area where he had assembled the people and had taken an oath from them, and then they said whether a person had actually paid the 40th penny, or if he had paid, whether it was in fact the 40th penny he had paid. In that way he arrived at the truth. This process, as one can understand, was appreciably more popular than the process of the swearing of oaths by oath-helpers and the Judgment of God, and gradually we reached the stage where the two processes really merged into one another and became intermingled with each other, so that the inquisition with its system of oaths and the people who were placed on oath tried to establish the truth, and the oath-helpers’ system again assisted the inquisition. That was a popular method of ascertaining the truth. The people who appeared before such an official at an inquisition were no more than witnesses, but they were also oath-helpers as well, in the sense that they helped each other to get at the truth. However, they no longer swore that the plaintiff or the defendant was a lover of the truth; they came and told on oath what they knew about the matter, and in that way they were at the same time witnesses and also judges of the facts.

The next step was that any person could obtain from the king a warrant to hold an inquisition on payment of the prescribed fee, and that is probably also the reason why this system became popular, because it provided an income for the king when he sold these warrants. All one had to do was to ask the chancellor or the king to institute such an inquisition, and then that was a short cut to the truth, and the inquisitor went to the area and assembled the people, put them on oath and found out whether there was any substance in the allegation that A had done an injustice to B.

The next step was that everybody was compelled to subject themselves to the inquisition if they could. At first they gave an accused a choice as to whether he would subject himself to the inquisition or not. If he refused, they proceeded to apply the system of the Judgments of God. The two systems remained in existence next to each other. England is a remarkable country. The English never abolish anything; they just store it away on the loft. Until to-day these Judgments of God have not been abolished; they have just fallen into desuetude. What happened now was that someone who felt aggrieved, or someone against whom a charge had been laid, stated: I subject myself to my neighbours for better or for worse. Gradually it became a duty, and if he subjected himself to it the other party was also compelled to do so. In this way the jury was established as a compulsory element at every trial under the English system. But still the members of the jury were witnesses on the one hand, whilst on the other hand, they were the people who had to hear the evidence. Therefore on the one hand they were judges, and on the other hand they were witnesses.

That brings me to the first weak point in the jury system. I will be forgiven for having spoken at length on this aspect of the development of the jury, but as is the case with all historical products, it carries in itself, when one gets such an admixture, the germ of self-destruction. As I have said, in this process of development, the jury system also carried within itself the germ of its own destruction. Herein lies the weakest as well as the strongest point of the jury system. If a member of the jury can himself give evidence in regard to the matter, he may already be prejudiced. In such a case he is unfitted to attend the trial. If he had to hear evidence and knew nothing about the matter he had to be able to sift the lies from the truth, and if he could not do so he was also unfitted for his task. The objections I have against the jury system to-day revolve round these two points, particularly the last one. One is surprised that this institution was in operation for so long because the jury, as the hon. member for Klerksdorp has said, is leally unfitted for the work it has to do.

They remind me of Dr. Johnson’s horse. It will be remembered that when he saw a circus horse walking on its hind legs he was asked whether he did not find it peculiar that this could happen, and he said, “Well, I do not find it peculiar that the horse can walk so well on its hind legs, but what I do find peculiar is that the horse can manage to walk on its hind legs at all.” I find it peculiar that this system has lasted so long, but when I recollect what there was before we had the jury system I can appreciate that there was a certain fear in the minds of people of reverting to what they had had before, and therefore why the jury system lasted as long as it did. I want to repeat: On the one hand the juror is disqualified if he has knowledge of the matter he has to decide; on the other hand he is disqualified because he must perform a task in regard to which he has very little experience, namely to determine what the truth is, when he is really unable to do so by virtue of his mental equipment and past experience. It remains a double disqualification. Mostly he has not the capacity to judge, particularly not when he has been subjected to arguments for a few days by two or three advocates from either side.

When the ordinary juror comes to court, he finds himself in a milieu which is quite strange to him. That increases the possibility of his being influenced by all kinds of factors which have nothing to do with the case, but which still influence his judgment and which probably also do not assist in the administration of justice. When we analyse the average juror we find that his judgment is very probably conditioned by his preconceived ideas in regard to the case. It is conditioned by the psychological influence of minor incidents in court; it can also be influence by what he has read in the Press when the newspapers have published reports of the preparatory examination. And, last but not least, the juror is very often influenced by the striking impression created by a clever advocate in court. You know, a broad scab on a wound on the bare stomach of a person makes a much greater impression on a jury than the detailed evidence of a doctor in regard to the shallowness of a wound.

If we look at the average juror we can sum it up by saying that a juror’s judgment is the result of his pet prejudices, his religious intolerances, his political antipathies and his own view of life. In saying that, I am saying a mouthful, and if I had to give examples of it I would detain the House perhaps until to-morrow. But I just want to say one thing, and that is that in our country we did not make all the exceptions referred to by the hon. member for Klerksdorp without good reason. We know, for example, that there are areas of our country where one simply cannot get a jury to convict in an illicit diamond buying case. I am not saying anything against the people who live in that area. I am simply saying that one gets a verdict which is conditioned by their own view of life, and they simply do not realize that it is wrong to deal illicitly in diamonds. I mention that as an example, but there are other examples I could mention.

These defects in the jury system are also manifested in other ways. It has a very broad influence on our law of evidence. The jury consists of inexperienced people who do not know much about litigation and who are not able to sift the truth from the chaff, and in order to assist the jury we have an extensive system of rules whereby certain facts are admissible at a trial and others are inadmissible. We have a whole series of rules in regard to the inadmissibility of evidence, which often confuse even the expert. The Judges, people who deal with the administration of justice every day, have learnt by experience how to sift the evidence and they realize that certain facts have great evidential value whilst others have not. But one cannot entrust the jury with those functions, and for that reason certain evidence must be withheld from the jury completely. Then one finds at a trial a dispute as to the admissibility of evidence where the Judge and the advocates on either side have to decide whether a certain bit of evidence is admissible or not. The one advocate addresses the Judge; the other also addresses the Judge, the Judge speaks to both advocates, whilst on one side of the court the jurors sit wondering when they will get to the point as to who committed the crime, or who stole the sheep. It is a state of affairs which is really farcical. But the greatest comedy is really provided by ourselves, our lawyers and the society which tolerate this system. I want to put it to hon. members this way: The conclusion at which we arrive in regard to this matter is that it is a comedy in our modern times. To begin with, we appoint a court which is unnecessarily large, consisting of nine or 12 jurors and a Judge. We man it with people who are not sufficiently equipped for the task entrusted to them—with the exception, of course, of the Judge. Then, because there is a lack of experience on the part of a section of the court, we have rules of evidence to exclude evidence from the jury, from the people who sit there to judge whether a person is guilty or not, and often we exclude the very facts which the members of the jury use as evidence every day in their ordinary lives in order to regulate their own lives. It is a comedy and a farce!

And the system also has its effects in other spheres. Because we are landed with this mediaeval institution we cannot succeed in letting the law of evidence develop as it should. It is simply not possible. If we look at the Continent of Europe, where there is no jury system, we see that they take all kinds of short cuts to arrive at the truth, just as the king in the year 1200 used the inquisition as a short cut to get at the truth. On the Continent, the people have for a century or more been taking short cuts to get at the truth. There is, e.g., in Holland and in Germany a system of preliminary investigation. According to that system, the accused appears before the Judge—it is not a third degree, it is not really a police inquiry, although it is similar to it—and the Judge puts certain questions to the accused to which he has to reply. The inquiry takes place in the presence of the accused, his advocate and the advocate of the complainant, and in the presence of the complainant. That is an example of where the police investigation and the administration of justice are really merging into one another, much in the same way as we have seen how the oath-helper system and the inquisition system merged into each other. If we have that system, and I want to suggest that the hon. the Minister should investigate it, he will be able to carry on with half the number of Judges of the Supreme Court; he will have fewer cases, and he will need fewer people than are needed under the system we have now. Because to-day we take up much time in court in proving something which everybody knows exists, or we are greatly inconvenienced by not compelling the accused to make certain admissions which are peculiarly within his knowledge. Not that we want to commit an injustice or have to commit an injustice. I am only saying that we should devote attention to a development which has proved of great benefit to other countries, without harming the administration of justice. If we had not been landed with the jury system we would also have succeeded in looking to other parts of the world and in learning from them in regard to the law of evidence, and how it can be improved. As it is, jurors are the subject of their own prejudices. And when I say that, it is not theoretical. We have had it here in Cape Town. There is a very famous case of a woman who alighted from a tram. She was evidently negligent and a municipal lorry driver ran into her and injured her leg. That was before 1927, before the abolition of the jury system in civil cases. This lorry driver employed by the municipality was brought to court and was found not guilty by the magistrate, but that did not prevent the keen advocates and attorneys and the plaintiff from bringing a civil case against the municipality. The complainant’s case was tried by a jury. Her advocate started off by showing the large injury on the woman’s leg to every one of the jurors. After having inspected the leg, there was no longer any problem in regard to proving the case.

That is a shocking indictment!

But it happened. Those are the facts. The magistrate had acquitted the driver, but the jury found that there was in fact negligence. When I read it I was reminded of the Irish adage that an Irish jury “will never find against a fair lady, but always against the Railway”. That is so, and it is also clear that our authorities took note of that particular verdict by a Cape Town jury. Mindful of what could happen if the State was the defendant in such a case, this Parliament abolished the practice of using jurors in civil cases in 1927. They abolished it as the result of the extravagant claims made by people injured in the railway disaster at Salt River in 1926. These claims were so extravagant that the Government decided at least to abolish the jury system, in civil cases. The significant thing is that thereafter plaintiffs in such cases thought twice, and the number as well as the scope of the claims were appreciably reduced. They did not dare to abolish trial by jury in criminal cases. The time was not yet ripe for it. But the considerations which were valid then in civil cases are still valid to-day in respect of criminal trials. I am not saying anything against the jury system. The jurors acted to the best of their ability. I am not saying they did their work badly. I am not saying they were prejudiced, but I do say that they bring their whole personality to court with them and then they have to do work for which they are not equipped and which we cannot reasonably expect from them because the world has developed and become much more complicated.

When we have to judge of the merits of the jury system, there are a few arguments which are advanced, as the hon. member for Klerksdorp has said. I do not wish to repeat those arguments, but I would like to return to them. The supposed merit of the jury system is that the jury brings the law into line with ordinary life. If I have to go into that, I must ask myself: Who brings the law more into line with life, the jury or the Judge? I must ask myself whether the Judge in his exalted position really becomes so far removed from actualities that he is longer in touch with ordinary life. I should say that a Judge who comes into contact with all the offenders every day in court has a much better and a much greater understanding of life than a jury, which perhaps comes into contact with such things only once in a lifetime. The Judge is much more aware of all the tensions of life and in court than a jury which happens to come there once in a lifetime. And I do not think a single juror of the past or of the future will quarrel with me when I say that the juror is not exactly the best medium for telling us what public opinion is in regard to any particular matter. I do not think it is within the power of one person, or even of seven or nine or 12 persons, to tell us what public opinion is on a particular point. Nor do I think it is relevant.

A second argument advanced is that the jury system gives the public the opportunity to take part in the administration of justice. The hon. member for Klerksdorp has estimated that this public barely numbers 400,000. But there is still a further reply to that. The contribution of the jury to the making of law is precisely nil. When they still had to decide what customs existed in a particular hamlet, when they still had to expound what the law was in respect of a certain incident, then they made a contribution; when they still had to correlate the facts and had themselves to give evidence as to what the law was, they still made a contribution. But thereafter the only people who contributed towards giving shape to the law were the Judges themselves and the advocates, and still later, Parliament. To-day Parliament and the various legislative bodies like the Provincial Councils and the municipalities form the law, and of course also public opinion. But we need not have a medium like the jury to tell us what public opinion is.

The third merit the jury system is supposed to have is that it relieves the Judge of an unpleasant duty. I quite believe that the Judges will perhaps hesitate before voting immediately for the jury system to be abolished, because it makes matters easier for them when they need not decide on the facts. The law is already complicated enough and the Judge must devote his attention to that. But, Mr. Speaker, that is the responsibility of the Judge. That is what he is appointed for, that is what he has experience of, and that is why we choose our Judges from the best advocates available, men with long and ripe experience. They have experience not only in respect of the law, but also in respect of the behaviour of people when they are in the witness box and are supposed to be telling the truth. The Judge cannot evade that responsibility. What is more, he does not evade it either; nor does he intend evading it, because he gives a summing up to the jury which must convince the jury that they have to decide this way or the other. In his own mind he has already come to a decision in regard to the facts, but he keeps it to himself because it is not his duty to impart that to the jury. In any case, he must shoulder the responsibility connected to his position. And I believe that our Judges are prepared to do so.

There is one advantage of the jury system which I cannot argue away, but it is an advantage which we will also have with the system of assessors, if we only stick to it. That advantage is this, that the Judge gives an oral judgment in which he reviews the facts as they have been ascertained in the particular trial. It is a very important matter and a very great advantage that a person should loudly record his own convictions, or do so in such a way that all interested parties, or those who need to do so, can record it themselves. Now, we need not have a jury in order to retain this advantage. The Judges do so to-day. When they sit with assessors, the Judge gives a summing up. Perhaps he does not give such a detailed summing up because he is dealing with more skilled people. But we can retain that system. This is the only advantage I can still see in the jury system, namely that the Judge gives an oral summing up.

In seconding this motion moved by the hon. member, I say I do so because, even though it is old, it is obsolete. I do so because it hampers development. I do so because the Judges, through their experience, are better equipped to do the work which we entrust to a college of inexperienced people who should not really have to do that work. For those reasons I take pleasure in supporting this motion.

I should like to congratulate the hon. member for Klerksdorp (Mr. Pelser) on the very lucid and very clear exposition which he gave this House on the history of the jury system, especially its beginnings in England. The hon. member has obviously gone to great pains to present the picture and the hon. member for Standerton (Dr. Coertze) also presented some of the history of the jury system. Both these hon. members spoke as observers, if I may say, from the outside. I should like to speak on this debate as an observer from the inside, as a person who has had experience of juries, the workings of our system, not only appearing for the accused but appearing also for the Crown, for the State.

What we are concerned with here to-day, Sir, is justice, justice in our criminal courts. Justice in a court takes the form of seeking after truth, a very difficult and engaging pursuit to which people have devoted their lives, to which societies have devoted their everything. Over the centuries in our own courts and throughout England there has been built up an edifice, a machinery, for the purpose of finding truth. A very elusive task and a very difficult task, a task in which everyone accepts one cannot be perfect. And the jury system is part of that edifice. It is part of that machinery which has been developed over the centuries whose purpose and function it is to seek out the truth. It is part of a great system of justice in South Africa of which we in this country can be justly proud. Because I believe, Sir, that there is no system of justice in the world which is the peer of the South African system of justice. And it is in the light of this that I wish. Mr. Speaker, to discuss this motion.

What one must bear in mind right from the beginning is that the jury system only operates in respect of criminal charges—they do not operate in civil courts—and secondly that they are not forced on to anyone at all. That is a right which an accused person has in certain circumstances. They are not bodies which are foisted upon any accused. So far as those who practise the law are concerned, I would like to remind the House that the General Council of the Bar of South Africa, which is a sort of federated body on which all members of the Bar all over the country are represented, recently unanimously decided that it was against any further inroads being made in the jury system. In other words, they favour the retention of the jury system. I would like to ask the hon. the Minister, who is here, when he replies to the debate, to indicate to us whether there are any Judges, and if so how many, who have complained about the jury system. I do not believe, Sir, that there are.

One of the arguments which the hon. member for Klerksdorp advanced was, as I understood him, that less than 5 per cent of all the criminal cases before the Supreme Court were heard by jury. Or only in less than 5 per cent did the accused ask for trial by jury. One must have regard to the very factors he mentioned when one assesses this figure. The Criminal Procedure Act has been so amended over the years—we had an example last year —that the instances in which the accused can have a trial by jury get less and less.

To what do you attribute that?

One attributes the various causes to the various instances. One of them is the Riotous Assemblies Act. One can appreciate that to choose a jury from the area where the riotous assembly has taken place, in as much as the matter could also assume the form of crimen laesae majestitis, would be something inadvisable; it would be inadvisable to have a jury in that case. That is the point, Sir, that in all the instances that there are it is considered not advisable to have a jury. The point is not that a jury could not give a proper verdict or that the jury is incompetent to give a verdict. The question is whether in these cases the jury should be called upon to give a decision. Under the Atomic Energy Act the hon. the Minister has the power to withhold trial by jury, and probably quite rightly so, because of the very technical nature of the subject matter. One could press this argument further and say that even a Judge or even a magistrate would have difficulty in understanding the technicality of the subject matter of offences under the Atomic Energy Act. And if one pressed it even further one could make a case for a special jury of experts to consider and decide upon the facts which are in issue.

In practice that is where the assessors come in.

