Mr. Speaker, I move—

The Bill before the House is the second successor to the Criminal Procedure and Evidence Act, which was introduced in Parliament during 1917. As hon. members will recall, the world was at that stage involved in the First World War, in which South Africa also took part. According to the reports in The Cape Times on the debate in question, hon. members of that time reluctantly dealt with this Bill since their attention was focused on the war effort. The main issue provoked by that Bill, was the jury system. It is interesting to note that the introducer of that Bill, Minister (subsequently Mr. Justice) M. J. de Wet found himself in the unenviable position of having to introduce a measure which did not have his personal support. The jury system obviously did not appeal to him. I am grateful that that struggle need to be repeated today, in view of the fact that this knot was cut back in 1969.

I am also grateful that the present Bill is not being introduced under equally depressing political circumstances. On the other hand, it is probably true that as far as crime is concerned, the conditions that prevailed then cannot be compared with those prevailing today. It is a general phenomenon all over the Western world that crime is continually increasing, especially serious offences. I am not referring here to the common burglar, robber and thief. They have been with us since time immemorial and will always be with us. Their crimes are bad enough as it is, but they pale into insignificance in comparison with today’s organized crime, which shocks one to the very marrow. Aircraft hijackings, kidnapping, drug peddling and the blackmailing of individuals, even of States, are the order of the day. Fortunately South Africa has up to now been spared to a large extent.

Unlike our criminal law, which has its origins in common law, our criminal procedure is based on English law and was introduced into our statute law many years ago. In the period before Union each province had its own legislation in this regard, but the respective ordinances had a great deal in common with one another. However, the Criminal Procedure and Evidence Act, 1917 (Act No. 31 of 1917), which was a consolidatory measure, also brought about uniformity. That Act was reviewed in 1955 and consolidated once again in the measure known today as the Criminal Procedure Act, 1955 (Act No. 56 of 1955). For nearly a century, therefore, our criminal procedure has remained basically unaltered. In itself this is a splendid testimonial to our system, but it is, what is more, known throughout the world for its fairness to an accused. To tell the truth, Mr. Speaker, our system goes out of its way, or as one of our text-book authors phrased it so strikingly, “leans over backwards” to protect and to pamper the accused.

The questions arises why it is necessary for our system to be changed. Mr. Speaker, it cannot be denied that points of friction have arisen in the course of years. These can be attributed to many factors. I want to mention just a few of them. Owing to the manpower shortage prevailing in our country, absolute efficiency has become essential. Cumbrous procedures serving no purpose cannot be afforded. New aids have been developed, aids which can enhance the efficiency in the courts. However, outdated ideas and methods have proved to be a handicap in this regard. Change is also necessary in that the pattern of crime has changed over the years. Organized crime by criminals who are thoroughly conversant with the laws of the country, has come to the fore. Rules originally designed for the protection of ignorant accused persons are being exploited to the limit. In saying this, Mr. Speaker, I am in good company. It seems as though a new attitude towards crime has developed throughout the Western world. In America President Nixon has taken up the cudgels against crime. In England a Criminal Law Revision Committee has been in existence for many years. In September, 1964, that Committee, constituted from the most prominent lawyers in England, received the following terms of reference: “to review the law of evidence in criminal cases and to consider whether any changes are desirable in the interests of the fair and efficient administration of justice; and in particular what provision should be made for modifying rules which have ceased to be appropriate in modern conditions”. This Committee’s report was published in June, 1972. Mr. Speaker, to those of us who are familiar with the conservatism of the English legal profession and their predilection for traditions, the recommendations of this Committee are surprising. Age-old rules which were considered to be indissolubly connected with their administration of justice, were summarily thrown overboard. I shall mention a few of them. The judges’ rule which requires the police to warn an accused during the course of the investigation of the case that he is not obliged to say anything to the charge against him and that what he says can be used in evidence against him, has to be abolished, and the same goes for the right of an accused person to remain silent. Furthermore, it must be possible for the court to call a witness to give evidence, and if he fails to do so the court has to be able to draw reasonable inferences from his failure to do so. Mr. Speaker, what is surprising is not only the radical changes recommended by the Committee, but also the outspokenness of the Committee in regard to views and rules which have already become traditional. To illustrate this I want to quote a few paragraphs from this report. Firstly, paragraph 24 on page 13—

Also paragraph 27 on page 15—

Another leading British lawyer also commented on this matter. In an article in the American Law Journal Lord Hartley Shaw-cross, a former attorney-general, Labour M.P., chief delegate to the U.N. and Chairman of the Bar Council for many years, took up the following standpoint as far back as 1965—

Hon. members may now say, “Yes, that is the position in England; what does that have to do with us?” However, it is very relevant, for England is, as has already been mentioned, the cradle of our criminal procedure and evidence. What applies there is as applicable here. However, to come nearer home: I am not a supporter of Mr. Justice Hiemstra’s proposed amendments to our Criminal Procedure Act, but any person who has read his articles in the Law Journal and does not realize that there are major hitches in our system, is closing his eyes to the truth. I do not wish to pursue the matter any further, Mr. Speaker, for I think that every right-minded person will have to grant that our Criminal Procedure Act badly needs to be renovated. Therefore, when the opportunity presented itself, I took the necessary steps for the appointment of the Commission of Inquiry into Criminal Procedure and Evidence. I want to thank Mr. Justice Botha of the Appeal Court for this sound piece of work which he did in record time. Within the short space of 18 months he presented us with a report and a Bill, truly an unsurpassable achievement if one considers that it took the English committee eight years to report on a few aspects of the law of evidence. I am also aware of the personal sacrifices which this task demanded of him and of the inconvenience he had to put up with. He lives in Bloemfontein, but, except for certain weekends, he had to stay in Pretoria while the commission was in session.

The report of the commission and the Bill were published as far back as December, 1971. I am pleased to be able to say that these did not give rise to any particular controversy. Those who commented on them in the Press, generally welcomed them. That was gratifying, Mr. Speaker, for the administration of justice is a subject on which one would not like to see any sharp differences of opinion. I also want to mention that the entire Judiciary was consulted. The Chief Justice, every judge president and magistrate’s office were provided with copies of the report. Once again, Mr. Speaker, I must say that the reaction was encouraging. No fundamental objection to the Bill was received. Comments were in fact made in regard to the details of the Bill. Sound proposals were also put forward and the necessary adjustments were effected in the Bill.

Nor was any objection received from any of the law faculties in the country. So far it is only Prof. Strauss of Unisa who has commented on it in the Press and has promised his support to the Bill.

The General Council of the Bar and the Association of Law Societies also commented on the Bill. Unlike the rest of the legal profession, they have misgivings about certain changes recommended by the commission. Their comments, however, were also for a large part concerned with the details of the Bill. Where possible, their proposals were accepted and adjustments were effected to the Bill. In reviewing the contents of the Bill, I shall go into some of their objections.

Representations were also received from other interested bodies and persons, such as the United Municipal Executive of South Africa. However, their problems were met by way of talks with my department.

Mr. Speaker, as I have already said, on a matter such as this one the greatest measure of unanimity should prevail amongst us. Politics have nothing to do with it. The only object I have in view, is to give South Africa the best criminal procedure in the world. That we are on the right track, is apparent from the words of Prof. Strauss of the University of South Africa. I quote from Die Burger of 13th December, 1971 (translation)—

Mr. Speaker, I want to emphasize that our criminal procedure is above politics; it is also above self-interest. To me as an attorney it may go against the grain that my already difficult task of defending an accused is being complicated further, that in future it will not be so easy for me to secure the acquittal of an accused. However, that is not the point at issue. Mr. Speaker, the point at issue is the truth. The purpose of a trial is to ascertain the truth, to secure the conviction of a guilty person and vice versa. If one’s system leans over too much to the one side or to the other, one’s administration of justice is prejudiced no end. While we are all aware of the tragic consequences which the conviction of an innocent person entails, I wonder whether we realize to what extent our administration of justice is prejudiced by unnecessary acquittals of guilty persons. The Courts Inquiry Commission, 1971, of Rhodesia puts the matter like this, and I quote from their report (page 88)—

Dr. Glanville Williams put it even more plainly when he said:

I appeal to hon. members to approach the Bill objectively, for if they do so I am convinced they will find that there is nothing in this Bill which will make it more difficult for an accused to put his defence to the court. I concede at once that there are in fact provisions which will make it more difficult for a guilty person to be acquitted. However, we cannot be opposed to that, surely? It would therefore have been pleasant if this could have been an unopposed measure. However, it has unfortunately happened now that a Press campaign has been started, a campaign which is quite disproportionate to the seriousness of the changes being effected.

Hon. members will appreciate that it is impossible for me to give a thorough survey of the Bill in the time at our disposal. This is pre-eminently the type of Bill that should be dealt with at the Committee Stage. Although the Bill contains drastic changes to the existing system, no principles which are completely foreign to our law are being introduced. These changes are by and large that recognized principles are being harnessed in a new way and that we are doing away with a number of provisions which are impracticable or have become obsolete because of modern circumstances. However, the present Criminal Procedure Act is for a large part being retained without change.

†I should like to mention a few of the more well-known provisions of the existing Act which have been omitted by the commission from the Bill. Firstly, the provision in section 258(1)(b) of the Criminal Procedure Act, 1955, that an accused in a lower court, except in petty cases, may be sentenced on a plea of guilty only if the commission of the offence has been proved by evidence aliunde. This provision is replaced in the Bill by a procedure with which I will deal later on. Suffice it to say at this stage that this change will bring us into line with the rest of the Western world which regards a plea of guilty in a court of law as the highest form of proof that an accused has committed the offence with which he is charged. Secondly, section 227(3) of the Criminal Procedure Act which allows an accused to make at his trial an unsworn statement which is not subject to cross-examination. Thirdly, the so-called two-witnesses rule in perjury and treason cases which is provided for in the proviso to section 256. Fourthly, the requirement in section 257 that an accused may be convicted on the single evidence of an accomplice only if the offence has, by competent evidence, other than the single and unconfirmed evidence of the accomplice, been proved to the satisfaction of the court to have been actually committed. The omission of this section from the Bill does, of course, not affect the continued existence of the “cautionary rule” which has been developed by the courts in recognition of the fact that section 257 does not provide adequate safeguard against false incrimination of an accused by an accomplice. As hon. members know, the cautionary rule requires that a court should warn itself of the peculiar danger of convicting on the evidence of an accomplice. A court, therefore, should seek some safeguard which will reduce the risk of the wrong person being convicted, for instance corroboration implicating the accused in the commission of the offence. The omission of this section will bring our law on this point into line with that of England.

I now come to the reforms in our law of procedure. First of all I propose to deal with those reforms touching the criminal trial itself because I regard them as the most important. According to the Bill, summary trials will henceforth be the rule in the Supreme Court and preparatory examinations will only be held where the Attorney-General considers that it is necessary for the more effective administration of justice. The only opposition to this recommendation of the commission came from the Bar and the Side-Bar. On the other hand at least one Judge-President and all the Attorneys-General have requested the total abolition of preparatory examinations. We have all heard the pros and cons of preparatory examinations many times before and I am not going to repeat them. All I want to say is that I have read the report of the commission on the matter and I am satisfied that the middle course adopted by the commission is in the circumstances the correct one. Although the Side-Bar has objected to the change there would, appear, even in their own ranks, to be a difference of opinion. According to the De Rebus Procuratoriis, the monthly journal of the Association of Law Societies, an ad hoc committee, appointed by the Association to make recommendations regarding the simplification and speeding up of criminal procedure, recommended during March, 1970, that preparatory examinations should either be abolished or changed considerably (March, 1970, p. 111).

In regard to summary trials in the Supreme Court the commission made a concession to the defence. Otherwise than at present the accused will not only have to be provided with an indictment before the trial but also with a summary of the facts alleged against him. Although this is welcomed by the General Council of the Bar, they are not satisfied; they want more. They want either the statements of the State witnesses or the right to call for further particulars in connection with the summary of facts. They want all this, notwithstanding the fact that the existing right to request further particulars to the charge is retained. This attitude to me is not reasonable. The Commission has rejected a proposal that the furnishing to an accused of copies of the statements of State witnesses be made compulsory and has given very good reasons for its decision. I am sure the defence would not be prepared to hand their statements to the State. Why then should this be expected from the State? As it is the Attorneys-General feel that an unnecessary burden is being placed upon their shoulders, particularly in view of the fact that superior as well as lower courts are at present functioning satisfactorily without the summary of facts envisaged by the Bill. I regret, therefore, that I am unable to accede to the Bar Council’s request.

*The main features of the procedure at a trial in terms of the Bill may be outlined as follows. Every accused person must, within 48 hours of his arrest or as soon as possible after that, be brought before a magistrate’s court which has jurisdiction. If it is possible to put the charge to him on the occasion of that appearance in court, it must be done without delay. If this is not possible, for instance where insufficient progress has been made with the investigation of the case, it must be put to him as soon as possible after the said appearance. If the accused pleads guilty, the court shall, except in the case of minor offences with which the court may be disposed of summarily, explain the essential elements of the offence to the accused and inquire from him whether he understands the charge and whether his plea of guilty is an admission of all such elements. If the court is satisfied in this way that the accused understands the charge and admits the elements of it, he shall, except in a case where the court does not have the jurisdiction to try the case, be found guilty without more ado.

After that the court may hear evidence with regard to imposing punishment and may sentence the accused or, if the offence is of such a nature or magnitude that it merits a punishment exceeding the jurisdiction of a magistrate’s court, the court may commit the accused for sentence to a regional or superior court, which shall in regard to sentencing follow the same procedure as the magistrate’s court. In the case where a magistrate’s court does not have the jurisdiction to try the case, such as in cases of offences in respect of which the death penalty is a competent sentence, a conviction is not recorded but the case is committed to a superior court through the intervention of the Attorney-General. In such cases as much evidence must be submitted to the superior court as that court may require for proving the guilt of the accused.

If the accused in the magistrate’s court pleads not guilty to any charge, he shall be asked by the magistrate whether he wishes to tender any explanation of his attitude in relation to the charge or to make any statement indicating the basis of his defence, and whether he wishes to say anything else in relation to the charge which he wants to bring to the notice of the magistrate or the trial court. If the accused does not react to this request, the magistrate may, if the offence is to be tried by him, and in order to define the issues in the case, inquire from the accused whether his plea of not guilty amounts to a denial of all the elements of the offence charged or whether he wants those elements which he does not deny to be recorded as admissions of those elements. If the case is to be tried by another court, the court shall determine the issues and commit the case to a regional court, or through the intervention of the Attorney-General, to a superior court. At the trial of the accused in a regional court or a superior court anything said by him before the magistrate shall be admissible in evidence on the mere production of the record of the proceedings.

Mr. Speaker, at this stage I want to interrupt my summary of the Bill once again in order to discuss certain objections raised to the procedures I have just set out. In the main there are three principles which, because of their importance, one immediately finds striking. The first one is that the accused shall, at the earliest opportunity possible, plead in the magistrate’s court to the charge against him.

The objects of this clause are of twofold nature. What is envisaged by the procedure, is, on the one hand, to afford an accused pleading guilty the opportunity of putting to the magistrate his side of the case against him at an early stage. This may possibly lead to his being released at an early date or it may considerably shorten the trial, if there has to be one (see paragraph 1.31-1.33 of the Report, p. 9). On the other hand this clause may also imply a great deal of benefit for the State. Experience has shown that once an accused has been detained in prison, he often comes forward with a fabricated defence. If he does not have a true defence, one is made up with the help of numerous advisers in prison.

The principle that an accused person cannot be expected to plead at his first appearance, is not a foreign one. In fact, at present there is nothing to prevent a prosecutor from putting the charge to an accused person at his first appearance. This is being done in our courts every day, especially in cases of a less serious nature. In Johannesburg, for instance, it used to be the practice to take all pickpockets, together with the witnesses, directly to court and to settle the matter there and then. Great success was achieved by these means. However, this is no longer common practice today. At present most serious cases are postponed almost without exception, and in that way the psychological moment when accused persons admit their crimes is lost. This moment occurs, so it is accepted universally, shortly after the arrest of the accused, before he has had a chance to think up a story. The recommendations made by the English commission in this regard are, of course, very interesting. They seek to go much further than does the Bill under discussion. What they envisage is that an accused should tender his explanations to the police investigating the case even before the trial takes place. The General Bar Council and the Cape Bar Council are objecting to this clause, unless the presiding officer notifies the accused that he—

1. (a) is entitled to a postponement in order that he may consider his position and take legal advice; and
2. (b) may apply to the Legal Aid Board for legal aid.

