Mr. Speaker, I move—

Agreed to.

Mr. Speaker, I move without notice—

Clause 20:

Mr. Speaker, I move—

Third Reading

Mr. Speaker, I move—

Agreed to.

Mr. Chairman, this is the definitions clause and there are, as you will see, a number of amendments on the Order Paper, and arising from them it may be necessary to change the definitions clause, and I would therefore move—

Agreed to.

Clause 3:

Sir, this is the clause which provides that the Attorney-General is the person who conducts prosecutions on behalf of the State; and in sub-clause (5) it provides—

Sir, I know that it has not been the practice of the hon. the Minister, who is the present incumbent, in any way to interfere with the decision of an attorney-general; he has said so in this House. But the power is given here to the Minister to reverse a decision of an attorney-general. That is a most serious thing to be done, and one cannot imagine circumstances in which this would be done. I therefore move as an amendment—

I think this amendment is a reasonable one, because it would be a most serious state of affairs if the Minister decided to reverse a decision of an attorney-general. I think it would have the added advantage that there would not be rumours floating around that the Minister interfered, or that something happened and that the attorney-general declined to do this or that, resulting in rumours floating around that the Minister interfered. These rumours, as the hon. the Minister knows, have done the rounds for a number of years and I think that this provision would eliminate that. I hope that the hon. the Minister will find himself in a position to accept this amendment.

I do not think that the hon. the Minister will be prepared to accept this amendment by the hon. member for Durban North. In fact, I cannot see the object of this amendment, except for the extremely superficial reason advanced by the hon. member, namely that rumours may arise that the hon. the Minister of Justice has abused his powers. Sir, I wish to express doubts as to whether this may be considered to be sufficient justification for the authority of the Minister in this connection, which is in fact the highest authority, having to be qualified and limited in this way. I wish to point out that this clause provides that all prosecutions shall be instituted by the State. The State is the highest authority and the body which is charged with the task of conducting all prosecutions and which has do so. After all, I think that it goes without saying that in this connection the Minister of Justice is the highest authority and the representative of the State. In fact, it is also the authority which will appoint the attorney-general. Therefore I think that this is simply a logical and consequential position. The State is the highest authority, and this is immediately followed by the authority of the Minister of Justice acting as the representative of the State, and therefore I think that this authorisation is essential and also believe that owing the implications which may arise, this power in favour of the Minister should, for obvious reasons, also be welcomed by the department itself and by the attorneys-general. Therefore I say that we on this side of the House are not in a position to accept this amendment.

Sir, the hon. member for Ermelo has correctly stated that in terms of this Bill before us, the authority to institute prosecutions or not to institute prosecutions is vested in the State. Sir, that is no argument. Because the actual administrative responsibility of carrying out the functions of the State is vested in a particular official with a particular status in the Public Service. In the case of prosecutions, the discretionary power to decide whether a prosecution should proceed or not has from time immemorial been in the hands of the Attorney-General. It is a discretion which is exercised by the Attorney-General on behalf of the State. One cannot conceive that every decision of the Attorney-General comes to the Minister for his opinion as to whether or not he should approve or disapprove. When the Minister does intervene in so far as a prosecution is concerned, whether to authorize it or to withhold, it, the circumstances must be most unusual. It cannot possibly a normal case. When I say “normal” I mean conventional crimes and conventional prosecutions. Where the Minister has then in fact exercized his discretion to intervene it will be in abnormal circumstances and these occasions, I presume, are minimum in number. The fact is that whether that prosecution is proceeded with or not, it remains as far as the public is concerned, the decision of the Attorney-General whereas in fact it was not a decision of the Attorney-General, as was customary and normal, but a decision of the Minister. Take as a corollary matters of promotions and appointment of officials in the Public Service. The Cabinet is responsible for the appointment of officials but the Public Service Commission makes the recommendations. In every instance where the Cabinet does not follow the recommendations of the Public Service Commission that is made public that the normal procedure has not been adopted. All this amendment of the hon. member for Durban North envisages is that where abnormal procedure has taken place, where the Minister has had to intervene, then Parliament should be informed. I think it is a very reasonable proposal and one which makes the matter clear as far as the public is concerned as to the isolated cases where the Minister has exercised his discretion and not the Attorney-General.

I think I should just point out to the Committee that this clause 3, to which the hon. member is objecting, fully corresponds with section 5(3) of the existing Act, a section which was also discussed in depth on previous occasions and which appears in similar form on the Statute Book. It has just been defined a little better here, but there is no difference between the clause as we now seek to enact it and as it is embodied in the existing Act. Nor do I find in the reasons advanced by hon. members opposite who have already spoken, any grounds for this side of the House to agree that this addition is necessary. In fact, I think that there is at all times sufficient opportunity for Parliament to bring a Minister to book if necessary. Up to now this section has worked well, and I feel that we should content ourselves with it.

The hon. member for Innesdal is quite correct in saying that it corresponds with the section in the present Act, but at the Second Reading we made it clear that we could not necessarily allow everything contained in the existing Act to go through, because if we do not agree with it, we want to change it. I think an important principle is involved here. The Attorney-General is an important figure in our administration of justice and much weight must be given to a decision made by him. The hon. member for Ermelo is quite correct in saying the State is the highest authority and the State is a body which institutes the prosecution, but he is wrong in saying that the hon. the Minister is the highest authority. Parliament is the highest authority, because the Minister is responsible to Parliament. When the Minister makes such a serious decision, as he can make here, then we believe that it is right that he should inform Parliament so that Parliament may exercise its constitutional right of control over the Minister and may discuss whether the Minister acted correctly or incorrectly. We do not question the right of the Minister to take under certain circumstances a different decision to that of the Attorney-General. We do not therefore oppose the clause on those grounds, but when the Minister makes such a decision, we want him to report it to this House so that we may say not only that justice is being done, but also that it is in fact seen to be done. I think this is quite a reasonable proposal.

The Opposition wants the Minister to inform this House when he decides not to follow a recommendation by the Attorney-General. Let us look at an instance where the Attorney-General decides to prosecute a person and the Minister decides not to prosecute him. In such a case the Minister must advise this House of that decision, and if he wishes to inform the House fully, he must give details as to why he took this decision. Then the case of a person who is not being prosecuted must be set out clearly here in this House and before the public. In that case the amendment of the Opposition amounts to an invasion of the privacy of the individual, and for that reason we must reject it. But let us look at the other case, where the Minister decides to prosecute a person and where the Attorney-General has decided not to prosecute him. What is the position then? Then the Minister must 14 days after he has taken the decision, and, we must assume, long before the case has come up in court, come to this House and provide it with details. What does that mean? That means that at this stage, before the case has come up in court, the State must show its hand and play its cards, and this is prejudicial to the State. For that reason, too, this must therefore be rejected. No, this amendment cannot be accepted. If the amendment only meant that the Minister would only have to mention the name and say that he had reversed the decision of the Attorney-General in this case, and he only furnished the name and no details of why he had done so, then it would be meaningless. It would mean nothing, for then this House would not be able to express an opinion on whether the Minister acted correctly or incorrectly. Under the circumstances it is my submission that this amendment has no substance and that it should be rejected.

The hon. member for Ermelo started this hare running, if I may call it that, by introducing the opposition to this amendment from that side of the House. He did so, I suggest, on an entirely wrong premise. His argument was to the effect that we on this side of the House were proposing to remove this power of the Minister to use his discretion.

To qualify it.

That is precisely the point. That was his argument —either to remove it or to qualify it. But that is not the case. We are not attempting to qualify the Minster’s discretion. All that we are asking is that once the Minister has exercised his discretion, he should report it to Parliament. There is a very sound reason for this request. The hon. the Minister has time and again told us that he wishes to preserve; the discretion of the Attorneys-General and does not wish to interfere in their functions. This is a very sound approach. Therefore, if he does choose to exercise this power which subsection (5) gives him, it will obviously be in very special circumstances; and I believe that it is in the interest of everyone that where he does interfere in the discretion of an Attorney-General he should report it to Parliament. The hon. member for Pretoria Central said that this could be undesirable because it would mean that it could be possible to raise that particular matter in Parliament. It may be in the public interest that that matter should be raised in Parliament if the Minister has exercised his discretion against an Attorney-General. Parliament should have the right to debate matters of this sort. Obviously, if it is not in the public interest, if it is a matter which would be harmful to the particular individual without being in the public interest, then clearly it is a matter which would not be raised across the floor of the House. However, as a matter of principle we believe that in such cases it is important that Parliament should be informed. I do hope that the hon. the Minister will agree to this amendment. I emphasize that it does not curtail the Minister’s powers in any way. It does not mean that he cannot exercise the discretion which this clause is giving him. It does not curtail that in any way. I therefore do urge the hon. the Minister to accept this amendment.

Mr. Chairman, the hon. member for Durban North knows the history of this particular provision as it has existed over the years. The position is that before 1917 everything was done in the name of the Minister. He therefore had full control and simply gave Attorneys-General instructions. That was the case until 1917. In 1917 the pendulum then swung right over to the other side. At that time Parliament placed the responsibility and the power to prosecute exclusively in the hands of the Attorneys-General. In 1926 Mr. Tielman Roos had the provision changed to read more or less as it reads now. His contention was that if power were left wholly in the hands of the Attorney-General, he would be responsible to no-one and no-one could call him to account. To balance the scales as nearly as possible, it was then decided and accepted that the Attorney-General would subsequently be subject to the control of the Minister. That was the position until 1925. Gen. Smuts was Minister of Justice at that time and he caused an amendment to be effected which, however, did not change the effect. One may therefore say that this provision has remained unchanged from 1926 up to the present time.

My contention is that I do not interfere with the activities of the Attorney-General. I have never done so, and I think I can also say this for my predecessor, because I do not know of one single case where the hon. the Prime Minister interfered when he was Minister of Justice. That is the general rule. However, I think it is wise for the Minister of Justice to have the ultimate control. Cases could arise where it would be necessary for the Minister to exercise control.

The question is asked why such cases are not tabled here or reported to Parliament so that the Minister may be called to account; he is, after all, accountable to Parliament. But that is just what is being done today. If there were ever a case where the Minister of Justice interfered, this would in fact be known. There is not the slightest doubt of that. One hon. member after another could then put questions to ascertain what was behind it, etc. The Minister is fully responsible. Such a case would also be raised during the discussion of the Minister’s Vote. I therefore have a great deal of respect for the argument of the hon. member for Pretoria Central, i.e. that one could embarrass a person were his affairs to be discussed here before the case had come up in court, or, on the other hand, because it would not be brought before the court.

I am sorry, but I think that we must leave this provision as it has been all these years. It has worked well, and I do not think that there has been reason for complaint at any time. I think that the hon. the Opposition and the hon. member for Durban North, who broached the matter, should accept it this way.

Mr. Chairman, I think this matter has been very fully canvassed, and all the views that could have been put have been put, but I am afraid that we still differ on this matter. I do not think one can say that it will be known. There is the possibility of rumours. I remember that a long time ago there were very strong rumours about a case, for example, that the Attorney-General in a treason trial issued a nolle prosequi, but nevertheless the Minister decided that the prosecution should proceed. One does not know whether that was so or not.

To which treason trial are you referring?

That first one, years and years ago.

In the 1950s?

The one where there were about 150 accused. This amendment will avoid that sort of occurrence.

Was a question about it not asked in Parliament?

I do not know; I was not here. At any rate, the amendment cannot cause any difficulty to an accused person, because we have in this House the sub judice rule that one may not discuss anything which is the subject of a judicial decision. Therefore this amendment gives protection to the person concerned. I accept what the hon. the Minister has said, as did his predecessor, that they do not interfere with the attorneys-general and their decisions. But if they do, I am sure the hon. the Minister would concede, it would only be in the most serious circumstances, and such circumstances would be so serious that Parliament ought to know about them. The hon. the Minister’s views differ from our views on this matter and so we will have our opposition recorded.

Amendment negatived (Official Opposition dissenting).

Clause agreed to.

Clause 6:

Mr. Chairman, I move, as an amendment—

I would like to make it clear that in moving my amendment, I have followed the memorandum of the Bar Council very faithfully. It does not mean to say that I have in every case accepted what they proposed; but on the major clauses I have followed their arguments. Where I agree with them, I have notified amendments which I hope the hon. the Minister will find possible to accept. According to the arguments of the Bar Council, clause 6(b) of the Bill empowers the Attorney-General, after the accused has pleaded to a charge, to withdraw the charge without the accused being entitled to a verdict of acquittal. They go on to say that this provision is unwarranted and is in conflict with the accepted principle that once an accused person pleads he joins issue with the State and the case must proceed or he must be acquitted. I cannot see any reason why the hon. the Minister is amending this provision. It seems to me a just provision that once issue has been joined, the accused should be entitled to an acquittal. Otherwise it does appear if the case is simply withdrawn that he could be charged again with a similar offence or even perhaps with the same offence. I would like to move this amendment which puts the law back to what it was before the present Bill was brought to the House.