Yes, in practice that is where the assessors would come in. One of the points which arise in relation to assessors is that as the Act stands to-day Judges need not any more have assessors in any criminal cases. I must say, Sir, that it is to be regretted that the law was changed in this regard. While it is true that the Appellate Division has said that it is advisable that Judges should take assessors when they sit in cases and while it is true that Judges generally do take assessors when they sit in these cases, the fact remains that they can try them alone. The fact is that the Judges and the Appellate Division have decided in their wisdom that one man should not have the responsibility of trying a man, especially when he is being tried for his life. It is very interesting that in regard to the matter which the hon. the Minister has raised, the Judges themselves, learned as they are and experienced as they are, still feel that one man should not be called upon to decide the facts in these cases. There is a point to which I shall later allude which I believe strengthens the argument for juries being the finders of fact. The other example is the illicit possession of precious metals or stones: The hon. member for Standerton said that no jury called from the district in which the offence took place will probably find the accused guilty. I do not think that since the days of the great advocate Upington there have been any of these cases. I believe it was after his successes with the jury in relation to these diamond cases, that this Act was amended. I know of no case in which a jury trial has taken place in this regard. Another example is that of supplying intoxicating liquor to Natives. Another example is that of insolvency. All these matters are really of a technical nature.

Perhaps the most important restriction on trial by jury, and one which I personally approve of, is where the “offence is towards or in connection with a non-European, if the accused or any of them is a European or towards or in connection with a European, if the accused or any of them is a non-European”. In this regard the hon. the Minister has a discretion. I cannot think of a case where the choice has been for trial by jury in one of these Black on White or White on Black cases. In those cases the decision has already been made before the Minister’s warrant arrives saying that the trial was not to be by jury. It is this sort of case that is pointed to by those who advocate the removal of the jury system. There is a story which is true, I understand, because the same characters appear in it every time. Mr. Justice Greenberg went on circuit in the Transvaal. One of the cases which came before the circuit court was that of a local farmer who had beaten one of his boys and the boy had died. The accused was charged with murder. It was apparently a cut and dried case of murder. The accused obtained the services of the great advocate Harry Morris, who went up to defend him, and he found that he had nothing to say at all. He said that the only thing he could think of was temporary insanity. He duly put this defence up. The Judge summed up very strongly for a verdict of guilty of murder and the jury returned a verdict of “not guilty”. It is alleged that Judge Greenberg then said to the foreman: “It is not within my scope really to ask you, but I am very interested, what was the ground of your decision?” The foreman replied: “My Lord, temporary insanity.” The Judge looked down at him and said: “What, all nine of you?” It is that sort of incident, and the sort of incident that the hon. member for Standerton mentioned about the girl who showed her leg and was more favourably received by the jury than she would otherwise have been, that strengthens the case of those who are against the jury system. But, of course, it is a very moot point as to whether a magistrate might not have been equally moved by such an exhibition. We believe that they also are human, Sir.

Last year the right to be tried by jury was further invaded in the General Law Amendment Act. It is now provided that even in cases of murder and arson the hon. the Minister may exercise his discretion and refuse the accused the right to be tried by jury. It is not clear in what circumstances that is going to be done. The jury system as it is to-day exists in any event in a very restricted form by reason of all these restrictions that I have mentioned, and they are mostly restrictions in respect of technical matters. One of the arguments which were used by the mover of this motion—and he called a lot of evidence to support him in the form of extracts from law journals—was that these jurymen were not really in a position to decide in any case because they were not trained to sift evidence; they were not trained in the law in any way at all. Mr. Speaker, in my opinion that is precisely why a jury is a better judge of fact than a man trained in the law. When one considers what a jury is required to do, it becomes apparent that the function of a jury is far better discharged by persons who apply their minds only to the facts. A jury is required only to give a decision on the facts. It is required to decide whether a witness is telling the truth; it is required to decide whether something is probable in their experience as men of the world. I believe that they bring a fresher mind to bear upon the case. They have no experience of other cases. It is desirable indeed, Sir, that they have no experience of other cases. The facts in every case are different. Anyone who is connected with the law knows the sort of attitude one adopts towards cases. You take the average pro deo murder. You go into court, you have heard it all before and it is described by people who practise, as a variation of the same theme. You have the feeling that you have seen it all before. Indeed, when you consider how hard-worked magistrates are, they spend their whole day seeing the same thing, one case after the other. It must develop in them—I am prepared to say it does develop in them—a sense of “this is nothing new; I have seen all this before; I have seen this policeman before; he has always told the truth as far as I know; I do not have to decide whether he is telling the truth or not; my mind is conditioned to his telling the truth ”. That is the sort of thing that happens. And I do not say this to the detriment of any of our judicial officers. It is the sort of thing that happens to any human being. Because he is human.

What do they have to decide? The jury has to decide the facts. It has to decide whether there is a reasonable doubt as to the accused guilt or innocence. According to Gardiner and Lansdown “reasonable doubt” is—

When you consider “not influenced by party, preoccupied by prejudice or subdued by fear” I think you cannot find any individual better suited to discharge these functions, having regard to this, than the ordinary man in the street. The ordinary man in the street has nothing to fear, nothing to lose, nothing to gain by giving his decision. He has no experience which guides his decision as to what the facts in that case are. I do not have to remind the House that the facts in every single case are different. No two cases are alike.

The other thing they have to decide as to guilt is whether the evidence given by an accused person might reasonably be true having regard to their experience of life. They do not sit there like people up in the clouds, not like some academic lawyer who is going to write a book, not like a Judge whose experience of the lower social orders is necessarily restricted. The test is not whether such a person thinks it might reasonably have happened, but whether a person who is the same sort of person as the accused thinks that something might reasonably have happened. That is the test, Sir, that is applied. The ordinary man who lives in the same society as the accused, is able to judge whether what the accused says may or may not be true. He is the man that the centuries have decided should judge the facts and the actions of his fellow-man. I go so far as to say that in that regard he is better qualified, much better qualified, than a Judge of the Supreme Court.

In that case it would be better not to have a Judge.

No, Sir. In saying that the hon. the Minister of Defence does not take account of the fact that the Judge is there to see that the facts which filter through to the jury are admissible facts. He is there to protect the accused as well. He is there to apply the law; to tell them what the law is. But he has nothing whatsoever to do with the facts. I do not know one Judge who has not expressed the opinion that a jury is just as qualified to decide upon the facts of a case as he is.

The hon. member for Klerksdorp spoke about the number of people who were excluded from the jury. It is true that a number of people are. But what is left when the legal practitioners and the accountants and the secretaries of various organizations, members of the Civil Service, etc., have been excluded, is precisely the type of person that you want on a jury, namely the ordinary man in the street who is not influenced by party, preoccupied by prejudice or subdued by fear. In other words, the sort of man who has no connection whatever with the State and who exercises his mind independently and fearlessly. I must say that I take some exception to the attitude which the hon. member for Standerton adopted towards these people, that they were really being frivolous when they took the oath which the hon. member for Klerksdorp read out, viz. “to give a true verdict according to the evidence without fear, favour or prejudice”. If you take this argument further you find the sort of situation that you have in England where you still have special juries. A special jury was once empanelled in Cambridge, a special jury of dons and academic lawyers, gentlemen like the hon. member for Standerton. They were empanelled to give a decision in a case of negligence. What the judge asked them was—it was a simple case: Two motor-cars were involved—to go out to consider whose negligence was the proximate cause of the collision. All these learned gentlemen, with all the qualifications which the hon. member for Standerton has, came back after a few hours and told the Judge that they did not understand his question. The Judge had to discharge that special jury. I might add that case was then later tried before an ordinary tribunal, an ordinary jury, and they had no difficulty in understanding the question and had no difficulty in deciding whose negligence was in fact the proximate cause of the collision.

It is all very well for hon. members to speak from up in the clouds, from the universities and from the sidelines, but the Bar of South Africa has pledged itself to support the jury system, and the Bar is the only society which has experience of it, apart of course from the Judges. I have never had any complaints about a jury, about the absurdity of their decision, or their inability to understand the evidence and thus to give effect to their oath to give a true verdict according to the evidence without fear, favour or prejudice. I say that speaking also as an enthusiastic prosecutor on those occasions when the State briefs members of the Bar to prosecute. There is an old, trite saying that if you are innocent then do not take a jury, but if you are guilty, take a jury. That may be so. If I had to express an opinion on this, I would say that it is so. If I thought my client was guilty on the evidence, I would certainly advise him to choose a jury. But that is right. It is in keeping with our legal system. The tenor of our legal system is that the onus is on the State and the accused is always entitled to the benefit of the doubt. It is better to let 99 guilty men go free than to hang one innocent man. That is the principle, and if a jury does lean over towards the accused, that is in keeping with our judicial system and with the spirit of our law. That is in fact the spirit of our law. I believe the jury exemplifies this system and this spirit in their approach to the problem.

The hon. member for Klerksdorp raised the question that it was important that the ordinary man or woman should take part in the administration of justice. I think that is an extremely important aspect of our judicial system, that there is a place and a way in which the ordinary man in the street can take part in the everyday administration of justice. I feel the same principle applies to the Department’s policy in Natal of taking circuit courts up into Zululand, because these people like to see justice being done; they do not like to hear about it. Likewise, the ordinary man and woman should be given an opportunity of taking part in the administration of justice. Otherwise it will become something far removed, exercised by servants of the State, generally speaking—I am not referring to the Judges—and the ordinary administration of justice then becomes part of the ever-growing bureaucratic system of government which one finds in every Western country in the world. It becomes a decision taken by an official of the Government which is enforcing the law. The principle which is involved in the jury system is that the jury stands between the individual and the harshness of the State. There is no doubt that juries do something which the hon. member for Klerksdorp also mentioned. I think he said they temper justice with mercy. I want to put this a little differently. I would say that juries temper the strict law with the morality of the day. There is no doubt whatever that the law is, always has been and always will be, 30 years behind the time. One can remember that in 1914 it was a criminal offence to commit adultery. The Appellate Division in that year decided that this was not in conformity with the morality of the day and that crime disappeared. It had been abrogated by disuse.

By disuse, did you say?

By disuse of prosecutions. The jury provides these 30 missing years. It is very interesting to see what sort of verdicts juries give when they are asked to apply strictly a law with which they do not agree. If there is ever a truism about our law, about any law. it is that the law is never designed to meet all the cases which come up for decision. All the cases that arise can never be foreseen by the Legislature, which is concerned with the generality of the principle, and in the application of that principle the Judges and magistrates by their training must strictly apply that law, even to the extent of allowing an injustice such as would normally be unconscionable to them and to society. But they are trained not to have consideration for the morality of the day, but to have consideration only for the law, for their master, the law, and to apply the facts according to that law.

I was very interested to read in the Cape Times this morning an extract from the Burger, which says that—

I think that is true. It is an observation they make in respect of a particular law which, there is no doubt, if one is to believe the article in the Burger, causes not only injustice but harm to people not connected with the offence, and perhaps even harm to South Africa. The point is that there are many laws which should not be applied to their limits. Judges and magistrates must apply them to their limits. They have no discretion. They are not allowed and they do not allow morality or compassion to enter into their judgments. But a jury does allow that compassion to enter into its verdict, and it gives in the result a judgment which reflects the morality of the day. It gives a judgment which is in all conscience a true verdict according to the evidence.

One can argue that juries, in giving decisions which Judges might not give, in fact have regard to what the real intention of the law is, and not to the strict interpretation of the law. For the reason that it is impossible to make a law to meet every case, and because local conditions must determine whether a law has the same effect in that local area as it does in another local area or not, juries in that regard perform an invaluable function of the law, not only to the law but to society. I believe that is the function of the law, to protect society. It is there for the benefit of society and not for the benefit of the State or for the benefit of anyone else but the people who are affected by it. Here, Sir, is the opportunity for the people who are affected by it to take part in it, to know it and to appreciate it.

How do you define the difference between society and the State?

It is a very difficult question and perhaps I define it differently from the way the Minister does. The State is where society is. I believe that society is the people in the State, and what they think. The State is the edifice in which they live, and the State’s edifice, with all its machinery, belongs to the society which lives in that State. The State, as an entity, does not exist apart from society. There are those who believe that the State is what matters, and the State has become personified in the form of the Government, but I do not believe that is true and I am pleased to see the Minister shaking his head to show that he does not believe it either.

One of the arguments which has been used here and no doubt elsewhere against the jury system is that it is a foreign system. Sir, there is nothing foreign, in so far as our legal system is concerned, about what has come from England. What has come from England in our legal system has become, as it did in England, part of the people who live under that system. Justice is the issue which we are debating here to-day, and justice in this country I believe to be without peer as a system of justice. It has the broad principles of the Roman-Dutch law and the vehicle or machinery of the English law of evidence and procedure. No one can gainsay that everything we have, in so far as our system is concerned, not only comes from England but is even to-day part of the English system. The procedural laws and the laws of evidence and the jury system are all tied up together. Only yesterday we had two Bills before this House. One was to deal with the substantive law, with the Roman-Dutch law, as the hon. the Minister said, to bring the Roman-Dutch law forward and replace this other system we had. And the other was the law of evidence, an Act which is on all fours, almost word for word, with the English Act.

Business suspended at 12.45 p.m. and resumed at 2.20 p.m.

Afternoon Sitting

When the debate was adjourned, I was dealing with the question of the law of evidence and the argument that the jury system was a foreign system and should therefore be abolished. I was saying that all our procedural law is in fact foreign in that sense, in the sense in which that word was used, because it all comes from England. In fact, our law provides to-day, in the Criminal Procedure Act, that if there is any doubt as to what the law is one has to look to the law relating to the Supreme Court of Judicature in England. This was re-enacted in 1956 as part and parcel of our law. Mr. Speaker, the jury system in South Africa to-day is in fact part of the law of evidence. It is part of the law relating to how you prove facts in a court of law. I have said that we have the best system of justice in the world to-day, and we have it because we have a combination or marriage of the finest legal systems in the form of the Roman-Dutch law, which is based on broad principles of law, and we have the machinery or the vehicle for carrying that law into effect in the form of this system of evidence of which the jury is a part. That law of evidence and the jury system have been accepted by us because it was tried over the centuries, both in England and in South Africa, and so much do we think of that system that we even provide to-day that whatever the law is in England, if there is any doubt, that is the law in South Africa. What we have here is a suggestion by the mover of this motion that we begin to break down this system which has stood the test of centuries and which has become part of our own law.

There are many variations, of course, of the English law of evidence, and in South Africa those variations make our system of justice even fairer than the English system. One of these is the question of a confession. In England it is possible to admit in a court of law a confession made to a policeman provided it is proved that it was made voluntarily. In South Africa it is not possible to do that, and one of the reasons why it is not possible and why our law provides that no statement made to a policeman can be produced in evidence as a confession by that policeman, is that it would be prejudicial to the accused, especially if he was being tried by a jury. Mr. Speaker, there are no cases of injustices which have been done to accused persons through their being tried by a jury. It is true that there are cases which have given Judges cause to express surprise at the verdict, but I doubt very much, and no one to-day has been able to produce an example of a Judge who was shocked at the decision of the jury which produced an injustice for the accused. You do not have to look to juries to find injustices, as far as the accused are concerned. If one takes the now famous case, the Bergville murder trial, the so-called “dagga trial”, where 23 persons were sentenced to death for the murder of a number of policemen who were on a dagga raid, they all asked for leave to appeal, which was refused by the trial Judge. Their petition was heard by a Judge of Appeal who decided that there was no ground for appeal, that there was no chance of success on appeal, and the death sentences were confirmed. At the last minute, while these people were all in the death cells, evidence was collected to show that one man was not there, and the Appeal Court then heard the case and the extraordinary thing about it was that they said there was no evidence whatsoever that this man was at the scene of the crime at all; they said he should have been discharged at the end of the Crown case. But that was a case which was tried by a Judge and assessors. It was a question of fact, and one wonders whether there is any substance in the thought that juries are not able to find on facts as easily or as competently as a Judge. These are the examples which were given, and not one example was given of the verdict of a jury which resulted in an injustice to the accused. That is the object of our criminal law, to provide a system which will produce the truth as far as possible, but at all costs, that there should be no prejudice to the accused. The law is not their function. Even on the law, which is the function of the Judges, they are inclined to disagree. There is a well-known case—I hope it is well known to the hon. the Minister—of statutory theft where you are regarded as being guilty of theft where you buy something which you ought to have known was stolen property, the test being not whether the accused knew whether it was stolen, but whether the Judge in that position would have thought it was stolen. On this issue in Natal the courts have decided that there is to be compulsory whipping for a first offence, but in the Transvaal the courts have decided that a whipping is incompetent for a first offence. I am sure that the Judges, looking at each other, would have the same thoughts that the hon. member for Klerksdorp mentioned, that they were surprised at the verdict of the jury. I am sure that the Judges in the Transvaal might be surprised at the verdict of the Judges in Natal, and vice versa. Those arguments do not really hold any water, because they can be used on both sides. No one is infallible. Sir, the hon. member for Klerksdorp quoted a lot of extracts from Law Journals. One of the things he said was that justice was administered without a sense of responsibility. I want to say that is nonsense. He went on to say that the responsibility of the jury was divisible in nines and was therefore necessarily a weakness. He also said that there were no facilities for the jury to take notes and there was no elbow room. Sir, I am sorry to say so but anyone who has been in a court of law will see that this is patent nonsense. They may take notes if they want to do so. Papers and pencils are provided, and there is a lot of elbow room. I just want to say that it is not true that in fact happens. So far from being divisible by nine, the decision of the jury is strengthened by nine. Sir, Judges and magistrates are human; they also sometimes get out of the bed on the wrong side; very often the eggs aren’t turned properly by their wives and they might have had a motor accident on their way to court. They might like all of us be a little bit gripy in the morning. But the law of averages would indicate that nine men are unlikely to have coincidence of these things on the morning that they go into court.