The object of this clause is not to deny the accused legal aid, advice or assistance. Clause 73 (2) confirms that right in no uncertain terms, and if the accused has not had an opportunity of contacting his legal representative, the court will have to afford him that opportunity. This is the case at present, and the Bill does not change that position. However, the Bar Councils are losing sight of the fact that only a minor percentage of all accused persons appearing in court are defended. A great deal of valuable court time would be lost if every accused person’s rights had to be explained to him in order to sift the small number of cases which want legal representation and do not have it already. I am also convinced that to accept this proposal would merely lead to a waste of time. Experience has shown that those who want legal representation either make arrangements in good time or ask for an extension of time in order to do so.

Another objection is that an ignorant accused may plead guilty before being able to obtain legal representation and that this may complicate the course of the case. This sounds like a hypothetical objection. Clause 112(1)(b) provides explicitly that where a plea of guilty is entered, the court shall investigate the matter carefully and that certain requirements shall be met. Clause 113 provides that if the court is in doubt whether the accused is in law guilty of the offence to which he has pleaded guilty, a plea of not guilty shall be recorded.

The next important change which is being envisaged is that the court may, except in the case where the death penalty may be imposed, convict the accused without evidence, provided that the court explains all the elements of the offence to the accused and that he admits each of them. This change is fully motivated in the commission’s report. I cannot think of another provision in the Criminal Procedure Act that has done more to discredit our administration of justice in the public mind than has the present one, which requires aliunde evidence proving the commission of the offence to be submitted to the court. This has led to the discharge of numerous accused persons who pleaded guilty, and to a stream of letters of protest to me and my department. Consequently I am delighted to see that the commission has adopted a new course. The Natal Bar Council and the Association of Law Societies send word that they did not support this provision. However, the General Bar Council made no comment on the matter, and the Cape Bar Council is of the opinion that the provision is logical and that no objection can be brought against it.

The third change I want to discuss probably is also the most important change envisaged by the Bill. When an accused person pleads not guilty at present, he places, without any further formalities, the whole case in issue. Practice has shown, however, that an accused person seldom denies everything alleged against him in a case. This results in the calling of many unnecessary witnesses, with the attendant inconvenience, costs, and so forth. In future the accused will be afforded an opportunity of putting his side of the case against him, if he so wishes. This is nothing new. Section 169(5) of the Criminal Procedure Act contains a similar provision which, however, has completely fallen into oblivion. That is probably why the commission added a further provision which provides that if he does not avail himself of the opportunity, or if it is not clear from his statement what points are in issue, the magistrate may ask him whether his plea of not guilty amounts to a denial of all the elements of the offence charged and whether he wants the elements mission of such elements (clause 119).

Sir, the new procedure, in a nutshell, is therefore that an accused should plead as early as possible and that the court should determine what the accused’s reply is to every accusation. Numerous advantages ought to flow from this system. It should inter alia benefit the accused as well, for if he reveals his defence at an early stage and perseveres with it, it can hardly be said to have been invented. For the State this implies many advantages. It ought to save costs and precious court time, but, Sir, above all it ought to promote justice. I do not have the time to go fully into this matter, but that is probably not necessary either, for the consequences which this change will involve ought to be obvious to all of us.

I would rather use my time in examining briefly a number of questions and objections received in this regard. The following questions in regard to the relevant clause were raised by a certain judge—

1. (a) If the accused were to omit to give an explanation or to make a statement or to state what points are in issue, would the court be able to draw at his trial an unfavourable inference from it?
2. (b) Would the court in such a case be entitled to cross-examine the accused in regard to his omission?

The judge requested that the intention of the legislature be stated clearly. I think that the Bill is quite clear. Clause 119 provides explicitly that the court may put these questions to the accused and that the court shall do so in certain cases. It would be a bad day for us if any person were able to ignore the legitimate questions of a court or to deceive the court without the court taking cognisance of it. As far as I know, a prosecutor may also cross-examine an accused on any relevant point. I am not aware of anything in this Bill which changes that position.

One of the Bar Councils has also stated that the questions of the court will have persuasive power, which will make it difficult for an accused to exercise his right to remain silent. As far as I know, the accused has never had such a right at the plea stage. Section 163 of the Criminal Procedure Act provides inter alia that the accused shall, upon the day appointed for his trial, be informed of the offence with which he is charged, and shall be required to plead instantly thereto. Furthermore it is also being said that an accused person may perhaps make incorrect admissions because of ignorance. Of course, that possibility cannot be disputed, for at present, too, it happens that accused persons plead incorrectly. However, the courts permit a plea to be altered for sound reasons. This phenomenon, however, ought to be restricted to a minimum in future, for in terms of the Bill the courts will be obliged to investigate the matter properly. Some of the Bar Councils also have scruples about the accused having to reveal his defence at this early stage. In the past the courts pointed out time and again that an accused should reveal his defence during the cross-examination of the state witnesses. However, this rule is conspicuous by its being broken so often. All that happens now is that provision is made for it in that stage of the proceedings where it logically belongs. The English commission goes much further, of course, and is of the opinion that an accused should reveal his defence to the person investigating the case as early as prior to the trial. As far as the fairness of this is concerned, the following is said—

The provision that the accused may make admissions, is not a foreign one. It exists at present and, what is more, it is being used.

Mr. Speaker, that brings me to the report that appeared in the Sunday Tribune on 25th March, 1973. Although the hon. member for Durban North features prominently in the report, I do not want to impute to him all the statements made in it. In the main the report alleges two things. I quote—

The full charge is therefore that our accusatorial trial system is being replaced by an inquisitorial pre-trial system. I want to state categorically that this is untrue. Our accusatorial trial system remains in force. I also want to deny that any kind of inquisitorial pre-trial system is being introduced.

The trial of an accused commences the moment the charge is put to the accused. Hon. members opposite need not take my word for that. This was decided by the Appeal Court as long ago as in the case of R. V. Reeves, 1926 A.D. 410 on p. 418. I quote—

Now I want to put it to the hon. member for Durban North that there is no provision in this Bill which introduces interrogation of the accused before the charge has been put to him. What is more, I want to put it to him that no change whatever is being effected in regard to the interrogation of an accused before the charge has been put to him. The present position is being retained in toto. As regards the statement that the accusatorial system is being abolished, I must say that the hon. member did not repeat it in his Press statement, and I accept that after studying the Bill he changed his views for the better. I also want to make my position clear in regard to an inquisitorial pre-trial system. As hon. members know, Mr. Justice Hiemstra did, after the publication of his articles in the Law Journal, submit a Bill to my predecessor, the hon. the Prime Minister, with the request that such a system be introduced for South Africa. After comment had been obtained from all interested parties, I decided against that and informed him so. However, that was not the end of the matter. Not long after that I received requests from inter alia the Law Revision Committee, the Judge President of the Transvaal Provincial Division of the Supreme Court, the General Council of the Bar and the Association of Law Societies, requests for having Mr. Justice Hiemstra’s proposals considered by a commission of inquiry. As there are also other aspects of the Criminal Procedure Act which are being called into question from time to time, I decided in favour of the commission, which was eventually appointed. It has now become history that the commission rejected Mr. Justice Hiemstra’s proposals.

Mr. Speaker, next I want to deal briefly with the question whether any of the procedures I have just outlined are of an inquisitorial nature. Firstly, when a plea of guilty is entered, it is incumbent upon the court to ascertain whether the accused admits every element of the offence. In the case of a plea of guilty being entered, there cannot be any trial in the true sense of the word, as nothing has been placed in issue. The accused admits every element of the offence. In order to make sure that this is in fact the case, the court now merely puts each of them to the accused one by one, to which he has to reply. I fail to see in this procedure any similarity with an inquisition, for an inquisition and a plea of guilty cannot be reconciled with each other. All that the court is doing, is to ascertain whether the accused understands the charge and whether he still pleads guilty in spite of that. Incidentally, in that report in the Sunday Tribune the hon. member for Durban North posed the following question—

Clause 112(3) does of course make detailed provision for this matter.

The second procedure that has to be reviewed, is the proceedings that follow on a plea of not guilty. Before I discuss that, we should obtain clarity on what we have in mind in referring to an inquisitorial system. All the inquisitorial systems which I know, include an interrogation of the accused, shortly after his arrest, on all the facts of the case, even before a charge has been put to him. What is the position concerning the system being envisaged for us? Clause 119 provides inter alia that the court shall, after a plea of not guilty has been entered, inquire from the accused whether the plea of not guilty is intended to place in issue all the elements of the offence and all the acts or omissions on which the charge is based in so far as such acts or omissions are apparent from the charge, and I want to repeat, in so far as these are apparent from the charge. My reason for emphasizing this is that the clause indicates without any doubt that there cannot be any interrogation on the facts of the case. In the first place, at that stage the court is not in possession of the facts, and, in the second place, this is prohibited by the clause. What does therefore happen here in effect? Instead of the accused denying all the elements simultaneously by pleading not guilty, he is asked to deny each of them separately. This is no drastic change, nor does it show any similarity with an inquisitorial system. Its effect will be that the accused will have to reveal his defence. However, he will do so in public and in the presence of the court. In terms of the proposal put forward by the English commission, he will already have to do so to the police.

Mr. Speaker, I also want to indicate who is against the envisaged provision and who is in favour of it. Although the entire Judiciary was asked for comment, not one single judge, magistrate or attorney-general raised objections to this provision; on the contrary, several judges commented on it in the Press, indicating that they supported the Bill. The following comment was received from a judge president (translation)—

May I put a question to the hon. the Minister? Would he be kind enough to tell us from what division this particular judge is?

No, I am sorry; I do not have the information now. However, I shall find out and let the hon. member know. In any case, he is a judge president. This judge president went on to say—

Nor did I receive any objection from any university. It was only Prof. Strauss who commented on it in public, and this is what he said. I quote from a report in Die Burger of 13th December, 1971 (translation)—

Now I come to the various Bar Councils that commented on the matter and here I find myself in a strange position. Natal and the Cape sent word that they were opposed to the provision. The General Bar Council made the following comment—

Mr. Speaker, as you will note, this comment does not contain one single word condemning the provision. The council merely asks for an insertion to be effected in the clause. What is more, it is my intention to accede to this request, and a suitable amendment will be submitted to the House at the Committee Stage. I would therefore have been justified in claiming the support of the committee of the General Bar Council, but unfortunately they sent word that they, too, agreed with the Cape and Natal. All I can say to this is, “How is one to save a Bill in the face of such a division of opinion!”

The Association of Law Societies also lodged objections against the provision under discussion. Unlike the General Bar Council, the Association preferred to come and see me about the matter. I am grateful to them for having done so. In the course of these talks an amendment to clause 119 was decided on. This amendment appears on today’s Order Paper and will be moved at the Committee Stage.

I also want to mention that in order to get the best for the country I invited the Justice groups on both sides of the House to come and discuss with me or my department any objections to the Bill or problems in that connection. Hon. members opposite chose not to avail themselves of this invitation. However, my invitation did lead to fruitful discussions with hon. members on this side of the House, and a number of amendments on the Order Paper are attributable to these talks. I want to thank them for coming to see me.

Other aspects of the criminal procedure that have been changed, are the provisions in regard to searching and the seizure and disposal of property. The powers of the police concerning searching and seizure remain virtually the same. However, powers of disposal are now being conferred upon the Police, mainly in cases where ownership is not disputed or where, in the absence of criminal proceedings, the property has to revert to the person from whom it was taken. At present all warrants in regard to property that has been seized, must be issued by a magistrate or by the court.

†The provisions in regard to bail in the Criminal Procedure Act, 1955, have been reviewed and obscurities and anomalies have been clarified and repetitions removed. Two concessions have been made to accused persons. Firstly, provision is made for the release of an accused on warning in lieu of bail and, secondly, the restriction has been removed that an accused against whom a preparatory examination has been instituted shall be entitled to be released on bail only after his committal for trial or sentence. On the other hand the provisions relating to sureties have not been reintroduced and an accused can only be released on bail if he deposits the bail money with the court.

The admission of guilt procedure has also been changed considerably. The most important change is that a written notice to appear in court will in future be placed on a parked vehicle instead of a notice which enables the accused to compound the crime. The amount stipulated in the written notice may still be paid by way of the admission of guilt procedure. If the amount is not paid before a date specified in the written notice, the matter will be followed up by sending a similar notice by registered post to the registered owner of the vehicle instead of serving a summons on him. The compounding of crimes in terms of section 387 of the Criminal Procedure Act, 1955, has therefore been abolished.

The legislation arising from the recommendations of the Commission of Inquiry into the Responsibility of Mentally Deranged Persons and Related Matters, in so far as the recommendations relate to criminal procedure, has been included in the Bill. The Bill therefore provides that if an accused by reason of a mental illness or mental defect does not have the capacity to appreciate the wrongfulness of his act, or of acting in accordance with that appreciation, he is not criminally responsible. In such a case he will be found “not guilty by reason of mental illness” and declared a State President’s decision patient. Similarly, an accused who is not capable of understanding the proceedings so as to make a proper defence, will be declared a State President’s decision patient. To assist the court with its inquiry, the accused will be examined by a panel of psychiatrists.

In regard to the oath which is administered to a witness in court, the requirement that he must take the oath in the form which most clearly conveys to him the meaning of the oath, and which he considers to be binding on his conscience, has been abolished. The Bill only makes provision for the oath in its accepted Christian form. Anyone who objects to taking the oath in the prescribed form or who does not regard the oath in the prescribed form to be binding on his conscience, shall be obliged to make a solemn affirmation.

The Bill also provides for two new procedures. Firstly, there is a provision whereby a petition for mercy by a condemned person, based upon evidence relating to such a person’s conviction, or the death sentence imposed upon him, and which was discovered after all the recognized legal procedures have been exhausted, or are no longer available, may be referred by the State President to a court to hear such further evidence and all other related evidence. The court to which the petition has been referred, must hear the matter and submit its report thereon to the State President. Another provision provides that whenever the Minister of Justice is in doubt as to the correctness of the conviction of a person who has been sentenced to death, and the convicted person does not appeal against his conviction, he may refer the matter to the Appeal Court after the prescribed period for noting an appeal has expired.

As far as the law of evidence in criminal cases is concerned, the Commission has not introduced any drastic changes. The Commission was of the opinion that the law of evidence in criminal as well as civil cases, with a view to the general revision of our law of evidence, should be considered jointly and that another Commission should be appointed for this purpose. It may be mentioned that the revision of our law of evidence might well be one of the first assignments of the Law Commission to be established under the legislation which was recently before this House. In order to facilitate the proof of certain matters in the interim, the Bill contains several new provisions. One of these has been adopted from the Civil Proceedings Evidence Act, 1965 (Act 25 of 1965) and others are derived from English legislation. The provisions are not of a contentious nature and require no further discussion.

An important change in regard to confessions has, however, been introduced. A confession of the commission of an offence is admissible as evidence against the person who made it, provided such confession is proved to have been made freely and voluntarily by such person in his sound and sober senses without having been unduly influenced thereto. No confession made to a peace officer, other than a magistrate or justice, is, however, admissible in evidence unless it was confirmed and reduced to writing in the presence of a magistrate or justice. The Bill now provides that where a confession is made to a magistrate and reduced to writing by him, it shall at the trial of the person who made the confession, be presumed, unless the contrary is proved, to have been freely and voluntarily made by such person in his sound and sober senses without having been unduly influenced thereto. The Bar and the Side-Bar oppose the provision and label it as yet another example of the increasing tendency on the part of the State to create presumptions against accused persons. Sight is, however, lost of the fact that we are dealing here with a provision which is unique. A judicial officer is made available with the specific purpose of ensuring that the confession made by the accused is made freely and voluntarily. Yet, after all the trouble that has been taken, the confession must still be proved in the ordinary way. Now we all know that where an accused makes a confession to a magistrate during the course of a trial, nobody would think of questioning it at a later stage unless an irregularity has been committed. The accused, however, would have to prove the irregularity on appeal or review if it does not appear from the record. Why then, should there be this difference? I therefore subscribe to the views of the Commission which give meaning to the making of a confession before a magistrate. The accused is not deprived of the right to dispute the confession, but he will have to take the initiative if it is alleged that he did not make the confession freely and voluntarily.