This clause is in point of fact a tremendously important one. It contains a complete change with regard to the law as it stands and as we believe it ought to be. The clause should not be seen separately in a vacuum. It must be seen in the light of the provisions contained in clause 119 and in other clauses, in terms of which certain information may be obtained from the accused by way of interrogation by the court. The one is bound up with the other. One of the most fundamental objections we have to this has already been raised in our arguments, and that is that this is an inquisitorial system. Here the court will in point of fact be assisting the State in formulating a charge against the accused. In terms of this the court may, after the charge has been put to the accused, undertake this interrogation in order to extract certain admissions, etc., from the accused. This, of course, detracts enormously from the objectivity of the magistrate. Consequently I move the following amendment—

The amendment I now seek to have effected will mean that although the charge may still be withdrawn after the accused has pleaded, it will not be possible to withdraw it after the interrogation has taken place. Otherwise it means that after the charge has been put to the accused and after certain admissions have been made to a particular charge, that charge may be withdrawn and those admissions may be used for drawing up another charge sheet against him and for charging him again without the State having any evidence. In actual fact the evidence for that has been provided by the accused. This is contrary to all legal principles in South Africa. It is for the State to prove that a person is guilty. It is the State’s duty and the State’s function to bring about a conviction. For that reason this is important. This is the most inquisitorial of all the elements. After all, the accused is interrogated for the purpose of seeing whether the State cannot find some evidence. As we say in English, this is “a fishing expedition” on which the State may go to see whether they can find anything in terms of which a person may be charged. That is what the provision in the Bill may be used for. Therefore I propose that if he has pleaded and those admissions have been extracted from him and the charge is subsequently withdrawn by the State, the accused must be acquitted on that charge.

I also want to say a few words with regard to the amendment moved by the hon. member for Houghton. It is a fact that the Act at present does provide that an accused, after he has pleaded and the charge has been withdrawn, is entitled to a verdict of acquittal. That is so, but I do not believe that a very important principle is at stake here in that regard. From a practical point of view, it often happens that a person pleads to a charge and that certain circumstances only come to light afterwards. It may concern the technical nature of the charge and the technical evidence which may not have been available at that stage. It may also be a petty charge. One also finds the case of a transgression charge where the person is not immediately available or will possibly not be available for a few months. Now the case may be postponed and the person will perhaps have to be detained. Perhaps he is not in a position to obtain bail. This is the sort of charge which I refer to, where the person has already pleaded. If certain admissions have not been obtained from him, I do not believe that there will be anything wrong in withdrawing the charge, rather than causing the accused further inconvenience by awaiting trial, which will cause him to be in prison in the meantime. The charge can rather be withdrawn and the State may retain the right to charge him again. I cannot see that the accused will be prejudiced in any way if he has merely pleaded and the charge is subsequently withdrawn. It is an improvement. For that reason I say the amendment moved by this side of the House is a far better one. I think the hon. the Minister will agree that it is a reasonable amendment in the light of legal practice and our legal principles which have been established in the course of centuries.

Mr. Chairman, I do not think this side of the House will be prepared to accept either the amendment moved by the hon. member for Houghton or that moved by the hon. member for Florida. The hon. member for Florida is on the wrong track with regard to his reference to a “fishing expedition” and his assertion that the accused would allegedly have to assist the State in drawing up a charge sheet.

That is so.

Very well, let it be so. After all, the position is that the whole situation must be seen and read, as the hon. member remarked quite rightly, the context of the rest of the Bill, and particularly in the context of the procedure laid down in clauses 105, 119 and others. It is necessary for the State to be granted the opportunity of formulating its charge sheet properly. Consequently it is necessary for a procedure of this nature to be laid down. The present procedure provides that the charge may be withdrawn before the accused has pleaded. Then the case is abandoned. The present procedure also provides that the prosecutor may withdraw the charge after the accused has pleaded, that is prior to conviction. The only thing that is happening now in terms of the new procedure, is that the critical moment is being moved to the point before any evidence has been led. Now there are three stages—i.e. the stage before the accused has pleaded; the stage before evidence has been led and then the final stage before conviction has taken place—when proceedings may be halted and the accused may be acquitted. I think this procedure is necessary in the light of the provisions of clause 105. After all, the State should have the right, should it choose to do so, to withdraw its charge and, if need be, to change it. Otherwise the position will arise of the accused being entitled to total acquittal at that stage already. I do not believe that that is the idea. The position may also arise where a prosecutor may be hesitant to bring about any changes when he is faced by this situation. There is no real prejudicing whatsoever of the rights of the accused in this regard. In fact, it can only lead to a rapid settlement of the case. I want to contend that this is necessary, that it is a good procedure and that this clause should not be amended.

Mr. Chairman, I find the attitude of the hon. member for Ermelo disappointing to say the least of it. I go further and say that if this is going to be the attitude of the hon. the Minister then it will confirm our worst fears in regard to not only the effect of this legislation, but the intention of the Government in introducing the new procedure in terms of this Bill. I say this because the attitude of the hon. member for Ermelo— which may also be the attitude of the hon. the Minister—will do damage to the very principle of our law which Judge Botha was very careful to preserve, namely the two principles to which I referred especially in the Second Reading debate yesterday. Those principles are the right of the accused to silence at all times, and his right not to be in any way implicated either in assisting the State in proving its case or in showing his innocence. I would point out to the hon. the Minister that those are two fundamental elements of the basic principle of our law, that the onus of proof beyond reasonable doubt rests upon the State, and Judge Botha has not at any stage in his report suggested that this should be altered in any way. On the contrary, as I pointed out during the debate yesterday, he went out of his way, I suggest, to emphasize the importance of preserving this principle without doing any damage to it. He said that an accused’s right to silence at his trial would lose all meaning if he could be placed under pressure at a pre-trial interrogation to incriminate himself in respect of the offence charged. The same reasoning applies even where there is not the sort of pressure which there would have been under Judge Hiemstra’s proposal. The same applies, in other words, if questions may be put to him. I concede, as the hon. member for Ermelo pointed out, that he is not obliged to reply to those questions. He may remain silent, but we pointed out in the Second Reading debate that the circumstances under which he will be brought before a magistrate and under which these questions will be put to him, may lead him, especially if he is illiterate and unrepresented—and such persons will form the majority of those who will be brought before the magistrate—to feel that he must give a reply to those questions. The effect of this clause is that after the accused has answered questions it will be possible for the State to withdraw the charge without giving any decision on the charge, as is required at the present time. At the present time, also, I would point out to the hon. member for Ermelo, an accused has the right to silence. He is not obliged to give any reply other than to say that he is guilty or not guilty. And yet, with the law as it stands at present, once the charge has been put to him, he is entitled to a verdict if the State chooses to withdraw the charge against him. In other words, he is entitled to a verdict of not guilty.

What is being sought under this clause is that, after the questioning has taken place, the State will be allowed to withdraw without giving the accused a verdict of acquittal. This can be seriously prejudicial to an accused person, because he may well give replies to these questions which will indicate that he is not guilty of the charge which has been put to him, but which may at the same time indicate that he is guilty of some other offence. This, as I have said, can be seriously prejudicial to an accused person. Surely the amendment which we suggest is perfectly fair under these circumstances. If in fact the State wishes to withdraw, then it must choose to withdraw before any questions are put to the accused. We do not agree with the hon. member for Ermelo that the critical stage of the new procedure is the stage before evidence is called. The critical stage is the stage before any questions whatsoever are put to an accused by a magistrate. Our amendment has the effect of giving the State the opportunity of withdrawing immediately after a plea, but before questioning. This the State does not have the right to do under the law as it stands at present. It does, however, provide that once questioning has taken place by the magistrate, the State shall then not be allowed to withdraw without giving the accused the benefit of a verdict of acquittal. I would urge the hon. the Minister to consider very carefully this amendment in the light of Judge Botha’s findings throughout his report. I would emphasize that throughout his report his view was that no new procedure should be introduced which would in any way damage the fundamental principles upon which our law is based. With the greatest respect, if paragraph (b) is passed in its present form, it will undoubtedly do damage to these fundamental principles. I say this, even if one assumes that this is not an inquisitorial procedure. I am not arguing on that basis now, Sir. Even if one argues on the basis of the new procedure as was propounded by the hon. the Minister and that side of the House, it nevertheless involves some questioning by the magistrate in order to decide whether the accused understands the elements of the charge and intends his plea to be an admission of these elements. The magistrate may have to put elucidatory questions to an accused person. The hon. the Minister shakes his head, but this is so. The Minister must not think that all the magistrate can do is to put these questions to an accused person, to which that person then replies “Yes” or “No”, and that that will then be the end of the matter. The accused may well not follow a question. He may say, “I do not understand this. What happened was this.” The magistrate may then have to put further questions to establish whether in fact the elements of the charge are clearly understood by the accused. [Time expired.]

Sir, I first want to say that basically the amendment moved by the official Opposition and the amendment moved by the hon. member for Houghton amount to exactly the same thing. I think the only thing is that she is more consistent in that she proposes the deletion of the paragraph, whereas the Opposition’s amendment will in fact have the same effect. Sir, the whole idea of the new system of pleading is to accelerate trials. When a person has been arrested, he has to be brought before a magistrate as soon as possible in order to make his plea, and if it cannot be done immediately, then as soon as possible afterwards. The effect of that will be that the accused may go free already on that first occasion when he pleads, if he can give a proper explanation to the court at that stage. He may go free after he has pleaded, but he first has to plead. Sir, if one retains the old system in terms of which the accused, after he has pleaded, is entitled to a verdict of guilty or not guilty, then one will find the position of the prosecutor being hesitant to allow the accused to plead as the prosecutor does not have all the information concerning the case at that stage. Under the old system the accused pleaded after the court had fully acquainted itself about the case; the Police had the dossier available and the prosecutor had prepared a comprehensive charge; the accused was entitled to obtain further details concerning the charge, and he then pleaded guilty or not guilty to the charge, and then the court was indeed bound to find him guilty or not guilty.

Sir, what is the effect of this provision? The effect of this provision is no different from the present position, except that the accused is not entitled to a verdict of guilty or not guilty. If the State does not proceed with the case, the accused goes free in any event. But subsequently if the State finds, after a thorough investigation has been conducted, that a prima facie case may in fact be made out against the accused or that there is in fact sufficient evidence, the accused is summoned to appear before the court and the case proceeds. After all, Sir, we know what happens with some cases. I know, and the hon. member for Durban North knows—although I am not so sure whether the hon. member for Florida knows this—that there is another way one may go about this. One goes into the prosecutor’s office and tells him; “The accused is outside; are your witnesses here?” The prosecutor replies that his rool is very full and one then tells him that the accused will make a plea of guilty to a charge of assault if the case is tried immediately. The prosecutor then replies that his witnesses are not available and one then tells him that the accused will plead not guilty. If the accused has pleaded and has been found not guilty subsequently, he may then come along and raise a plea of autrefois acquit; in other words, he then goes completely free in a case where it will in fact have been possible to make out a case against him. One knows that such things have happened in the past and that it is possible that such things may happen. Sir, therefore this amendment is not acceptable, in view of the new set-up being created by this Act, because if the amendments proposed by the official Opposition and the hon. member for Houghton are to be accepted, we may as well leave the whole Criminal Procedure Act just as it stands today.