The choice before this House to-day is whether we believe that an accused is entitled to be tried, if he wants to be, by nine men or whether he should be tried by one. Only the facts are to be tried, and we believe that he should retain this right, if he so wishes, and we believe it so strongly that we shall, if the opportunity arises, vote against this motion. Sir, this is a system of which we can all be justly proud and I believe that we should leave it alone.

Before the luncheon adjournment the hon. member for Durban (North) (Mr. M. L. Mitchell) said that the General Bar Council was in favour of the retention of the jury system. I can understand why the General Bar Council is in favour of the retention of the jury system. The hon. member said that when an advocate has to decide on behalf of an accused, whether to have a jury or not, the accused chose a Judge when he was innocent, and a jury when he was guilty. Well, the General Bar Council consists of advocates and they are the people who advise their clients and you can understand, Sir, why they want to retain the jury system, because I have never heard that only persons who were guilty were charged and that because of that they chose a jury. That is why they are against the abolition of the jury system. In connection with this I want to say further that the advocates adopt a different attitude when they are appointed to the Bench. On page 56, paragraph 360 of the report of the Lansdowne Commission published in 1947, a commission which dealt with penal and prison reform, you find this—every member of that Commission was a Judge—

This report came out in 1947 and since then, I believe, all four provinces of the Republic have been in favour of the abolition of the jury system. In the province of South West Africa, if I may call it that, there is no jury system. You can quite understand, therefore, that the argument is that the General Bar Council is in favour of the jury system, but the moment they get appointed to the Bench, they see the other side of the picture. Then they are no longer members of the Bar Council and they change their opinion.

In his introductory remarks the hon. member went on to say: “What we are concerned with here to-day is justice.” When he said that I was reminded of a case which was heard in the Supreme Court of the Free State some time ago. It was a murder case where a farmer had shot one of his servants. Wisely the advocate chose a jury to decide the case. Since it is the custom in this country to prove the guilt of the accused, the Crown succeeded in proving that the man had shot his servant. The case against the accused was proved beyond any doubt. The advocate did not have much to say but when he addressed the jury he said this “Honourable members of the jury, do you not think that a person on his own farm has the right to take his own gun and shoot his own servant? If that is no longer the position, it is a sad day.” Well, the verdict was not guilty. I cannot see therefore, where justice comes into it, because had the accused in this case appeared before a Judge, he would have been condemned to death.

Mr. Speaker, it is an unenviable task to have to say anything after the hon. members for Klerksdorp (Mr. Pelser) and Standerton (Dr. Coertze) have stated their cases, but nevertheless I want to point out one or two things which have not been raised yet, and the first is the delays that are caused in our courts because of the jury system. It is a well-known fact that where a trial by jury takes place, it lasts twice as long as when a Judge sits alone. We shall therefore save a great deal of time if we abolished the jury system completely. We know that the rolls of the courts are to-day overflowing and that it takes months, even years, before a case can be placed on the roll. It may be said that you have a jury in criminal cases, but if the jury system were abolished, the Judges who presided criminal courts, could then be used in civil cases. The Lansdowne Commission confirms that a jury takes twice as long to try a case as a Judge or a Judge with two assessors.

The hon. member for Klerksdorp mentioned a long list of classes of persons who were excluded from serving on a jury. There are 21 classes. It is not necessary for me to repeat those classes; they are given in Section 115 of Act 56 of 1955. The question is which classes are left. The only remaining classes are agriculture, trade and industry. The members of these classes are the very people in our society who are the busiest. There is thus a limited number from which jury members may be chosen. I spoke to a Sheriff recently, and he told me that amongst these classes there were people who were continually asking for exemption. They do everything in their power not to serve on the jury. They go so far as to approach the defence and to ask the defence to object to them on some ground or other so that they need not serve on the jury. That only goes to show that the ordinary member of the public is no longer prepared to serve on a jury to-day.

It is a national service.

There may be one advantage connected with the retention of the jury system. If we were to have large scale unemployment in the country, members of the jury could be appointed from the ranks of the unemployed, but fortunately we are not in that position to-day.

I want to go further and refer to the costs connected with the compilation of the jury list. The Chief Electoral Officer has to prepare a list of all the registered voters and take from that list all those people between the ages of 25 and 65 years. That takes up a great deal of time because it is obvious that every registration card must be checked to ascertain the age of the person and those details have to be forwarded to the magistrate who in turn forwards it to the Sheriff. That takes up a great deal of time and is obviously costly. But that is not all. After the magistrate has forwarded the list to the Sheriff, the Sheriff has to prepare a panel and in that way further time is wasted and it involves high costs, because, as I have said, many people are called upon to serve on the jury who are not prepared to do so. Some people have moved and cannot be traced and the Sheriff has to find substitutes for them. Persons may also obtain exemption and in that case the Sheriff has to find substitutes. It is therefore a waste of time. Let us see who the persons are who can be summonsed to serve as jury members. As I have said they belong to trade, industry and agriculture. Those are hard-working people who are to-day occupied in keeping our whole economy going.

I also want to refer to the fees which are paid to members of the jury. When this system was introduced in the Transvaal Republic in 1854 the law provided that a member of a jury could be paid an amount of four sixdollars, equivalent to approximately 6s. per day, as well as his travelling expenses. In 1874 this was increased to 10s. per day and this amount remained unchanged up to 1956 when it was increased to 15s. per day, that is to say, if the jury member is resident in the magisterial district where the case is to be heard, and if he can sleep at home at night, but if the distance between his home and the court is so great that it is necessary for him to sleep in the city, he recieves an additional 15s., a total therefore of £1 10s. per day, from which he still has to pay for his accommodation.

When you consider that a jury member receives a fee of only 15s. you cannot hold it against any person if he does not want to serve on a jury, because which person earns less than 15s. to-day? Those who do are the the weakest type, the very person that you do not want on a jury. We are therefore, doing people a disservice by summonsing them to serve on a jury. It disrupts their business. Sometimes a person has to sit on a jury for weeks on end. If he is an artisan he receives 15s. for his services on the jury and there is no obligation on his firm to pay him the difference between his wage and his jury fee. He, therefore, suffers a dead loss. The same applies to the businessman. Surely his time is worth more to him than 15s. per day, but he is now called upon to attend to something which is of no interest to him at all, simply because some people still wish to retain the jury system. It is therefore a waste of time and money. The Sheriffs also have to incur unnecessary costs in compiling the jury lists and in serving the summonses. In the 1960-61 Budget an amount of R9,000 was voted as jury fees. It does not sound much but it is unnecessary to pay out that amount. It is also proof, on the other hand, that the jury system has served its purpose, and that the jury system is not being used on such a large scale any more.

When the Lansdowne Commission sat in 1947 in connection with penal and prison reform, certain arguments were advanced why the system should be kept alive and they were based mainly on sentimental reasons, such as that the jury system has practically become tradition in South Africa. Nevertheless the Lansdowne Commission felt that the system had served its purpose. From the evidence submitted to that commission in 1947 it appeared that of all which appeared before court, approximately only 25 per cent were cases where a jury could be appointed. Last year less than 2 per cent of those kind of cases appeared before court, which proves that the jury system has served its purpose in South Africa. One might say that it should be allowed to die naturally and that we should leave it at that but if you had listened to the arguments of the mover of the motion and those of the hon. member for Standerton and you considered the costs that were involved in this system and the unnecessary work that was entailed you must come to one conclusion only, namely that the jury system has served its purpose.

I want to associate myself with the hon. members for Klerksdorp and Standerton by supporting this motion, and I have no doubt that after the Minister has heard us, he will instruct his legal advisers to have the various sections in respect of juries and the jury system repealed. It gives me pleasure, therefore, to support the motion moved by the hon. member for Klerksdorp.

I would like first to deal with some of the criticisms of the jury system which have been raised from the other side. The hon. member for Prinshof (Mr. Visse) has suggested to the Minister that he should abandon his good intention of being guided to a large extent by the General Bar Council on the ground that the Bar Council allegedly has some very narrow interest in this matter. Sir, I do wish to cross swords with the hon. member on that point, because I suggest that the General Council most definitely is the body in this country best qualified to express an opinion on the jury system, and that only the weightiest considerations would weigh with them. In addition, he mentioned the question of expense. While one can concede that there is a certain amount of expense attached to the jury system, I suggest that it is a very limited one. Indeed I think some figure was mentioned by the hon. the Minister, a very small amount of, I think, R8,000 a year. I suggest that is a very small amount, particularly if you bear in mind the very great public service which is performed in educating the people of the country in the ways of the courts, and in instilling respect amongst the people for the courts and the administration of justice. Mr. Speaker, I have not yet spoken to a juryman who has not both enjoyed and welcomed the experience of serving on a jury. In ray experience the weightiness of the administration of justice has been brought home to them and they have been glad to have been called to perform their duty. Consequently I feel that if there is a certain amount of expense attached to the jury system, it is an expense which, since it is small, can well be afforded.

Then there is the question that was raised by the hon. member for Standerton (Dr. Coertze), and that is the difficult position of the Minister of Justice in so far as exercising his discretion under, I think Section 111 is concerned. Here he has to decide whether or not to grant a trial by a Judge and deny trial by jury. I suggest that difficulty can easily be met by a small amendment to the Act, making it compulsory in the cases particularly complained of that it should be a Judge and assessor trial. I am thinking there of cases in which Europeans and non-Europeans are involved, where the hon. member for Standerton felt that it placed the Minister in a very invidious position. If there do happen to be others in which the Minister is placed in a particularly invidious position, possibly the same approach could be applied there. Likewise the hon. member for Standerton stressed the fact that South Africa was not a homogeneous country and that this was a further reason for doing away with the jury system. But there too the same approach could be applied, namely that in such cases a trial by a Judge and assessors can be made compulsory.

The hon. member for Prinshof referred to the Lansdowne Commission and the attitude set out by the Judges in that report. But, sir, that report was drawn up in 1947, and the passage quoted by the hon. member made it clear that what the Judges were not in favour of then was trial by jury when very complicated matters were at issue, where very difficult matters of accountancy or insolvency were at issue. Those situations have already been dealt with by amendment to the Act, and I take it therefore that the objections of the Judges at that time would fall away. I do not know whether the hon. the Minister can tell us what the present position is, but my impression is that it is certainly not the wish of the majority of the Judges that this system should be done away with. It is, of course, at the present time limited to a considerable extent, and I suggest that limited right should continue to exist.

I think we must bear in mind in this matter that the jury system in fact is maintained in very many parts of the world and, as has been made clear, the ordinary man is brought into the administration of justice in most parts of the world. He is in fact used in the administration of justice in most parts of the world, and it is in this way too that he is used in South Africa. I want to stress that you find the jury system in operation in America, in Australia, and in many other parts of the Commonwealth. And I think in these countries it has obtained a new lease of life largely because certain of the weaknesses have been eliminated, and these weaknesses have likewise been eliminated here by successive amendments to the Act.

Hon. members opposite criticized the value of the trial by one’s peers. I suggest that right to the layman is probably much more valuable than lawyers are prepared to concede. I think it was said that judicial officers are trained to decide and to weigh evidence and that as the result of their long training they have a certain approach to a case. That is very true and it is very valuable. But I think lawyers will have to admit that this very attitude which their experience and training gives them, is one which has its weaknesses. It is one which very often leads the ordinary man to regard the lawyer as a bit of a freak and as a strange creature who indulges in long debates and discussions upon points over which the ordinary man would not waste any time. I think to the man who is in the dock, accused of some crime, it must often be a great relief to know that when his actions are judged, they will be judged by a man who has not become too imbued with the approach of the reasonable man of the law; but that he will be judged by a set of men not very different to himself, men who have perhaps more foibles than a rather more severe man trained in law. I think it is for that reason that right is very largely prized and regarded as an important right by those who write upon this subject.

The hon. member for Standerton mentioned the work by Mr. Justice Devlin, “Trial by Jury”. He will agree with me that Judge Devlin there said that he considered that the jury is in fact the best instrument for deciding the reliability or the credibility of the witness. Coming from a most eminent Judge, that is, I suggest, very great testimony to the value of a jury in deciding both the truthfulness and the reliability of a witness. And I do ask the hon. the Minister and the House not lightly to discard an instrument which is described in those terms by so eminent a Judge.

I think the point that was made against the retention of the jury system, namely, that at the time of the Salt River Collision there were extremely high claims for damages arising out of that particular accident, illustrates one of the great virtues of the system. The claims were high and it was apparently feared that high awards of damages would be made. The presumption was that those awards would be higher than the Judges would be prepared to grant. I suggest therefore that there would have been a feeling amongst the ordinary men and women of this country, or amongst the men sitting on that jury, that it would be appropriate that those awards should be high. In that way you have what might be described as justice tempering the law; the law represented by the stern, judicial approach which leads the Judges to feel that in certain cases certain awards should be made; a standard of payment becomes set and that standard tends to be followed. But the ordinary man feels that this is a case where a higher amount of damages should be awarded. And so, without damaging the fabric of the law (since the standard remains the same being unaffected by the jury award), the existence of the jury enables the feeling of the people to be expressed, and yet a slightly higher award of damages is made. What applies in civil cases applies equally in criminal cases. You can get a feeling among the people that a certain crime, perhaps a statutory offence, should not be regarded as a crime or a serious offence. This view will be reflected by the jury; they will perhaps acquit on such a charge.

I think nothing illustrates more fittingly the proposition that juries will not always be led by judicial officers, where they have a will not to be, then the story mentioned by the hon. member for Durban (North) of the jury who were asked by the Judge whether all nine of them were insane. They apparently had not been prepared to follow his summing-up to them, and I think it cannot be said that they can merely be taken as rubber-stamps in these matters.

It is often said that a great merit of the jury system is that it is a safeguard against repugnant laws. If I may just quote a passage from this book by Judge Devlin “Trial by Jury” where he is speaking of Britain, which is a homogeneous country and a country which possibly would be less subject to difficulties in this regard—

Likewise he makes the point, again in a country where the administration of justice is easier than with us, that the jury can be regarded as a lamp of freedom. He says that as long as the jury is there it may well be an important safeguard in difficult times.

So I would say to hon. members opposite that they must surely accept, where it is suggested that a change should be made, that they must discharge the onus and establish beyond a reasonable doubt that this change should be made. Because I do not think they can seriously argue that the disadvantages, such as they have advanced, are really very considerable. They have admittedly made certain points of criticism and indeed over the years this matter has been a great subject for debate in law moots and in other places. But when it comes to showing that the defects outweigh the advantages, I suggest that they have not made out a case for its abolition. Moreover I think that at this time particularly, when we are all aware of the importance and the difficulty of keeping the name of South Africa high, we should not take a step which may well be misconstrued overseas. In many of the countries that we particularly wish to retain as our friends, this system is retained and respected, and they do write about it in the sort of terms that I have mentioned to the House. I hope very much that we will not take a step which may well alienate their sympathy and their understanding and perhaps lead to further misconceptions about us. I accordingly hope that the hon. the Minister will see it in this light.

I also wish to congratulate the hon. member for Klerksdorp (Mr. Pelser) on the manner in which he has introduced this motion and especially to thank him for the history which he gave us of trial by jury system. It is quite clear from that history that this form of trial has become traditional; it was established overseas, in our older mother countries, as far back as the 11th century, and it developed gradually. Admittedly when it was first introduced, the system of trial may appear to us to-day to be a little ridiculous, but the mere fact that the form of trial was altered from time shows that the jurists, the legislatures, the governments of the areas at the time realized that there were faults and they continually amended the system until we have it as it is to-day. We ourselves have amended the law from time to time to bring trial by jury to the present system, and I ask that for that reason we should maintain it as it is now. Sir, it was applied for the first time in the Cape in the year 1827, and the hon. member for Klerksdorp told us that the Voortrekkers in the Free State and the Transvaal accepted that form of trial in those two republics.

They took the law with them.

Yes, but the point I want to make is this, that it had only been established for about seven years before the Trek took place, and the fact remains that the Voortrekkers themselves were so impressed with this system of trial that after only seven years of experience of it in the Cape, they took this new system with them and applied it in the Transvaal and the Free State. I say that is the greatest compliment which can be paid to the system of trial by jury.