Section 215bis of the Criminal Procedure Act, 1955, which deals with the detention of witnesses, has been retained in the Act in a revised form. I do not want to go into this matter any further as the hon. member for Durban North intimated last year already that his party accepts this provision.

The rest of the Bill consists mainly of existing provisions which have been revised and adapted to fit into the suggested system and meet with modern requirements.

The overwhelming impression which this Bill creates is that it is aimed at the expeditious disposal of criminal cases and that in the process the scale which at present weighs heavily in favour of the accused will be somewhat better balanced.

Mr. Speaker, I would like to ask for the privilege of the one hour.

I would have thought that in introducing so fundamental a change in so fundamental a statute as is being done in this Bill, the hon. the Minister of Justice would have given to us some weighty reasons as to why it was now necessary to introduce then changes in a great hurry, like he did. One would have thought that there would have been some most important reason. All that we have had from the hon. the Minister is the thought that the scales of justice are perhaps weighted too heavily on the side of the accused. All we have had from him is a number of examples of what English judges and of what English commissions said in regard to the system of justice to which ours is so similar. As the late Mr. Justice Toon van den Heever once remarked in a judgment, only British bias could suggest the thought that because in Britain they have such things, we should have them also. I am sure that the hon. the Minister is not motivated by a British bias that what they have there we should also have in South Africa. What do the statistics show? Does the hon. the Minister suggest that in fact many people who in terms of the law are guilty have been found not guilty? If so, how many; if so, in what circumstances? How can he in these circumstances introduce a measure such as this with no motivation for it other than the vague suggestion that, perhaps, the scales are weighted on the side of the accused and that they do this in other parts of the world?

The hon. the Minister said I was quite wrong to suggest that this introduced elements of an inquisitorial system, because, he said, this was not done before the plea has been heard. However, that is not the point. It is done at the time of the plea; it is done immediately after the plea. The fact is that it is done, whereas it is not done under the existing law. Let me say that the hon. the Minister need not be guided by what my views on the matter are. However, I think he should take some notice of a body such as the General Council of the Bar of South Africa. I think he should also note that Mr. Justice Botha in his report upon which this Bill is based, referred to the General Council of the Bar as part of such weighty authority on the law.

Tell the House how it works.

Yes, I am going to. The General Council of the Bar—I shall deal with their statement later—says on page 2, paragraph 8, of their memorandum that—

The hon. gentleman also spoke about modernizing the criminal procedure. Let me say that there is nothing so modern, so desired or so “with it” as the confidence in the security which each individual has today under the law, where his rights are determined by evidence, facts, and not by his answers to legal questions.

I want to deal with one other point in the hon. the Minister’s speech before I deal with other aspects of this Bill. He talked about inviting me and my colleagues on this side to go and see the officials in his department who drafted the Bill. I want to say that the situation is not as described by the hon. the Minister on Wednesday during question time in this House. Arising out of a question by the hon. member for Musgrave, there was a question related to whether or not the representations made in respect of a draft Bill similar to this one, which was published in December, 1971, would be made available to Parliament. The hon. the Minister replied that there was so much material involved that it would be impossible to do that. I then asked whether we could go and have a look at it, to which the hon. the Minister replied: “Yes, I have invited you to do so before.” Just for the record I want to …

I did not say that.

Well, I got the impression that I was invited to do so.

Yes, he said so.

You will find it in Hansard. The hon. the Minister will recall that I asked for a White Paper on this Bill. He said that the official concerned was available and that I had his permission to see him about the Bill. It concerned the Bill only. I want to say that, as a result of that conversation, we were able to get from the hon. the Minister’s official a cross-reference indicating how the clauses of the Bill are related to the existing sections of the Act and vice versa. That is the situation. We are quite capable, as we always have been, of reading the Bill for ourselves. The hon. the Minister gives me the impression that he is somewhat hurt that we did not go and talk to the officials about the Bill.

As I have indicated already, and as is quite clear, this Bill makes the most radical changes to our system of justice. It is proposed summarily to abolish the tested, proved and accepted basis on which the rights of the citizens and their relationship with the State, with the arm of the law, have been regulated throughout the lifetime certainly of most of us. The document that we have before us today is not a Bill which only deals with criminals, or only with terrorists or saboteurs, but a Bill which deals with the ordinary law which has been tempered by the fires of our experience, of our compassion, of our history and by our innate sense of justice and order. What is in the existing Act is part of us; it has grown out of a respect for the judicial process as we have known it over centuries. It is kindled by the knowledge of the public that there can be no doubt that citizens dealt with by the courts are dealt with in accordance with standards that ensure for them, each individual, the security that they can feel safe and that the system will be there to protect them.

Not only do we have objections to the contents of this Bill, but I want to say that we also object to the manner in which such an important measure has been thrown before the public and the attitude of this Government to Parliament itself in regard to this Bill. What in fact has happened here? Where did all this begin? It began when Mr. Justice Hiemstra proposed, to me, some radical, presposterous changes of the existing criminal procedure. There was a storm in the legal world about this and there were all sorts of answers and all sorts of stirrings. The hon. the Minister, instead of rejecting the idea apparently the hon. the Minister did not know whether he accepted this or whether he did not accept it—did not indicate that he as Minister of Justice and the Government did not accept the Hiemstra proposals …

But I said so myself.

But that is not the point. My point is that the Minister did not reject them at that time. Surely it was within the wits of this Government to know whether it approved or disapproved the Hiemstra proposals. The Minister appointed another judge to investigate what it is that the other judge has been propounding. It is an extraordinary state of affairs if you consider it.

Why?

If we were the Government and Mr. Justice Hiemstra produced his proposals, we would have been able to tell the House right now that they were unacceptable to us as a United Party Government.

If the Chief Justice approached you with the request? [Interjections.]

It makes no difference. The fact is that a commission consisting of one judge was then appointed. Not of a number of judges, but of only one judge.

Are you against that?

I wonder if the hon. the Minister chose the judge or whether someone suggested to him who it should be.

An Appeal Court Judge.

A judge was therefore appointed to investigate what Mr. Justice Hiemstra had said. He examines those proposals and he also examines other things. He rejects Mr. Justice Hiemstra’s proposal.

Notwithstanding the fact that he rejected it, it is inquisitorial.

One of the bases on which he rejected it, was that it seeked to marry the inquisitorial system with the accusatorial system, as indeed this Bill proposes to do in some respects. But, Sir, as a result of that report, a draft Bill was published in the Government Gazette on the 10 th December, 1971, incorporating the recommendations of the Botha Commission, and this was published for general information. In fact, what the Gazette said, was that any person desiring to offer any comment on the Bill or submit representations, was invited to do so to the Secretary for Justice. I might say that this was done by a number of people, some of whom had given evidence before the Botha Commission. Other people who had given evidence before the commission obviously felt it was not necessary to give any further comment on the Bill. But, Sir, all that this was, was a draft incorporating the suggestions and recommendations which Botha, J.A., made to this Government. I may say, at the time I was asked to comment on this Bill. I said that there was no point in commenting. This was just a draft flowing from the findings of the Botha Commission. It was not suggested legislation by the Government, it was merely a draft, merely a recommendation to the Government …

You are talking nonsense now.

… and when the Government decided what Bill it wanted to produce, it would produce it in the fullness of time, if it wanted to, and then we would know what the Government’s proposals were. That came suddenly to the public. The Government’s intention as to which of those recommendations it would accept, was made known to the public when this Bill was published a couple of weeks ago in this House. That was the first time the public had any knowledge of what the Government’s intention was in this regard. I think it is, to say the very least of it and using the most temperate language I can, both inconsiderate and objectionable in that the Government, in attempting to change a statute of so fundamental a nature as this, gives something like three weeks’ notice from the time that the Government’s intentions are known to the time that we in this House debate whether or not Parliament will accept the principles contained in the Bill. At any rate, there is no hurry. One wonders why the hon. the Minister is in this hurry. The system we have is working perfectly well. But since then we have made our position clear, as the hon. the Minister has indicated. We have fundamental objections to this Bill, and it should be referred to a Select Committee before the Second Reading—that is to say, before any principle in this Bill is agreed to by Parliament. In other words, we want this Bill sent to a select committee—I shall deal with this in more detail in a moment—before Parliament decides to accept one principle of the Bill.

What happened thereafter? The General Council of the Bar of South Africa produced a document, copies of which were sent to the hon. the Minister, hon. members on the Government side, hon. members on this side and to the Press. I want to say that the General Council of the Bar is the united body of all the Bar Councils— that is, the advocates councils throughout the country. It represents them all, and it never utters its opinion unless it speaks unanimously for every constituent Bar Council on that General Council of the Bar.

How can you say that? How can you say that they have consulted every individual Bar?

It is a fact, and that hon. gentleman ought to know it; he is a member of the Pretoria Bar.

That is why I am asking you.

He ought to know as well, as the hon. the Minister has indicated, that memoranda on this Bill were submitted by a number of individual Bar Councils. There was one from the Natal Bar Council. There was one, I believe, from the Cape Bar Council. I believe there was one from the Johannesburg Bar Council too.

But they were all different.

That is correct; they are all different. Now you make my point. When the General Council of the Bar speaks, then it speaks for everybody.

It speaks for everyone; that may well be so, but …

It is the unanimous view of the General Council of all the Bars. That hon. gentleman must make himself more au fait with his own profession. This document I have referred to, condemns the main principles contained in this Bill.

Thereafter there was a statement which has not appeared in the newspapers, a statement issue by the Incorporated Law Society of Natal. That statement was apparently handed to Sapa. In that statement they indicate publicly that they reject those main portions of this Bill which form its principle. What they do also is to point out what the Association of Law Societies had to say in this regard. The Association of Law Societies, representing the attorneys, again, like the General Council of the Bar, does not speak unless it speaks with one voice on behalf of all the constituent associations. That association made its representations in regard to this Bill, in regard to the main principles which are still in the Bill, and they still have those fundamental objections to it.

This is surely an accentuation of the request which we make, and that is that this Bill should go to a Select Committee so that not just the Opposition, but Parliament can examine the views of such important authoritative legal bodies as the General Council of the Bar and the Association of Law Societies of South Africa. The manner in which Parliament can apprise itself of this is through the system of our select committees. A Select Committee will be able to hear the views not only of these bodies but also of our judges, because we have here the opinion and the view of one judge. A Select Committee could hear the views of the Bar, of the Police and of all the persons who are associated with the administration of justice. It could, for instance, hear the views of the attorney-general. It is clear from the report of Mr. Justice Botha that even amongst them there is some difference of opinion in respect of some matters. What we have here is a Bill reflecting the view of one judge only, and the hon. the Minister feels bound by it.

How can you say that?

Why do I say that? I shall tell you why I say that in a moment. And, Sir, he proposes to bind Parliament to this.

[Inaudible.]

If the hon. gentleman from Pretoria would listen, I am now about to answer his question as to why I say that he proposes to bind Parliament with this view.

No, that was not my question.

Was it why he feels bound by it himself? Listen to this, Sir; I shall tell you what happened. There appeared in the Natal Mercury of the 9th April, last, an interview with the hon. the Minister. I understand that this interview also appeared in the Rand Daily Mail. He was asked whether or not he would agree to the suggestion made by us that this Bill should be referred to a select committee before any principle is decided. What did he say? Let me quote the relevant passage:

Mr. Speaker, what an insult to Parliament; what an astonishing state of affairs that we, the sovereign body of this country, Parliament, the Legislature of the country, the body whose function it is to make the laws of the country, should be forbidden by the hon. the Minister to do so because, according to him, it would not be right for Parliament to examine what an appeal judge had said! What a change, especially as he says it is an Appeal Court judge, from the days when hon. members on that side were complaining about “the six old men in Bloemfontein”.

Did the Minister say that?

But you were against a Select Committee last year.

I take it the hon. the Minister does not deny that he said this. Sir, it is an absolute impertinence.

Contempt of Parliament.

Sir, this is the view of one judge. Are all the other judges, with great experience, both in practice and on the Bench, who disagree with the views of this judge, as expressed in the Bill, not to be heard? Is Parliament not to have the benefit of their views as well? I say to you, Sir, that there are such judges and I say that they should be heard by this Parliament; that Parliament should not be given the view of just one judge. It should invite everybody to give his opinion to Parliament. Does the hon. the Minister suggest that Parliament is incapable of doing this through a Select Committee?

I told you that they were invited to comment.

Not by Parliament. I am talking about Parliament being made aware of what is happening and Parliament inviting evidence and Parliament being able to publish that evidence and Parliament being able then, through the published Select Committee report, to apprise every member of Parliament, whose duty it is to make the laws of the country. Sir, it is not the duty of Mr. Justice Botha or any other judge to make the laws of the country, nor is it the function of the hon. the Minister of Justice.

One day you want a Select Committee and the next day you want a judicial committee.

Sir, to cap it all, what do we have here today? We have an Order Paper in which there are 13 amendments to this Bill. We did not get this a week ago or two weeks ago and, after all, this Government has been considering this measure for a long time. It published the Bill for general information more than a year ago. But today, when we debate the Second Reading, we find that there are 13 amendments on the Order Paper, and I may say that one of them is of a fundamental nature. One of them removes the objection which was made by the General Council of the Bar as to the provision that if you do not immediately say that you wish to raise an alibi, you may be prevented from giving evidence of an alibi to the court later. That provision is going to be scrapped, and we are entitled to deal with the Bill on the basis of these amendments. Sir, how can the hon. the Minister pretend that he is in a position to deal with this Bill or that Parliament is in a position to deal with this Bill when at this stage we start getting fundamental amendments of this nature as the result of representations which have been made? Sir, I think the time has come to stop and think about this Bill. I think the hon. the Minister should seriously consider discharging this Bill from the Order Paper. The Order for the Second Reading should be discharged and the Bill referred to a Select Committee. Sir, what is the fundamental change that we have in this Bill? What is the situation that we now have? We have the position that if there is a suggestion that anyone has committed an offence, the matter is invested by the Police; if there is sufficient information the man is accused; he is arrested, if necessary, and charged. That is to say, he is told precisely what he is accused of and what the position is. He is then asked to plead whether he is guilty or not guilty. If he says he is guilty and if, in the opinion of the magistrate, he would only be subject to a fine of R50 or less, then the magistrate can sentence him to a fine of less than R50. But if he thinks that he will be fined more than R50, or some other punishment, imprisonment or a whipping, the rule, the evidence aliunde rule, is that you cannot convict him and sentence him unless you lead evidence, because the court should be in a position, when it sentences someone to imprisonment without the option of a fine, or to some serious sentence, to know what the facts are. And that has been our law for as long as most of us can remember, and quite rightly and quite properly so. And if you plead not guilty you join issue with the State and say: You must now prove your case against me; and there is no obligation on the person accused to take part in the procedure unless he wants to take part in it. The State must then put its case. It is proposed now to change this time-honoured system for a brand new one, the brain child of one judge of appeal. In terms of clause 112 of this Bill, if a person pleads guilty it is no longer necessary, if the magistrate thinks he can sentence him to some sentence of more than R50—in other words to imprisonment—for him anymore to hear evidence aliunde. In fact, if he thinks that his own jurisdiction is not enough for the sort of sentence he thinks the person deserves, he can remit the case to a regional court where he could get up to three years’ imprisonment; and in terms of this Bill the regional court may sentence this man without hearing any evidence, if it pleases. It is quite true that the regional court magistrate, as the hon. the Minister has mentioned in his speech, may call for evidence, but the fact of the matter is that he need not. The fact of the matter is that I do not think it is possible for anyone to sentence a person in respect of an offence of that nature without hearing evidence.

But that is the position today in our Supreme Court.

The position in the Supreme Court at the moment is that they have a preparatory examination record which the judge looks at and the judge always says—has the hon. member forgotten? When was he in court last?—when there is a plea of guilty of culpable homicide to a charge of murder and that is tendered and the prosecutor accepts it, that he is satisfied from the evidence in the preparatory examination that the man is guilty of culpable homicide and he finds accordingly.