I do hope that we will hear what the hon. the Minister’s view is on this too. The argument of the hon. member for Waterkloof is that this has to deal with the situation when the accused comes along and pleads not guilty and then due to certain circumstances the prosecutor suddenly finds that his witnesses are not there. Well, that situation is met by the amendment moved by the hon. member for Florida, because that amendment says you may withdraw after a plea and you may then recharge him but you may not do so if either evidence has been led or the man has been interrogated by the magistrate and has given what in effect is evidence. That is the whole point. The hon. the Minister concedes in this Bill that you should not withdraw after evidence. Now, what is this quizzing process? What happens? He is asked questions and the answers to those questions form part of the record. They are evidence. In fact, it is incontrovertible evidence. It cannot be controverted unless he can show that it was incorrectly recorded. So the effect of the amendment of the hon. member for Florida means in effect before any evidence has been given. After evidence has been given you may not withdraw. That is the one point. I was attempting to indicate that the answers to the questions become evidence, incontrovertible evidence. But now there is the matter of asking the accused questions. It is the function of the Police to interrogate an accused. They are entitled to interrogate an accused and they always do it, and the accused has certain rights. But the difficulty here is this. The principle existing now is that once you have pleaded you are entitled to a verdict of guilty or not guilty, whether or not evidence is led, because you have been put in jeopardy by having to plead to the charge where the issue is joined. But we agreed that in fact there are circumstances, such as the hon. member for Florida described, where it is difficult in practice to say that once he has pleaded he is entitled later, if there is no evidence available, to a verdict of autrefois acquit. Bui that is as far as we go. Then we say that if there is any evidence then he is in fact in jeopardy. He is in jeopardy without any evidence but he is in jeopardy if there was evidence. The whole object of this interrogation is to make the accused say something as quickly as possible, something which is in the nature of evidence and which, it is hoped, is detrimental to his case, or shall we say, that it will complement the State’s case in as much as they will not have to call evidence to prove the admissions that they got from the accused. Listening now to the argument of the hon. member for Ermelo and of the hon. member for Waterkloof, I am beginning to wonder for what purpose this is going to be used. It is now becoming apparent that this is required not for the purposes stated by the hon. member for Waterkloof, but for the purpose of using this in effect as a weapon of Police interrogation of an accused. Because what do they do? This is going to be the policeman’s dream, the investigating officer’s dream. He is going to say: “Well, I have to investigate this case but I am not going to traipse 20 miles out to do this, that and the other. This fellow knows it. I have interrogated him and I know very well he knows it and I have to get that evidence.” Then he is going to say: “I do not have the evidence in my docket and I am not going to be bothered anymore, so let us have a go; let us call this fellow and put him in court and charge him” and then he will have to go through the quizzing process, the interrogation by the magistrate in terms of section 119.

That is very limited.

Limited? Sir, when you get persons who do not know their rights, particularly in this situation: The investigating officer asks the accused “What happened?” And then he tells him what he did. That is not admissible evidence, but once that same person goes to court and answers the magistrate then it is not only admissible evidence but it is also incontrovertible evidence.

Incontrovertible of what the accused said.

That is correct. You cannot ever controvert that. The point is that it is wide open to abuse.

By whom?

By persons investigating cases and who have evidence against someone. And who are they? Is it now open to any prosecutor to say: “Let us give it a go; we have nothing to lose.” Because in fact if he does not say anything and we have no evidence we will withdraw. In other words, this opens itself to the charge that it is going to be used for the purpose of intimidation, in the first place, and for the purpose of Police investigation. It is wide open to it.

Intimidation by whom?

If the real reason for this is the reason given by the hon. member for Waterkloof, then the hon. the Minister should accept this amendment.

Mr. Chairman, may I put the hon. member a question? Does the hon. member suggest that because of this interrogation, which I regard as a limited interrogation, one will find that an innocent person will be found guilty of any crime? Does he suggest that innocent persons are going to suffer as a result of the position in which they might be put in terms of this clause?

Yes. There is a large field of offences in which this is a possibility.

You tell us more about that.

There is a very real possibility.

But I referred to the innocent person.

Yes, but what is an “innocent person”? Let us define our terms. What is an “innocent person”? An “innocent person” is, in the mind of that hon. gentleman, a person who has not been accused by the Police or by anyone else. He is a person against whom a complaint has not been made.

That is nonsense. An “innocent person” is a person who has not committed an offence.

Well, what is an “innocent person”. An “innocent person” in our law is any person who has not been found guilty by the court and he is innocent until the time that he is found guilty. That is the presumption. Does that hon. gentleman who practises law not know that? Does he not know that there is a presumption of innocence until you are proved guilty?

Sure.

I want the hon. the Minister to indicate what the reason is. It is no good having these two reasons now, one from the hon. member for Ermelo and one from the hon. member for Waterkloof. If the reason is the one which the hon. member for Waterkloof has given, then the hon. the Minister should accept this amendment. If that is not the reason, perhaps the hon. the Minister will tell us what the reason is.

Mr. Chairman, these proposed amendments have exactly the same effect.

They do not have the same effect.

Well, for all intents and purposes. In the first place I should like to reply to the hon. member for Musgrave.

Deal with it intelligently.

Do you want me to reply to you?

Well, they do not have the same effect. We have explained to you why they do not have the same effect.

That may not be the point of view of everybody, but do not call it “intelligent”. Are you the only man in this whole House with intelligence?

They do not have the same effect.

Order!

I shall tell you how intelligent you are. The hon. member for Musgrave objected to this clause, as it stands, because he said it was completely in conflict with the recommendation of the judge. The fact of the matter is, however, that this clause was proposed by the judge in exactly this form. Not even a comma in his proposal was changed.

This shows where he may be mistaken. Do you suggest he is infallible?

Nobody is infallible.

Exactly.

Order!

I say the effect of these two amendments are exactly the same. Moreover, it is a fact that if we were to accept these amendments, clause 119 would be completely emasculated. Clause 119 would be completely emasculated, and all the arguments advanced in favour of clause 119 during the Second Reading debate, would have been advanced to no avail, in which case we might as well revert to the old system. But I see it from this point of view: In future a plea of “not guilty” will not stand on its own. These additional questions will be asked to clarify the plea. Only after that has been done, will there in fact be a plea. If a person is prepared to admit a certain thing in a particular plea, why will he not be prepared to do it in another case as well? Is there any good reason why, if a person is prepared to make an admission on one occasion, he will not be prepared to make an admission on another occasion? To me it is only logical that if one has replied “Yes” to one question, one will give the same reply to a similar question in another case.

The hon. member was concerned about the ignorant, illiterate people who may appear in our courts. But I can tell him now that I, as the Minister of Justice, am quite satisfied that such people who appear in our magistrates’ courts, are safe in the hands of the court itself. The court takes pains to put the procedure as clearly as possible to such a person and to explain it to him. Of course, the court will not put all sorts of ideas into his head to let him go free, but the accused is perfectly safe in the hands of the court. I am not concerned about that. My objection to these amendments is that if we accept the one or the other, we may just as well delete clause 119 as well and abandon the procedure on which we have already decided in principle.

Mr. Chairman, I would like to ask the hon. the Minister what his reason is for having changed the existing position. I could not quite follow his argument as to why he has changed it. He defended his attitude in preferring the clause to remain as it is and in not accepting the amendment; but he gave no valid reason for changing a provision which he as a legal man should know is virtually an institution in law, not only in this country, but in most civilized countries of the world. It is virtually an institution that once a man has pleaded, the charge must be presented to him, or he is entitled to acquittal.

You have rejected that now by implication through the amendment.

No, no. We have endeavoured here to meet to some extent the position put by the Minister, taking into consideration the danger that arises because of the application of clause 119(2), and because, in fact, it goes much further. Assuming we were to accept the Minister’s viewpoint, that when the accused has pleaded the charge may be withdrawn, this provision goes even further. It virtually places the accused in jeopardy, and certainly completely vitiates the arguments put up by the hon. member for Pretoria Central and others; because not only has the accused pleaded and not only does the clause provide that no evidence be led, but it even goes further and by implication virtually places the accused in the position where, the case having been withdrawn, there is nevertheless on record certain facts that he has mentioned around which it will be possible thereafter to build up a case, since that is the purpose of the withdrawal. The situation is this: The reason for withdrawing a case could only be the fact that the State has not prepared a case on the strength of which the prosecutor or the Attorney-General is prepared to proceed against the accused. Having discovered that, and despite the factors disclosed by the interrogation under clause 119(2), he then withdraws his case. But in the meantime he has had every opportunity to place the accused in jeopardy.

The amendment moved by the hon. member for Florida meets the hon. the Minister’s attitude because of a principle which the Bill now incorporates, although we do not agree with it, to the extent that if the accused does plead and the prosecutor wants to withdraw the charge, there should be no evidence of any nature whatsoever. “Evidence” is not only the evidence given by a witness, but also the evidence which is given as a result of the interrogation provided for by clause 119(2). You cannot have it both ways. The hon. the Minister wants it both ways. In the one case he cannot present evidence because he has not got enough evidence to convict the accused. He then withdraws the case. But he has certain other statements made by the accused, wittingly or unwittingly, possibly even without the opportunity of having been able to obtain legal advice. In thousands of cases, as the hon. the Minister will know, may persons be too poor to even contemplate getting legal advice on certain technical issues. The case is then withdrawn, further investigations take place, further witnesses are sought, to eventually bring the accused to court again. This the hon. the Minister says will save time, staff and expenses. I think the exact opposite is true. I think we have been generous in meeting the hon. the Minister by the simple amendment which we have moved. I would prefer to see the thing restored to what it was.

I now speak for myself as a man who has been in practice for I think almost as long as the Minister. Forty-five years is a fair period of practice and perhaps a little longer than the age of the hon. member for Pretoria Central. If we go to the extent of meeting the hon. the Minister halfway, I do not think he should dig his toes in. We are not here to win points. After all the hon. the Minister is a trained lawyer. We are trying to meet him by accepting to some extent what he wants, provided that not only no evidence is led but that nothing is recorded in respect of the alleged accused who at that stage is completely innocent. No case has yet been proved against him. In those circumstances I think the hon. the Minister should meet us on this particular amendment. I think it is a fair request and it indicates the desire to ensure that the accused is not placed in jeopardy or that he should have any apprehension in his own mind. While I agree that we should avoid guilty people escaping the law, we should also respect the rights of the citizens and ensure that until a case is proved against a person or a proper charge is brought against him he should not in any way be prejudiced. This amendment helps the hon. the Minister to bring that about.

Mr. Chairman, the hon. member for Jeppes actually supports the amendment of the hon. member for Houghton. He stated this clearly. Although he referred to an old institution of our law which was supposedly being tampered with, the hon. member for Jeppes’s own United Party is now accepting that the situation must be changed. Mr. Chairman, with a view to clarity may I just cross swords with the hon. member for Durban North about one important aspect, i.e. that about the presumption that a person is innocent. It is an old established principle of our law that when a person is brought before the courts they shall, for the purposes of the onus of proof which rests with the State, accept that that person is innocent until he is proved to be guilty by the State. In other words, there is a presumption, for the purposes of the onus of proof, that a person is innocent. It is a presumption that rests with the court. But we are also dealing with a factual situation. Apart from the operation of a legal presumption, the factual situation is such that an offence has been committed, i.e. goods have been stolen, a person has been murdered, someone has been violated, an offence has been committed and someone has committed that offence. If we now accept as a fact that a person is not guilty, the State will not be able to bring a person before the courts. It will consequently never be able to have any confidence in its case. But when the State brings a person before the courts, it must believe that that person is guilty, otherwise it would not bring him before the courts. So much for the facts, and that has nothing to do with the legal presumptions resting with the courts.

But, Mr. Chairman, I want to ask the hon. member for Durban North to ask himself whether any person is adversely affected if this clause remains as it is, and the accused has given certain facts to the court. Even if those facts could afterwards count against the accused, it does not mean that the accused is being adversely affected by them. He cannot be adversely affected in the sense that he is found guilty although he is not guilty. He could perhaps now be found guilty, whereas he would previously have been found not guilty even though he was, in fact, guilty. Then we have a prejudicing of rights. Then we have a prejudicing of the rights of the community. Then we have a prejudicing of the rights of the person who was robbed, murdered or violated. But if the hon. member is arguing that a person who is not guilty can be found guilty, then he has an argument. The hon. member says that such a possibility exits, but he mentions no examples. He is not using any real arguments at all. I do not believe the hon. member is being serious with that argument. We must, in fact, try, in the case of a person who is guilty, to phrase the law of criminal procedure in such a way that that person will be found guilty.

The hon. member for Durban North said that we were dealing here with a policeman’s dream. If he cannot prove a particular fact, he can bring the person before the magistrate. That person could admit to a particular fact and then it would not be necessary for him to obtain that evidence. Who is being prejudiced? Suppose what he says is true. Who is being prejudiced? Let us also state another principle very clearly. There is nothing in our law to the effect that an accused may not assist in establishing his own guilt. A person is arrested. He is questioned and furnishes certain explanations to the police which enable them to investigate those explanations. That is the position today. Points of difference often crop up in respect of what he said to the police. Now we have more legal security. The case is heard in open court. Everything he says there is very clear. Now we have more legal security than if he were only to speak to a policeman and differences crop up later about what he really was supposed to have said. Why are hon. members so afraid that an accused could supply particulars that could lead to his being found guilty?

But could charges not again be brought against him later?