It was said by the hon. member for Klerksdorp that the basis of this system of justice is that a man must be tried, or a citizen must be tried by his peers and that does not apply in this country in the first place in the magistrates’ courts where there is no trial by jury or by peers. I grant him that, but I would like to point out this too that any accused has the right of appeal from a magistrate’s court to a higher court where other minds can be brought to bear on the facts which are recorded in the case, and he has that right of appeal without permission from anybody, so that if an accused feels that a magistrate was wrong—and we know from the success of appeals that magistrates are often wrong—he has the right to go to another court where other minds can be brought to bear on the evidence. It is said too that this basis falls down in a multi-racial country where we have the juries composed solely from members of a minority group and that in the case of the Bantu, the majority group, they are not given the benefit of trial by their peers. There are obvious reasons for that, but I would like to point out to the hon. members that if an African does not wish to be tried by his White peers, he need not be so tried; the choice remains with him.

He has not got the benefit of the system.

He has the benefit of the system in that he can choose to be tried by a jury, and I will tell the hon. member when he does choose this system. He chooses it especially in Native areas, and he chooses it when the evidence produced against him or the evidence which he can produce has to deal with Native habits and Native customs. It has often happened that the evidence in the case may appear to support a conviction according to White standards whereas those who know the thinking of the African and know his habits and know how he would behave as a class, would not accept that evidence. That is where the juries play a very valuable part. In the reserves the African has the right to choose in such cases, and in certain cases he does choose a jury, and there a jury is selected from traders and people living in that area who know the African, who know his customs and who know his way of life, and they are in a much better position to judge the probabilities of the case on the evidence before them, than a strange Judge who may have had no association with the Africans at all and may know nothing of his habits and customs, who has not learned Native law and who is sent around to try cases in a circuit court. Not only is there the disadvantage of having the Judge not knowing these customs, but very often the same applies to the barristers who may not be aux fait with Native habits and customs. In cases like that the African has the right, if he so chooses, to choose a jury of people who know how he behaves and how he thinks. I submit that is a most important consideration, and the hon. the Minister and the House should bear it in mind.

The hon. member for Klerksdorp in justifying his case for the abolition of juries, pointed out that judges have on occasion criticized the verdicts given by juries. They have not criticized the verdicts actually, but have expressed surprise at a verdict given by a jury. I want to point out that a Judge is one man expressing surprise at a judgment given by nine other men. But I would also like to point out that there are many, many cases where appeal courts have expressed surprise at judgments given by Judges. As the hon. member knows, in a trial by a Judge in a criminal case where a Judge is sitting with assessors, there is no right of appeal, unless permission is given; the accused has to obtain leave to appeal, first of the Judge who tried the case and then, if necessary, of the Appeal Court. The hon. member for Durban (North) (Mr. M. L. Mitchell) referred to the Natal case in which a Judge refused leave to appeal; eventually the matter was brought before the Appeal Court and certain of the accused were acquitted who had been convicted by the Judge. The hon. the Minister himself will remember a recent case at Umtata where the Judge convicted Clarke, a policeman. Clarke applied for leave to appeal. The Judge rejected the application, and eventually a petition was presented to the Appeal Court, and the Appeal Court then decided that he could appeal, and the Appeal Court found, as stated in the judgment—

And it acquitted the accused. There was another case in Port Elizabeth many years ago when the accused was also acquitted by the Appeal Court after leave had been refused by the lower Judge. There are numerous cases which can be quoted in which the Appeal Court found that the Judge in the first instance was wrong. But as the hon. member for Durban (North) pointed out, the fact remains that in trial by jury there may be surprise occasionally at acquittals, but I have never yet heard of criticism of a conviction of an accused. And surely, Sir, it is much better than 99 guilty men go free than that one innocent man should be found guilty.

The hon. member for Klerksdorp also said that the juries really become a reflection of the Judge’s opinion, that the juries’ verdicts are a reflection of the Judge’s summing-up. Sir, because the juries may as a rule agree with the Judge, that does not necessary mean that they are merely falling in with what the Judge says. The Judge sums up the evidence as he sees it and an important point is this that should the Judge be summing up wrongly, the counsel for the defence can always draw his attention to it and, if necessary, take the Judge on appeal. So the Judge has to be careful that in summing up he does give a correct summing-up to the jury, and that he does not prejudice the one side or the other. His summing-up has to be correct, and the jury then decides on the facts as summed up by the Judge.

I know that a lot of the arguments against juries can be justified. The hon. member for Klerksdorp put up an excellent case. But there is no doubt that equally so can a very good case be put up, and was in fact put up by the hon. member for Durban (North), in favour of the retention of this system.

If you weigh up the probabilities, which way must you go?

I say that in weighing up the probabilities, even if you should decide that the case to-day against juries is strong and that the facts support the abolition of the system rather than its retention, there must be some doubt and that the traditional form should be maintained. The mere fact that it is only chosen in 2 per cent of the cases heard before the Supreme Court is no justification for abolishing the system. The citizen has had that right in this country since 1827, over 150 years.

Shouldn’t we take it away? Partly it was taken away.

You have taken it away in certain cases. That I admit. And the hon. member for Durban (North) dealt with the instances where the right has been taken away for specific reasons.

Has that not taken the heart out of the whole thing?

I submit not. It is only in special cases that the right has been taken away, as for example in cases between Black and White, where you would have a White jury perhaps prejudiced in favour of the White man, and there rightly, we amended the law, as the law in regard to juries has been amended from the 11th century onwards. But I submit that there is no reason now to abolish it, even if it is only chosen by 2 per cent of the accused who are brought before the Supreme Court. Let the people retain that right. Especially in the Native areas it is a valuable right, where Natives can elect to be tried by nine White men, if they so choose.

Do they make use of that right?

I would not say in the majority of cases, but where customs or habits are apt to play a part in coming to a decision, and where the knowledge of the customs and habits of Africans are of importance in coming to a decision on the probabilities of the facts, they can choose a jury, and also where a Judge is completely new to the African form of life—a new Judge who has not practised in a Native area before—it is of importance that you have men on the jury who know the African. You will find, Sir, that in choosing juries, as I have often had to do in consultation with the barrister, that the Judge’s knowledge of the African way of life is an important consideration. You have some Judges who have practised in those areas before going to the Bench and who have experience of those areas; there it is not so essential that you get a jury of men who know the African way of life, as it is when you get a complete stranger on circuit.

The question of cost has been mentioned by the hon. member for Prinshof (Mr. Visse). But surely R8,000 is infinitesimal.

That does not include the deputy-sheriff charges.

He has to be there in any event and I don’t think his charges are so high. But he also mentioned the fact that the jurymen themselves can lose financially by having to sit in juries. But that is his duty as a citizen. After all citizens lose financially when they are called up for military service, but nobody will say that you must abolish military service and military training merely because citizens may lose financially. This has become part of our social structure, and I submit that we should keep it. I want to ask the Minister to leave it, even if only 1 per cent use this form of trial. Do not take away that right.

As far as I am aware, all the hon. members who have spoken up to now have a legal background in the sense that they are entitled to claim certain legal qualifications, and I think it is about time that someone being just a lay member of the public, a possible juryman, one of the very small and privileged class left in this country, should have a few words to say on the subject. I, up to very recently, was one of the people who could qualify, not falling under one of the very many exceptions which were read out to us this morning by the hon. member for Klerksdorp. I could qualify as a member of the jury, and in fact did so qualify on two occasions that I can recall, and I therefore have some practical experience of this matter.

As a member of the City Council, and as Mayor, you were excluded.

As a city councillor and as Mayor I was excluded from many things, but there was a time in my life when I was neither, and then I was included in such things as having to sit on a jury. Mr. Speaker, I want to look at this matter very briefly, perhaps unprofessionally, and also as something of a sea-lawyer, which of course is a qualification that very few people who have spoken up to now have. Like many other people, I am not qualified but nevertheless interested in the law and the processess of the law. Now the arguments that we have heard here this morning and this afternoon have all been so compelling, in my opinion, that it would require a Solomon to distinguish between the two courses, and to decide which would be the soundest and the best way of disposing of this motion.

And you are the Judge.

That is the point, Sir. Now I find myself more or less in the role of a Judge, and similarly, Sir, all members present here to-day, will have to take that role because they will have to decide on this issue, and if I can influence them in any way, I will be very grateful.

The main contention of the hon. member for Klerksdorp, if I remember correctly, was that the jury system is dying out. It has been said in different ways to-day that it is dying out, but I should like to say that there is no reason why we should kill something, let alone somebody, merely because that institution is old. Let us assume that it is dying out; then why not leave it to die a natural and decent death as something that has been part of the history of this country for many years. Why this determination to kill this dying institution? There must be some reason. Because, as far as we know other than the fact that it does cost some money (I believe R8,000 a year in direct charges), the cost factor has not been seriously advanced as part of the argument against the system at all. In a country with a Budget as large as our Budget, I doubt whether anybody will contend that the chief reason why the jury system should be abolished, is because of the cost involved. Certainly the cost is not inordinate. The hon. member for Prinshof based his argument mainly on the fact that the time factor was important, that it took twice as long to try a person or to hear a matter in a trial by jury than on the basis of a Judge and assessors. One wonders whether that is a relevant argument. After the event one finds, in one’s own life, and also, if I may say with respect, in the life of the people who are sitting in this House, that a great deal of time has been wasted. I am not judging the matter, but we may be wasting a lot of time to-day by arguing against the motion of the hon. member for Klerksdorp. So it is not sufficient to say that merely because you save time, you must do a certain thing. No, the question is: Are you doing the right thing by carrying out your plans as originally intended, will it be better to abolish a particular system and, consequently, are you going to save some time in the process of the law? I do not think that time is really to be regarded as a serious argument against the retention of the system.

Then, again, there was the argument that so few people take advantage of the right to be tried by jury and that for that reason since the system is falling into disuse or desuetude, it does not need to be kept alive. But that is one thing entirely separate and different from saying that it should be abolished. It may be fair to argue that we should do nothing, that the hon. the Minister should do nothing to keep the system alive longer than it will live in a natural way. But to go over to the other argument that merely because it is not used by more than 2 per cent, or whatever it is, of the people who come before the courts, is not in itself a good argument for making an end of it. Because statistically you cannot prove the use or the value of this at all. I want to give you an analogy, Mr. Speaker, since I was reminded of the fact that I have been a member of the City Council of Johannesburg. There, as in many other cities of the Union, there is a serious dearth of public conveniences. There was a time when whenever we (certain members of the Council) tried to persuade the authorities in Johannesburg to establish more of these conveniences, a certain official would argue that those that were already in existence were only used by two or three or seven people a day, and that in other words, there was no need for this particular amenity (if I may use the word) because statistically it could be proved that it was not used by sufficient people I need hardly say that nobody other than this particular person believed seriously in that argument, because there are certain things which commend themselves as either necessary or desirable in case they are required, regardless of the actual use to which they may be put. And I must say, Mr. Speaker, with due respect, that I am not for a moment trying to draw an analogy between the jury system and the establishment of a chain of public conveniences. But the merit of the argument, if any at all, is that while the system is in existence, those who wish to avail themselves of it, for reasons best known to themselves (which do not concern anybody else), are in a position to do so. The abolition of this amenity, this right, may well create a position in which it would be found that there is in fact a serious need of it and that the lack of that amenity then becomes a public problem, and certainly a problem for certain individuals who come before the courts.

I want to deal with an aspect which was raised here to-day in regard to the question of the ability of a jury, or a juryman as such, to bring a fresh mind to bear on the problem. I think it is fair to say that a Judge, like anybody else is inclined to fall into a rut—naturally, I speak with the utmost deference about any member of the Judiciary—and the very fact that is the vocation of the individual concerned which he follows over a period of years, means that his ways may become set, his outlook may become set, and that he may not be in as close contact with the morality of the day—to which the hon. member for Durban (North) referred—as he could be, if he were not on the Bench and occupying a very important and responsible position. I think there is a great deal of historical support for this argument. One thinks, for example, of W. S. Gilbert. There have been so many authorities quoted here like Forsyth, Devlin and others, that I wondered whether anybody would quote W. S. Gilbert, who wrote a work called “Trial by Jury”. The usher in this particular case, which was heard some 70 or 80 years ago—the copyright of this story has now run out and I or anyone else can use it—was heard to say to the jurymen when they had been empannelled—

Surely, Sir, that is the spirit in which any juryman in South Africa, although the usher in a particular court may not have adjured him in the same way that the usher did in the court in London, no doubt approaches his task—free from every kind of prejudice. It transpired that in this particular case the Judge was anything but free from prejudice. You may say, Sir, that this is allegorical, but he himself admitted this, for he says—

He goes on to say that he had many difficulties until he fell in love with a rich attorney’s daughter, which by common consent, is a short-cut for any barrister to attain wealth and stability in life, if he is impecunious. He says—

You see, Sir, how easy it is. The moment he is a Judge he is a “good” Judge too!—

Now, Sir, is that not relevant here? The fact is that by virtue of the appointment of a person to high office, he is inclined to become hide-bound, he is inclined to become somewhat out of touch with what has rightly been called public morality and the morality of the day. From that point of view, I think that a very good case can, and in fact, has been made out for the retention of the system as we know it here.

In South Africa, particularly, where there is a great deal of public suspicion at times about whether the White race or one of the others is acting properly, I would say it is most important to retain anything which gives an impression of justice towards all sections of the community. I am not—and I say this with great deference as a member of the public not legally trained—impressed by the argument that there are cases, and in fact there have been many cases, where it has been proved that a non-White person will never elect to be tried by a jury. Because, Mr. Speaker, we are inclined to forget that there are also White people in South Africa. The whole case seems to be geared to the argument that a non-White, in some area where he knows there is prejudice against him because of what he has done, will not receive a fair trial if he is tried by a jury consisting of persons who are sympathetic towards the person who has been aggrieved or harmed. But what about the Europeans in South Africa? Here we are about to abolish a system in a country which in terms of the present intentions of the Government—I do not want to impinge upon national policy—will become a White country and a White country only. Why should the argument, that we have a vast number of non-Whites, advanced by the hon. member for Klerksdorp, be a factor in this consideration? Let us try and carry it a little further. Assuming, Sir, that it is the intention of the Government to create a White South Africa in which no non-Whites will live …

You are talking nonsense.

That was what you people have said. Assuming that is the intention, to argue then that this system must now be abolished because it has a certain bearing on non-Whites living in the country to-day, is not a very sound one. But assuming that it is not the intention and assuming it will never come to pass, I still think it should be borne in mind that there are 3,500,000 White people in this country who, up to now, at any are, have had a certain faith and a traditional belief in their right to be tried by their peers. Because, Mr. Speaker, while it is true to argue that when a Bantu or Asiatic or Coloured person is tried by a White jury, he is not being tried by his peers, it is not correct to argue like that when a European is before the court, and he has the opportunity of being tried by a Judge and jury. He is then in fact, being tried, as far as he is aware, by his peers. The point I am trying to make, Sir, is that the retention of the system on that basis alone seems to be merited. Those Whites who in the future may elect to be tried by a jury where there is no question of it being the sort of case which was referred to this morning—I think, by the hon. member for Durban (North) and which he called Black on White or White on Black—but where it is a case concerning Whites only, should not be deprived of the right to be tried by a jury. As for the point of view, Sir, that only the White man is eligible to serve on a jury, regardless of the fact that he may show no enthusiasm to do so to-day the very fact that the system exists is something which I think gives us in South Africa a certain standing in line with well-tried judicial systems of which we have inherited a great deal, a standing which I think will be diminished if it becomes known that South Africa and this Government are taking positive steps to abolish the jury system. I believe that it is for that reason that the jury system should not be abolished at all, in spite of the very good speech made by the hon. member for Klerksdorp.

Mr. Speaker, at the outset I immediately want to express my sincere gratitude, not only to the hon. member for Klerksdorp (Mr. Pelser) who introduced the debate in a masterly manner, but to every hon. member who has taken part in this debate. I am in particular grateful for the fact that towards the end of the debate a layman has taken part in it and that the debate has not been limited to the legally trained members in this House. I am particularly grateful that the hon. member for Hospital (Mr. Gorshel) as a layman has taken part in the debate. If I personally—and I emphasize the word “personally”—required any further arguments to convince myself that it would be a danger to continue with this system, I have certainly been convinced after the hon. member has spoken as a layman.

May I say this at once, Mr. Speaker, so as to avoid any misunderstanding on the subject. Amongst others the hon. member said this— I am not holding it against him because that is the kind of statement a layman would make —“We are about to abolish the jury system”. My reply is: “We are definitely not about to abolish the jury system”. The fact is that the Government has not decided either to retain or abolish the jury system. The fact of the matter is that the Government has not adopted any stand in this connection, for the simple reason that I as the responsible Minister have not as yet asked the Government to take a stand in this connection. And in spite of the strong views which I hold on the matter, to which I shall come back later, it is not my intention either to go to the Government and to put the matter before the Cabinet before, and according to the attitude which I have already stated, I have had an opportunity of consulting all interested bodies in South Africa in this regard. The mere fact, therefore, that I shall not approach the Cabinet before I have consulted the Bar Council and the Bench amongst others, in this connection, speaks volumes in itself. I therefore, want to state this very clearly, so as to avoid any misunderstanding, that we are not in the process of abolishing the jury system and that the Government has, as a matter of fact, not taken any stand either, because I as the responsible Minister have not as yet asked the Government to do so.