You are wrong. The judge need not satisfy himself from the preparatory examination record.

I will tell the hon. member what this Bill says about people charged with murder but I hope that before that hon. member speaks he will ask his colleagues what in fact does happen in the Supreme Court. Then he will be in a better position to talk about the Bill. Sir, sentence, whether somebody is guilty or not, is itself a difficult task but it is by no means difficult compared with the task of sentencing a person. Sir, how do you sentence a person without hearing the evidence? I want to make a prediction, that because the court can call for evidence, the court will call for evidence. It will ask the prosecutor to present evidence. What will then happen? You will have the situation where there will be a further delay and a further adjournment. What will you have achieved? You will not have saved any time; you will not have modernized anything. You will have the situation where the regional magistrate is going to say: “I want to hear evidence; I am not prepared to sentence the accused on a series of questions and answers which came to me from the magistrate who has examined him in the court below.” The regional magistrate is going to say: “I am not prepared even to think of sentencing the accused in respect of my jurisdiction which is three years imprisonment, without the option of a fine, if I choose, without hearing evidence.” That is what is going to happen and I want to tell the hon. the Minister that as I know the regional magistrates of this country, that is what they will insist on.

I want to tell the hon. the Minister something else too. As I know the courts of this country, if they do not do it, they will be told by the Supreme Court that they ought to do it. Can you imagine how many cases like this are going to go on review? Of course, they all have to, where the fine is more than a certain amount or where imprisonment without the option of a fine is imposed. They all go on automatic review to the Supreme Court anyway.

What is going to happen? What form of question is going to be put? How is each magistrate going to explain the elements of each offence in all the circumstances which arise? If there are a thousand magistrates, there are going to be a thousand different explanations.

It depends on the elements of the offence.

Is he going to put to the accused all the defences which are available to him? He does not have to in terms of the Bill. The defences available to an accused are part of the elements of the offence. Let me give an example. If a man is charged with theft, what is he going to be asked? Is he going to be asked whether he did take it, whether he had the right to take it, whether the plaintiff was the owner or whether the accused himself was the owner? Is he going to be asked whether he has a claim of right? Is he going to be asked whether he thought that the owner would given him permission? Are all these things going to be put to the accused or are they not? Neither I nor anyone else can answer this, because it all depends entirely on the magistrate, on the circumstances and on the place. This is going to lead to more delays and more misunderstanding of the law than anything the present system could possibly ever lead to.

It is so simple. What do you do now? You now charge a man and he says that he pleads guilty. The magistrate then says that he thinks the accused will get a bigger sentence. The accused’s record is produced and the prosecutor then calls a witness. The witness comes along and says: “Yes, that is my coat and nobody is entitled to have my coat. I identify my coat.” The accused then asks whatever questions he wants. Then a policeman is probably called and he states that he found the accused in possession of the particular coat. The accused then gives his explanation and the case is over. That case goes on review and justice is done and it is seen to be done and, more important than anything else, the person who is in that dock is satisfied as to what it is that he has done and as to why it is that he is being punished.

The persons who are going to be affected by this are going to be the great majority of the people in this country, namely the Bantu people. They are going to be unrepresented, almost exclusively, as is the position at the moment. This is going to lead to further difficulty, because on a plea of “guilty” he has to answer not just questions of fact; he has to answer questions of law.

And it has to be interpreted as well.

An interpretation will not help either. This is fine if he has a lawyer, but what happens if he does not have one? Can you imagine the misunderstandings that are going to occur? Can you imagine how many cases of this sort also go through an interpreter? Can you imagine the interpreter interpreting into Zulu—my hon. friend from South Coast will perhaps entertain us with some descriptions of this at a later stage, but I have seen it happen—and explaining mens rea and all the various elements? You have to be quite sure in a magistrate’s court that this is properly understood by the accused; never mind about the interpreter.

Mike, that has been a problem for 50 years.

Can you imagine the time involved in all this, when it could all be sorted out by leading evidence, when there is no doubt whatsoever as to what the facts are and as to whether the offence has been committed or not? If you plead not guilty, you have the procedure which is prescribed in clause 119. The hon. the Minister says that this is not inquisitorial, but what happens? I quote clause 119(1)—

He must be asked by the magistrate—

He has already said that he is not guilty, but that is not enough, according to the Minister; he must now be asked whether he wants to tender an explanation of his attitude in relation to the charge. He has already indicated his attitude in relation to the charge. He has said: “I plea not guilty and I join issue.” Whether he does answer that or whether he does not, he is then to be asked whether he wishes to make any statement indicating the basis of his defence. This means although he has not had the evidence yet, he is being asked to indicate what the basis of his defence will be. Thirdly he is asked whether he wishes to say anything else in relation to the charge for the information of the magistrate or the trial court. Is that not a marvellous situation? What a lot of nonsense! For the purpose of the issues that have been joined by his plea of not guilty, by the issue of whether he is guilty or not guilty, he has to give this indication for the information of the magistrate or trial court. He is then to be asked whether he wishes to make a statement that he has been induced by duress or otherwise to make any statement there might be. He is not being quizzed, according to the Minister; it is not inquisitorial. He is just going to be asked.

Once again, there are four questions. If there are a thousand magistrates, the questions are going to be asked in a thousand different ways, and it is going to have a million different reactions because a million people will be affected by it. The reaction of the magistrate to the person who answers that question will depend upon many things and all the various gifts or lack of such gifts which the magistrate has. This depends upon whether he regards the answer as inadequate to him or as this or as that. There are different interpretations which they are just not dreaming up and which are not theoretical because I have seen it happen in court as any other practitioner has seen. That is not enough. Then he has to be further interrogated. The magistrate then shall inquire from the accused whether the plea of not guilty is intended to place in issue all the elements of the charge and all the acts or omissions on which the charge is based in so far as such acts or omissions are apparent from the charge, or whether the plea is intended to place in issue only certain of such elements or certain of such acts or omissions.

Do I have to go very much further than just to look at that to believe that this process has to occur in every case in which the accused pleads not guilty and where he is likely to be fined more than just an amount of R50? Can hon. members believe that this is going to take place on every occasion? Can hon. members imagine the time that will be involved? Can hon. members understand what a lot of nonsense this is? This is done although we have a system which is centuries old and which has been tried and tested in our own country for 100 years. When you say to a man what the charge against him is and you ask him whether he pleads guilty or not guilty, and he says “not guilty”, you say to him that the issue is joined and that the State will call evidence. In most of these cases the evidence is going to be that of one witness and possibly two. It will then all be over in ten minutes, as it is at the moment.

This procedure, however, has to apply in every case, and I do not know whether we have the magistrates, nor do I know whether the magistrates would have the patience—even though we know that they are very patient—to go through this whole nonsensical rigmarole when we have a perfectly good and just system at present. Under the present system cases such as that by and large will go on automatic review, and there the Judge can see what has happened. Then the accused knows what has happened, what the facts are and then the matter is disposed of in accordance with justice.

There is another very fundamental objection to all this, namely that the procedure here prescribed provides that the magistrate should himself interrogate the accused.

No, not “interrogate”.

You can use whatever word you like, but the word “interrogate”, as I understand it, refers to the process of asking questions. It is an “interrogation”.

It is a process of giving information.

Call it what you like; if I call it an interrogation, I am not incorrect. I want to say that it is most undesirable, it is against all our traditions and it will lead to great and grave misunderstanding if the judicial officer is obliged to take part in such an interrogation. As one of the Judges of Appeal said once in respect of the conduct of another Judge in the court below, “The Judge should not enter the arena lest the dust of the conflict might affect his vision.” I think that is precisely the case here. He should not in any way be associated with the prosecution. His traditional role is that of an impartial arbiter. I want to say that there is nothing that makes one more proud, when one is having to defend South Africa against all sorts of claims, than to say: “Look at our judicial system; look at our legal system, our system of criminal procedure.” Look at it! Look at what this Government is trying to do to it! We are asking the magistrate to take off his impartial robes and climb down into the arena in a procedure specifically designed to make the accused say things prejudicial to himself as soon as possible. The hon. the Minister will not deny that that is in fact what this is designed to do. The whole tenor of his speech was that the accused is getting away with too much that he should not get away with. In that procedure, which is designed to get the accused to say things which are prejudicial to himself as early as possible, the person we use to do it is the magistrate who in the very same trial, having carried out this interrogation, puts on his robe of impartial arbiter again and hears the rest of the evidence. This is not only not desirable, but it will not be understood by the general body of the people of South Africa, and especially the Black people.

It is not even understood by you.

That says very little for the Bill.

I want to say that in the overwhelming number of undefended cases in the magistrates’ courts, the Supreme Court or wherever it may be, the court assumes the role of independent arbiter and it assumes the role of defence counsel, almost, in that, when the accused is unrepresented, the court sees to it that the accused’s rights are in fact protected in accordance with the law. They do it all the time as one knows from experience. That is no longer to be the case. That person whose role traditionally and properly that was, has now to interrogate the accused in order to get him to say something prejudical to himself. It is no good pretending that that is not in fact what this system means.

Are you suggesting he will not be impartial

Of course that is what this system is. What else is it designed for? Why have we changed it? Did you not listen to the hon. the Minister’s Second Reading speech? This was the whole tenor of his speech. Have you thought about why we now get this Bill? You should have listened to the Minister. We are having it because we want to weigh the scales more heavily in favour of the State and less heavily in favour of the accused. We want to do it because they seem to be doing something like it in England, or because in England they want to do something like it. This is even worse. If you are charged with murder, or a serious offence in respect of which the Supreme Court, where you will go for your trial has jurisdiction, you go to the magistrate’s court. You go to the magistrate’s court and you have to plead in the magistrate’s court. You go through your quizzing process and whatever admissions you make are recorded there in the magistrate’s court. That is evidence, incontrovertible evidence, unless it is improperly recorded, in the Supreme Court where you are to have your trial.

This is an extraordinary situation that the court that tries you, and the law provides that only the Supreme Court can try you in cases of murder, does not hear your plea. That court does not ask you the question. It is asked somewhere else and it is all part of the evidence in that Supreme Court. This is not sound. The other aspect that arises from this is that we have a tradition in South Africa, a very good practice, that in every case where an accused is charged with an offence in respect of which the death sentence is competent pro Deo counsel is appointed from the local Bar to defend him. That counsel’s fees are paid for by the State and it is a very good rule. It is felt that where somebody faces the death sentence he ought to have the assistance of an advocate and that is quite right. What happens here? The same man is accused of murder, he comes before the magistrate and there he is interrogated. He can, figuratively speaking, hang himself in the magistrate’s court. He does not have to go to the Supreme Court.

He can make a confession now.

He has always been able to make a confession, but it has never been the case that when he comes before court he is told “Right, you say you are not guilty; now tell me this and tell me that …” That has never been the law. I want to ask the hon. the Minister, if he accepts this proposal, whether he is going to provide that there is going to be pro Deo counsel for a man in the magistrates’ courts, because it is very much a part of his trial. In fact, it is the most important part of his trial now because we have now produced a system which is designed to ensure that he makes prejudicial statements as early as possible when he goes to court. Let me say in all earnestness and sincerity that justice is not a set of rules, or questions or elements or of offences; it is in our tradition the judgment of human beings in accordance with the rules, procedures and evidence. Their cases are tried by other human beings with a knowledge of the law, with compassion and with experience of life, looking at the evidence of that particular person’s circumstances. The circumstances of every single individual in this world are different and need different attention and need to be examined because of their unique nature. There is no case in the world in which anyone in this House has ever appeared which is exactly the same as any other case, nor is there one person in the world that is exactly the same as anyone else. This is justice and that is what the system has produced over the centuries, because the examination of the evidence indicates to you what has happened, what kind of person it is, the circumstances in which he found himself, and so on. This Bill seeks to take that humanity and that justice out of justice by substituting for the facts and for the judgment of human beings a series of questions and answers which prove elements. It is like playing on a computer and justice is not a computer system. It is the evidence in each case which tells its own story. I have indicated that it is in any event an attempt to combine the inquisitorial system with the accusatorial system.

I do not have much time, but I would like to say one or two words about preparatory examinations. There is no doubt whatever that there is a case to be made out for the abolition of preparatory examinations. There is, after all, in our law provision for a protracted examination, which is adjourned from time to time because of the investigation necessary in the case, in order that the accused and the Supreme Court should know what the case is against the accused, and so that the accused knows what case he has to meet. I think the case has been made that this sytem is not necessary, provided that there is some other system that will follow it. But this Bill provides no substitute for a preparatory examination system; nor can it be the excuse for the abolition of preparatory examinations. The system here proposed does not apply in cases that will go to the Supreme Court, where before one would have had to have a preparatory examination. It applies in every single case whether you are charged with petty theft or murder.

There are a number of other matters in this Bill which are going to be dealt with. They are important matters, for instance, concerning the detention of witnesses and the mental capacity of persons to understand proceedings. They also concern something that will affect more people than I think the hon. gentlemen over there realize, and that is the motorists. I refer to the sort of summons they are likely to receive and the sort of results that it is likely to produce, so far as their appearance in court is concerned.

Mr. Justice Botha quite rightly indicated in his report that the standard of civilization of a people is measured by the sort of criminal procedure that it provides for the maintenance of its order. That is what we are dealing with today. Against that test we are now holding up something as showing what form of civilization we have in this country. We have been proud up to now to show what we have. I hope that we are not going to pass the Bill in its present form. I do not believe that we can with confidence or with safety discharge our duty as members of Parliament, elected to exercise our judgment in making the country’s laws, by destroying institutions which have been part of our heritage and outlook, part of our pride of South Africa. By this Bill we may be judged. I therefore wish to move as an amendment—

Mr. Speaker, since I do not, like the hon. member for Durban North, have the privilege of the hour, I can only reply briefly to what he had to say. I want to deal at once with the question of whether this Bill contains any elements which may be termed inquisitorial. I want to deny emphatically that this is the position. I maintain that the hon. member for Durban North did not do his homework; for a system which is inquisitorial, for example, the French system —I shall come back to this in a moment— has an in-built system of pre-trial interrogation, and a system in terms of which the judicial officer may in actual fact also ask questions which force an accused person to make certain admissions in regard to facts and evidence. This has not been built into this Bill at all. In other words, there is to my mind a specific definition of interrogation. This does not mean only the asking of questions; it means that a person is driven to a point where he makes certain admissions, as occurs in an inquisitorial system.

The hon. member for Durban North made a great point of the fact that the hon. the Minister does not want to consent to a Select Committee being appointed. He says that we as a House of Assembly, as a legislature, have to decide on the word of a single judge of appeal whether this Bill is good enough. But, Sir, surely that is not the position. I shall go into the entire history of the matter in a moment, but the position is that an hon. judge of appeal sent a draft Bill, via the department, to all parties that could possibly be interested in an alteration of our criminal procedure. Comment was received from all possible parties and, as the hon. the Minister said, no single objection in principle was raised in the case of any judge-president, magistrate’s office or university. What is more, the hon. judge eventually submitted a report, a well-motivated report dealing with all the arguments for and against the matter. I maintain that this report of the hon. judge is just as good as, if not better than, the English Criminal Law Revision Committee’s report, and this English Committee consisted of upwards of 14 members. I maintain that the work done by this hon. judge of appeal was just as good, if not better.

Mr. Speaker, I think I am speaking on behalf of every one on this side of the House when I convey my gratitude and appreciation to the hon. Judge of Appeal, D. H. Botha, sole member and chairman of the commission which was responsible for the brilliant report on our criminal procedure and evidence which was published during 1971, and for the draft legislation which is now before us and which was based on that report. But I want to go further. In this connection I should also like to mention, on behalf of this side of the House and the Justice group on this side, the name of Advocate D. D. van Niekerk, S.C., who played an enormous part in the activities of the commission and the drafting of the Bill before us. I also want to thank Mr. W. P. Theron, the secretary of the commission. I think Mr. Theron must have had the patience of Job to have correlated all the memoranda and suggestions submitted to the commission. To the hon. judge of appeal and his two able assistants I want to say: Not only have you submitted to us an excellent, practical Bill, you have also accomplished much in the cultural-juristic field. As a former Chief Justice, L. C. Steyn, and the late Judge of Appeal, Toon van den Heever, and so many others, revived pure Roman Dutch legal principles in our common law, so you are now giving us criminal procedure legislation which differs so fundamentally from the Anglo-Saxon trial methods that we may with justification be proud of our own criminal procedure legislation, which is excellently suited to our purpose in our own country.