The question refers to the question of prejudice. However, the hon. member does not want to see it from the point of view of possible prejudice to the community. There are definite benefits involved in this. It will not be necessary for Brig. Von Keyserlingk or some or other policeman to travel far into the bundu to go and look for evidence. The hon. member for Umlazi told us how difficult it sometimes is to get hold of the evidence. A great deal of time is being saved in this manner and the proceedings are shortened. It could happen that this clause could result in cases now coming before the courts very much more quickly. Instead of it taking a month for the State to prepare its case and find the evidence, it can now take a day or two. In summation it can be said that no prejudice whatsoever can result from this as far as the accused is concerned. Seen from the point of view of what is the truth, and seen from the point of view of law and justice triumphing, there will be no prejudice whatsoever. That is the course we ought to adopt.

Mr. Chairman, that hon. member has now let the cat out of the bag. If the hon. the Minister does not repudiate what he has just said, then the country will be entitled to assume that it will be used for the purposes which we suspected it might be used for. The hon. gentleman has just said that at the moment the police have the right to interrogate persons who are suspect. Then he says that this will give the whole thing more “regsekerheid”. This is now being done in front of a magistrate or the magistrate himself does it. What he in effect is saying is that that is the purpose for which this will be used, namely to interrogate a suspect. He will be interrogated in court where the evidence that he gives will be used against him. Mr. Chairman, the hon. the Minister has to answer this question: What is he in fact after with this provision? Take the practical application of it. When do you bring a man before the court and ask him to plead? You only bring him before the court, you only call his case and ask him to plead when you are about to proceed against him. Is that not correct? That is when you do it; you do not ask him to plead just for fun.

You bring him to court within 48 hours.

That is right. You call him and ask him to plead. I am now talking about normal circumstances. You ask a man to plead to the charge because you are ready to go on with the case against him, because you have evidence. Is that not correct? No one disagrees with that. Well, then we have arrived somewhere. [Interjections.]

Where do you come from?

You do not proceed immediately. You have to bring him before court within 48 hours. He will plead and you postpone the case.

Yes, under all the nonsense that is in this Bill that is correct. But the position at the moment is as follows: When you ask a man to plead you have your evidence.

Not all your evidence.

Yes.

You should have.

Why are cases being postponed?

You do not start the case unless you have evidence.

Some of it.

Right. But what will now happen in terms of this provision? They are going to call these cases without any evidence.

No.

Do not say “no”.

How will they be able to draw a charge if they do not have any evidence?

How do they do it now?

How is it done now?

They postpone it.

Yes. It has to be done as soon as possible. What happens now? What will happen under this Bill? He is asked to plead because he is being brought to court and asked to plead immediately, whether he is charged with murder or rape, does not matter. That hon. Minister now has a duty to this House and to this country to repudiate the speech of the hon. member for Pretoria Central. If he does not, then we will draw the necessary inference.

I want to say something else. I want to say that it is speeches such as we have heard this morning in this Committee from hon. gentlemen over there which will invite everybody who comes before the court to ensure that the new system does not work. After having listened to the hon. member for Pretoria Central and after having read his speech, I can assure you, Sir, everyone will say: “My goodness, if this is what they can do to you and if this is the intention of it, that outlined by the hon. member for Pretoria Central, then let us make sure that we do not co-operate one bit. Let us all, when we go to court, just shut up.” That will be the general practice. The whole system proposed in this Bill will break down if that is done. I want to assure the hon. the Minister that that will be done when the word gets around that that is what the system is intended to be used for, as it will get around in any event. I ask the hon. the Minister to reconsider …

Will you repeat what the hon. member has said?

You heard what he said. [Interjections.] His case was the case of: There is nothing wrong with it. Here we are, the police do the questioning now and there is nothing wrong with it. Therefore, why should this be done in court? Then you have this “regsekerheid”. Why should the police investigation not be done by the court?—that is what he said.

I did not say that.

Yes, you did.

Mr. Chairman, if that is the interpretation being given to this clause, i.e. that the questioning which the Police normally do will be done by the courts, then that interpretation is wrong. If the hon. member for Pretoria Central said that, then it is wrong. However, I doubt that. If questioning takes place, it is only in respect of the elements of the charge, and nothing more. Questioning only takes place in respect of the elements of the charge: “Did you do it? Did you want to do it? What excuse do you have?” Nothing more is asked. No evidence at all is taken from the person. An attempt is only made to obtain clarification of the plea, whether it be guilty or not guilty.

Mr. Chairman, I think that in his previous reply the hon. the Minister already gave an indication that gives rise to our greatest fears being realized, because he said that if we now brought about this change we would weaken clause 119, and that we could then just as well relinquish the new procedure. In other words, we can forget completely about the arguments advanced to the effect that the new procedure was introduced merely to clarify differences between the State and the accused, so that the duration of the case can be curtailed. That is not why the procedure was introduced. It was introduced for this purpose, so that they could first question a person and then charge him. That is why it was introduced, and this was confirmed by the hon. the Minister and that is exactly what we do not want.

The hon. member for Pretoria Central says there can be no prejudice, but of course there can, for the simple reason that when the questioning takes place the accused will not understand all the implications of the questions put to him if he does not have a legal representative. Take, for example the case where it is alleged that a person has shot someone. The magistrate then asks him: Did you shoot the person? It is a simple question. The person may be under the impression that he shot that person, and he then says: “Yes, I shot him”. You will remember, Sir, that there was a famous case that took place in the thirties. Unfortunately I cannot remember the name of the case. A group of people went hunting and while they were shooting there, the one person took a shot and one of the bearers fell down dead. As I said, there were a lot of hunters, but that person was under the impression that he had shot the bearer. By means of careful research it was established, however, that it was not his bullet that had struck the bearer, but someone else’s. Who it was they could not determine.

That proves absolutely nothing.

Sir, what would happen to such a person under these circumstances? They would ask him: “Did you shoot him?” He would reply “yes,” and then the State does not have to furnish any additional proof. The State does not have to prove whether it was his bullet that struck the person or not.

Suppose he had confessed to having shot him.

The only test is: What does the objective evidence indicate? Even if he had made a confession, it must still be proved by aliunde evidence. Under this procedure, however, there is no chance of that. The police would not even gather the necessary evidence together to try to prove that case. And if a person says he did, in fact, shoot someone, while there is, for example, the defence of aber-ratio ictus which he can use and which he does not know of? How is he to know about that? And even if he did know it, there is still the question of dolus eventualis, which he could let himself in for because he does not realize the implications of that when he replies. Who is going to explain that to him? Of course there is prejudice as far as such an accused is concerned. The point I want to make is that even when a person is innocent in the objective sense of the word, there could be circumstantial evidence surrounding him, the implications of which he does not know of, and which he does not understand for the purposes of his defence. In an inquiry such as this he can therefore be compelled to make statements which he should never have made, and which then frees the State of the burden of proving those statements objectively. If the State were to have to prove them objectively, it would possibly not be able to do so because that person is, in actual fact, innocent. That is the point, and therefore I find it so extremely lamentable that we now have this position. The hon. the Minister says the whole object of the new procedure is merely to question the accused in advance and then withdraw the case. The argument which the hon. member for Ermelo used is therefore completely incorrect. He said the procedure was being introduced to ensure that the charge sheet would be correct and that nothing was wrong with it. That was the hon. member’s argument. But the hon. member should know that in terms of clause 86 the prosecutor may, at any stage of the trial, apply to amend the charge sheet, and the court may grant this if it wishes to do so. In addition, in terms of clause 88 of this Bill any defect in the charge can be corrected by the evidence that is led. It is thereby cured. This clause is consequently unnecessary to ensure that there is no technical fault as far as the charge sheet is concerned, thereby to save time. No, Sir, it is there to catch the accused out. It can, as I have indicated, result in an innocent person in actual fact being found guilty by the circumstantial evidence, the implications of which he does not realize, because it relieves the state of the burden of still having to prove those facts objectively. Sir, under those circumstances I must say that our objection to this particular provision has become that much more vehement because the cat has not been let out of the bag, as the hon. member for Durban North said; we now know exactly what this whole thing is all about. It has nothing to do with the arguments which hon. members on that side raised here in the Second Reading Debate.

Sir, in the first place I have been authorized by the hon. member for Pretoria Central to categorically deny that he tried to imply that he sees the procedure under clause 119(2) as a substitute for police investigation or police questioning. Sir, in addition I want to state very frankly to the Opposition that we are engaged in a futile debate because they have not mastered this Bill. If the hon. member for Florida would give me his attention and not be so smug, I should like to ask him whether he is aware of the provisions of clauses 117 and 118, which are not under discussion at present, because if that hon. member were aware of the provisions of those clauses, he would not have used the absurd example of the person who was shot in the bushveld. In the second place, Sir, if that hon. member were aware of the elements of a murder charge, which he apparently has in mind, he would be aware that the magistrate must also ask the accused, in terms of clause 119(2): “Was it your intention to shoot that person?”

Those are not all the elements.

The accused’s answer to the effect that it was not his intention, will have to be recorded. In other words, the absurd consequences which the hon. member for Florida was trying to deduce from this, disappear. Sir, the hon. member for Musgrave interpreted this amendment hopelessly incorrectly. He and the hon. member for Jeppes do not agree with the hon. member for Ermelo who said that the moment critique is not being shifted. But, Sir, they do not touch on paragraph (c). The hon. member for Houghton is consistent; she also wants to delete paragraph (c). In other words, she wants to shift the moment critique when the accused appears before the judge, the person who passes sentence. She wants to remove this altogether and she is consistent. But hon. members of the official Opposition accept that the moment critique is now being shifted to a certain point. Sir, I say again that those hon. members have not read the Bill. To what point is the moment critique being shifted? It is being shifted to the point laid down in clause 150(1), i.e. to the point at which evidence is furnished. Sir, that is the effect. Let us look at the additional effect of the hon. gentleman’s amendment. The only effect it has is that the proceedings, which are being provided in terms of clause 6(b), are then pro non scripto or non est. That is the only effect their amendment has. In other words, the point on which we must enter upon a debate with the Opposition is whether those notes which the magistrate will take down in terms of clause 119(3), will form a part of the ensuing proceedings. I now ask the Opposition: If the proceedings under 6(b) are non est, if they do not exist, what does this mean? It means consequently that that person who has been charged can again stand trial on the same charge on another occasion, and what is then wrong with those things he said to the magistrate continuing to stand as part of the records? What is wrong with that if he is appearing on the same charge, as the hon. member for Jeppes argued? Secondly, suppose the accused is arraigned on another charge, what is the effect of the amendment then? The effect of the amendment is then that the minutes under 119(3) cannot be used. Sir, what is then actually the effect of the amendment of the official Opposition? They want to detract from the total essence of the principles of autrefois acquit; i.e. where a person was possibly “in jeopardy” in terms of offence A as hon. members on that side put it, they also want to create the possibility of his then being able to offer that plea in terms of offence B, on which he was not charged. I argue with the Opposition on that basis, i.e. that you have not taken those principles into account. In other words, the conclusion is that the Opposition cannot argue with us further about these clauses. By leaving clause 6(c) as it is, they have actually accepted the basic principle of the shifting of the critical moment, which is a completely new approach, as I have said, and which we are introducing with the intention, according to clause 119, of allowing this totally new procedure to succeed.

The arguments of hon. members opposite just do not make any sense. The point about the new procedure has been explained by the hon. the Minister and by the hon. members opposite as designed to shorten proceedings, and the point about the way in which the proceeding are going to be shortened is that in many cases it will not be necessary to lead evidence before conviction. Is not that the point? Of course that is the point. It will not be necessary to lead evidence before the magistrate is entitled to convict. Therefore surely it becomes obvious that the questioning process which takes place in terms of clause 119 forms part of the trial.

Of course it does not. May I put a question?

No, this is the Committee Stage and you can reply. Of course that is so. I wish the hon. the Minister would be kind enough to pay attention to me. If the hon. the Minister agrees that it will not be necessary to lead evidence in many cases before conviction, then at what stage does the trial commence?

As I said yesterday it commences, when you lead evidence. [Interjection.]

I am reminded that the hon. the Minister went even further. In his reply to the debate he said the trial commences when the accused is asked to plead.

Under the present system.

No, Sir, he said under the new system. You, will get it in Hansard.

Look at the 1926 appellate division case.

Obviously in every case at present the trial commences when the charge is put to the accused, and it is not different under this new procedure. That is when the trial commences. It may be postponed and then this questioning process under clause 119 is carried out, but the trial has commenced when the charge was put to the accused. That being the case, how can it be argued that the accused will not be prejudiced by having these questions put to him? I want to ask the Minister and hon. members opposite a very pertinent question. Do they wish to honour this cardinal principle in our law that the onus of proof beyond reasonable doubt rests throughout on the State? This is a pertinent question. Do they wish to continue to honour that principle?

Of course.

Does the Minister wish to honour it?

Yes, except on such things as the accused admits.