I think, Mr. Speaker, that in the first place we should all congratulate the hon. member for Klerksdorp and the hon. member for Standerton (Dr. Coertze), the mover and the seconder, on the manner in which they have conducted this debate and the high standard that they have set, a standard which has been maintained throughout by hon. members. This is not the first occasion on which the jury system has come up for discussion. It has often been discussed. I also had the opportunity of referring to the debates which were conducted on this subject in the past, both here and in the Other Place, and I want to say that never before has a debate been conducted on such a high level as the debate which we have had here to-day. I want to congratulate hon. members on both sides of the House on that.

I honestly think that the hon. member for Klerksdorp touched the very core and essentials of the subject by pointing out that we ourselves, that is to say, all governments before this Government, right from the start, have been the cause why this system has landed in the position in which it is to-day; we ourselves are the cause because we have removed the very heart from the system. We did not remove it because we wanted to do so deliberately, but we removed it because the circumstances in which we lived, and in which we are still living, are so different from the circumstances which prevailed when this system originally came into operation. Having listened to the resumé of the history of this system, it is clear to me that this system really came into being because it was a method of tempering the despotism of kings and rulers; that was the outlet of the people of the day to revolt against the despotic manner in which justice was administered. If that were not the basis of the system, I would gladly have associated myself with the remarks of the hon. member for Durban (North) (Mr. M. L. Mitchell) and I want to thank him heartily for the attitude which he has adopted in this connection when he quite rightly pointed out the high standard which was being maintained today in South Africa in the administration of justice. If, on the one hand you look at that, and on the other hand, you look at the origin of the system, you wonder whether you should still keep it in operation under present-day circumstances. Having listened to the list of crimes which the hon. member for Klerksdorp read out as having been taken out of the hands of the jury already, thinking of the crimes that are commonly committed, and having made a hurried note of the crimes that are left, I find that the crimes of theft and culpable homicide are the only two that are actually left. Those are about the only two crimes that have escaped and the question is whether you should retain a system for the sake of those two.

But there are more.

Yes, you could mention a number of minor crimes, but I think in the main those are the only two that are left. If it is correct—and this is something which struck me personally—to argue as hon. members have, that the real function of the jury system is to temper the harsh affects of the law, should we retain it for that purpose? That is an argument which was very ably advanced by the hon. member for Durban (North). The way in which he used that argument impressed me. But if that were correct, and if it were sound to have it, the jury system has actually missed its purpose inasmuch as the jury men, if that were their function, should really have been the people to mete out the punishment. In that case they should not have been the people to find guilty or not guilty. That should have been the task of the Judge, also according to the argument of the hon. member for Durban (North). But if the function of the jury were what he ascribed to it, the jury members should really come into the picture after the man has been found guilty by these harsh laws, and they should say what should be done with him now that he has been found guilty. If it is true that the jury reflect the morality of the day, opposed to the law which operates slower, my argument is that if that is the case, the jury would have served a better function and played a more important part if the Judge said: “Look, people, this person has appeared before me on this charge; I have found him guilty on the evidence brought before me. What should I do with him, considering the present attitude of morality or whatever it may be?” If the hon. member’s argument is correct, the jury would have had a function to perform, the function of telling the Judge what he should really do with the man.

The hon. member for Standerton has quite rightly referred to the influences which are brought to bear on members of a jury, and how susceptible they are to things which really are not concerned with the case as such. That reminds me of the story of a colleague at the Bar who pleaded a case before a jury. He had one particularly good witness called Mischak Shabalala. He fared less well with his other witnesses. Towards the end of the case, to the surprise of the Judge, he got up and said “Milord, I again want to call Mischak Shabalala.” The Judge asked: “But surely we have heard his evidence, and why do you want to recall him?” His reply was: “Milord, I thought he was so good, that it will do the jury good to hear him again.” The hon. member conceded that argument when he said that it was practically a maxim at the Bar that “if you have a good case, you go to the Judge; if you have a bad case, take the jury.” That was the maxim which the hon. member gave us: “When innocent take the Judge; when guilty take the jury.” The very fact that is so, and that is the position in practice—none of us can deny that—in my humble opinion, it knocks the bottom out of the entire argument in favour of the retention of the jury system. The hon. member said something else with which I want to associate myself wholeheartily, and I am very grateful to him for having said it. I am particularly pleased that the hon. member warned against a tendency developing in our courts for Judges to sit alone in cases which may call for the death penalty; a Judge should not sit on the Bench without assessors, particularly where a person’s life is at stake. I personally cannot reconcile myself to that at all and if I should find in the least—I do not like using the word “abuse” in relation to the Bench, let me rather put it this way: If I should find that Judges are inclined to make a habit of sitting alone instead of taking assessors with them on the Bench, I shall not have the slightest hesitation in coming to this House in order to amend the relevant section, because I do not think that any person, no matter how capable, how experienced and how learned he may be, any one person should not take the responsibility upon himself to judge on the life or death of a person, if he can get other people to sit with them and to carry the responsibility with him. I am pleased that the hon. member raised that argument.

I do not think the hon. member followed the speech of the hon. member for Klerksdorp properly.

The hon. member for Durban (North) said that the hon. member for Klerksdorp had said that “we must break down this system.” I do not think that was really the argument of the hon. member for Klerksdorp. I think the argument of the member for Klerksdorp, as I understood it, was more or less this that the jury system had itself broken down to such an extent that at this stage it served no further useful purpose. As I understood the argument of the member for Klerksdorp when he went from one amendment to the other and when he showed us how the system had in fact been watered down from time to time, I think that his argument rather boils down to that.

*For the rest I should like to pay this compliment to the hon. member by saying that I think what he said in connection with the jury system was the best defence of a weak case that I have heard for a long time. I give him that in consolation.

The hon. member for Prinshof (Mr. Visse) referred in passing to the time that was unnecessarily spent, and the unnecessary costs that flow from it. I think it is a good thing that the hon. member raised that. I want to say at once that when it comes to the question of the administration of justice, you do not consider costs. If you can administer justice better by spending more money, you not only have the right to do so but it is certainly your duty to do so. We should, however, not only look at the R8,000 that was paid out in the form of jury fees, we should also consider the waste of time that accompanied that. If I were to tell you, for example, Sir, that it has already happened here in Cape Town during a criminal session, that in order to get 18 people to serve as jury members, 100 or more people have had to be summonsed, you would realize what a tremendous amount of money is wasted in respect of deputy sheriff fees and the time that is unnecessarily wasted in this connection.

The hon. member for Pinelands (Mr. Thompson) asked whether the Judges were in favour of abolishing the jury system. Frankly I do not know for the simple reason that I have not asked them. I have not consulted them yet. Perhaps they will be consulted in the future about this.

The hon. member for Durban (North) also raised the point and he asked me whether Judges had complained, and how many, about the system. Unfortunately I cannot say how many Judges have complained against this system, but the hon. member is aware that Judges have, particularly recently, from time to time commented upon the system and upon the fact that justice was not served by the decisions taken by some juries.

At 3.55 p.m. the business under consideration was interrupted by Mr Speaker in accordance with Standing Order No. 41 (3) and the debate was adjourned until Friday 9 March.

The House proceeded to the consideration of Orders of the Day.

I move—

Mr. Speaker, I am very well aware this afternoon that in introducing the second reading of this Bill, I am raising a subject of a difficult and delicate nature. I want at the outset of these discussions to say two things. Firstly, that I sincerely hope that this debate will be kept free of party politics per se, because I do not believe that a matter as delicate as this should be made the subject of party politics and for the scoring of minor victories by political parties. Secondly, in raising this matter, I also wish to make it clear that I am not doing so in order to embarrass the Government. I am doing so in a solemn and serious attempt to try to save people from the devastating effects of legislation. This legislation has had devastating effects upon many people and this is what I wish to avoid in the future.

The Bill which I am introducing to-day, Sir, is a simple Bill. It will repeal all those sections in the 1957 Immorality Act that govern inter-racial sex relations. Clause 2 of this Bill is the relevant Clause for it seeks to repeal Section 16 of the principal Act. All the other Clauses of this Bill are either consequential, such as Clauses 1 and 3 which amend Section 1 and Section 21 of the principal Act respectively, or subsidiary, as Clause 4, which simply removes the differences in penalties that exist at present in the principal Act, penalties which differ according to the colour of the offender. So it is clear, I hope, that nothing in the Bill, the second reading of which I am moving this afternoon, alters in any way those sections of the Immorality Act of 1957 which apply to procuring, to the keeping of brothels, to illicit relations with children under the age of 16, etc. I have no wish to amend any of these sections or similar sections in our existing legislation. I am only concerned with those aspects of the law that affect illicit inter-racial sex relations.

I think it is necessary to give the House a brief historical review of existing legislation. Broadly speaking, it is true to say, I think, that in the first 250 years of this country’s history it was not considered necessary to introduce any legislation governing sexual relations between the different colour groups. It is true that before Union there were certain laws for instance in the Transvaal and in Natal, laws that prohibited Black men from cohabiting with White women. In the Cape and in the Orange Free State there were laws prohibiting relations between Black men and White women for purposes of gain. In the Transvaal there was a further legislative effect in so far as there was no machinery, no legal machinery was provided, for marriages between the races. But that was as far as the law went in this country until 1927 when the first Immorality Act was actually placed on the Statute Book. This Act is familiarly know, of course, as the Tielman Roos Act. This Act prohibited extra-marital sexual intercourse (but not marriage), between Europeans and Africans. There were no changes in the legislative position for the next 20 years, although from 1937 onwards the subject both of mixed marriages and the prohibition thereof was under discussion in this House and also outside Parliament. Two private members’ bills were actually brought into Parliament—Maj. Roberts’s Bill and General Pienaar’s Bill—on the question of mixed marriages. But neither of these Bills was proceeded with. Outside of Parliament the Commission of Inquiry on the Prohibition of Mixed Marriages had been appointed and was continuing with its work. That commission reported in 1939. It recommended, interestingly enough, that no actual machinery should be provided—the old Transvaal evasion—for solemnizing marriages between the different colour groups. The Mixed Marriages Commission did not consider extending the prohibition of marriages between White and Coloured persons, but simply dealt with marriages between Whites and Natives, and it did not include an examination of illicit sex relations between the different Coloured groups. Further discussion or action on this particular subject was postponed by the outbreak of the Second World War, but in 1949, the year after the present Government took office, the Prohibition of Mixed Marriages Act was passed, which forbade marriage between White persons and any non-White persons, i.e. not only between White persons and Africans, but between White persons and any non-Whites; and a year later, in 1950, as the then Minister of Justice told us, as a natural corollary to the Prohibition of Mixed Marriages Act, the Immorality Act of 1927 was amended so as to prohibit extra-marital sex relations between White and Coloured persons. In other words, the 1927 Act was amended so as to prohibit illicit relations not only between Whites and Africans but between Whites and Coloured persons, which in terms of the Act means all non-White persons, Coloureds, Asians and Africans.

In 1957 a further amending Act was passed, but the Act of 1957 was firstly a consolidating Act in so far as it pieced together all the various laws on the statute book relating to all types of immorality, i.e. the keeping of brothels, illicit relations with children, etc. It consolidated all those pieces of legislation into one statute, but it went further. It also amended the relevant sections which related to illicit relations across the colour line. The amendments were introduced by the 1957 Act in three ways.

Firstly, and perhaps the least important amendment, was to increase the penalty up to seven years’ imprisonment, and for the first time it was made possible for lashes to be imposed, up to ten lashes, on male offenders, under this particular section of the Act. But the more important amendments to which I wish to refer were, firstly, that it now became an offence for any person to commit, or attempt to commit, or to entice any person across the colour line, and to commit, not only carnal intercourse, but any immoral or indecent act. This is an important amendment, because one has to note that the words “indecent act” are not defined in law, and incidentally, that is as it affects private acts of indecency. This brings me to the second important change introduced by the 1957 Act, all embodied in Section 16 of the principal Act, the section which my Bill this afternoon seeks to amend. It was pointed out by Mr. Lewin, a senior lecturer at the University of the Witwatersrand, that our law hitherto recognized only the offence of public indecency, i.e. such conduct in public as from its very nature must tend to decay the morals of others. So the new feature introduced by the 1957 Act was, firstly, that it was made an offence to commit an undefined act of indecency, whether in the privacy of a home or in any other place, and whether in fact such act led to the actual sex act or not; in other words, simply attempting to commit an immoral act was sufficient to bring a person within the purview of this Act, where persons of different colour were concerned. Only too clearly, to my mind, do these amendments demonstrate the slippery slope down which our legislation has unfortunately been sliding ever since it was first decided in 1927 to make illicit sex relations the subject of legislation in this country. A dangerously wide interpretation of the law has been placed on the law since this 1957 Act was passed.

Why dangerous?

Because people have been frightened to conduct their lives in an ordinary way, for fear of being trapped under this Act. The hon. the Minister must have seen case after case reported in the Press. People are frightened to drive their motor cars with their non-White servants sitting in it. I can give the Minister certain quotes. Recently in Cape Town a newspaper reported the case of a White bus driver who was charged under the 1957 Act. In fact, what he had been doing was to play cards in a house with Coloured people, and in acquitting the accused the magistrate advised the accused to break off his friendship with this Coloured family because, he said, for a White man to have social contact with non-Whites is to run a very grave risk. I will give the Minister two other examples. A country missionary who gave a weekly lift to an African girl to enable her to see a doctor was warned by a policeman that he risked prosecution if he continued to do so. A certain constitutent of mine recently phoned me indignantly to say that she had been sitting in the front seat of the motor car driven by her African chauffeur and she had been followed all the way to town by a police van. That is why I say that there is a dangerously wide interpretation of the Act, and, indeed, this was recognized by the hon. the Minister’s predecessor, if I may use the term. When he was Minister of Jusice in 1959, Mr. Swart actually gave instructions to the police to be very careful in the application of the Immorality Act. “Nobody’s name,” he said, “should be dragged through the mud without evidence.” I cannot believe that he would give that instruction unless it had been brought to his notice that the Act was being very widely interpreted. Only last year, in upholding an appeal against an Immorality Act conviction—and whenever I use the words “Immorality Act” I mean Section 16—the Judge remarked that prosecutors should be told by the Attorney-General’s office that border-line cases under the Immorality Act should be submitted to the Attorney-General for approval before prosecution. But I understand that this is not done in the majority of cases. The very nature of Section 16 itself in any case is largely against such safeguards, for as I have already pointed out, as the law stands it is quite enough for the prosecution to show that one of the accused has attempted or invited or incited the commission of an indecent act, and “indecent act” is undefined. So the law itself as contained in the 1957 Act is extremely wide.

Under Section 16 thousands of people have been charged and prosecuted and convicted. It is very significant, and again I draw the Minister’s attention to this since he asked the question, that in the four years between 1957 when the Act was amended and 1960, almost as many people were charged and prosecuted as were charged and prosecuted in the seven years prior to that, although the period is only about half, and the same applies to convictions. The figures I have correlated from answers the Minister gave to questions I put in the House a couple of weeks ago are as follows: From 1950 to 1956 the number of charges laid was 2,977. In the four years from 1957 to 1960 the number of charges was 2,722 almost as many. In 1950 to 1956 the number of persons prosecuted was 3,422, and in the four years from 1957 to 1960 it was 3,355. In 1950 to 1956 the number of persons convicted was 2,092, and in the four years from 1957 to 1960 it was 1,798. In all, between 1957 and 1960, something like 3,500 people were charged more than were actually prosecuted and convicted. In other words, all the odium of being charged under this Act fell upon 3,500 more people than were actually found guilty and convicted. Incidentally, the over-all picture shows a steady increase in the number of convictions. In the 11 years between 1950 and 1960 the total number of charges laid was 5,699, of persons prosecuted 6,777, and persons convicted 3,890. So thousands upon thousands of people have been dragged into the courts, charged, prosecuted and convicted. I believe that there are few among us in this House to-day who have not been sickened day after day, in opening the newspapers, to read the glaring headlines of people brought into court under the Immorality Act. In every single working day in our courts at least one couple are having their private lives glaringly exposed to the harsh light of publicity.