But, Mr. Speaker, this side of the House is not narrow-minded and ungrateful. We are grateful to the English law, particularly in the field of commercial law, criminal procedure and the law of evidence, for these having enriched our own law to such an extent. To tell the truth, although our ways part on certain fundamental principles, we think so much of the new tendencies in the English criminal procedure that we have already incorporated these again in this draft legislation.

A person who also deserves our thanks, is the hon. Mr. Justice V. G. Hiemstra, an expert on our criminal law and criminal procedure. Although his system of pretrial interrogation has not been accepted, it was, inter alia his insistence on change which set the ball rolling. Sir, now I do want to emphasize this. It was not a wicked official in the Department of Justice who wanted to load the scales against the accused and who drew up this draft legislation; it was an objective jurist in the person of the hon. Mr. Justice Hiemstra who initiated all this, with the publication to certain articles in the South African Law Journal. His first article, viz. “Abolition of the right not to be questioned” appeared in the South African Law Journal, Vol. 80 of 1963. In this first article the hon. Judge made quite a few thought-stimulating statements, and quoted statistics. For example, I am quoting the following extracts from what he had to say—

Sir, this is not an eccentric statement by a South African jurist. It is borne out by the fact that the English Law Revision Committee states as follows, on page 12 of its eleventh report—

It is generally accepted, Sir, that this is the position. What is also interesting is that Mr. Justice Hiemstra then quoted from his own criminal court the case of the State v. Douglas Ntuli and Moses Silo. He then furnished the following particulars, and we would do well to take note of this. The charge was murder. The accused remained in custody for 7½ months, from the date of arrest to the date of sentence. During this period the accused appeared in court for a period of three days for a preparatory examination. Subsequently, for his trial in the Supreme Court, he spent five days in court. He was in custody for 74 months. The judge then went on to point out that the preparatory examination of the accused and the trial took up more than 40 working days of highly skilled and skilled people. Mr. Speaker, these facts which I have just quoted from the article written by Mr. Justice Hiemstra reflect the principal reason why new legislation is necessary. The first reason is that the scales of justice affecting the State and the accused should be brought into better equilibrium, an opinion which is being voiced throughout the entire Western world today. Secondly, without detracting from justice and efficiency, more rapid methods of trial have to be found. This has, at once, the great advantage that the accused is sentenced or acquitted sooner. Sir, after his first article a Bill containing his suggestions was circulated. It is interesting to note that Mr. Justice Hiemstra pointed out in his second article, which appeared in 1965 in the South African Law Journal, Vol. 82, that two-thirds of those who reacted were prepared to accept the principle of pre-trial interrogation of the accused, subject, however, to certain inbuilt protection.

But, Sir, to return to the Botha report. In the first place the amount of evidence was imposing. Five divisions of the supreme court submitted memoranda. Seven judges, as well as six State departments and seven attorneys-general, submitted memoranda. In addition, approximately 35 other persons and bodies submitted memoranda, among which were legal practitioners and universities. After very thorough consideration, with the help of highly qualified staff, as I have already indicated, the judge and the commission submitted an excellent report to the Ministry in question, and as far as I am concerned, the principle recommendation contains a brilliant compromise between the proposed pre-trial interrogation of Mr. Justice Hiemstra, and the existing system. It is very definitely not suggesting an inquisitorial system, for there is definitely no pre-trial interrogation. There is no pre-trial interrogator, as in the French system, as I have already mentioned, nor is there any question whatsoever, as in the French system, of the trial judge also participating in the actual interrogation on questions of evidence, etc. Clause 119, which is the essence and the heart of this Bill, merely states that on a plea of not guilty, the accused may state his side of the case. If he should not do so, or if the issues are not clear, the magistrate may, and in some cases must, ask the accused whether his plea of not guilty amounts to a denial of all the elements of the crime and whether he wants to have the elements which are not at issue recorded as admissions. What does clause 119 amount to? Clause 119 corresponds fundamentally to the exchange of pleadings in a civil action, and what is wrong with that? I am not one to maintain that clause 119 as it stands there is infallible, this clause is very definitely an experimental one and we will, as we proceed, have to work on it and if necessary effect improvements. But why should we now be so inflexible in our thinking as the United Party and not wish to venture into new territory? According to Die Burger of 13th December, 1971, Prof. Dr. S. A. Strauss had the following to say about this new fundamental principle in the report of the Bill. He said it would expedite criminal cases considerably, while the rights of the individual continue to remain completely unaffected. The accused is at all times entitled to legal advice, and he may also elect to remain silent when he appears before a magistrate. Sir, not only does the report and the Bill strike a good balance of justice as far as the essential points are concerned, but certain recommendations also emphasize the commission’s absolute objectivity in respect of the accused, for it still leans over backwards to protect the accused. I just want to mention a few striking examples of this. In the first place the commission recommends that the proviso to section 244 should continue to exist. This means that we are, to my knowledge, the only country in the world where a confession to a policeman, who is not a peace officer, is inadmissible as evidence. We are the only country in the world, Sir. What happens now to the inquisition charge? It is in fact true that the proposed legislation now shifts the onus if an accused should allege that an admissible confession was obtained for him in an improper manner, but this is very fair, and cannot be faulted.

I come now to the ouestion of police-dog evidence—spelt with a hyphen—because I do not mean that a dog can actually give evidence. This commission states that this type of evidence should remain inadmissible. I agree with that, but in 19 states of America it is admissible evidence. Once again, under our particular circumstances—I am thinking of cases of cattle theft—this is a tremendous protection for the accused. I am thinking for example of the new section 329, in terms of which the Minister may on behalf of a person who has been sentenced to death apply for leave to appeal if that person has not done so himself within the prescribed period. In terms of developments in the past few years, this is a tremendous improvement on our legal system, and affords protection for the accused. I am thinking of the amendment of section 215bis, in which provision is now being made that detention as envisaged under the section should take place under judicial control, once again tremendous protection for an accused person.

Then I want to deviate a little, and I really think it is necessary for us to place this on record as well and to state, for the information of the general public, that the commission also made an in-depth study of the trapping system, and that the commission arrived at the considered opinion, after a very intensive study of the entire matter, that the Police are not abusing this system, and that the Police may consequently continue with this system because accused and suspected persons are not being wronged by this system. I just feel I should mention this, for the newspapers are for most of the time placing the effect of the system under a tremendous cloud with their sensational newspaper reports.

The General Bar Council complained and said, inter alia—

I have already dealt with that and pointed out that this is not the case, and that it is unscientific to say that it is in any way the case that this system contains any measure of inquisitorial elements. However, I want to cross swords with the General Bar Council in regard to a few other points.

In the first place I come to their allegations, which were also reported in the Sunday Times, in which they stated—

Here I want to accuse the General Bar Council specifically of having put political poison into the coffee.

Are you being serious now?

I am being very serious now.

What about the report of the Side Bar?

The hon. member who has made that inquiry now, should ask the Side Bar whether they still have any serious misgivings in regard to this Bill. I spoke to their delegate after they had been to see the Minister. He must ask them whether they still have any serious misgivings in regard to the Bill.

Did you not read the report?

The difference between this side and that side of the House is that this side keeps itself constantly informed of the latest developments.

I maintain that since a body such as the General Bar Council should have studied this Bill in a scientific way and should have made objections to the provisions on legal grounds, it is reprehensible that they should in this way have wanted to intrude purely political considerations and have made charges which could only be extremely detrimental to us and our legal system abroad.

I come next to the question—after that I want to resume my seat—of the objection of the Bar Council to preparatory examinations. There again, in my opinion, they proceeded very unscientifically. They quoted a long article in which a case was made out for the abolition of preparatory examinations. This article was compiled at the time by a certain Mr. Greeff, who was then Secretary for Justice. To that article they attached another memorandum which was opposed to this and which contained old, hackneyed arguments. I want to say to the Bar Council that, as they justifiably stated in their memorandum, the system of preparatory examinations have served us well for a hundred years and more. I also want to say to the Bar Council, and I want to say this to the United Party as well, that the ox wagon also served us well for 300 years, but we nevertheless saw fit to exchange the ox wagon for more modem means of transportation. There are a number of the advocates who said that preparatory examinations should remain, but we are not abolishing this. The provision is going to remain. But I want to predict that that section in question will fall away owing to disuse. If we have already, in anticipation, introduced a system of summary trials, if we know that this is a success, if our administration of justice and our judges in general indicate that they are in favour of the abolition of the system, if it is obvious that it will be conducive to shorter trials and that it will save time and money, why should we then continue to cling desperately to that system?

I shall resume my seat after I have said that the Botha report and the draft legislation was well thought out, that it was well drawn up, that it was well motivated, and that it affords us legislation which is going to be our own proud legislation. It is going to be our own proud system, and we are, with energy and imagination, going to expand it into an excellent system in the years which lie ahead.

Mr. Speaker, there can be nobody in this House who is not under the realization that a change in our law of criminal procedure is a most important one for the country. It has been said that peace goes hand in hand with justice. I think the words of the Psalm are: “Geregtigheid en vrede kus mekaar.” This is a very direct form of justice that is ministered to the people by our legal system. Therefore, in our country above all, it is important. We have perhaps a higher proportion of people per head of population who are brought to our courts than in most countries in the world. We have peculiar difficulties, we have population groups at very different stages of development. Partly this has resulted in a very large number of people being brought to the courts. These people are in many cases foreign to the system which we employ. It is therefore of obvious importance that the system of our criminal courts and its procedures should be of the fairest, and should carry conviction with the people that justice will be done and that it should gain and maintain their confidence. Every member in this House prides himself on our system of justice and our law, and prides himself on our court procedures and the conduct of our judicial officers, whether they be judges or magistrates. This has meant a great deal to the stability of South Africa in the past. I will immediately concede that I am convinced that it is the wish of everyone in this House that this should continue. I believe, indeed, that the hon. the Minister and his side in coming with this Bill wish to do nothing to harm that structure, but I feel entirely unhappy at the result of their labours because it is certainly my opinion that it will do considerable harm to that structure, to our administration of justice. Let us concede, too, that we as lawyers tend to be conservative. I think it is most important that we should certainly not become petrified and unwilling to make a move. I, myself, am quite prepared to embrace the words of a leading member of the Canadian Bar, Mr. Wright, who said—

I believe strongly that our procedures and law should be subjected to scrutiny from time to time and steadily.

Hear, hear!

I believe very much that there are improvements that could be made in our criminal procedures and in our law of evidence. I believe very much that these must be examined ceaselessly and fearlessly by members of the profession and others connected with justice, whether in academic fields or through their judicial experience and in certain other cases.

Hear, hear!

I could not agree more on that point because the criminal law affects every man in the country to the extent that it helps to sustain the fabric of our society or not. I will go a long way with the hon. the Minister in regard to some of the quotations he made here today, namely that it is as much in the public interest that a guilty person should be convicted as it is that an innocent person should be acquitted.

Hear, hear!

I believe that that is correct. I believe that fairness in a criminal trial is that the result should be the right one. I agree, too, and this side of the House will agree, that the modern criminal is a diffierent man in many cases from the man of before.

Now you are talking!

He is a much more cultured man, if one can use “cultured” in a bad sense, a much more cunning man and there is no doubt that certain of our procedures and our evidence do date from times past. You could describe some of them as a hang-over from older days.

Hear, hear!

With that one can certainly agree. However, having said all that, I want to say that I am still extremely unhappy about this Bill. [Interjections.] I believe we are losing a golden opportunity; our law in many respects is very badly in need of updating and modernization and we, as lawyers, all hoped that the Government would achieve the necessary improvements. I personally think it was an intolerable burden to place upon one man, however good, and I have no doubt that he acted from the highest motives. But it is an intolerable burden to place upon one man, the task of virtually reviewing and suggesting amendments to our entire criminal law procedure and evidence, because that is what the terms of reference amounted to. He has been asked to do that and, more over, he has attempted to do this task in approximately one year. I think he started his work in July, 1970, and he reported on the 29th May, 1971. During this time he attempted single-handed to review our entire criminal procedures. The Bill the Government brought forward following his recommendations in his report, was published in about December, 1971. The hon. the Minister has told us—and we know this—that this Bill was brought up for information and comment. But what must be remembered is that the main people who sent in memoranda and comment addressed themselves primarily to the Hiemstra proposals. It was entirely to this question that they directed their attention. It has not been made public exactly what the attitude of all those people is, but it is quite clear that those people were overwhelmingly against the proposal of Mr. Justice Hiemstra, which has become the cornerstone of this Bill. It is quite plain that they rejected it and the commission rejected it. The particular procedure which the commission accepted and recommended is one which has been subjected to extremely little public scrutiny; it has not been carefully weighed. It could not be carefully weighed by the commission because there was only one man; it could not be discussed there. It has been subjected to very little scrutiny since then. The hon. the Minister in dealing with this matter indicated that there had not been much criticism although the Bill had been published for information. But there was also no approval of any extensive kind. We have had most strong condemnation and criticism from the General Council of the Bar, from the law societies and from several judges. We know that in several cases their opinions are completely inconsistent with the final proposals.

Let me just pause here a moment to deal with the General Council of the Bar. The hon. member for Kroonstad directed a most violent and unjustified attack against this body. The General Council of the Bar is an entirely non-political body. It has shown this time and time again. It studiously refrains taking sides in politics. Yet the General Council of the Bar represents every practising advocate in South Africa. I do not know its political composition, but at a rough guess it must certainly be a division of approximately fifty/fifty between Government and Opposition, and possibly more in favour of the Government. This body is the body which the hon. member for Kroonstad accuses of introducing politics, political poison, into the matter. The same, or even more, could be said of the Association of Law Societies of S.A. which has condemned this Bill. So. Sir, the hon. the Minister has not made clear at all what the attitudes of people to this Bill have been. He has left the impression that there is virtually no opposition except from the General Council of the Bar and the Law Societies. But I submit that this is an entirely unjustified impression. There has been singularly little comment from other sources, and those comments are probably more against the Bill than in favour of it.

May I ask the hon. member a question? Can the hon. member assure the House that this memorandum which has been submitted by the General Council of the Bar has been subscribed to by all the constituent bodies of the Bar? I understand that this memorandum has been drawn up partially by one group and partially by another.

Are you asking a question, or are you making a speech?

Sir, there can be no doubt about it. The General Council of the Bar has submitted an entire memorandum and has sent it to the hon. the Minister and to every member of the justice groups on both sides of this House, and nobody has ever for a moment suggested that it is not the document from the entire Bar. Indeed, everything about it confirms that it is the case. It is completely consistent with the attitude it has taken throughout. So, Sir, I come back. I say that an intolerable load was placed upon the judge, a burden …

May I ask a question?

My time is running short. It was a burden which was too much to ask of him. I submit that a great mass of matter on this whole question has not been sifted as a result. I submit that the reactions to the Government’s own proposals have not been fully canvassed and where they have come in, they have not been adequately answered by the speech of the hon. the Minister. I submit that in a matter where one is dealing with such a fundamental question as our law and we concede that there is room for improvement in certain spheres the opportunity should not be lost and the Minister should therefore accept the proposal to refer this matter to a Select Committee. It would save an opportunity which otherwise would be lost.

The hon. members for Pretoria Central and Wonderboom suggested only, and no more, by their interjections, that they might favour a law commission rather than a Select Committee.

No, definitely not.

Well, the hon. member now makes that plain.

That is just like the United Party: One day they want a judicial commission, and the next day a Select Committee.