Oh, I see. Sir, we are now departing from it because Judge Botha stated specifically that it was a cardinal part of that principle that the accused should not assist in proving the case against him. Surely, if he has answered questions in regard to one charge and he is then, because of answers he may have given in regard to the elements of that charge, found guilty of another charge, he has done precisely that. He has assisted in proving the case for the State.

Of course!

This goes entirely contrary to Judge Botha’s findings on page 7 of his report. It does not assist the hon. the Minister to say that the present clause 6(b) is precisely what Judge Botha recommended in the draft Bill which he prepared, because I suggested, nobody is infallible and certainly no one judge. This is why we have appeal courts. It is quite possible that Judge Botha overlooked the danger of this particular clause. I am not suggesting that this is anything deliberate on his part. All I am suggesting is that he could well have overlooked the implication of this clause which we are now suggesting. To argue, as the hon. the Minister has argued, that because this was recommended by Judge Botha this House must accept it, will bring no basis in our arguments. We might as well not have a Committee Stage, because with regard to every-clause the hon. the Minister is going to say: This is what Judge Botha recommended. I ask the hon. the Minister a further question. This is another pertinent question. Did the Chief Justice and the Judges of Appeal recommend this change in a fundamental principle of our law?

No, I would not be able to say.

Oh, Mr. Chairman, I think the House is entitled to know, because they are persons for whom the public have the highest respect.

And whom he consulted.

I know he did consult them.

They raised no objection.

But his recommendation is not the recommendation of the Judges of Appeal and the question, on which I say the House is entitled to have a reply, is whether the Chief Justice and Judges of Appeal recommended this fundamental change.

They raised no objection to it.

But that is not the same thing. I ask whether they recommended the change.

They did not raise any objection.

Did all the judges have a copy of the Bill?

[Inaudible].

What did you say?

Mr. Chairman, I should like to say to the hon. the Minister and to this House that we are now dealing with legislation which is going to affect every single citizen. It is a Bill in respect of which it is particularly important that it has the respect of the public and the public will not have the respect which it ought to have if the Government is going to deal with amendments which we propose in the way in which the amendments have been dealt with up to now in this Committee Stage. I believe that what we should be trying to do—both the Government and this side of the House— is to try to get a Bill which will be as good as possible; not a Bill which is going to assist the State to the prejudice of the accused, or assist the accused to the prejudice of the State, but a Bill which will try to achieve the best possible balance between the interests of both sections. It is no good trying to argue that by moving our amendments we are simply trying to assist the defence, because that is not the case. What we are trying to do is to achieve a reasonable balance between the two conflicting interests. We say that in regard to clause 6(b), it is grossly unfair, once the trial has started and the questions have been put to the accused, that the State should be entitled to withdraw the charge in respect of which the questions were put to and answered by the accused, and then charge him with another offence. [Time expired.]

Mr. Chairman, in order to conclude this debating point now, I want to ask hon. members opposite whether they accept, because they have left clause 6(c) as it is—let us now argue with each other honestly, point for point—that the moment for the accused has come the moment evidence is led according to clause 105.

You do not understand that clause. [Interjections.]

If they acknowledge that by this proposed amendment they accept that principle, all their arguments fall away, and we must just continue arguing about one point, i.e. what the effect will be of clause 6(b) if the amendment, which we do not accept, were to be accepted. We say that if their amendment is accepted it would result in the proceedings in terms of clause 119(2) being non est. If the clause remains as it is, the proceedings in terms of clause 119(2), read in conjunction with clause 119(3)——let us now be specific—will not be non est. That is the point.

Mr. Chairman, one of the other matters we are also talking about, is the question: When is the moment critique? When does the trial begin? Is the statement the accused makes as the result of the questions put to him by the magistrate when he pleads, part of the trial, or is it not? Does the trial begin then, or does it not? The hon. the Minister says that it does not begin there. He said that he said so. He said something to this effect in his Second Reading speech. Now, I want to tell him what he said.

Mr. Chairman, I want to put it to the hon. member …

Order! No, the hon. member may not make a speech now.

The hon. the Minister said:

So when the charges are put to him, or the indictment in the Supreme Court, the trial begins. The accused either says “not guilty” or “guilty”, and the magistrate then asks him all those questions. The hon. the Minister says that he agrees with Mr. Justice Botha who said that an accused’s right to silence at his trial would lose all meaning if he could be placed under pressure at a pre-trial interrogation to incriminate himself in respect of the offence charged. This is part of the trial. At the trial he is invited to incriminate himself. He is not told at the trial that he has the right to silence. Under the proceedings at the trial that is envisaged here, Mr. Justice Botha’s recommendations, his thoughts on the subject, are not being honoured; in fact they are being denied.

No, not at all.

Of course, they are!

No, it is not pretrial questioning.

Good heavens; what an extraordinary approach! Because this concerns questioning during his trial, it is not pre-trial questioning and does not matter! Does the hon. judge not say, too, that he has a right to silence at his trial?

That is perfectly true. He still has that right.

The hon. the Minister says it is perfectly true, he has got the right to silence at his trial. What an interesting observation! He has a right to silence. According to the hon. the Minister he still has that right. What then is the provision in clause 119? When the accused pleads “not guilty”—he has a right to silence—the way in which the Bill ensures that he maintains his right of silence is that the magistrate “shall”, in other words, he is obliged to ask the accused “whether he wishes to tender any explanation of his attitude in relation to the charge”.

“Tender” it.

In other words, he has a right of silence but the magistrate is obliged to ask him whether he wants to tender any explanation of his attitude in relation to the charge.

That is not all. Just to ensure that he has a right of silence, he is asked, if he does not wish to tender an explanation, to make “any statement indicating the basis of his defence”. Then, just to make quite sure that his right of silence is protected, by this Bill, he is then asked—this is incredible!—“whether he wishes to say anything else in relation to the charge for the information of the magistrate or the trial court”. This is in addition to what has gone before. He is then also asked whether he made any statement under duress. That is his right of silence! What is more, the measure goes further and every question the prosecutor wants put to him, at that stage before the prosecutor has led any evidence, the magistrate is obliged to put to the accused. If the prosecutor goes through his docket and points out the issues on which there is going to be a trial, those issues are all put to him.

You are wasting my time now.

What absolute nonsense this is! It comes right back to this: We concede that it may be illusory to say that, when you are called upon to plead; you are in jeopardy although no evidence is led. We can go so far as to say that, when you plead to a charge, that charge may be withdrawn before evidence is led. That may be done for practical reasons, because you are not really in jeopardy at that stage. However, the Bill concedes that you are in jeopardy once evidence is led. The hon. the Minister will concede that the object of this operation is to hasten proceedings so that it will become unnecessary, where the accused makes submissions, to call evidence in respect of the facts to which the accused admits. Is that not also correct? Now the hon. the Minister is silent. What I have said is therefore also correct. Therefore, unless our amendment is accepted, you have the situation that this procedure will be used as a police interrogation at what looks like being his trial. Why else is the law changed in this regard? The hon. the Minister has not yet answered that question. Why is the existing law now changed? It is not being changed for the practical reasons given by the hon. member for Florida, namely that there are practical considerations where one takes a plea and is obliged to withdraw because you cannot go on with the case—it is not that. Therefore, what is the reason? The hon. the Minister’s duty to this Committee is to tell us. We have had about four explanations from the hon. gentlemen who sit on that side, but it is that hon. Minister’s duty to this Committee to tell us what was the motivation behind. …

I have explained to you over and over again.

Sir, if the hon. the Minister is in this position that he does not want to explain anything and says that Mr. Justice Botha did it and that we must find the motivation in his report, then we may as well adjourn the proceedings so that Mr. Justice Botha can come and sit in the hon. the Minister’s seat. He can then tell us what was in his mind.

You are being silly now.

No, I am not being rude.

No, not rude, “silly”.

What is that hon. Minister’s duty? Is it not his duty to explain the Bill to this Committee? Is it not his duty to explain to the Committee not only what is in the Bill, but also the motivation for it?

In any event he cannot furnish you with sense.

Order!

Perhaps the hon. the Minister will indicate to us which of the arguments that we have had from that side of the House are in fact valid.

Before I sit down, I want to say that as the debate under this clause has progressed, this clause has become uglier and uglier.

You see spooks all along.

Spooks? What I see here is not a spook; it is a very real thing. It is in fact what the hon. member for Pretoria Central wants to happen. It is not a spook. I did not say that. He said it.

He does not see spooks, but convicts.

I want to say to the hon. the Minister that it is no good for him sitting in his bench laughing; this is a most serious matter.

I have replied to you.

You have not replied. Will the hon. the Minister get up and tell us why the law as it is at the moment, namely that once you have pleaded you are entitled to a verdict, is now being changed? [Time expired.]

Mr. Chairman, the hon. member did not reply to one single argument of this side of the House. If that is the way we are going to conduct this debate, it is going to be futile, because we on this side of the House are doing our best to match up the arguments of that side of the House with arguments. We therefore want to make a friendly request to them to answer arguments that are raised on this side of the House, as we have answered arguments item for item that have so far come from that side of the House. So far those hon. members have not tried to do so.

I just want to try to give the House an impression of the way in which this hon. member has presented things to us in this House that can be misleading. For example, in terms of clause 119(2) the magistrate may, if he judges that the trial will take place in a magistrate’s court, ask additional questions. Until we cornered the hon. members, they objected to what might come to light after the magistrate passed on to the proceedings prescribed by clause 119(2). But when we unmasked that hon. member by showing him that the magistrate would be compelled to ask about all the elements of an offence, they ran away. Now they have come back to a completely innocent clause like 119(1). I just want to ask the hon. member whether he is aware of the decision in Rex V. Komo, 1947 (2), p. 511. In that case it was stated—

At that stage the two parties, the prosecution and the defence, have placed the case in the hands of the judge. He must then give his decision.

They joined issue.

They joined issue. What is now happening, in fact, is that we are shifting forward the moment when the case is placed in the hands of the judge. We say that the moment evidence is led the accused is exposed to the danger of a decision from the judge. Why do we say this? The prosecutor, the Attorney-General, will begin to lead evidence in terms of clause 50. He will lead only one witness. Then the judge can give a decision or, in the case of a magistrate, if no evidence is led that is necessary for the ruling, i.e. aliunde evidence, i.e. merely on the admission of the accused, the accused would be in danger if the case were then to be placed in the hands of the trial magistrate or the judge. That is the new model. Prior to that, however, he is not exposed to the danger of a decision. That is what hon. members cannot understand. What we are actually doing in clause 6(c) is to amend decisions such as those in Rex v. Komo and to shift the moment when the case is placed in the hands of the judge, the trial magistrate or the trial judge for adjudication, and that is what the hon. members do not understand. The moment they understand that, we can argue meaningfully.

In conclusion I just want to say that they have been arguing here for days about the maintenance of the accusatorial system. If they understand the principle of the accusatorial system, i.e. the two parties who are joined and may then submit their case to the trial judge for his decision, they would have no problem with this clause either. I want to suggest that they go back and first analyse these principles.

Order! Just before I call upon the hon. member for Musgrave to speak, I want to request hon. members not to repeat themselves unnecessarily. Some arguments I have heard at least seven times this morning. The hon. member for Musgrave.

Mr. Chairman, we would not have to repeat our arguments if we had answers to them by the other side.

In regard to the suggestion of the hon. member who has just sat down and of the hon. the Minister, namely that the trial starts only when the evidence is led, I want to say that this is a remarkable state of affairs.

He is then in jeopardy.

All right, let us put it that way. He is then in jeopardy only when the evidence is led. This is patently not the case, because otherwise …

Order! The hon. member for Durban North dealt with that argument very fully.

Mr. Chairman, will you allow me just to reply to that hon. member, because he suggested, that we did not understand the import of this new procedure. I should like to explain to that hon. member and to the House that this is entirely incorrect, because the trial has started when the evidence has been delivered. The accused is prejudiced from the moment that he replies to the questions put to him by the magistrate, because the answers that he gives to those questions may be used in order to convict him. It may be quite unnecessary, because of his answers, to lead any further evidence. This is the way in which the system is to be shortened. After all, if the hon. member does not agree with this I should like to point out to him that in the very clause we are dealing with, namely clause 6(b), those admissions made are described as evidence, because it is stated here that the Attorney-General may at any time after an accused has pleaded to a charge and before any evidence, other than admissions by the accused recorded in terms of paragraph (b) of section 119(2), has been led in respect of that charge … So precisely in the clause we are dealing with those admissions are described as evidence. And therefore Mr. Chairman, how can that side of the House argue that the accused is not prejudiced while he is answering these questions? This proves to us beyond any doubt that whatever Judge Botha intends by the procedure he recommends, that side of the House intends it to be an inquisitorial procedure which will enable the State in certain cases to elicit evidence on one charge and to convict an accused on an entirely different charge. In addition they may lay another charge against the accused and convict him of that. In view of this the Government cannot blame anyone else but itself if we or, for that matter, anyone in this country describe this procedure as inquisitorial and as going completely against the fundamental principle of our law, namely that the onus rests throughout upon the State to prove its case beyond any reasonable doubt. There can be no doubt in the light of the statements made by the hon. the Minister and hon. members on that side of the House, that it is the Government’s intention that this principle should be diverted from in certain cases. In other words, in order to make myself perfectly clear, it is the Government’s intention to use this procedure to convict an accused. We will certainly not be a party to this procedure. The Government must rest assured that if this Bill is placed on the Statute Book it will be dubbed as the Government’s inquisitorial criminal procedure.