I have extracted a few headlines out of the hundreds which have been appearing in the newspapers—

Now, those are the straight cases, but there are horrible side-effects of this law. Let me give some of those examples—

And only recently it was reported that a man drove his car into the sea at Port Elizabeth and drowned himself after being detained for questioning under the Immorality Act. Last week the body of a 63-year old man was found floating in the Vaal River. He was due to appear in court on a charge under the Immorality Act. These are only some of the cases involving suicide following charges under the Immorality Act. Judge Schreiner recently had a good deal to say about this when he addressed the Institute of Race Relations. He said—

Small wonder, then, that he went on to say—

There are still other side effects of this law. The first is the danger of blackmail, to which people are exposed. Interestingly enough, these dangers were actually anticipated by Mr. Struben as far back as 1927, when the then Immorality Act was under debate in this House. He pointed out the dangers of blackmail. I can give the House two instances of blackmail which have occurred. There are many more. There was the case last year which was headlined under the title, “Man Made Living by Morals Trapping.” This was the case of two Queenstown warders who testified that a man who had been a Crown witness in a case against a Railway detective-sergeant who had been sentenced under the Immorality Act disclosed that the witness had boasted to them that he paid the girl to act as a trap, that he extorted money from people he caught contravening the Immorality Act, and that he bought himself a motor-car with the proceeds. Secondly, there was the case recently reported where a periurban areas inspector was acquitted of nine charges under the Immorality Act and counsel for the defence said this: “The Immorality Act has become an instrument of terror in the hands of unscrupulous people. The position has been reached where men walk in constant fear, especially those who by the nature of their occupation came into frequent contact with the Native races.”

There is another extraordinary side-effect to this legislation, and here I quote prominent social welfare workers in the Cape who have remarked that the number of European prostitutes has rocketed since it became an offence for a White man to cohabit with a non-White woman. One of them actually remarked cynically that prostitution had become reserved for White women.

There is a further side-effect which I must mention, and that is that I think everyone in this House will admit that our international relations are not helped by this Act, in two ways. Firstly, when nationals of other countries have been prosecuted under the Act, our relations are harmed, and there have been many such cases, as a casual glance at newspaper headlines will reveal. There was the case of the Swedish writer last year, and there are many cases where seamen visiting our ports are prosecuted. In some cases they are in ignorance of the law. The procedures whereby they are informed of our laws are apparently very haphazard indeed. There is a notice in the docks in English and Afrikaans warning them, but if they do not happen to read English or Afrikaans, and many foreign sailors do not, ignorance of the law is no excuse. The other thing is that they cannot easily distinguish colour. Now it is true that they are protected to some extent by sub-sec. (3) of Sec. 16, where it is a sufficient defence to prove that one had reason to believe that the person was of the same colour. Many of the people charged under the Immorality Act are subsequently discharged without being convicted, but enormous harm has been done, because newspapers give publicity to these cases, and the overseas newspapers publish them also, and we have had cases where threats of boycotts have followed reports of foreign seamen having been convicted, and there have been official protests from the Governments concerned.

The other way, of course, in which our international relations are damaged is simply by the glaring sensational publicity given to most of these cases under the Immorality Act, which are cases of human interest and therefore naturally command a good deal of attention in the Press. Could anything have been more damaging to South Africa than the recent Singh case? I believe that something like 95 inches of space was accorded in one day by seven leading newspapers in Britain. A page-long column in Times magazine, with its readership of over 2,000.000, did us no good either. But this grim law completely fails to distinguish between the casual act of immorality across the colour line and enduring relationships, and there are such relationships which have existed between persons of colour. Then again we have cruel headlines “White man lived for nine years with Coloured woman, charged under Immorality Act.” “Two young secret lovers, a White man and an Indian woman, each sentenced to six months under the Immorality Act”. A couple recently brought two neatly-dressed children with fair hair to court with them when they were charged under the Immorality Act, the mother carrying one child in her arms, and with a boy of 2 at her side.

There is another side-effect of the Singh case which I want to mention to the Minister. It seems that the Singh case itself actually reverses a standing rule of private international law, which is that a marriage legally contracted outside a country in which the marriage could not be legalized is valid inside that country thereafter. I understand on good authority that this is accented international law. I have mentioned the Singh case, because I must say immediately that I realize that there is a natural consequence to moving the second reading of this Bill, and that is that I must obviously advocate the repeal of the Mixed Marriages Act of 1949, because it is obviously quite wrong to make it legally impossible for people to sanctify in marriage, relations which are legally admissible in extra-marital relations. In other words, it should clearly not be illegal to marry when it is legal to live illicitly, just as the Minister quite rightly said in 1950, when he introduced the Immorality Act, that this was the natural corollary of the Prohibition of Mixed Marriages Act of 1949, so equally do I recognize the logic that if I ask for the repeal of Section 16 of the Immorality Act, I must also subsequently ask for the repeal of the Mixed Marriages Act, and I am quite prepared to face the consequences because I do not favour the Mixed Marriages Act. I do not believe, for instance, that the number of marriages contracted before the law was passed constituted any danger whatever to racial purity. If one glances at the figures, one sees how absurd it is to think that the passing of the Mixed Marriages Act has saved White South Africa. Less than one per cent of the total number of European marriages in 1925 were mixed; it constituted less than one per cent of the total number of marriages contracted by Europeans, and of course, even less if you take the number of marriages contracted by all races. It was less than three per 1,000 in 1936, according to the Mixed Marriages Commission, and in the year before the Act was actually passed only 70 mixed marriages out of thousands upon thousands of marriages were entered into in South Africa. So I believe that if the Act goes, it will not do any great damage, as far as the preservation of the “purity” of the White race is concerned. But I doubt that if the Act goes there will be a stampede of people to the marriage officers by people of different races wishing to get married, because we must remember that since the Mixed Marriages Act was passed in 1949 we have had much legislation put on the Statute Book which has vastly increased the penalties of crossing the colour line. That is certainly as far as White people are concerned who want to cross the colour line to the Coloured races. We have had the Population Registration Act and the Group Areas Act and the job reservation clause of the Industrial Conciliation Act. all of which have laid heavier penalties on being non-White than existed in 1949, and therefore I do not believe that unless one is completely and utterly prepared to make self-sacrifices, there will be many people who will want to enter into such marriages, and certainly not in such numbers as could possibly affect the structure of society in South Africa.

This brings me now to my final point, and that is that the law as an agent of social control is a clumsy thing. What social conventions, morals, religious and ethical considerations cannot control, I do not believe the law can control. As long as society frowns on miscegenation there will not be a great deal of it, and in South Africa society increasingly frowns on miscegenation. Of course, there will always be some miscegenation on the fringes of society, but my contention is that miscegenation goes on whether there is a law or not. The argument has been used in other debates that even if the law does not completely deter people from miscegenation, who knows how much worse it would be if the law goes? Sir, I am not concerned with any fanciful speculations along those lines. I do not believe there will be an increase in mixed marriages or of miscegenation across the colour line. The main reason is that despite the law this carries on, because the law cannot be properly enforced. Although I have mentioned the cases of thousands of people who come to court, a senior police official remarked recently that for every one person charged they know perfectly well that hundreds are not charged because they cannot be caught. It seems to me that a law which cannot be properly enforced merely brings the whole of the law into contempt and in many ways it is much worse than having no law at all. I want to point out that in immorality cases enforcement of the law is particularly difficult, because unlike most criminal cases there is no complainant. Both parties are guilty, and both parties wish to keep it quiet. So except in exceptional cases where people act as traps, in the vast majority of cases there is no complaint and therefore the detection of immorality cases under the law is extremely difficult. In fact, it is found in practice that the only way in which crimes of immorality can be detected is by turning policemen into “peeping Toms”, who casually look through car windows or bedroom windows. That is the way in which most of these cases are detected, unless of course there is an informer. Other than that, it is obvious that for every case that goes to court hundreds are undetected. Again, interestingly, the difficulty of enforcing this law was foreseen by Mrs. Spilhaus, one of the commissioners investigating mixed marriages, and although the Commission knew that extra-marital intercourse was outside its terms of reference, it nevertheless examined the position. Mrs. Spilhaus felt that to tackle illicit relations across the colour lines would require “armies of detectives, police and night-watchmen for its enforcement”. That is precisely what is happening. And of course it is the realization of this that has kept us from legislating against illicit sexual relations between Whites and Whites and Coloureds and Coloureds. It is for a good reason, that all anti-social deeds are not subject to criminal sanctions. The reason is not necessarily that society approves of these deeds and therefore does not pass laws to make them crimes, but because society realizes that private lives would become well-nigh impossible if legal sanctions were instituted on all types of relations. That is the reason we do not have such laws.

Now, to come back to my final point, while we do not know what would happen if the law were not there, and it is fanciful to speculate, we know what has happened in the ten years that this law has been on the Statute Book. and more particularly over the last four years after these broad and far-reaching amendments were introduced. Nothing, but nothing, to my mind, can outweigh the misery and degradation that this law has brought in its wake. Thousands upon thousands of people have been publicly humiliated, have had their careers ruined and their family lives wrecked, and their community lives rendered nonexistent by being dragged into court under the Immorality Act, and for a crime which is only a crime where colour is involved. As Judge Schreiner pointed out, the wives and children and parents of these people suffered equally from the sordid publicity given to these cases.

That applies to all criminals.

Yes, but in this case it is only a crime if it is done across the colour line. But I am glad the hon. member made that interjection, because it leads me to another point which troubles me very much. I have been reading the Press this week, and particularly the Burger, which seems to forecast that the Government intends to take steps to prohibit publicity in these immorality cases. I will deal with that in a moment, but before that I want to say that if public opinion was deemed to be in favour of this Act when it was first introduced in 1950, and it was so deemed—it was one of the arguments used in the debates at that time that public opinion demanded this Act—then I am prepared to state categorically that to-day, ten years later, after the passing of the Act, and after its effects have been experienced, public opinion is dead against this law. Leading article after leading article in the English-language and the Afrikaans Press have appeared on this particular subject. Letters by the hundreds have poured into the offices of the editors of these newspapers. Everywhere one goes, one hears people talk of this as a disgusting law. Public opinion to-day is dead against this law.

What is disgusting about the law?

The effects of this law— let me put it that way—are disgusting. It has disgusting effects on people’s lives. Some of the suggestions offered were mentioned in the Burger last week. It was hinted that the Government might take steps, for instance, to suppress publicity as far as these cases are concerned. Another suggestion was made earlier on by, I think, the Transvaler. I am not sure whether it was the Transvaler, but anyway it was made in a newspaper. The suggestion was that the Press should be allowed to publish the initials only of the accused in these cases. I want to say right away that tinkering around with the normal procedures and the administration of justice in this way, it is highly dangerous, and I sincerely hope that the hon. the Minister is not going to go along with this suggestion. Speculation as to identity becomes rife; rumour-mongering injures innocent people, a most dangerous procedure altogether. The hon. member over here has asked by way of interjection, “Why should there be a distinction between persons charged with this crime and persons charged with other crimes such as fraud or murder or any other crime” where, as the hon. member rightly points out, the relations and the children and the parents of these people are also brought into odium. Well, of course, the answer is that anonymity should not cloak the effects of crime. The answer why it has become so bad in immorality cases, why people commit suicide, why there have even been murders following upon the arrest of people under the Immorality Act, why policemen approaching cars have been shot dead—we had two such cases in the Transvaal—is, of course, shame. It is our effective preoccupation with colour that makes this particular form of immorality so heinous a crime that it outstrips other forms of crime, both in its sensationalism and in the social strictures that it brings in its wake. I say therefore that secret trials are not the answer to our difficulties. If the law is good, it should be able to stand the test of open trial and all the publicity which goes with it, and if the law cannot stand this test, then it is a bad law and it should be scrapped forthwith. It is no good trying to stave off damaging publicity which stems from a bad law simply by closing the courts and forbidding free publication of all the names and evidence featuring in these cases. The world would only see this as a secret trial to cover up the ugliness of the law—and it would be right. I want to say further that I do not think we need commissions of inquiry at this stage. We have had ten years of experience of this law; we all know what it has brought in its wake. Commissions of inquiry are not necessary; we are all aware of the effects of this law. What we want is to have this section repealed. Let us be honest and admit that we made a terrible mistake a decade ago when we introduced this law. We did make a terrible mistake.

What is the problem that this law purports to solve? This is the thing that we must consider and examine in the last analysis. According to those who originally supported both the Mixed Marriages Act and the Immorality Act of 1950, it was apparently to solve the problem of miscegenation, or as have been said in other debates, to ensure the preservation of the purity of the White race. Miscegenation, which is a mixing of the races, is something which I would say has gone very far in this country to attempt at this late stage to solve it by any law. The very fact of the existence of a mixed population of a million and a half people already proves, I think, that miscegenation is something that is here and the increase in miscegenation will come from the natural increases of those people themselves, so a law at this stage will not solve miscegenation. As to this question of preserving the purity of the White race, I would like to point out that the major dilution of the purity of the White race has not come from children born in either mixed marriages or even of casual unions across the colour line; the major dilution really over the years has come because people have managed to cross the colour line. That is the cause of the major dilution of this so-called purity. I would say that crossing of the colour line has to a large extent been prevented now, or so the Government thinks, at any rate, by the Population Registration Act, which for all times has set the race to which a person belongs, so even the arguments which were used way back in 1949 and 1950 to prevent the dilution of the White race, was to a large extent answered by the passing of the Population Registration Act. I do not want to give the impression that I support the Population Registration Act. I do not. I believe that there are other ways to prevent this so-called dilution, and I believe that the real way, of course, is so to improve the economic and the social conditions of non-Whites that there should be no major advantage in trying for White; that if their own conditions were made at least decently comparable to the conditions enjoyed by the White races, there would be no great attraction in trying for White. That, of course, is the way in which this major problem should be solved.

Finally, I do not say that if this Bill is passed every problem will be solved and that we will all live happily ever after. Social problems clearly will remain, but they are problems which must be tackled with social reforms, improved standards of living, better educational standards and a greater influence of religious beliefs. These are the ways in which immorality can be tackled, not by a law. But I do say that if this Bill is passed, one thing is certain; South Africa will have rid itself of a cruel law that has brought untold misery to thousands of people and that has cast a slur on the country as a whole.

I have something which I would like to say in connection with this Bill now before the House. May I commence at once by saying that on this side of the House we are absolutely opposed to miscengenation. Let me make that point at once. I want to come back to it a little later on, but I want to make that point at once and because of what I have to say in connection with this matter at a later stage. We think in the interests of our people, in the interests of our country, that from whatever point of view you view it, miscegenation should be repudiated and frowned upon. The consequences to our people of this legislation have been very terrible indeed. But miscegenation is merely one aspect of immorality. We are against immorality, and in South Africa we have not got a law dealing with immorality, unless it is a law dealing with immorality across the colour line.

The hon. member has said in explaining her Bill that she is dealing with that and that alone in its intention of repealing a particular section in the Immorality Act; she has said that she is dealing only with that aspect of the law, that provision in the law, which her Bill purports to repeal. I want to follow exactly the same line. The Immorality Law as such, in its other provisions, I leave alone. I want to deal just with that particular provision, the particular section, which her Bill seeks to repeal.

In dealing with this matter, I think we come very quickly to the question as to whether the law is dealing adequately with the evil. Does the law in fact have the effect of abating the evil? We on this side of the House believe that is a theoretical question that cannot be tested against the facts because the facts are not known. This is one of those questions which can be raised and which would be the subject of different opinions from time to time and in respect of which there can be no certainty because the facts are not known. If there was no such law, would miscegenation have been more widespread than it is at the present time or would it not? No man can answer that question. From this side of the House in the past we have ventured the opinion, from the commencement, that this law would serve its purpose because one cannot deal with such an evil by means of a law. This is something which cannot be circumscribed, altered, confined and brought to nought by means of a law. We have always believed that. We face the position at the moment that the degree, the magnitude, of the evil is an unknown quantity. Nobody can say whether it is more rife to-day than it was 50 years ago or 25 years ago or five years ago or even last year. Nobody can say that if it were not for this law it would have been more rife than it is to-day. There may be a number of different opinions on that score but there is no evidence; there is nothing whatever to say whether the one opinion is right and that the other opinion is wrong.

In 1950, the late Dr. Colin Steyn, put the case for this side of the House when he dealt with this particular matter. Sir, with your permission I would like to quote for a moment what Dr. Colin Steyn had to say. He said (Hansard, Volume 70, Col. 2171)—

I think that has particular point to-day. He goes on to say—

Those words were uttered 12 years ago by the late Dr. Colin Steyn when the particular clause that we are dealing with was before the House. He moved—

I want to go further than the late Dr. Colin Steyn. I want to deal for the moment with the view of a member of this House who was in the Opposition at that time and who is a Minister to-day, the Minister of Labour and Immigration. This is what the present Minister of Labour and Immigration (Mr. Trollip) said (Hansard, Vol. 70, Col. 2174)—

Then the hon. member was interrupted by the Minister of Interior and they had a little bit of cross-chat, but I come now to Col. 2177. General Smuts had interjected to say that many of the people in these cases were almost White. Mr. Trollip then proceeded—

The Minister of Justice: Will that position continue?

I think the position is beyond any legislation this House can frame.

Hands up.

It is beyond legislation.

It is “Hands Up”.