I did not realize that the hon. member was trifling with the House at the time. But I do believe that if it is seriously the view of the hon. the Minister that he has objections to a Select Committee because of the fact that for one or other reason he may feel that it is not the most effective body, then let him consider sending this Bill to the South African Law Commission, which has just been brought into existence by the Government through the gazetting of a Bill only recently. That body is the sort of body that should have examined this whole question in the first place, consisting of a judge as chairman, an extra judge, between two and four members appointed because of their judicial or academic knowledge, or their experience as attorneys or advocates, and an official from the department, with the right to appoint one or more additional people for special purposes. It is to that sort of body that this matter should have been referred in the first place. Mr. Speaker, where the hon. the Minister himself quoted with so much approval from the English Criminal Law Revision Committee’s report, he might have mentioned to us, as I shall, that that body consisted of approximately eight or nine learned people, selected approximately as the members of our South African Law Commission are now being selected, and that body, dealing not with the entire field of criminal law and procedure, but with a much more limited field of criminal evidence, spent years considering certain questions before coming forward with their report. They spent years including debate and discussion with jurists from France and Germany, Canada and America. They made all kinds of inquiries before coming forward with their limited recommendations. But we unfortunately have plunged into this with unseemly haste and are now faced with a Bill which is going to lose for the country a golden opportunity to bring our criminal law up to date, and yet to retain its great principles and its fair approach.

Do I understand you correctly; do you suggest that certain judges … [Inaudible.]

Yes, I certainly understand that. It appeared from the memoranda which they submitted, and I believe that this is in fact so.

Do you believe so, or is that so?

Well, Sir, the hon. the Minister has all the memoranda, but I am firmly of that view.

He is testing the inquisition bit.

I would like to look for a moment at what I regard as the corner-stone of this measure, and that is the new provision for questioning an accused person at the first opportunity. The hon. member for Kroonstad did not like the idea of this being called an inquisitorial procedure. Sir, the comment of the General Council of the Bar is pretty relevant in this regard. It says this—

Sir, I believe that everybody in this House would like to see justice done, but done more speedily. The hon. the Minister believes that this measure is going to achieve that aim. I do not. I have grave doubts about that, and I shall indicate where I believe he will find extra delays. The hon. the Minister believes that we shall see the scales of justices being held more with an even hand. I have grave doubts there. I believe that in quite a few cases accused persons will get away on the basis of technicalities. Let me come to that straight away in dealing with this question of the corner-stone of the procedure. I believe that this particular procedure of using a magistrate to put the elements of the offence to the accused and to ask him questions, will place our magistrates in the position of doing the work of the Police to some extent, something for which they are entirely unfitted, something which is going to affect their whole position and status and regard in our society. I believe it will undermine the high regard in which they are held at present. Secondly, Sir, I do not believe that magistrates will relish this new job that is being placed upon them. Sir, one only has to look at the task which is being imposed upon them in terms of the relevant clause to see that they are being given a virtually impossible task, because of its very vagueness. They are obliged to question an accused on “all the elements of the offence and all the acts or omissions on which the charge is based in so far as such acts or omissions appear from the charge, or whether the plea is intended to place in issue only certain of such elements or certain of such acts or omissions”. This is a very vague assignment that they have been given. I believe it is an almost intolerable assignment for them. I believe that they are going to be placed in the position of virtually having to do the same job as the judge used to do when giving directions to the jury. They are in virtually the same position; they are in very much the same position, and if not precisely so, it will certainly open up a great number of possible technical points which can be taken by the accused at a later stage.

They only ask questions.

They will have a very difficult task in this regard. A great burden is going to be added to magistrates in that they are going to be asked to be available at short notice to go through this procedure. This is what they are going to be asked to do, to go through this procedure at extremely short notice. Secondly a great study of the whole facts of the case will be involved.

No.

Oh yes, it will. They will have to get all the elements of the case. They will have to inform themselves very fully as to the true position or they will not be able to carry out the tasks given to them.

There is another great danger in this procedure. I believe that countless accused are going to challenge the statements that have been taken from them at these pretrial questionings. I believe that countless accused, when it is sought by the State to prove everything that went on at this pretrial hearing, will challenge the correctness of the facts as stated there.

Why do you say that?

Because I believe the whole procedure is open to misunderstanding and open to challenge. And the accused are certainly going to need to challenge it, because they will doubtless in some cases have prejudiced themselves at the pre-trial. And this will have a most unfortunate result, namely this, that the magistrates then will be called into the witness-box in the Supreme Court and they are going to have a whole unsatisfactory wrangle with the defence as to whether their statement of the facts correctly reflects what went on and also whether they in fact covered the elements adequately, and all the other requirements set out in this section.

There is no reason for you to have any fear.

Finally, I believe that this procedure is not going to come up to the expectations of the hon. members opposite in regard to the main question. The main point is the hope, in the words of hon. members opposite, that they will get more convictions, or words to that effect. I believe that the whole formality of this procedure, where it takes place in front of a magistrate and in the presence of a limited number of others, will lead the accused to say nothing, more often than hon. members opposite suspect.

Now, Sir, what is the answer then, where I believe there is room for improvements? I believe the Government and the commissioner have attempted to take a short-cut in this case. They regard the matter as pressing. They want speadier trials. They speak about the manpower shortage. They believe that the scales are loaded against the State. There is certainly room for improvement in some of those respects. But I would rather see the answer, as I have indicated, in a careful examination of the whole position, either by a Select Committee or by a bigger commission. But in the meantime I want to say that I believe that the answer to immediate improvement is likely to lie along the lines that the English Criminal Law Revision Committee sought, namely not to bring in magistrates as the questioning authority. The English Criminal Law Commission rejected what we are doing here and they gave full reasons for rejecting it. They said —I believe this is where the improvement could come—that we should change the position of the accused when he is questioned by the Police. As they recommend, one should do away with the first and second judge’s rules so that the accused or a suspected person is not warned that what he says may be given in evidence against him and one should also alter the whole position in regard to the “right to silence”. They have said that those two matters should be altered. The accused will be given in writing a statement which sets out the position as far as he is concerned. If my time permits me, I should like to read it to the House. No, I shall not read it, but simply want to say that they favoured the presentation to the accused of a written statement indicating to him, among other things, that he had a right to silence but that if he chose to be silent, this could lead to an adverse inference against him.

I believe that along those lines, not along the lines that we have chosen, lies the improvement that everybody in this House is justifiably seeking. I hope, therefore, that even now we shall not go ahead with this bad change to our criminal law. We must indeed make changes. It is a golden opportunity to get the right changes. So much more light has been thrown on these problems since the learned judge sat as a one-man commission and brought in his findings. It would be an act of statemenship if the hon. the Minister or the Government would be prepared to hold their hands in the interest of a system of justice which stretches back for over 2000 years.

Mr. Speaker, with your indulgence and with the leave of the House I rise not to take part in this debate. May I add that I would have loved to take part in this debate. But that is not the reason why I am rising. I do, in fact, rise because I think that this is an appropriate time and occasion for me to pay tribute to the late Mr. Harry Lawrence, one-time Minister of Justice in South Africa. I think it is appropriate that while we are discussing this Bill, I do pay tribute to him. Of course, he held other portfolios too, but I am trying to keep within the ambit of the Bill before the House.

I think that the late Mr. Harry Lawrence will not, in the first place, be remembered as a Minister of Justice, but he will always and in the first place be remembered as one of the greatest parliamentarians who ever sat in this House.

*In the course of my career I often came into conflict with him. In fact, he was the first man with whom I—as a novice— actually came into conflict in this House. I had good cause to disagree with him at all times and to disagree with him very sharply. I do feel, however, that it will be right and proper, in view of the fact that our procedure does not make provision for this in any other way, for me to occupy the time of this House for a short while to place on record the desire we as parliamentarians have to express our deepest sympathy to his wife and family on the death of a person who reached great heights as a parliamentarian in this House and for whom all of us, on both sides of the House, had a deep admiration for the way in which he acted in this House. I apologize for having occupied the time of the House on this occasion for this purpose, but I do feel that this is the right way in which to act in this regard.

Mr. Speaker, since you have allowed some indulgence to the hon. the Prime Minister, perhaps you will allow some indulgence also to us on this side of the House to associate ourselves with the remarks of the hon. the Prime Minister in regard to the late Mr. Harry Lawrence. I do not think that anyone who has served in this House will forget him as a parliamentarian who never missed an opportunity, who could turn a losing debate into a winning debate in a matter of minutes and who could change the whole atmosphere in the House in a very short time. He came to this House as a very young man after a very tough by-election and soon he showed his ability, to the extent that he later became first a Minister of the Interior and later a Minister of Justice. He was Minister of the Interior during the war years when he had to take some very difficult decisions in the interests of the war effort and of the security of South Africa. I think it is a tribute to the character of a man that he was able to take those decisions and that he was able to administer his portfolio in a manner which made him many friends and no enemies, even amongst those who differed from him politically. When one thinks of him, one thinks particularly of his courage in adversity during his years of illness. I think it is singularly fitting that we should be paying this tribute to him in the course of a debate of this kind which falls under one of the portfolios for which he was responsible and with which he was so intimately connected. He sure was a Minister of Justice with a difference in that he had many years of experience at the Bar and that he had an intimate knowledge of our criminal law and procedure and everything connected with it. Although he differed from us politically in later years, he was able to differ in a manner which was never bitter nor insulting nor petty. One feels that he was one of those men whose participation in the South African politics has brought distinction and even charm into our public life. It will not be possible for me to speak again during the Second Reading debate, so I would like to say now that it is a great tragedy that on this day we should be discussing a Bill which so pre-eminently should go to a Select Committee for adequate investigation and adequate evidence from all interested parties to begin with. That, however, is not the object of my intervention. I only want to be associated with what the hon. the Prime Minister has said, especially with the message of condolence to Mr. Lawrence’s family and particularly his widow, Mrs. Lawrence.

Mr. Speaker, today is really an exceptional day for the judicature of South Africa in the sense that this is only the third time since Union that we have had a Criminal Procedure Bill in its entirety before us in this Parliament. It says much for our judicature and our application of justice that the two Acts we have had so far have sufficed for so long. The first Criminal Procedure Act remained on the Statute Book for almost 38 years. In 1955 it was imperative that it be amended. The second Criminal Procedure Act has been on the Statute Book for almost 18 years and amendments have again become necessary. All of us who are taking part in this debate know that this Act is really of an extremely juridical-technical nature. I therefore find it a pity that this Bill should immediately have been dragged into the political arena by the Opposition, that the Opposition should immediately have tried to make political capital out of it. This Bill is not something which came down on the Opposition out of the blue. They should really have known, ever since the Botha Commission was appointed in June 1970, that at one stage or another a Bill of this nature would emerge, particularly after a report was published in May 1971, followed by a draft Bill in December 1971. At present we find ourselves in the position that this Bill has unfortunately been dragged head over heels into the political arena and that they are trying to make political capital out of it. If I were to seek an explanation for this, it would simply be that the Opposition has been getting the worst of things ever since this Parliamentary session began. Therefore they are now trying to make political capital out of a Bill of a technical nature. The Opposition has fallen flat! It fell flat in the by-election; it fell flat in the No-confidence Debate and it fell flat in last week’s Budget Debate. Now they are trying to make something of this Bill. [Interjections.] I shall come to the Bill in a moment.

We would appreciate it.

What I find most difficult to understand is the amendment introduced by the main speaker on the Opposition side to the motion of the hon. the Minister, which amendment is that this Bill, of all Bills, be referred to a Select Committee. It is now a year and two months ago that we in this House had a heated debate concerning a subject which was to be referred to a Select Committee. It was in connection with the appointment of a Select Committee to investigate certain organizations in South Africa. At the time the hon. the Leader of the Opposition had this to say (Hansard, 10th February, 1972, col. 730)—

At a later stage he went on to say (col. 731)—

Those of us who were Present last year and participated in the debate, will remember that the Opposition’s whole argument centred around the fact that a parliamentary Select Committee was not really suited to do certain work.

That is no parallel at all.

We will come to that in a moment. Now we arrive at the position where a purely legal-technical Bill is before this House, and this the Opposition now wants to refer to a Select Committee of Parliament. What do they want now? Last year they wanted a judicial commission to investigate a political matter, but this year they want a Select Committee to investigate legal matters.

Now who is playing politics?

No, I am not playing politics at all, because this is precisely the position. It seems to me as though the hon. member for Pinelands has not reached a final decision yet on where he wants to send this matter. He said that it would be best to refer this Bill to the South African Law Commission, which is something else entirely. This Bill is the product, the result, of an investigation by an expert, by a judge who is a more senior judge than Mr. Justice Hiemstra because he is a judge of the Appeal Court. He heard evidence from all quarters concerning this Bill. If there is any argument which falls completely flat, then it is this argument that the Bill should now be referred to a Select Committee. Looking at this Bill, we see that it has 350 clauses. If we look at the persons and bodies who submitted memoranda to the commission, we find that these include divisions of the Supreme Court of South Africa, judges of the Supreme Court of South Africa, advocates and attorneys, Government departments, attorneys-general, universities and other bodies and private individuals. The following persons and bodies submitted oral evidence to the commission, viz. judges of the Supreme Court, attorneys-general and staff members, the South African Police and others. This Bill is before Parliament three years after the Botha Commission was appointed. Let us just imagine for a moment what would happen if this Bill were to be referred to a Select Committee of Parliament. If this were done no amending or consolidating Bill in respect of the law of criminal procedure would be submitted to this House for the next five years. If we consider only the extent of the memorandum of the General Council of the Bar which was sent to all the parties and also to the hon. member for Houghton, one can imagine the tremendous amount of work which a Select Committee would have to do, and this after a judge of appeal had already brought out a report in this connection.

If one were to look at the nature and the essence of the law of criminal procedure as such, I think that the first statement which one could make would be that it is one of the subdivisions of our system of law which is applied most in practice. Not a day goes by when the law of criminal Procedure is not being applied, studied, discussed and—I will say this too—torn to pieces in hundreds of instances and hundreds of cases throughout the length and the breadth of our country, by judges, magistrates, attorneys, advocates, the Police, etc. This in fact makes the law of criminal Procedure a living organism of the system of law. This causes it to grow like a plant or a tree: some of its branches may wither, but it may sprout new shoots which will again bear leaves and blossom; it may lose its leaves, and may also bear fruit which may sometimes be bitter and sometimes sweet. I selected at random a volume of the South African Law Reports, a 1971 volume, No. 4, at the library. From 139 cases reported in that volume, 67 were criminal cases—almost half. I believe that work on criminal cases comprises far more than half of the total volume of work done in our courts. Through the years our law of criminal procedure has received continual attention, as I have said, from those who administer and apply the law; and not only from them, but also from legal organizations, academic institutions, the Department of Justice and also non-juridical persons and bodies. The reason why the law of criminal procedure enjoys this attention, is that it is concerned with the freedom of the individual, and sometimes, too, with the life of the individual. Therefore, this is indeed an important Bill which we have before us today.

How must this House approach this Bill? This House must approach this Bill in its capacity as a legislature. It must not approach this Bill as either a prosecuting or a defending advocate. We are here for the exclusive purpose of approaching this Bill as a legislature, and in this connection to put the interests of South Africa first. There must be no thought of a guilty party who has to be afforded an opportunity of being acquitted. But in addition the fact that an innocent party must not be found guilty, should always be borne in mind. In this connection we in the Western world have two forms to which reference has already been made, namely the accusatorial and the inquisitorial forms of the formal criminal law. Mr. Justice Botha gave a very clear and concise exposition of the two procedures. Of the accusatorial procedure as we know it today, he said—

Concerning the inquisitorial form, he said—

The Rhodesian commission of inquiry, in an appendix, also has a comparison between the accusatorial and the inquisitorial systems. According to the report, Dr. Daniel Williams had this to say about them—

Sir, I think that since the hon. member for Durban North has already stated in the Press that “The United Party rejects the inquisition Bill” and since he has made a fuss today about the inquisitorial system, we should take cognizance of the fact that the inquisitorial system is a system; it is not such a terrible thing. In any event it has nothing to do with the inquisition of centuries ago; in fact it is merely a name. Sir, our system is the accusatory form and, as the hon. the Minister said, it is being retained. Sir, it is the task of this Parliament to establish machinery in this Criminal Procedure Act which leaves no loopholes to allow guilty parties to go free, but to establish machinery for the courts and also for the parties—for the State and for the defence—to establish the truth, and for the courts to find the accused guilty or to acquit him accordingly. But this is not all with which the law of criminal procedure is concerned; it also envisages the maintenance, at all times, of the prestige and dignity of our courts, and ensuring that respect on the part of the public for the prestige of the court is at all times maintained. Mr. Speaker, it is not a good thing if one’s law of criminal procedure is full of loopholes, with the result that too many guilty parties go free; this results in contempt and indifference towards the courts and also towards the person and the property of the individual. Sir, the law of criminal procedure has to exist, as the hon. Mr. Justice Botha puts it, to ensure the conviction of the guilty person without creating any danger of the innocent person being convicted. It has been said that it was better to acquit 10 guilty persons than convict one innocent person. For an effective criminal procedure, this has possibly been overstated, but it emphasizes the requirement that no criminal procedure measures should be prescribed which could, as such, give rise to the conviction of an innocent person. Looking at the Bill, we see, as I have already said, that this is the first time since 1955 that the law of criminal procedure has been before Parliament in its entirety. During the years which have elapsed since that time, many amendments have been effected, subsections have been deleted and others added, and the entire jury system has been done away with. It is therefore necessary not only that the Act be rewritten, but also that necessary adjustments be made. The Act must also be adapted to the needs and requirements of the time and as it seems to me, it is in fact the adaptations which are causing the problems. It is the adaptations which this hon. Minister has had the courage to execute, and which have stirred up such extreme opposition on the part of the Opposition and its Press. It appears to me as though the Opposition is only reacting to the command of the Sunday Times of last Sunday—

Who is playing politics now?