Mr. Chairman, if you will permit me I just want to state very clearly that the charge which the hon. member for Durban North brought against me, i.e. that the object of this clause is to replace police questioning, is far-fetched. I definitely did not say anything like that. Such a thing can definitely not be read into the Bill either. I just want to state very clearly that the hon. member is very definitely wide of the mark here.

With reference to the argument of the hon. member for Durban North, I want to say that he was completely wrong in referring to clause 119 and the questions the magistrate will ask in terms of the said clause. That is indeed not what is being referred to in clause 6. Clause 6 refers only to admissions recorded with the specific permission of the accused himself. That is all that is being referred to. It cannot possibly replace police questioning. The hon. member is completely on the wrong track.

Question put: That the words “(b) at any time after an accused has pleaded to a charge and before any evidence,” in lines 30 and 31, stand part of the Clause.

Question affirmed and first amendment proposed by Mrs. H. Suzman dropped (Mrs. H. Suzman dissenting).

Question put: That the words “other than” in line 31, stand part of the Clause,

Upon which the Committee divided:

Tellers: W. A. Cruywagen, S. F. Kotzé, P. C. Roux and G. P. van den Berg.

Tellers: H. J. Bronkhorst and J. O. N. Thompson.

Question accordingly affirmed and amendment proposed by Mr. J. J. M. Stephens dropped.

Remaining amendment proposed by Mrs. H. Suzman negatived (Mrs. H. Suzman dissenting).

Clause put and the Committee divided:

Tellers: W. A. Cruywagen, S. F. Kotzé, P. C. Roux and G. P. van den Berg.

Tellers: H. J. Bronkhorst and J. O. N. Thompson.

Clause accordingly agreed to.

Clause 7:

Mr. Chairman, I move as an amendment—

This clause deals with private prosecutions on certificates of nolle prosequi, by Attorneys-General and it provides in subsection (2)(c) that such a certificate shall lapse unless proceedings in respect of the offence in question are instituted by the issue of the process referred to in subsection (1)(a) within six weeks of the date of the certificate.

We feel that a period of six weeks is too short. There may be difficulties in issuing the process within so short a period of time, bearing in mind that it may be necessary for the person instituting the private prosecution to obtain documents which were previously in the hands of the State. He may have to study these documents. It may also be a complicated case where it could take some considerable time to prepare the document which will be the institution of the process. If it was a simple summons six weeks would not be too short a time, but in matters of this sort one can imagine the complicated state of affairs arising from a complicated company fraud, perhaps, in which the State may feel that there is not a sufficient case against the person concerned. In such a case it could take the private prosecutor some time to prepare the summons which will be the institution of the process. Therefore I would ask the hon. the Minister to accept this amendment which provides that the period shall be a period of six months.

I submit that that is not an unreasonably long period within which to keep the possible accused in suspense. Obviously one wishes to have proceedings dealt with within the shortest time possible, but at the same time one should not prejudice a person wishing to institute a private prosecution. That process of law should be retained in our system as it is being retained in terms of this clause, but at the same time it should not be made unduly difficult by making the period for the institution of the process unduly short.

Mr. Chairman, I suggest that the clause as it stands at present is not unreasonable. One must take into account the fact that in most cases—I say in most cases, because I know that there will be exceptions—where such a private prosecution is in question, the person who wants to institute it will be the original complainant. He will therefore have been in possession of most if not all of the facts of the case for a long time and after the State had refused to prosecute, he could then get his documents in order within that minimum period of six weeks.

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

Mr. Chairman, I was unable to complete my argument before the House adjourned for lunch. I would like to complete it now. The fact that the Opposition also agrees now that the period of 20 years must be reduced to six months, according to their amendment, proves that in principle they are in favour of a substantial reduction of the period. I mention a period of 20 years, because this is the period after which a crime becomes prescribed under the present situation. In effect, one had 20 years, from the time the crime was committed, to make application for a certificate to prosecute. He had that period of 20 years, and the Opposition are now themselves saying that the period should be reduced to six months.

Before the adjournment I also pointed out that in most cases it would be the complainant himself who would continue with an application for a private prosecution if the Attorney-General refused to prosecute. But, Sir, there is the exception where a curator or an executor suddenly comes into the picture and has to make the application. It may happen that he would not then have the time to study the whole matter, but it is precisely in regard to these cases that I do not understand the Opposition’s problem, because immediate application for that certificate need not be made. The matter may be studied completely before application is made for the certificate, and then a period of six weeks still remains. Even then I think that, in terms of clause 168, application could be made for an adjournment, just as the State may ordinarily apply for an adjournment.

Mr. Chairman, there is something I would like to point out to the hon. member for Kroonstad and to the House. Whilst the hon. member is correct that in most cases the man who will be seeking to bring the private prosecution will be the complainant, and that he will be in possession of the facts as such, he will generally be a layman. He will wish, in most cases, to seek legal advice and legal representation to draw up the process by which the proceedings will be instituted. It will take time for any legal representative to assimilate the facts, to assess the nature of the charge and to frame it. In view of this we consider that the period of six weeks is too short.

Order! The hon. member has already made that point. I do not want repetition.

Mr. Chairman, I am replying to the argument which the hon. member for Kroonstad used in justification of the period of six weeks being retained. I pointed out earlier that it could be a complicated case. I do not wish to elaborate on that because I have already dealt with that point. It could be a complicated case which could require a good deal of investigation before the institution of the process. The hon. member for Kroonstad pointed out that the person wishing to bring the private prosecution need not apply immediately, but could prepare himself and then apply. He said that he would then have six weeks from that time. This might sound quite reasonable in theory but in practice no man is going to involve himself in the expense of approaching a legal representative to assist him in instituting a process unless he knows that he is able to get the nolle prosequi certificate from the Attorney-General; so that in practice no person who wishes to bring a private prosecution is going to be able to commence with his process until such time as he has a certificate. Therefore the period is a short one. The hon. the Minister laughs; he seems to think …

I think it is funny, to tell you the truth.

You think the whole Bill is funny. [Interjections.]

This is the attitude of the Minister. He is not prepared to give proper consideration to any amendment. In any event, despite the hon. the Minister’s attitude, we will continue to have our say, not for the benefit of the hon. the Minister, because this Parliament does not function for his benefit only, nor does it function for the benefit of the Nationalist Government. It functions for the benefit of this country. I say this to the hon. the Prime Minister also, who thinks this is a great joke.

Order! The hon. member must confine himself to the clause under discussion.

Mr. Chairman, in view of the hon. the Minister’s attitude, it is obvious that he is not seeking to achieve a good Bill, a Bill which will be fair. He has put forward a Bill which he is determined …

Order! The hon. member is reverting to a Second Reading speech. Clause 7 and the amendment thereto are under discussion.

Mr. Chairman, what I wish to emphasize is that the procedure of a private prosecution is a procedure which in the interests of citizens should be retained in a form which will make it reasonably possible for them to exercise this procedure. If the period from the date upon which the certificate is issued by the Attorney-General is made unreasonably short, then it nullifies the benefit and the effect of having such a procedure. It will mean in practice that persons who wish to avail themselves of this procedure will not have sufficient time in which to do so. Therefore they will not be able to avail themselves of this procedure. I cannot see what the hon. the Minister’s difficulty is. The hon. member for Kroonstad pointed out that under the present law a period of 20 years exists for this purpose. I hope he is right: I have not checked that. He says that a private prosecution could be brought within 20 years of the issue of a certificate by the Attorney-General. Well, we concede that this is an unreasonably long period. We concede that it is in the interests of justice that a maximum period should be laid down. The only question is whether the period as suggested in this Bill is reasonable. We submit that a period of six weeks is totally unreasonable; it is far too short a period, because the majority of persons who would wish to avail themselves of this procedure would necessarily have to seek legal advice. If the case happens to be specially complicated, it could take a legal representative a period of time in excess of six weeks within which to prepare the process. We submit that a period of six months is perfectly reasonable, and therefore we ask the hon. the Minister to accept this amendment.

Mr. Chairman, the hon. member for Musgrave was getting so hot under the collar that one could not even smile, or do anything without him coming down on one. There is a very simple explanation for this matter. The person who institutes a private prosecution, may ascertain from the Attorney-General whether he is going to prosecute or not. If the Attorney-General says that he is not going to prosecute, a certificate need not be issued immediately. Then he can go ahead and get everything in order from A to Z, and consult his legal representative. Only when he is ready does he have to request the certificate. After that he still has six weeks before the certificate lapses. I want to tell the hon. member that there is no question of my wanting to push everything through as it stands here. I think that six weeks is ample time I think that the hon. member for Kroonstad is quite correct. However, even under these circumstances I am prepared to accommodate him. If he were to withdraw his amendment and move that “three months” be substituted for “six weeks”, I would be prepared to accept that, simply to show him what a good disposition there is on this side. I do not believe that this is necessary, but I shall accept it simply to demonstrate our goodwill.

Mr. Chairman, I thank the hon. the Minister for his approach. I am quite happy to accept his suggestion. I therefore withdraw my amendment.

Amendment, with leave, withdrawn.

Mr. Chairman, I now move—

I may say that there may be occasions when it would be difficult even to do it within three months, but the hon. the Minister is prepared to accept that. Sir, of course you know that the summonses which you issue are based upon an investigation, and the correspondence between the Attorney-General’s office and the attorney who is going to issue the process could take as long as six weeks or three months.

That is the private property of the Attorney-General or, for that matter, of the Police.

That is my point. Take the case of Dr. Carl de Wet, for example. This private prosecution has not yet taken place. Whether it is because he has gone to London and has diplomatic immunity or not, one does not know. But it seems to me, Sir, that the amendment is now before you.

Amendment agreed to.

Clause, as amended, agreed to.

Clause 8:

Mr. Chairman, I should like to submit to the hon. the Minister for his consideration a problem I have in connection with clause 8. With the general purport of clause 8 we have no real problem. We believe that it is a good thing that under certain circumstances, in these specific cases, the Attorney-General should be able to reserve his rights when he issues the certificate. As I understand the clause, it is the hon. the Minister’s object to make the provisions of clause 8 specifically applicable to certain bodies or persons having powers of private prosecution under other legislation and not on the ordinary private prosecutor described in clause 7 of this Bill. Clause 8(1) reads as follows—

Such a body or person is then subject to the rest of the clause. This can be interpreted in such a way that a body or person to on which or whom the right is expressly conferred by the Act to prosecute in respect of an offence also includes a person as mentioned in clause 7(1), because this is also a person to whom the right of private prosecution is being conferred by the Act. I do not believe it is the hon. the Minister’s object that this should have a bearing on that, because if it is so interpreted, this would mean that where a private person prosecutes, and it is an important right of a private person to be able to prosecute privately, the Attorney-General could issue his nolle prosequi subject to the fact that he will still retain all rights over the prosecution which he would normally have, i.e. including the right to stop the prosecution. I do not think this can be lined up with the whole set-up of allowing a private prosecutor to prosecute. I did not move an amendment in this connection and I do not know whether the hon. the Minister agrees with me that clause 8 could possibly be interpreted in that way, but if there is a possibility that it can be interpreted in that way, I should like to ask the hon. the Minister to consider making the necessary changes in the wording so that it cannot be interpreted in that way.

Mr. Chairman, surely we are entitled to an answer from the hon. the Minister.

I will answer.

I am prepared to talk while my colleagues are consulting, but I do not think it is my duty to keep talking while the hon. the Minister does his homework.

Order!

Is the hon. the Minister going to answer?

Yes.

Well, answer then.

Mr. Chairman, we expect the hon. the Minister at least to reply in this connection.

Mr. Chairman, this clause refers exclusively to bodies such as local authorities and other similar bodies that have the right to prosecute—nothing more.