It is not a question of “hands up” or not. The question is simply one of practicability. As I say, there are ennumerable other cases one can think of, but I am just giving this in broad outline. I say we are seeking to do something here which is beyond the bounds of any legislation. You will require an enormous army of policemen, for instance, in a place like Cape Town. What is the use of making laws which will be observed in the breach? They can never be enforced. We know they cannot be enforced. So what is the use of making these laws? I suggest that the hon. Minister should reconsider the matter and he must give some consideration to these questions which have been raised, particularly the one point which I have raised in regard to the marriage of Europeans and non-Europeans who subsequently are prosecuted, and that marriage is declared to be illegal. I need not dilate on the consequences of such action.

Those words were spoken by an hon. gentleman who is in a position to exercise influence to-day in the affairs of the Government. But he sits on the Government benches with another hon. gentleman who spoke in that debate with very great conviction, a Minister who at that time was a member of the Opposition. Hansard of the same day, 1 March 1950, reports as follows at Col. 2210—

Mr. Speaker, the emotional hysterics of the hon. meber for Brits (Mr. Potgieter) may be very good on a platform in his area but do not behove a House of Parliament. The hon. member has shown the true colours which lie behind this measure. First the organizer of the party, the hon. member for George (Mr. Botha) let the cat out of the bag. This is just a political stunt; that is all it is, a political stunt that has been used only for one purpose, so that the hon. member for George and the hon. member for Brits can go into the platteland and distort politically everything that is said on this Bill. That is all it is. We have had it before. It is an old story. The liberal section of the United Party are opposing this measure, the liberal section that put their arms round the neck of the “Kleurling” and, sir, we are getting sick of those lies.

You look sick.

Sick of the lies and the distortions that take place on the basis of the discussions that take place in this House.

Then at Col. 2211 the hon. member proceeds to say—

And that is where the whole thing is such humbug, complete humbug, just a cheap political stunt. We heard it from the hon. member for Brits, this “putting your arms round the ‘ Kleurling May I ask the hon. member why so many years ago when the biggest peril to White civilization in South Africa, the Japanese nation, was not very far from our doorstep, a nation whose attitude when it invaded a country, as far as the European people were concerned, was probably one of the worst one has heard in the history of warfare, if he was so keen and his men were so keen on saving White civilization from that yellow peril, they did not take up arms and join us in that fight?

How are you going to explain that, Frank?

Order!

The hon. member then ends on this note (Col. 2212)—

May I say that in that last remark I am entirely with the present Minister of Information. It is the soul of our people that will save us as a White nation, as a White civilization.

Why don’t you try to make a speech of your own for a change?

Sir, it is interesting in tracing the course of this particular matter through Parliament to find that in 1951 there was a motion moved in the Other Place by the present member for Germiston (District) (Mr. Tucker). I quote from the Senate Hansard, Col. 426, of 27 February 1951. The hon. member moved—

It is interesting, Sir, because the present Minister of Finance on that occasion accepted that amendment in the Other Place, and it was passed by the whole of the other House without exception. It is interesting because that was in 1951, which was 11 years ago, and already there was apparent a desire to do something to ameliorate the conditions which were coming about in South Africa. The Government of the day—this Government— through the Minister of Finance accepted that amendment. The 1957 Act made it a crime to attempt to carry out any indecent Act which if fulfilled would have been miscegenation, or would have been construed as miscegenation. Such an attempt, of course, placed a great onus on the accused and increased the number of cases that came before the Courts. It increased public awareness of what was happening; it created further distress and hardship in the homes of various people. I want to come back to that in a moment. That distress and hardship has been building up since those days, and so I repeat: is this legislation now doing more harm than good? Because it seems to me that is the crisp point that everyone of us must answer in our own conscience. Is the legislation doing more harm than good? I remember that in my younger days my old father used to say to me in regard to actions that were contemplated, “My boy, ask yourself if you are doing anybody else any harm; then ask yourself whether you are doing yourself any harm …”

Why did you not listen to him?

…“don’t only ask yourself whether you are doing any good to other people or good to yourself”. Here, Sir, is the test that I think we should apply. Are we doing harm to other people by having this law on the Statute Book? And when I say “harm to other people” let me tell hon. members opposite that if they are not already in “moeilikheid” as far as this Act and its consequences are concerned, then they are fortunate, not virtuous but fortunate. Let us accept that, Sir. Hon. members opposite can take that to their hearts. They sit in this House with unblemished records; they take part in the law-making—rightly so, because they have been elected. How many of them would be elected if in their family there was a case of a conviction under the Act as it stands to-day?

Worry about yourself.

That is why I say that they are not virtuous, they are lucky, damn lucky. Not one of us knows where the axe will fall next. Let them read the Pilgrim’s Progress and realize that but for the grace of God one of them might go there. That is the lesson that we should learn from the kind of evil that is facing South Africa at the present time. I do not want any taunt thrown at me personally by hon. members opposite. I am in precisely the same case as they are. I am not virtuous, I am fortunate; everyone of us is fortunate. Let us bow our heads and realize the shame that is facing everyone of us in South Africa as White people when we have on the Statute Book legislation which carries with it the humiliation, the pain and the suffering of whole families, which follow upon these cases. But I go further and I say that if this is what comes to people who are related to those who are guilty, what of those who are related to those who are found innocent in the courts but where the stigma still remains? You see, Sir, it is not so much perhaps the precise nature of the penalty inflicted by the court; it is the penalty inflicted by society. A person may be found innocent by the court but the stigma remains.

Does that not apply to all crimes?

As a matter of fact it is curious how little it applies to other crimes. It has been pointed out by the mover of the motion how in this country we view colour in human beings as something which for a long, long time past we have realized can lead to the dissolution of our society. We know that and instinctively we recoil from it, and probably that is why White society protects itself in that manner. But whatever the reason may be, I have myself come across instances—and I have no doubt hon. members opposite have—where even in the case of murder, the relatives have not had the stigma attached to them that they have had attached to them by society when the conviction has been under the Immorality Act under this particular section. That is a fact and whether we like it or not it is true. I repeat that we must ask ourselves: what is the penalty inflicted by society on the dear ones of those who are found innocent in the courts. They never throw off that stigma. They sell their homes, they emigrate, they get away from that atmosphere in which they realize that they are continually suspect. The hon. member who moved the second reading of this Bill dealt with one or two cases where framing had taken place. Framing under this Act is one of the easiest things in human relationships.

There is no case on record of anybody having been framed.

What about the Warmbaths case?

I will give you two.

Sir, I am surprised at the hon. the Minister of Justice making a dogmatic statement like that.

I challenge you to bring cases where people have been framed.

But I gave you two.

The hon. member quoted certain cases, but apart from that, in framing it is so easy after the conviction to prove that it was framing that took place. That is the point. Framing is so utterly easy, and what is more, it is known to a whole group of people who are not of our colour. They realize it perfectly well. I have heard it talked about and joked about and laughed about by my Bantu servants. They realize perfectly well how easy it is to frame people and that there can be no retracing the step afterwards. When once a conviction has taken place I defy the Minister to explain the circumstances under which the valid evidence to set aside the conviction and to show that framing had taken place could be procured. In the very nature of the case it is impossible, because on the other side of the fence there is the non-European who has been, probably, only too well aware of precisely the meaning of the steps being taken for the purpose of the framing, and I say that this law lends itself to framing, and lends itself very easily indeed to framing.

I have heard it said that a large number of people are being apprehended in terms of this Act, and that therefore the Bill must be doing good. Sir, I do not think that is a good argument. I have said earlier on that is impossible for anyone to say with certainty whether the evil is growing or whether it is lessening, whether the fact that the law is here is a deterrent, or not a deterrent, but I want to say this in regard to a whisper that I have heard that the Government may consider legislation hereafter to make publication of the details of such cases forbidden, to forbid the publication of details, to keep them within a small circle of those officials and others directly implicated with the case, those participating in the case, the knowledge staying there—Mr. Speaker, if that is a valid argument, then what is the value of the opposite argument that publicity acts as a deterrent. You can’t have publicity acting as a deterrent and stopping people from committing acts of miscegenation and in the next breath saying that the way to deal with the difficulty is to stop publicity. The two things cancel one another. You cannot have it both ways. And however much the Government may attempt to restrict knowledge of the circumstances and events following a conviction, however much publicity through the Press may be prohibited, the knowledge will still ruin the life of that man and his family in the circle in which they move. That knowledge can never be kept away from the circle in which a man moves, from his own group, from the people with whom he works and where he carries out his ordinary daily avocation. Sir, we have but to look at this from another point of view altogether in my opinion.

I think it is incumbent upon the Government now to show that this legislation is serving its purpose. They have to make a case. They have had this legislation since 1950. and the amending Act of 1957. They have had the 1950 Act for 12 years, and surely in 12 years they ought to be able to make out a case and show that the Act is serving its purpose that it is succeeding, that it is doing more good than it is doing harm. Let us get away from the party political shibboleths in this matter and get down to facts. Let us look at some of the broken homes if we want to see whether this Act is doing any good, or more harm than good. Let the Government accept its responsibility and make out a case. We feel that the onus in that regard can best be discharged by a proper investigation by a Select Committee before the second reading. We feel that is the only way in dealing with this particular matter. That Select Committee should have power to take evidence, summon witnesses, and it should be able to call for documents, and bring up an amended Bill, if necessary. Because if the Select Committee in its wisdom feels that legislation can cope with the evil, let them come with an amending Bill. Sir, we on this side of the House are utterly opposed to miscegenation. But we are as utterly opposed to immorality as between members of the same race as we are opposed to immorality between members of different races. But, Sir, where lie the facts in regard to the law and the enforcement of the law? A Select Committee, which the Government can appoint, and this can get evidence from the churches, from social workers, from politicians if they are in a position to give evidence, is the only way to tackle this matter. Sir, I suggest that evidence even be taken from those who come from some of the broken homes. Let them go thoroughly into this, not from a party political point of view, but from the point of view of what is good for us in the Republic of South Africa. What are we doing now in the year 1962 that is going to help to alleviate the position for those who come after us, next year and the years after that? That should be the test. That is why I ask the Government to accept an amendment which I am going to move to send this Bill to a Select Committee before the second reading. Let us have the fullest possible investigation and try and get to the facts. There is no other way known to us in the parliamentary procedure which can achieve that end. It is quite true that the suggestion has been made that we might have a judicial commission appointed, but I want to say that a judicial commission in my opinion is not the answer to this particular problem. So I move as an amendment—

I said just now that it might be suggested that a judicial commission should be appointed. But a Select Committee can call Judges, members of the Judiciary, magistrates, the police, they can call all those people who have facts within their knowledge bearing upon this particular problem. It is not necessary to have a commission with a Judge at the head of it. A Select Committee is quite capable to deal with the matter. The Government in its wisdom may decide that they want a judicial commission, and we on this side of the House are not going to complain about that. What we believe is more important than the personnel of the body going into the matter is that the evidence shall come from the widest possible group of people in South Africa, including non-Europeans of all races and colours. Let this matter be threshed out with a view of coming to a decision which is going to redound to the credit as a civilized White race maintaining political authority in this country. I, Sir, was very moved by the leading article in the Burger yesterday where in the English translation it said—

I appeal to the Government to accept this amendment. Sir, this is an opportunity to have the fullest inquiry after the Act has been on the Statute Book for 12 years. If the Government refuses to hold an inquiry, if they are determined, come what may, to go on with this Act with all its evils, then as a protest from this side of the House we shall vote in favour of the Bill.

I second the amendment.

This is a tragic Act which has had terrible consequences. The Act purports to be legislation against immorality. it purports to be just like all legislation. But it is not legislation against immorality, except in the slightest respect. It is legislation against colour. It is an attempt to enforce morality upon a limited number of people, and it could only be justified if the immorality which it attempts to prevent was carried through to a general end, that is it affected everyone. Sir, sexuality is sexuality whether it is White or Black, and if it is illegal sexuality it is illegal whether it is White or Black. or whether it crosses the colour line, and it is in that respect more than any other that this legislation is so unjust and has caused so much harm. Mr. Speaker, to change the law, to abolish this law, would not, I believe, and that is the opinion of many others, open the floodgates to immoraltiy between colour. This is a sociological law and it could be enforced sociologically and sociologically only. The man who finds it repugnant to cross the colour line for sex will no less find it repugnant if there is no law to deter him, and such is the sex urge, not only in men but in all mammals and even in the insects, that nothing can stop it, and the deterrent of the fear of this law must have had extremely little effect upon those who are urged by that urge.

What was the object of the Act? Why did the Government introduce the Act, or rather the clauses which are now sought to be amended? Presumably it was to protect the purity of the race. It was, one might say, legislation for genetics. But, Sir, let us investigate the purity of this race. Let us see how far the Government are justified in their attitude. We on this side of the House are strongly against miscegenation, very strongly. Let there be no mistake about that. But at the same time: Where did the Coloured people come from? They did not drop out of the sky. They were not here until the White man came, and if we look into the history of the various races in the world, we will find that there is no pure race anywhere, and what is more, it is a disadvantage to be a pure race, because owing to the pure race idea there is so much inbreeding that recessive components of heredity come to the top. I want to give to hon. members on the other side of the House a very strong example from their own forebears. Among those early settlers in this country, Sir, was a family who suffered from haemophilia, where it is not possible to stop hemorrhage in the male. Sir, that family spread and was mixed with other families, until a scientific investigator during the Anglo-Boer War found that there was a large number of haemophiliacs among the war prisoners, and I maintain that had the Voortrekkers and had the early settlers of this country not contacted sexually with the indigenous peoples, or those who were imported from the East as slaves, this propensity towards bleeding could have had very grave effects upon those who trekked out of the Cape.

Are you now in favour of mixed marriages?

No, I am not. But I say that there is no race which is not hybrid. If you analyse the actual people who deal in this particular form of miscegenation, what do you find? We find that certain groups tend to cross this line. There are firstly the sailors. I don’t think it needs an explanation from me to account for them. Many of them are quite unaware of what a slightly coloured person looks like. They will have great difficulty in the poor light in the docks to see what is happening. And, Sir, what is even worse, is this: How are these people apprehended? They are apprehended because the police watch the prostitutes. They can’t watch the sailor. They don’t know where he is or when he is coming. But the police are aware of who are the prostitutes. So they watch the prostitutes, they allow the sailors to break or to attempt to break this law, and then they apprehend them. If the police feel so strongly about this, why don’t they first apprehend the prostitutes? Why is the law not changed so that they can apprehend the prostitutes? And that applies not only to the sailors, but it applies to others. I say that 50 per cent to 60 per cent of the prosecutions under this Act are the result of the police watching the prostitutes. They could easily avoid these cases by apprehending the prostitutes. The others are the result of spying.

The next case is the young man who would try anything. He thinks it is some form of experiment that he can carry out, and he is also caught with the prostitute. Thirdly, there is the man who through drink or emotional upset or diseases falls by the wayside. That is another man who is apprehended. It is not a habit with him. None of these people that I have mentioned make it a habit. They are caught because they are associated with people who make it a habit, and we punish the unfortunate youth and the (unfortunate perhaps) businessman (I am not excusing him), who because of temporary aberration or stress or emotion falls to temptation. As the hon. member for South Coast (Mr. Mitchell) said “There are a lot of people who are lucky”. And lastly, you come to the unfortunate man who has a predilection for colour in sex. Sir, that presents a great problem. I am not attempting to excuse him. I am merely telling you that is a fact, and such cases should not be apprehended by the police. This is a sociological problem and they should be dealt with sociologically, by a psychiatrist perhaps. It often happens that they are dullars or recidivists, who don’t know any better. Those people should be dealt with perhaps by segregation. But to put those unfortunate people, who are not criminals—they are the victims of a crime which this Government has created for them, it is not a natural crime, it is a crime which has been produced purely by statute, to put those people behind bars, is completely wrong.

On the other side, on the female side, what do we find? We find the prostitutes making a living out of this. In this part of the world, they are largely Coloureds and in Natal they are mostly Native women, and there it is again the sailors who fall victims to these people. There are a few others who are seduced through poverty or contiguity, proximity to the non-Whites, and lastly, those unfortunate people who really have affection across the colour line, who want to marry, who have in fact in many cases been married. Although we are strongly against miscegenation, the few cases like that deserve very careful consideration, and they justify, I believe, the removal of this Act because, as I said before, it is not a crime, it is a perfectly natural procedure.

This situation is complicated still further by the recent actions under the Population Register. So far as I can judge from the cases which have come to my personal notice and to the notice of some of my colleagues, there is something of a witch-hunt for the Coloureds, and to-day it seems to me that the Population Registrar, when in doubt, thinks to himself: Make them Coloured and let them prove that they are not Coloured.

Oh no!

I speak from personal experience. I am satisfied that anybody in Natal who had a grandparent born in Mauritius, has difficulty in getting his population register card and that the Population Registrar goes to all sorts of end to get that person into his office to have a look at him. And what qualifications has the Population Registrar sitting in his Durban office to say whether a person is White or non-White? And many of these people whom I have known personally, who live among Whites, who associate with Whites, whose children go to White schools, are classified firstly as non-Whites, until we can get redress. And if you are going to that fine point with the Population Register, then you must find somebody and some standards by which the Population Registrar can do it. He has no more qualification than anybody else to certify that people are White or non-White. How many are there who are classified as non-Whites whilst they have lived altogether as Whites, and how many families are there, Sir, who can look back on their whole family tree in this country and not find somewhere a nigger in the woodpile? Mr. Speaker, a scientific investigation was carried out some years ago in this country and it is reckoned that no less than 75 per cent of the population have somewhere a trace of non-White blood in them.