If questions arise concerning this Bill, and legal experts have raised questions on this Bill, I think that this stems from the extreme conservatism for which legal experts are known. This is something which one commonly finds with them. I think that it would be a good thing to place on record in this debate what the hon. Mr. Justice Nicholas said in this connection—

Looking at this Bill, we see that it has come a long way to be before this House today. Firstly it is based on the two Acts of 1917 and 1955 which preceded it. Thereafter, Judge of Appeal Mr. Justice Botha was appointed as a one-man commission, as a result of the articles of Judge Hiemstra in which he pleaded for an investigation into a possible change in our law of criminal procedure. This commission collected memoranda and evidence and the people who gave evidence, are people with the best knowledge in connection with our administration of justice. Let me say that this Bill contains very drastic changes, but a drastic change is not necessarily an incorrect change. Often it is the drastic change which produces the best results. Let me also say that the old Act was a good Act, but it was very time-consuming, very long-winded and very expensive, it had loopholes which were utilised tactically by the defence. Particularly in these times in which we are living, where we are dealing with subversives, where we are dealing with people who have no respect for the law as it stands and for the administration of law as we know it, where they are exploiting the existing law and also exploiting the law of criminal procedure in order to make other plans outside the courts, such as plans to escape or to intimidate witnesses, I say that it has become necessary for us to adapt and modernize our law. I am in favour of the adaptation and modernization of our law of criminal procedure. As a member of this legislative House I welcome the Bill and I want to congratulate the hon. the Minister and the Officials and the legal draftsmen on the fine piece of work which they have submitted to us.

I must make haste I want to mention one practical example of how, in my opinion, something which was exploited or—let me rather use this word—utilized in the past, is being done away with. I refer to the preparatory examination. This preparatory examination record as such was a very valuable document for an advocate for the defence in a capital case. It was a document on which he could prepare his cross-examination, and not only his cross-examination of the witnesses who gave evidence at the preparatory examination, but he could also play off the evidence of witnesses in the preparatory examination against each other when it came to the actual hearing of the case. At the defence of that person who has been charged with a capital crime I shall now have to act without the record of the preparatory examination. However, I cannot say that this will give rise to any injustice in the new law of criminal procedure. It is going to be difficult for me to prepare my defence, but no injustice will be done. I think that the hon. member for Durban North must also concede this.

So, too, there is the fact that when my client, the accused, is called as a witness, I can no longer keep him out of the witness box until I choose to put him in it. For me as an advocate this is a problem, but it should not be a problem for this House. It makes things more difficult for me because now, in accordance with the provisions of clause 151, I must have my client, the accused, adducing evidence first and should I not do so and then at a later stage decide to put him in the witness box, the court may draw from that any conclusion which it considers to be reasonable. This would be a conclusion which would probably count against the accused in nine cases out of ten. I do not think that that would be good to know, and from a tactical point of view it is decidedly not a good thing to be deprived of an opportunity like this, because, let us admit this between ourselves, the accused can now no longer sit there listening to all the evidence and listening to what the other witnesses have to say about him. He must now speak first. Through this the defence loses a valuable privilege or a valuable opportunity, but the truth, I believe, will prevail in this case as well.

I must conclude, but I want to express the conviction that this Bill is necessary. It is necessary to consolidate the existing legislation with the amendments which have already been effected to it. It is also necessary at the present juncture, when there is a great deal of work in South Africa, but little time and even fewer people to do the work than there is time. The Bill is drastic, but I do not doubt for one moment that should anything be included in this Bill which could prejudice a person in his defence, our judges would not hesitate a moment to see, nor would they baulk at ensuring, that justice is done. [Time expired.]

Mr. Speaker, the hon. member for Waterkloof made many statements that I unfortunately cannot follow up, but at a later stage in my speech I shall deal with certain points which he broached. However, there are certain of his allegations that I cannot allow to pass and which I must comment upon. The hon. member accused us on this side of the House of having brought politics into this matter. I fling this back in the hon. member’s teeth, because if there is one member who has made politices out of this Bill it is he. We regard this legislation as radical legislation and as legislation involving principles, and that is why we feel strongly about it, but it is wrong to say that because we feel strongly about it and because we vehemently oppose it, we want to make politics out of it. That is in no way our purpose. We want to give South Africa the best possible criminal procedure legislation; that is our whole object.

The hon. member went further and said that we cannot reach any decision—he got that, of course, from the hon. member for Pretoria Central who is not a member whose example it is worth following—because in the past we have requested the appointment of a judicial commission and now again we are requesting the appointment of a parliamentary committee. What argument is the hon. member now using? That is surely rubbish, because what kind of committee one considers will best be able to deal with that depends, surely, on the circumstances of each case. In this case we are requesting a parliamentary select committee for a very simple reason. The reason is that we are dealing here with legislation and that we want to pilot legislation through Parliament. To whom does the task of legislation fall in this country? It is surely this Parliament’s task. Who must, then, serve on such a committee but members of Parliament who are going to decide what shape the Bill is going to take? How can we now request a judicial commission to go into something like this? The hon. member’s argument is absolute nonsense.

The hon. member states further that this Bill did not descend upon the Opposition out of the blue. In a certain sense of the word it is true that this measure has been brooding like a thunderstorm for a long time, for more than three years. As the hon. member for Durban North said today, we did not know what the final proposals of the Government would be before they came forward with this Bill that is before us today. We did not know what it was, and nothing was final before it appeared before us three weeks ago. The Bill is not the same Bill as the previous one. I shall point out to the hon. House that as far as possible I have tried to make a list of the differences between the published Bill and this Bill. To merely state that there is a difference, took up four typed folio pages. There are, consequently, a tremendous number of differences in this new Bill. On the Order Paper at the present moment there are more amendments to the Bill being moved by the hon. the Minister of Justice. I think that this proves that this Bill has not yet been given proper attention. There is still a great deal that must be given attention. I do not think that in this short time at our disposal we have in reality seen how widely the effect of this legislation is going to be felt. It is not only a Bill introducing a new method of procedure in South Africa; it is an unprecedented procedure as far as the world in general is concerned. No one can tell us how it works. Hon. members who are quick to say that it will work this way or that way, do not know how it is going to work. We have never seen it in practice. That is why a great deal more research must be done about that before one makes a drastic change such as this.

The hon. member for Kroonstad has also referred to what the learned Judge Hiemstra said in connection with the long detention of accused before they come before the Supreme Court and are eventually sentenced. This, of course, is not a state of affairs that meets with our approval. In Johannesburg a prisoner, who is not allowed out on bail and must appear before the Supreme Court, has to wait an average of seven or eight months before his case comes before the Supreme Court and is concluded. One would like to see an improvement in that, but this Bill cannot bring about any change. The person still has to appear before the magistrate. Subsequently he is sent to the Supreme Court, but first there is the long process of cross-examination before the magistrate which he must undergo. The great problem in connection with why it takes so long for an accused to come before the Supreme Court, is that the Supreme Court roll is so full that no date can be obtained for the case. That is the big problem. That is the reason why they wait so long; they wait to get a date on which they can appear before the Supreme Court. Then there are also, in between times, adjournments of the court. Neither are there always sufficient judges available. Those are the problems causing the procedure to take so long. We do not need a new Criminal Procedure Act to eliminate this.

The hon. member for Kroonstad accuses us of being inflexible in our thinking, of not wanting to move ahead. Both the hon. member for Durban North and the hon. member for Pinelands have already said that we realize that there must be changes in the Act. We are not opposing all changes in that connection, but we are opposing these particular changes. That is the point. That is why we are requesting a Select Committee; we realize there must be changes, but we are not satisfied with these changes.

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

I am sorry, Mr. Speaker, but I am not going to answer questions now.

The hon. the Minister also said that according to law when an accused has pleaded guilty the magistrate before whom he must appear must explain all the relevant elements to him to make sure, as he put it, that the accused pleaded guilty correctly before he finds him guilty. It is quite correct that a magistrate cannot simply find a person guilty because he has pleaded guilty; he must make sure, in some or other way, that the man is really guilty as was his plea. However, we must remember that although the elements of an offence are put to him and he is cross-examined about them, those are abstract matters; for the majority of persons appearing before that magistrate those are abstract questions. From the nature of the case many of those questions are legal questions which do not merely deal with the facts: they have a legal content. They are not concrete in the eyes of the accused. He is not sure what all the effects are. This purpose, which the hon. the Minister speaks about, i.e. that the court must be sure that the accused has pleaded guilty correctly, was the role that the evidence played aliunde. That is why it is important, because that evidence is objective, objective in a sense that it does not come from the accused and has nothing to do with him. The court is able to look at the evidence first and then, with the aid of the other objective facts, to decide whether the accused has pleaded guilty correctly—that is, of course, the case in the more serious offences.

I have already said that this is a complex and important Bill, and I say this because if there is such a thing as a charter of human rights in South Africa, it is the Criminal Procedure Act. That is why we jealously guard the rights and the procedures contained in it. This is important and we feel it to be the entire basis of the legal set-up and of the community in South Africa. The hon. member for Waterkloof has said that it forms the basis of the legal system in South Africa, and he is quite correct in saying so, because the individual’s rights are contained in it. It is fundamentally based on Roman-Dutch legal principles with certain amendments such as we have introduced from time to time. It is therefore right that we should look carefully at any amendment of this and that a study in depth is necessary before one would really go so far as to change it. It is so wide in scope, and the consequences of its implementation are so far-reaching as cannot be determined at a single glance. As I have already said, I do not want to allege that there are no changes necessary to the existing Act. We know that there are shortcomings, and as the hon. member for Durban North has said, we know that there is a strong case to be made for no longer allowing the system of preparatory examination to continue. That is a matter we also want to have investigated. There are some of the hon. members who have said that this is one of the reasons why we want to oppose the present Criminal Procedure Bill, but that is not so and hon. members are making a mistake. It is not because we are opposed to the abolition of the system of preparatory examination. Not at all. We know that quite a few improvements can be brought about in that respect.

I therefore believe, and that is why I am supporting the motion of the hon. member for Durban North, that a Parliamentary Select Committee should be appointed prior to the Second Reading, before we accept a single principle of this Bill, so that the matter can be investigated further. I want to give the background to why we approach the Bill as we are doing. This Bill about the Criminal Procedure Act protects the rights of the State and those of the accused. It is quite correct that the accused should not be unnecessarily benefited, but he must not be unnecessarily prejudiced either. There is a fine balance between the interests of the State and those of the accused, and that balance must be found. The accused must never be placed in a worse position than the State. I think there is one principle that affects our approach in this connection and that emanates from this, i.e. the independence of the judiciary, not only from an administrative point of view, but also because the presiding officer should never enter the arena or assist in building up the case against the accused. That is solely the duty of the State.

In this connection, in particular, I want to remind hon. members that in terms of this Bill an accused can be brought before the court and be charged with a certain offence. He then appears before a magistrate and all the questions are then put to him and the position is explained to him. He then makes the necessary admissions, those which he does make and those which he does not make. They then find, or they know from the beginning, that they cannot prove the alleged offence against him, but that from the admissions he has made they can prove another offence against him …

What is wrong with that?

The hon. member must just listen first. Then they can withdraw the case against him at that stage and he is then not entitled to be found not guilty on that charge. The result is that the Police, the people investigating this case, have then obtained valuable information with which to pin him down, without his actually having been charged, owing to the admissions he has made.

Now what, for the sake of justice, is wrong with that?

The principle is, as I have said, that the accused must not make out a case against himself—it is the State that must prove the case against him.

A further principle is, as I have said, that we must regard the accused as being innocent until he is proved guilty by the person who alleges that he is guilty. That person must prove him guilty, and not he himself. The system must not be aimed at trying to catch the accused unawares. The accused must be able to see his accusers face to face. We believe that this Bill causes an important breach of this principle and also others. It is from this point of view, bearing in mind everything I have already said, that we regard the Bill. In all our criticism or allegations this basis must be borne in mind. Sir, it is true that the Bill does not only have one single principle. That is true to a certain extent, but I nevertheless believe that there is a principle running throughout this Bill, i.e. that of making everything easier for the State and more difficult for the accused. The intention is to take away more and more rights from the accused.

That is the principle running through this whole Bill from beginning to end. It begins at clause 6(b) in terms of which, as I have said, the case can be withdrawn after admissions have been made. Then he is not entitled, to be found not guilty either if a case has not been fully proved against him. This is also applicable to smaller cases, as in clause 7(2)(c), in terms of which a person, in wanting to exercise a tremendously important right of his, i.e. to institute a private prosecution, must do so within six weeks, after the State has usually had months and months to prepare its case and to eventually decide whether it is going to prosecute or not. The accused must then carry out that same investigation within six weeks.

Clause 22(2) of the published Bill has been left out here, i.e. the provision that when a person’s house is being searched without a search warrant this should, as far as possible, take place during the day and that two prominent people in the neighbourhood should be present to ensure that that right cannot be abused. This kind of act must take place in public. I think that is very important. So these principles run throughout the Bill, through all the small provisions. Although we have continually been speaking about the basic change in this Bill, these changes also run through all the smaller provisions.

A great deal has already been said about the new provisions from Chapter 17 to Chapter 20. At this stage we do not know enough about that to be able to decide on what all the results are going to be. An accused can now be found guilty without any further evidence. I want to say that he could plead guilty to a charge for many reasons, and can even make all the necessary admissions after the situation has been explained to him. One of the most serious considerations bothering me is that for some or other reason he could try to protect the real offender by pleading guilty. Because there is no evidence indicating that he is the person who committed an offence, we shall never get to the real offender. The real offender will never be brought before the courts, because this person is protecting the offender in court and the real evidence never comes before the court.

But I should also like to deal with clause 119, which I think introduces a tremendously important difference in principle; because if someone pleads not guilty, everything is surely placed in doubt. Then the State must prove the case. Nowhere in clause 119 is it provided that the same must happen, as far as he is concerned, as when he pleads guilty in a magistrate’s court, i.e. that an explanation should be given of what the elements of the offence are. Now he is asked: “Is there anything more you want to say about that? Is there anything you want to explain?” If one is appearing in court, it can be imagined what the position in practice will be. He may say: No, I do not know. What must I do now? Then the magistrate will tell him: Is there something you want to tell me? What did you do? The magistrate will have to question him. The magistrate will have to explain to him what is expected of him. He will tell him: Look, what are you now trying to do? Why are you pleading not guilty? Did you not do it? Do you want to tell me that you did not do it? That is the kind of thing, Mr. Speaker, that will happen every day. We have witnessed enough of that to see that that will be the position exactly. I myself have frequently heard them say: Look, this policeman says you are guilty. Do you want to tell me you are innocent? Now he has the right to do so. At that time an appeal could be based on that. But now it is his duty to ask such questions. That is the big difference.