Mr. Chairman, I realize that the hon. the Minister just wants to make it applicable to those bodies he spoke about. But I say that as it now reads it can be otherwise interpreted. It can be otherwise interpreted because clause 8(1) provides that it is applicable to a “body upon which or person upon whom the right to prosecute in respect of any offence is expressly conferred by law”. An ordinary private prosecutor prosecutes in respect of rights conferred upon him by this legislation, i.e. clause 7(1). In other words, clause 8 can also relate to him, and all I want from the hon. the Minister is that he should consider introducing possible changes in the wording so that it is very clear what is meant by clause 8, so that it will not have the effect that I fear it will have.

Mr. Chairman, I am prepared to consider this in the light of what the hon. member has said. If it is necessary to introduce such an amendment, I shall do so in the Other Place.

Clause agreed to.

Clause 13:

Mr. Chairman, the Committee has just agreed to clause 12 and the Opposition has moved no amendment in that connection. Clause 13, the clause now under discussion, refers to that private prosecution which can be taken over by the Attorney-General at virtually any stage. The implication of that is that it is a prosecution, now being taken over by the Attorney-General, which was made pending by a private person in terms of clause 12. and that relative clause again refers to clause 7 which indicates the bodies that could have instituted the prosecution. The further implication is therefore that in terms of clause 13 proceedings may be conducted in terms of clause 119 which is the contentious clause which the Opposition spoke out against during the Second Reading. That clause now also becomes relevant in terms of clause 13 if the Attorney-General were to take this over. I therefore want to discuss the implications of clause 13 in terms of what we have thus far accepted. What it amounts to is that the proceedings and actions in terms of clause 119 can now be carried out, therefore, by the magistrate on behalf of a private prosecutor, but if clause 13 becomes applicable …

Order! I want to point out to the hon. member that that argument should rather be raised under clause 119. The hon. member must confine himself to clause 13, in which there is no reference to the subsequent clause.

But it is very relevant.

Mr. Chairman, I accept your ruling. I want to argue that it is relevant to the extent that the Attorney-General—that is what I am now arguing about—is entitled to take over a private prosecution in terms of clause 12. Clause 12 again provides certain actions of another clause. I feel myself called upon to put it to the Committee that by acceptance of clause 12, read in conjunction with clause 13 which we are now dealing with, the Opposition will no longer be able to make objections in that connection in terms of clause 119 …

Order! The hon. member may raise that under clause 119.

Mr. Chairman, with respect, what I want to indicate is that clause 13 implies that an action now being taken over by the Attorney-General was previously an action on the part of a private prosecutor and that the Opposition seriously objected to those actions which also came up in clause 6, which we have already dealt with. That is what the whole debate is about. I regard it as my duty to point out that by acceptance of clause 12 that they must now also, by implication, accept clause 13, i.e. that since the Attorney-General is now taking the place of a private prosecutor, they will no longer be able to object to the fact that a magistrate is conducting the proceedings in terms of clause 119.

Why not?

Mr. Chairman, I have made the point and I think that that is the legal principle.

Clause agreed to.

Clause 22:

Mr. Chairman, I move the following amendment—

1. (2) A search under subsection (1)(b) shall, as far as possible, be made by day in the presence of two or more respectable inhabitants of the locality in which the search is made.

Clause 22 deals with a search which can take place without a warrant by reason of the fact that delay in obtaining the warrant would defeat the object of the search and where a police official is satisfied upon reasonable grounds that a warrant would be issued in any event under the provisions of clause 21(1). My amendment is intended to add a further subsection which provides that where the search is made under these circumstances, that search should be made by day and in the presence of two or more respectable inhabitants of the locality in which the search is made. If hon. members will have a look at clause 21, they will find that if there is to be a search at night it has to be provided for in the actual search warrant which is issued. Clause 21(3)(a) reads—

It is rather interesting to note that in the draft Bill which was published by the Minister in the Government Gazette on the 10th December, 1971, this particular provision was present. We find, however, that in the Bill presented to the House that particular provision has been removed. In terms of clause 22, the search can in any event take place with the consent of the person concerned or with the consent of the person present who permits that search to take place. The clause provides that the person concerned may consent to the search and the seizure of the article in question or a person may consent to the search. In other words, there has to be consent by one or other of these two persons. I think that a search, particularly under circumstances where a police official has to exercise his discretion in a reasonable way it is provided for here and one has to rely upon the reasonableness of that particular discretion should be undertaken by day, in view of the fact that a search only takes place by night if it is specifically permitted in terms of a search warrant. In other words, there is a significance attaching to the fact that the search will be executed by night. I think that this may be a discretion which perhaps goes a bit too far and intrudes on the private rights of the individual. Hon. members will furthermore notice that this particular type of search does not take place in respect of any matters which affect the security of the State. I think that clause 20 is relevant in this connection. There are other provisions in regard to a search where the security of the State is concerned. This type of search which is mentioned in this clause only refers to a normal search where a police official suspects that there is some or other preparation to commit a crime, where there is any intent to commit a crime, or where certain actions which take place lead the Police to believe that an offence may be committed. I feel that this clause which pertains in the present Act and which the draft Bill also contains should, unless the hon. the Minister has some very good reason indeed to satisfy the House as to why it was extracted from the draft Bill, remain in the present Bill. This matter has been dealt with in cases from time to time, and a search by night under these circumstances has always been regarded as illegal, as the hon. the Minister knows. In the case of Rex v. Uys in 1940, some issue arose about the relevance of a particular document which was sought to be handed into court. It was submitted that the document had been obtained illegally because the search had taken place by night without the proper authority, and the question arose whether that document was admissible or not. Certain viewpoints were expressed with regard to the admissibility of the document, and the court held that although the document had been acquired in the course of an illegal search, it was nevertheless prepared to admit the document. My plea to the hon. the Minister therefore is to agree to this amendment, in other words, to retain the position as it now stands, as was contemplated in the draft Bill so that the privacy of the citizen can be protected. Is it fair to expect people to be satisfied to be awakened at all hours of the night, particularly where, as in this case, the matter is one in which the security of the State is not involved? I will be glad to hear the hon. the Ministers views in this regard.

The hon. member is quite correct about the provision having been in the original draft, but there was very strong representations from the Police to the effect that it complicated their work and made it virtually impossible. The representations of the Police carried a great deal of weight, but in addition to that a legal body, to whom the matter was presented for comment, also supported the Police. They said, for example—

With a view to that, this clause, which the hon. member now again wants to include, was then left out.

In those circumstances, Sir, I withdraw my amendment with the leave of the Committee.

Amendment, with leave, withdrawn.

Clause agreed to.

Clause 25:

Sir, under the existing law judges are also entitled to issue these warrants. Could the hon. the Minister indicate to us why they are no longer given the power to do so in terms of this clause?

My information is that in practice it has never happened that judges have been asked to issue them. It has quite simply fallen into disuse and that is why it is being left out here.

Clause agreed to.

Clause 28:

Mr. Chairman, this morning I noticed on the Order Paper an amendment in the name of the hon. member for Houghton to substitute for “a police official”, “any person”. One obviously has not had time to do the necessary research as we started at ten o’clock this morning, but what I would like to know is whether it is possible for any person except a Police official to be in possession of a search warrant. The other thought that has occurred to us is this: What is the position if a person purporting to be a police officer gets a search warrant and purports to act in terms of it? I wonder if the hon. the Minister could help us in this regard.

The amendment is, of course, quite out of place for the simple reason that all the powers granted in clause 28 only have a bearing on a Police officer, and to give it to anyone else now would make nonsense of this. Consequently I cannot accept this. With respect to the position of a private person who obtains search authorization to which he is not entitled, it is, of course, an offence, and discussing it here falls outside the purview of this clause.

Clause agreed to.

Clause 34:

I want to move as an amendment—

and in line 38, to omit “may” and to substitute “shall”.

There are in fact three amendments. The first is in line 13, to omit the word “shall” and to substitute “may, mero motu or on application by any person”. Then there is the consequential amendment to that which I shall deal with in a moment. I should first like to motivate this amendment. As the clause reads at the moment the court is obliged, by reason of the word “shall” in the second line, at the conclusion of the proceedings to make one or other of the orders which follow, i.e. paragraphs (a), (b) or (c).

Is that not logical?

If you wait a moment and hear what I have to say perhaps you can say whether it is logical or not.

He is a clairvoyant.

The court can only make one of those three orders. Now, if you look at (c) you will see that the last part of it reads that if no person is entitled to the article or if no person may lawfully possess the article, or if the person —and those are the words I refer to—who is entitled there to cannot be traced or is unknown, it shall be forfeited to the State. Now, I submit to the Committee that in that situation it is unreasonable that the court should immediately at the conclusion of the proceedings be required to make the order. We therefore submit that it would be more reasonable and fairer if it was mad discretionary for the court to make the order at the conclusion of the proceedings. It would then give the opportunity for anyone who wishes to claim possession of this article to bring a substantive application to the court at some later stage which, in terms of the law as it exists at present, they would be entitled to do. Now, if the hon. the Minister is disposed to accept my argument so far …

You have no chance.

I was not addressing myself to the hon. member for Pretoria Central because he is not yet the Minister in charge of the Bill.

He is the shadow-Minister.

If the hon. the Minister is with me that it is unfair that at the conclusion of the proceedings, if the person to whom the article belongs is unknown, at that stage it should be immediately forfeited to the State, then I submit that it is fair to leave it to the discretion of the magistrate to make one or other of the orders and then it would follow that some provision would have to be made as to what happens to the article pending an order being made. Therefore I propose that a proviso at the end of subsection (1) be added to the effect that pending such order the article shall remain in the custody of the State. That deals with one of the amendments which I have moved.

The other amendment which I have moved in respect of line 38 really deals with another point in the same clause and I now wish to come to that. In subsection (4) as it reads, it is provided that any order made under subsection (1) or (3) may be suspended pending an appeal or review. Whether or not the hon. the Minister accepts my first amendment—I hope he does —I believe that this second amendment should be accepted, that the word “may” should be altered to “shall”; in other words, to provide that pending an appeal the order shall be suspended. I want to point out to the hon. the Minister that if that is not the case, then the person who may subsequently be found to be legally entitled to this article may not be able to recover it, because once the order is made and if that order is not suspended, the person in whose favour the order is made is perfectly legally entitled to dispose of that article. He can sell it, he can give it away, he can damage it, he can do what he likes with it because the court has ordered that he may possess it. Unless that order is suspended and it is obligatory to suspend it pending an appeal, the person who is subsequently found to be entitled to it could lose his rights. I therefore urge the hon. the Minister to accept these three amendments.

Mr. Chairman, I do not think the amendments moved by the hon. member for Musgrave are acceptable. Apart from the idea that those amendments are in my view quite illogical, I do not believe them to be of any value as far as making amendments of this nature essential. The principle we accepted is the idea of concluding the hearing of cases as quickly as possible in the interests of all parties. It is consequently also logical that when one gets to the end of a case and encounters such articles, the court should, in terms of this clause, return such articles as soon as possible to the rightful owner. We can imagine the difficult position that could arise if such action were not taken and final effect immediately given to the position. To have to store these exhibits, articles, etc., could create an impossible situation.

The provision is here being ordered quite well and gives the court the right to hear evidence in that connection. When the court has come to an effective decision as a result of that evidence, it gives a ruling which can, in any case, still be subject to appeal. I therefore do not think that the amendments moved by the hon. member are worth the trouble. In fact, I want to allege that if the amendments were to do anything to this clause, the effect would merely be that the clause would be very much more complexly ordered. Therefore we are not prepared to accept the proposed amendments.

Mr. Chairman, I hope the hon. the Minister will not accept the reasoning of the hon. member for Ermelo, because, with respect to the hon. gentleman, his reasoning is not sound. I hope that this House in its anxiety to establish a quicker procedure, is not going to go to the extent of aiming at speed despite the fact that it may cause an injustice in the process. I do suggest that the hon. member for Ermelo missed the point that I was making. The hon. member for Ermelo said that it is desirable at the end of proceedings to dispose of the question of possession, which is relevant to this clause, there and then as quickly as possible. There is no doubt that it is desirable, and I therefore accept his proposition. Where it can be done at that stage, it is desirable to do so. In the cases mentioned in paragraphs (a) or (b), according to which the person entitled to the article will be known and can establish his possession and lead evidence there and then, there can be no problem. No doubt if the magistrate is asked at that stage to issue an order, he will do so. But I want to come to the point missed by the hon. member for Ermelo. I drew particular attention to the last part of paragraph (c), which provides that—

My point is precisely this, that it is unfair that the magistrate should be compelled to make an order at a stage where the owner of the goods is unknown. It should be possible for him in that situation to leave the matter in abeyance so that if at some time in the future someone should come forward to claim the article and to establish that he is entitled to it, he can then make application to the court. The hon. member for Ermelo said that in any event, it the order is made immediately there and then, nobody is prejudiced, and there can be an appeal As I pointed out in my original address, as this clause relating to appeal is worded, the lawful possessor could be prejudiced, unless that provision is also amended to suspend the order pending appeal; because the article can be disposed of, etc., as I indicated in my first address. I would therefore ask the hon. the Minister to accept these amendments.