I have listened attentively to the attitude of the hon. member for Houghton (Mrs. Suzman) and I want to say at once that I have not heard a single argument from the hon. member which induces me to adopt the attitude that this Act, or any of its provisions, should be repealed. On the contrary, every argument advanced by the hon. member is in my opinion a further reason as to why this Act should remain unchanged. I shall come back to that later on.

I am, of course, not surprised at the attitude adopted by the hon. member. In taking this stand she is simply being faithful to the philosophy which underlies her views. In the nature of things one is not liberal in respect of one matter only. Liberalism is a philosophy which permeates the whole of one’s life and determines one’s attitude in all spheres of life. I am not surprised at the attitude of the hon. member for Houghton therefore. Viewed in the light of her political beliefs and views, it is a consistent attitude.

Although I have said this about the hon. member for Houghton, I cannot say it of the United Party unfortunately, because I am not sure what the party’s attitude is. I am never sure how long the United Party will adopt a certain attitude before discarding it for another. I am being perfectly honest when I say that if I have to reduce the arguments advanced by the hon. member for South Coast (Mr. D. E. Mitchell) to their logical conclusion, then it simply amounts to this that we on this side are correct in retaining this Act because he says he does not want miscegenation, but in the same breath he says that the hon. member for Houghton is correct in introducing this Bill for the repeal of this Act. That is what his standpoint amounted to. The hon. member tried to make political capital out of quotations which he read out from speeches made by my hon. colleagues in the past. Why does the hon. member not tell the House that in 1950 the third reading of the then Bill was passed by this House without any discussion and without any dissentient vote? Why does he not mention that?

But, Mr. Speaker, let us go further. This Act was very radically amended in 1957. Hon. members will recall—just to link up with the history that the hon. member for Houghton has given here—that in 1927 actual carnal intercourse between a White person and a Bantu—only between a White person and a Bantu—constituted an offence, and it applied to actual carnal intercourse only. In 1950 the word “Bantu” was simply deleted from the Act and non-White person was substituted for “Bantu”. That is the only material change that was brought about in 1950. Now I come to the change in 1957, that is to say, in Section 16 to which the hon. member for Houghton referred. Section 16 provided that “any White person (1) who has unlawful carnal intercourse with a non-White female person shall be guilty of an offence”. That is as far as the 1950 Act went. The 1957 Act added the words “or attempts.” But it also added three sub-sections: “Commits or attempts to commit with a Coloured female person any immoral or indecent act; or entices, solicits or importunes any Coloured female person to have unlawful carnal intercourse with him; or entices, solicits or importunes any Coloured female person to the commission of any immoral or indecent act.” All this was added in 1957. On that occasion the hon. the Minister of Immigration again spoke on behalf of the United Party. And has it slipped the memory of the hon. member for South Coast that as a result of the attitude adopted by the hon. member, the second reading of this Act, the repeal of which is now being advocated, was accepted without a division and with only one speaker taking part in the debate, namely the hon. member who now sits on this side? It was accepted without any division. No division was even called for and the United Party endorsed that attitude without a murmur. What was interesting in the 1957 debate was the fact that the attitude which the hon. member for Houghton now adopts, was adopted by the then member, Mr. Stanford, and the hon. the Minister who now sits on this side strenuously repudiated him, and so did the whole of the United Party.

May I ask the hon. the Minister a question? Is it not true that the then member for Benoni, Mr. Lovell, wished to ask for a division but that Mr. Speaker ruled that no new principle was being introduced and a division was therefore not called for?

No, Mr. Speaker, that is only a half-truth as far as this matter is concerned. Many clauses were inserted and the whole House was certainly at liberty to vote against those clauses and therefore against the Bill. Nobody could be compelled to vote for it. That does not in any way alter the fact therefore that there was no division on the second reading, in spite of this new principle that was being introduced. But the point I want to make is that the hon. the Minister repudiated Mr. Stanford, and at that time Mr. Stanford adopted more or lesss the attitude that the hon. member for Houghton now adopts, and the hon. the Minister repudiated him on behalf of the United Party. But to-day, the hon. member for South Coast allows himself to be taken in tow by the hon. member for Houghton. That is the difference between the stand then taken by the hon. member and the attitude which he adopts now.

I would therefore respectfully make this submission to the hon. member for South Coast for his consideration: He is trying in vain to shield behind the attitude which the Ministers concerned adopted in this House at the time in an attempt to conceal his party’s lack of policy. He will not succeed, Mr. Speaker, just to show you how hot and cold the United Party is blowing in regard to this measure and this very serious principle that we are dealing with to-day, let me point out how cynically the United Party views this principle. Take the attitude of the hon. member for Durban (Central) (Dr. Radford). On the one hand he tells us with great verbosity that “there is no such thing as a pure race”. He has said that on more than one occasion in this House. And then in the next breath he says, “We are deadly against miscegenation.” If it is true that there is no such thing as a pure race, why is he against miscegenation? Surely then one does not have the elementary right to be against miscegenation in principle. After all, they are two conflicting principles, and even if one wishes to do so one cannot reconcile them.

But, Mr. Speaker, before I deal further with the arguments of those hon. members, you will permit me to deal in the first instance with the arguments of the hon. member for Houghton. The hon. member herself, apparently because she realizes the untenability of the point of view which she tried to state here, touched upon a point which to my mind is a very serious one. Let me say in the first instance that it is of no importance to me what the hon. member said and what she wishes to do with her Bill which is now before the House; what is of more importance to me is what the hon. member does not want to do. It strikes me as strange that the hon. member should come here and ask in all seriousness that the provisions which form the very basis of the Immorality Act should be repealed but does not ask that the Mixed Marriages Act should be repealed. Towards the end of her speech the hon. member herself realized that she was placing herself in an untenable position. The question that occurs to me is this: If one is in earnest in connection with this type of racial relationship, why not begin by asking that the Mixed Marriages Act be repealed? Because what is the essence of the hon. member’s request? Let us assume that we conceded that she was right, that we took her at her word and accepted and disposed of all the stages of this Bill to-day without further ado. What would the result of that be? The result would be that this House would be placing its stamp of approval on the conduct of unmarried people, who give free rein to their carnal pleasures while denying the right to people to live together in decency as married couples. That in essence is what the hon. member asks for in this Bill.

I am prepared to repeal the other one too.

That is in fact what the hon. member should ask us to do. She now realizes what she is up against, and now she says that if we pass this Bill to-day, she will repeal the Mixed Marriages Act next week. If the hon. member were in earnest she would first have tried to get the other Act repealed. Let me say to the hon. member that it is firstly a question of philosophy—and I do not hold this against her—it is the liberal philosophy that causes one to advocate the extreme step which the hon. member seeks to take here. But in the second instance—and this is my charge against the hon. member—it is not a popular thing to ask that the Mixed Marriages Act be repealed.

No, that is not the reason.

Yes, that is the reason. It is more popular to drift along with the stream and to ask that the Immorality Act be repealed. Perhaps that is the reason why the hon. member adopted that attitude.

I told the hon. member for South Coast this by way of interjection, and I also want to say it to the hon. member for Houghton: There is a great deal of talk going around as to what the effect of this measure is going to be. I do not want to try in any way to minimize the serious consequences of the Act from the point of view of the publicity that wives and children have to endure. I am fully conscious of its seriousness and how it affects these people. I do not want to deny that, nor do I want to minimize it. But at the same time I should like to put this question: Does that not in fact prove in what a serious light this offence is regarded? Why should such a great stigma attach to the commission of this act if the public does not regard it as a particularly serious offence? Does that stigma not prove that we were right when we introduced this Bill originally, and that in doing so we were expressing the feelings of the public, Afrikaans-speaking and English-speaking? But, Mr. Speaker, I want to go further. Has the hon. member ever heard of a single Bantu father or Bantu mother or of a single Coloured father or mother who has asked that we should repeal this Act? Are the Bantu father and mother not intensely grateful to us for protecting the honour of their daughters against unscrupulous people who have money and influence and position? Are the Coloured father and mother not intensely grateful to us for safeguarding the honour of their daughters? Let me say this to the hon. member for Houghton: However poor one may be, whatever one’s colour may be, there is not a decent father or mother who does not value the honour of his or her daughters and children. I want to make this accusation against the hon. member, that she used the most shocking argument that I have ever heard in this connection, and that was the following: One of the arguments that she advanced as to why this Act should be repealed is that “the number of European prostitutes is soaring on account of this Act”. She said that the number of White prostitutes was soaring as a result of this Act because people are afraid now to have intercourse with non-Whites. In other words, the hon. member stated—and she must accept the consequences of her argument because she said it in this House—that we should rather see to it that there are more non-White prostitues and then there will not be so many White prostitutes. That is the consequence of the argument advanced by her, and it is one that one cannot escape because that is in fact the argument which the hon. member advanced.

On a point of order, is the hon. member for Houghton entitled to say, “What a twist”?

Did the hon. member for Houghton use those words?

Yes, I did.

Then the hon. member must withdraw them.

I withdraw them.

I do not believe for a single moment, Mr. Speaker, that the hon. member was referring to me. I think she is accustomed to talking to herself. I repeat the argument that I have not come across a single Bantu or Coloured or Indian who holds it against us that we passed this Act. On the contrary numerous appeals have come from Coloureds who ask that their daughters should also be protected against the Bantu, and from Bantu fathers and mothers who ask that their daughters should also be protected against Indians or members of other races. I say that every decent person—and one is very grateful that is so—values the honour of his daughter and I am grateful for any law which seeks to protect that honour.

The hon. member then goes on to submit as one of the reasons why this Act should be repealed—and I do not want to put into her mouth arguments that she did not use but I made a note of this—is, as she put it, “because the law cannot properly be enforced”. Because we cannot eradicate the evil entirely, we must repeal the Act. By implication therefore her argument is that if we could catch all those who contravene the law, then it would be all very well and then she would not ask that this Act be repealed. Surely that is not the sort of principle to adopt. That argument was also used in part by the hon. member for South Coast. I know that we do not arrest all those who contravene the Immorality Act. I know that there are many people who do so secretly, of whom we are not aware and on whom we cannot lay our hands. But that does not mean to say that the State must close its eyes to that fact. I do not want to allege for a moment that we have eradicated immorality. The hon. member has said that unless we can prove that we have done so or that we are in the process of doing so, we should adopt a different attitude. Since when has that been the criterion by which laws of this nature are judged? Let us take the law in respect of prostitutes. There is not a single civilized country in the world which is without legislation in respect of prostitutes and which does not make it punishable for them to roam the streets at night. And yet no single country in the world has succeeded in eradicating prostitution. We know that in spite of all the laws in Britain, the Netherlands, France and South Africa, and laws which may exist elsewhere, there is still prostitution and it is probably still increasing.

But this Act does not deal with prostitution.

No, but I am using that as an anology. The hon. member’s argument—and he must not try to run away from his argument now—was that because we cannot eradicate this thing root and branch, we must not retain this Act. My argument is that in that case we should also say that because we cannot eradicate prostitution, which is also an immoral act, and because it is steadily increasing, we should abandon all legislation dealing with prostitution. That is no valid argument.

The hon. member for Houghton talked about “this disgusting law”. She was referring to this measure as it stands on the Statute Book. Since when has it been a “disgusting law” to the hon. member?

For a very long time since the effect of it has become clear.

And nevertheless, in spite of that, the hon. member did not even condescend in 1957 to vote against this “disgusting law”. We are not dealing here with a “disgusting law it is the act itself which is so disgusting and so abhorrent. If the hon. member wants to render this House a service, she must not come here and attack this Act. She should attack those people who commit acts which bring them within the ambit of this measure. Let me put this question to the hon. member for Houghton: She did not have a single word of condemnation for those people who contravene this Act—not a single word throughout the whole of her speech. I do not want to mention the reasons why she did not do so. I leave that to her. [Interjections.]

Order! I gave the hon. member for Houghton every opportunity to make her speech. The Minister did not interrupt her once.

He keeps on putting questions to me.

A lady would say “no”.

I have already said that the hon. member for Houghton has not advanced a single argument as to why we should repeal this legislation. On the contrary, every argument advanced by her is a reason why we should retain this Act. You will recall, Mr. Speaker, that the hon. member’s entire argument amounted to this that we were trying to achieve the impossible by trying to draw a line between colour and colour as far as this matter is concerned; that we were trying to do the impossible and that was why we were in this predicament. The hon. member says that we might as well repeal this Act because, to use her words, we need not be afraid that “there will be a stampede to marriage officers”. In other words, here again we have evidence of the hon. member’s attitude that she is not concerned with those people, however wrongly and badly they may be advised, who wish to marry; her concern is that we should repeal this law so as to come to the assistance of those people who wish to give free rein to their carnal desires. That is why the hon. member herself gives the answer that “there will be no stampede to marriage officers”. The hon. member has drawn the inference from what she has read that the Government or rather that I intend forbidding the publicity which is associated with contraventions under this Act. Let me say that I have no such intention and that the Government has no intention of forbidding publicity in respect of these contraventions only.

What do you mean by “only”?

Precisely what I say. That is my reply to the hon. member for Wynberg (Mr. Russell).

The argument has been advanced hereby the hon. member for South Coast and by the hon. member for Houghton that we are not dealing here with a crime really: “You made it a crime”. In other words, Mr. Speaker, it is an act to which no stigma attaches. That is the argument on the one hand. But on the other hand we are told that people—and I accept that is so—commit suicide because of the stigma which attaches to this crime. I realize that, Mr. Speaker; as a matter of fact, I am one of those who subscribe to the belief that a great stigma attaches to the commission of this crime. But, after all, why is it emphasized so much in this case? It is done because the sensation-seeking Press exploits particularly this type of court case to publicize it to the world. It is true that people who have been charged under this Act have committed suicide. It is also true, however, that people you would be surprised to know how many—commit suicide because they are arrested on charges of falsitas and theft and for other crimes. But the point is that you will seldom read in the newspapers that a person committed suicide because he was charged with falsitas. But wherever a person commits suicide because he is afraid of the consequences that will flow from his rash deeds you will find it reported in banner headlines. It is true, Mr. Speaker, and one regrets it very sincerely that innocent wives and children do suffer. Nobody has seen that more than I have and nobody appreciates it more than I do. But all wives and all children suffer when husbands and fathers commit crimes or contravene the law. That is a matter about which I am not indifferent and about which I do not want to be indifferent. But if we adopt the attitude that it is only these wives and these children—for whom we are all very, very sorry indeed— who suffer then we are wide of the mark and we certainly do not promote the object that we are trying to achieve.

What crimes are you going to protect against publicity?

Mr.

Speaker, that is typical of the hon. member. I did not say at all that I was going to prevent publicity being given to any crime. That is the inference that the hon. member draws. The hon. member has already erred in the past in drawing certain inferences, as he did at Bloemfontein when he inferred that the Progressive Party would be the party of the future. It is frequently said by members of the public that people are being prosecuted nowadays for every bagatelle. One frequently hears, particularly in private conversations between the uninitiated, that the position is so dangerous to-day that one cannot even take one’s domestic servant home or that one cannot do this, that or the other. I have challenged hon. members on the other side, and I shall be glad if they will accept the challenge, to bring to my notice one case amongst all the cases which come before our courts, where, to use the word of hon. members opposite, a person was “framed under this Act”. I shall be grateful if they can produce one bona fide case where people have been framed under this Act. I shall be very grateful if such cases are brought to my notice. I was being perfectly serious when I said that to the hon. member. I have discussed the situation very fully with the parties concerned and I am not aware of any person who has been caught innocently in the net of this Act. I want to say that very clearly. Let me also make this submission to the House and re-assure the public that the Attorneys-General and the prosecutors exercise the greatest care in deciding in connection with these cases whether they should prosecute or whether they should not prosecute. Let me give this as an example in connection with the figures which I have already given the hon. member by way of reply to a question; let me take the year 1960. The hon. member will recall that she asked me how many charges there had been in 1960. The reply was 780—these are charges in respect of the whole Republic of South Africa. In respect of 273 of those charges the Attorney-General or the prosecutor decided not to prosecute. They did not decide not to prosecute because the person concerned had been arrested for a mere bagatelle; they did not decide not to prosecute because the person concerned, on the papers before them, was innocent, but they decided not to prosecute because of the stigma which attaches to it when a person is charged under this Act, and they gave him the benefit of the doubt in 273 cases. The hon. members also tried to insinuate that, amongst other things, we were simply prosecuting indiscriminately because we have a mania in this connection. I give these figures, Mr. Speaker, because I want to indicate that Attorneys-General and prosecutors exercise the greatest care before they charge people in this connection. There are many other arguments that one could advance, but in view of the lateness of the hour, I move—

I second.

Agreed to; debate adjourned until 2 March.