Let us take the case of a person who is being charged with a hit-and-run offence. How many charges cannot be laid against that person? He could be charged with not having stopped; not having reported the matter to the Police; having driven recklessly or negligently or without due regard to other people on the road. There one already has four alternate charges.

There are others as well.

Yes, there could also be other charges. One could even add culpable homicide. What elements must he now admit to and what must he not admit to? How must he understand all of them? I am specifically taking a hit-and-run case for a special reason. If the magistrate now asks him whether he is the registered owner of that motor vehicle and he says “Yes”, the State already has prima facie proof that he was the driver of the car, because there is a presumption in this Bill. Must the magistrate under those circumstances also ask him whether he was the driver, or is it sufficient for him merely to ask him whether he is the registered owner? If he were to ask him whether he is the registered owner and he says “Yes”, the State does not need to prove any other aspect because then that is already prima facie evidence that he was the driver on that specific day. I am now arguing in terms of the provisions of this Bill. There will be other things that he must prove, but this is a very important element, particularly in a hit-and-run case. Then one of the most important elements is that one question. Must the magistrate now also put the other question? Must he ask him whether he was, in fact, the driver? Or is it not necessary for the magistrate to put that question? Then each of the alternate charges must also be dealt with one by one. What a long process! It would be a long drawn-out process. I can assure you, Mr. Speaker, that if evidence is led from the time a person pleads not guilty, it would have taken just as long. One has the same problem with a person being charged of drunken driving and pleading not guilty. There he has the problem of the ,15% alcohol in his blood. How can he admit to those elements? How must that person know whether the correct procedure was adopted when a sample of his blood was taken? How is he to know whether the procedure used in testing his blood was a correct one? The person would resign himself and say that if his blood has been tested then that must be the position. Little does he know that his arm might have been wiped with methylated spirits or something of that kind, which gives the whole matter quite a different slant. That is the kind of thing that becomes much more serious, under these circumstances, than was the position that obtained in the past. This, you must remember, is all done at the first appearance, i.e. the moment the person enters court. The State has by then had a chance to obtain evidence in terms of which to draw up its charge sheet, but these questions are now suddenly put to this person in court and he must reply to them. And he is going to be cross-examined by the magistrate at this stage. No provision is being made for his being told at that stage, when the charges are put to him: Look, you are now entitled either to plead or to ask that the court adjourn so that you may obtain legal representation for yourself or can decide how you want to plead. No provision is being made for his having to be notified of that before he is asked to plead. In my opinion that is the least one can expect. As I have said, that things should be made more difficult for the accused is a thread that runs through everything.

Let us look again at the charge of drunken driving, to which reference was made in clause 212. This clause makes provision for all the documents which are admissible merely by their submission in court, i.e. those documents from people who did the blood tests and transported the samples, etc. This is done by way of sworn statements. But it is not merely a question of the sworn statement being admissible; it is also prima facie proof of what it contains. It is therefore quite serious. Under the old procedure the State had to give him notice. It had to give the accused reasonable notice of an intention to use such a statement against him, which gives the accused the opportunity to decide whether he is going to oppose that statement or not. And this assists administration more than anything else. But I find no provision in this Bill that states that they must notify him so that he can know that such a statement will be used against him and so that he can prepare himself to the extent of wanting to oppose that statement or not, giving them notice and stating: “Do not conclude the matter; get hold of the person because I want to cross-examine him.” After all, it is his right to cross-examine. It is being said that one of the big reasons is that this would save time. Sir, I want to say that far from saving time, this procedure is going to cause a bottleneck in the magistrate’s court. One of our biggest problems—and the Minister knows this better than I do—is the shortage of magisstrates, particularly in the ordinary magistrate’s courts, and not so much in the regional courts. What is the present procedure? Someone appears before the magistrate on a charge that necessitates his going to the regional court, because they know his record. All that prosecutor, who is working under pressure, does in the magistrate’s court—make no mistake; he is working under pressure—is to take the person’s name and to write down that the case has been postponed for 14 days. And with that the matter is finished and done with. When his fingerprints have come into his record, they get a date from the regional court and postpone the case so that it may go to the regional court. It therefore goes like a flash through the magistrate’s court and it is then the regional court’s task to go further. But now each of those cases must first be subject to this long procedure in the magistrate’s court; whereas the case originally went like a flash through the magistrate’s court, each of these cases will in future take a long time in the magisstrate’s court, while the charge sheet is put to him and he perhaps asks for an adjournment of the court and then pleads not guilty. Then the magistrate must go into the long story of what more he wants to say, and all the other elements he wants to admit to or does not want to admit to, until the matter has been argued out. This would extend the case ten-fold for the magistrate. This also applies to cases going to the Supreme Court. This will not be shorter than having the normal preparatory examination and, of course, where there is a summary trial it also goes like a flash through the magistrate’s court. So, there is going to be a tremendous bottleneck here which is going to aggravate the magistrate’s burden, which is already a heavy one, and under those circumstances, when people are working under greater pressure, the chances of an injustice being committed become so much greater. I can therefore in no way see that this would in any way expedite the process. Neither would it cause people to be found not guilty more easily at an earlier stage, as the hon. member for Kroonstad said, because if the man pleads not guilty, the State has already prepared its case, and the State would not withdraw its case or abandon it because he pleads not guilty. The State would still continue with its case. It would save no time. [Time expired.]

Mr. Speaker, all afternoon long we have heard hon. members of the Opposition asking that this Bill be referred to a Select Committee. Incidentally, it is rather interesting that they should ask that this Bill be so referred, particularly after then; Transvaal leader had addressed them this morning and since we know that their Transvaal leader adopts a somewhat sceptical attitude towards Select Committees and their serving on Select Committees.

Hon. members said that the case for a Select Committee had been made out. What is that Select Committee to investigate which has not already been extensively and very thoroughly dealt with by the learned judge of appeal, Mr. Justice Botha? What Mr. Justice Botha had at his disposal in drafting this report, has already been mentioned. Any student of the science of law who has knowledge of criminal procedure, immediately comes under the impression of the logical reasoning of the learned judge’s report. It bears testimony to penetrating study, and the scientifically motivated conclusions he arrives at are logical and well-founded. To what extent could a Select Committee, which in due course would in any event find itself in the same position as he did, come to a better conclusion than that to which he came in the cool and calm atmosphere of the commission which investigated this whole aspect?

The United Party is trying to create the impression that the learned judge really broke new ground, while in fact he had the benefit of the Act of 1917, the Act of 1955 and the reports and memoranda which have been mentioned here. We as members of Parliament have the further benefit of having at our disposal the commission reports of Great Britain and Rhodesia. It is significant that we have these reports, too, at our disposal because, as is well known, our criminal procedure is founded on the English system. This is particularly significant in the light of the fact that the British and Rhodesian recommendations go much further than those made by Mr. Justice Botha. Later I shall go into more detail in this connection.

As is the case in so many institutions in which the rights of the individual come up against the interests of the State, the pendulum has swung from one extreme to the another, also in the law of criminal procedure. For example, there is the case mentioned by the learned British Commission in its report, namely a case which lasted for two minutes 53 seconds. After the State had adduced its evidence, the judge asked the accused, “I suppose you have nothing to ask him?” Before the accused could address the jury, the judge said to the accused, “You have nothing to say, I suppose.” Later the judge said to the jury: “Gentlemen, I suppose you have no doubt; I have none.” [Interjections.] Then there is also the other extreme, illustrated by the following reference to “the fairness of the foxhunt”—

It is right and it is important that there should be a difference between the law of civil procedure and the law of criminal procedure because of the greater importance of the outcome to the accused. However, we must take cognizance of what the hon. the Minister quoted from the report of the British Commission and which I should like to emphasize once more—

Earlier on this afternoon, the hon. member for Durban North spoke of statistics. It is very clear that he did not read Mr. Justice Hiemstra’s first article. This article dealt extensively with the statistics as they existed in 1963, and the conclusions he arrived at were that from 25% to 40% of all accused charged in our various courts went free and that another 15% to 25% went free on appeal. No right-minded person can accept that four or five out of every ten accused are really innocent of the crime with which they have been charged. There is no doubt in my mind that a good case has been made out for overhauling the law of criminal procedure, and particularly the aspects as embodied in this Bill.

I come now to the question of pre-trial interrogation. A great deal indeed has been said about this so-called interrogation. It must be kept in mind that the judges’ rules have not been abolished. It should also be kept in mind that the ratio for this new provision is that the accused should be brought before the court as soon as possible. He must be asked at the psychologically correct stage what his plea is to the charge laid against him. If he wishes so, he has to be afforded the opportunity of advising the court of the basis of his defence. This is no inquisition. After all, clause 119 provides explicitly for the accused to be asked by the magistrate whether he wishes to tender any explanation of his attitude in relation to the charge. If he answer, “No”, the magistrate asks him, “Is your plea of not guilty intended to place in issue all the elements of the offence?” Then he answers, “No.” To what extent is he being prejudiced, to what extent is this an inquisition, to what extent does the magistrate enter into the stuffy atmosphere of the court itself? This is only an extension of his plea that he is not guilty. This is by no means a question of his taking part in the process of conviction or otherwise. Just as in the past he can still say that he places the whole matter in issue. Then the State has to prove all the elements of the crime. When hon. members look at this procedure and compare it to the procedure proposed by the learned Mr. Justice Hiemstra in the first instance, they will see to what a large extent they differ from each other. They differ particularly in the respect that the learned judge says that after the accused has been asked the question and in the event of the accused having remained silent, the court may draw a conclusion from his silence. In clause 119 and the subsequent clauses there is no provision for the accused to suffer any decision which could be prejudicial to him if he should remain silent. No cross-examination is allowed. The hon. member for Florida, however, suggested that the magistrate could ask all kinds of questions. What really happens is, as was stated by the hon. member for Kroonstad, that just as in a civil case there is an exchange of pleadings. In what respect does it differ from that procedure? One can ascertain precisely what the principles are on which one’s defence rests. It is interesting to note that this system of pre-trial questioning was already known in Biblical times. Mr. Justice Hiemstra also referred to this and said references to this were to be found in Genesis 3. verse 13, and in Joshua 7, verses 19 to 21. In Joshua 7, from verse 19 to verse 21, Joshua, a judge of Israel, interrogates Achan and I quote—

Even the provisions of clause 19 do not go as far as this. So no fault can really be found with the underlying philosophy that it is a natural tendency in man to talk when he is innocent and to remain silent when he is guilty.

Let us just take another look at what the British Commission says in this connection. The hon. member for Pinelands said this was a matter handled solely by the Police, but this is not true. That commission is really referring to what happens when the accused comes to court. When a prima facie case has been made out against him the accused should be told by the court that he will be requested at a suitable time to adduce evidence …

On page 19 the British Commission goes on to say—

Then the Commission goes a step further—

In France, for example, the history of the accused, including his criminal record, is read out at the commencement of the trial to give the jury an image of the accused. The British Commission recommends that relevant previous convictions also be read out prior to the trial. Hon. members must remember that in England they still have a jury system and a system of lay magistrates.

Incidentally, the hon. member for Florida spoke of a charter of human rights. What did the Human Rights Commission of UNO say about this very matter?—

I want to stress that in clause 119 there is no question whatsoever of the court being able to draw any conclusion from the silence of the accused.

It would be only human to do so.

No, if it were, the accused would win his appeal every time. Hon. members will see that it is stated in the further amendment to clause 151(1) that the court may draw certain conclusions if the accused is not called first. Hon. members may look at that. In terms of clause 199 the court dare not draw any adverse conclusions from the fact that the accused has remained silent. Remember, too, that he is represented by his legal adviser who may himself reply to those questions and those concerning the elements of the offence. The accused need only say whether he agrees with his legal adviser or not. The Rhodesian Commission says that at a preparatory examination the prosecutor may tell the accused, “Now you have an opportunity to speak and if you do not speak now, the court will draw an adverse conclusion.” Should he still remain silent, the prosecutor can ask him more questions. However, he is still entitled to refuse to answer. The prosecutor may then ask him why he refuses to answer. To this he may still refuse to answer. This again leads to an adverse conclusion.

I come now to the question of confessions. The hon. member for Kroonstad has already explained that South Africa is the only country in which the confession made before a police officer is not admissible. The hon. the Minister has already made mention of the fact that the Minister of Justice in 1917, when the Act was first placed on the Statute Book, was against this and voted against it on the Select Committee. This does not exist in any way in Roman-Dutch Law, nor in English Law. It is described as “a standing insult to our police”. Again the underlying principle is basically unassailable. In his treatise, “On Evidence,” volume 3, paragraph 851 on page 319, Wigmore says—

Just as is the case in clause 217, the Rhodesian Commission suggests that the onus be transferred to the accused to prove that a confession of guilt before a magistrate was not done freely. Against this provision, too, no valid criticism can be advanced. It is interesting to note that in England a strong case was even made out before this commission that confessions be accepted by the court in all cases and that the circumstances under which they had been obtained should determine the weight to be attached to them. Eventually it was decided that the circumstances under which they were obtained be subjected to a lighter test, i.e. “a threat or inducement should render a resulting confession inadmissible only if it was of a sort likely in the circumstances existing at the time to render unreliable any confession which might be made by the accused in consequence thereof”. And then on page 13, the important statement—

The hon. the Minister mentioned that the old procedure in terms of which a person, after the conclusion of the case, had the right to make a declaration from where he stood, had been abolished. This was not a sworn statement and one could not be cross-examined nor could one really be interrogated about it. That unnecessary and time-consuming system is now being abolished. This is completely acceptable and I do not believe that hon. members of the Opposition will object to it. This is also the position in England and the Rhodesian commission is in favour of it.

The hon. member for Waterkloof mentioned clause 151, which is welcomed and which provides that the accused must adduce evidence first on the conclusion of the case for the State. In practice, as things are today, he had the right to listen to the whole case for the State and also to listen to the evidence of his own witnesses. The possibility therefore exists that he can adapt his own case to the evidence adduced by his own witnesses. It is also interesting to refer to the clauses dealing with the competence of witnesses, namely the necessity or the fact that the wife of an accused is a competent witness under certain circumstances. The British commission recommends that the wife be a competent witness but can also be a compellable witness where a charge of violence against her has been laid, where children under 16 have been assaulted, or where a sexual offence has been committed.

I want to come back to the plea delivered here this afternoon by the hon. member for Durban North, namely that there was so little time for the Opposition to study this Bill. He himself admitted that the first publication of the Bill which followed the report of the judge, took place as early as December, 1970. He thought that it was not necessary to react to it, “because in the fullness of time” these matters would in fact be brought into question. Surely, Sir, that is not a legitimate reason for this matter to be referred to a Select Committee now. If he has failed in his duty, if he did not act after that Bill was published in 1970, why should he now ask that the matter be referred to a select committee? He says that something of this nature is an “insult to Parliament”. He forgets that a great deal of evidence was adduced before the judge of appeal, Mr. Justice Botha, and that he had the fullest opportunity to study everything from which this fine Bill resulted.

I should just like to refer briefly to the question of the admission of guilt, to the fact that evidence aliunde is no longer necessary. A big issue was made of the fact that the magistrate or district magistrate was not in a position to pass judgment, since he had not heard the elements of the crime. Sir, the hon. member failed to keep in mind clause 112(3) which gives the magistrate and the prosecutor the opportunity to make out a case for an extenuation or to bring to the court any relevant matter before judgment is passed. Therefore I want to state that this Bill, as it is before this House at the moment, is an outstanding piece of work and deserves the support of this House.

Mr. Speaker, the hon. member who has just sat down has, talking on behalf of his side of the House, I think, very correctly dealt with some of the features of the Bill, which he feels support the hon. the Minister in his plea that the Bill should pass the Second Reading stage. I do not think his criticism of the hon. member for Durban North, namely that he had woken up somewhat late and could have made his protestations perhaps on a previous occasion, is appropriate in the present circumstances. It is quite clear to me that the hon. member for Durban North certainly was justified in his plea to the hon. the Minister to refer this Bill to a Select Committee. I can give very many good reasons for that. A particularly good one which comes to mind immediately is the fact that we are faced today with an Order Paper on which there are 13 amendments to this Bill by the Minister, some of which are extremely important, affecting matters which would have been the subject of rather severe criticism in the House, because certain defects which would have made it necessary for this Bill to receive further consideration would have been made apparent.