Mr. Chairman, we must regard this clause in the light of practical experience in the courts. In practice the experience has been that there are rooms and rooms full of corpus delicti or exhibits and that one must continually make space available. For that reason the intention is to get rid of them as quickly as possible. This does not mean that if, at the end of the case, the magistrate impounds the article it will be sold the next day. But the hon. member must remember that there was a long case in which the corpus delicti served as an exhibit, and the owner had not yet come forward. He could not be traced, either. I do not have experience of that, but I am told that the department does not know of one single case in which an exhibit used in the magistrate’s court was also needed in the superior court.

I do not know whether the hon. member has already encountered this in practice in the supreme court. Therefore it was felt that a final order should be made at the termination of a case. If the owner is known, the article will be returned; if he is unknown it will, of course, take quite a while before the article is got rid of by way of sale. In other words, from the commencement of the case in which it served as an exhibit until the advertising date is known and the article is eventually sold, it must be stored. That is the reason why we cannot keep these articles indefinitely. It is simply impossible for the Department of Justice to keep exhibits indefinitely in case the owner should come forward. If the actual owner comes forward, there is nothing that prohibits an ex gratia payment being made to the person as compensation for the sold article. The person must just have reasonable proof that the article was his. Consequently with all the safeguards there are and the difficulties experienced in the magistrates courts, exhibit rooms and storage locales, it was felt that this provision is necessary. I would not like to have the hon. member insist that those articles be kept indefinitely, or until an owner eventually comes forward.

What about my second amendment in connection with subsection (4)?

Subsection (4) has to do with when a case goes on appeal. I have surely asked the hon. member whether in his career he has ever had exhibits from a magistrate which he also needed in the appeal court. Apparently it simply does not happen. I do not have any experience of that, but that is my information.

Mr. Chairman, I understand the Minister’s point that there have not been cases where these orders have been taken on appeal. That may be so, but if this were to happen, the person concerned would be prejudiced if the clause remains worded as it is. I want to urge the hon. the Minister to agree to change the word “may” to “shall”. It seems to me that this is the only logical thing to do, because it makes the appeal worthless if the goods can be disposed of. Reverting to the first amendment, I can understand the problem of the State where these articles have to remain in State possession, sometimes for a very long time. In order to meet this situation, would the hon. the Minister not agree to amend the clause to provide that where the magistrate finds that the person entitled thereto cannot be traced or is unknown and therefore forfeits it to the State, that the article shall be kept in the possession of the State, say, for a period of a year or something of that sort, and if not claimed within that time, can then be disposed of in the normal way? This would give a reasonable time in which to make application if the owner in the interim does come to inquire about the article. Would the hon. the Minister be prepared to accept an amendment along these lines? If he could indicate that he would, I could draft one immediately and submit it.

Mr. Chairman, the whole idea is that we should like to have finality at the conclusion of a trial. I think that with these precautions being taken, i.e. that a person will always be entitled to an ex gratia payment if his possessions are sold, there will be no problems. We shall pay back to a person what such an article fetched on an auction sale because one does not want to appropriate for oneself someone else’s property if it does not belong to one. With these two provisions I really cannot see why such articles should be stored for at least a year. The exhibit room may be full and then such articles must still be hoarded as well. They may be fairly large items. I recently read of a case where a similar kind of thing took place as that which the hon. member spoke about. I think the case took place in America. The exhibit was one of those terrible drugs, heroin or something of that kind. Afterwards it was discovered that it was being stolen from the exhibit room. Then the case comes up again and the drugs are simply placed in the exhibit room again. The storage of exhibits in exhibit rooms causes many difficulties. The hon. member must therefore please not insist on that.

Mr. Chairman, I think that the hon. the Minister has certainly made out a case for having the necessary power in respect of these exhibits. I think he is quite right; experience in this regard does show that these rooms become full with all sorts of strange objects. I think that the hon. member for Musgrave has indicated, also, that he is half satisfied with the explanations given by the hon. the Minister in respect of the first two parts of his amendment. However, surely the hon. the Minister will accept the last part of the hon. member’s amendment, namely in line 38, to omit “may” and to substitute “shall”. At present it reads:

Obviously, if anyone feels strongly enough to appeal—and I must say that I have no knowledge of such an appeal—provision is made for an appeal. If he wants to appeal against any order that is made, surely one should say that the order “shall” be suspended pending the appeal or review. As it is now, it indicates that it might not be suspended pending a legitimate, properly lodged appeal. I hope that the hon. the Minister will accept this amendment.

There is certainly something in the point which the hon. member has made, but I can assure him from what I am told by the department, that “may” means nothing else but “shall”. Every magistrate will interpret the “may” as “shall” for the simple reason that it is locked up in the corpus delicti room. That is really the effect of it.

Then why do we not say “shall”? Let us do it. It will be much easier. I think that the hon. the Minister himself has now indicated why he should accept the last part of the hon. member’s amendment. If he says it will be interpreted as “shall”, let us leave no doubt about it at all. The hon. the Minister must know how many strange things happen as a result of misinterpretations. An order may, in fact, not be suspended. Someone may forget to make an order. This is what happens. Someone makes an appeal and then someone else forgets to make an order or does not apply for an order because he does not know the law. Let us make it automatic. Let us make sure that, in respect of administrative orders, it shall be suspended regardless of human failings of the officials concerned.

What is the position of the State if in the meantime somebody breaks into the corpus delicti room and steals half of the subject-matter or all of it? It was in the possession of the law and the State was supposed to keep it intact. That is another aspect.

With respect, Sir, that does not affect the issue. What happens if no one breaks into the corpus delicti room? Is not that the situation we should deal with?

Amendments negatived.

Clause agreed to.

Clause 35:

Mr. Chairman, this is the clause which provides for the forfeiture of weapons, instruments or other articles by means of which offences have been committed, including, in respect of an offence referred to in Part I of Schedule II, vehicles used in connection with the commission of an offence. I want to say at this stage that it is a great pity that the Criminal Procedure Bill should not be the Bible of criminal procedure. There are a number of other offences in respect of which it is possible for the court to order the forfeiture of the vehicle or whatever article was used for the commission of an offence. There are provincial ordinances, dealing with game, etc. There are a number of other provisions of the law in terms of which the court may order the forfeiture of certain articles. It is a great pity that all these measures are not consolidated in this clause once and for all so that this Bill, in so far as forfeiture of articles is concerned, can be the Bible of criminal procedure. Then one could take the one document with you and carry it around knowing that it provides for all the different circumstances under which articles can be forfeited. Especially policemen and law enforcement officers should know what their rights are and what they are not. That is the first point I wanted to make. I want to ask the hon. the Minister whether this is possible.

Then I want the hon. the Minister to give us some sort of assurance relating to the utterances of the hon. the Deputy Minister of Transport. He said that where a man was convicted of a driving offence of a serious nature, the vehicle should be forfeited. He actually spoke in terms of an automatic forfeiture of the vehicle to the State. This is not in this clause but it is possible for the schedule to which this relates to be amended by proclamation so as to include the offence of wreckless driving or negligent driving. This can be done merely by proclamation. If the hon. the Deputy Minister of Transport is as vociferous as he has been in the past, and is listening to it it may be that in fact this forfeiture provision would apply to such driving offences. Even if it did, we would oppose it here and now because it does not put it right. Would the hon. the Minister indicate in the first place whether he can perhaps make this a consolidating measure in the Other Place, and in the second place, whether he would give us an assurance that as long as he is the Minister, he will not accede to the request of the hon. the Deputy Minister of Transport and change the Schedule to which this provision relates, by proclamation?

Mr. Chairman, the hon. member has referred to other legislation which lays down the circumstances in which certain articles are declared forfeited. If one were to agree to the proposal of the hon. member it would mean that we would have to insert into this Bill provisions which apply at the moment. But tomorrow or the day after the Provincial Council of Natal may pass some ordinance in this regard. The day after that the Transvaal and the Cape provincial administrations may do so too. The trouble is that one will never be able to keep up to date.

I accept that.

The hon. member also asked me to undertake not to agree to this clause being amended by means of a regulation made by the hon. the Deputy Minister of Transport. It is difficult for me to undertake something like that, because I do not know what he does with regulations on the quiet. I am not informed of the regulations he will make. But this I do know, the hon. the Deputy Minister would not easily take such a step without at least having had consultations. We always try to see to it that legislation which is passed is kept in line with the Procedure Act. This is the most I can promise the hon. member; when consultation takes place I shall go into it thoroughly. I shall not give my permission without going into it.

Clause agreed to.

Clause 37:

Mr. Chairman, I move the following amendment—

“under section 57 (6)”.

Sir, I just want to say that I really consider this amendment to be superfluous. This is something which has resulted from a discussion with hon. members on this side of the House. They indicated that they would feel happier with this amendment, and because I should like to make everyone feel happy, I decided that since it could do no harm, after all, we had better insert it. This is the only reason why I am moving this amendment.

Mr. Chairman, just to provide a good example for the hon. the Minister, let me indicate that we accept his amendment.

Amendment agreed to.

Clause, as amended, agreed to.

Clause 40:

Mr. Chairman, subsection (1) of this clause read inter alia as follows:

1. (j) who obstructs him in the execution of his duty.

I feel that the obstruction should be qualified, and therefore I move the following amendment—

I may say that obstruction can of course be intentional, it can be unavoidable, and it can be wilful. I want to illustrate, if I may, the type of obstruction which can take place. We have had occasions in this House when the hon. the Speaker has requested the hon. member for Umlazi to sit back so that he could view the hon. member for Florida. It would be wrong to suggest that the obstruction caused by the hon. member for Umlazi was something of which serious notice should be taken, because that type of obstruction is quite unintentional. Then, Sir, I can imagine the sort of situation that would arise if the hon. member for Pretoria Central, the hon. member for Port Elizabeth North and the hon. member for Johannesburg West were to become involved in some pastime in which there are also laws on obstruction. One can imagine how unfortunate it would be if the hon. member for Johannesburg West, because of his agility, were to be free of any penalty, while the hon. members for Pretoria Central and Port Elizabeth North might well be penalized, through no fault of their own, but because of a lack of agility, for obstruction. Sir, these positions can arise. I have illustrated them in perhaps a rather frivolous way, but they do arise. The hon. the Minister will be aware of an actual prosecution where the judgment went from the magistrate’s court to the Supreme Court on appeal, where a police photographer was obstructed when he sought to take a photograph for exhibit purposes of a particular scene, and the person concerned was charged with obstruction. Some of us, Sir, because of our physical form, might well obstruct the view of a police photographer. We may be doing it quite unintentionally, but nevertheless we would be obstructing him.

What about rugby?

I have mentioned the rugby position, Sir. I would have to have our magistrates finding themselves in the position of having to decide, as a rugby referee must, when it is obstruction and when it is not obstruction and whether the penalty in the one case should be a penalty kick and, in the other case, another kind of kick which might be administered by the law of the country. I do believe that we must look at this matter in the light of circumstances. It is obviously the intention that it will only be an offence when there is a wilful obstruction, and I do hope that the hon. the Minister will accept the amendment to insert the word “wilful” before “obstruction” in this particular subclause.

Sir, in order to prove my goodwill towards the hon. member for Green Point and to create a spirit of co-operation, I shall accept the amendment.

I am grateful for the hon. the Minister’s co-operation in this regard. I hope that the hon. the Minister will consider doing the same in my case. Sir, I should now like to move the amendment standing in my name on the Order Paper—

Sir, I found it quite strange to find a clause such as this one, which deals with extradition to overseas countries, among the powers under which a peace officer may arrest without a warrant, because it seems to me that it would really not be possible to do something of this nature in a hurry; that this is pre-eminently a case which will first be discussed through diplomatic channels before we shall have this person arrested, and that there should always be a warrant in any case, because there are important provisions in the clause which have to be complied with before such a person can be arrested. There must be a suspicion that he has been concerned in an act committed outside the Republic, an act which, if it had been committed in the Republic, would also have been punishable. I do not believe that this is something which a police officer or a peace officer can decide on the spur of the moment. I believe that this is pre-eminently a matter where the arrest should take place under a warrant, and for that reason I have a consequential amendment in this regard on a later clause. I hope that the hon. the Minister will agree with me that the matter should first go through the proper channels and that a warrant should be issued by a court before the arrest takes place in those circumstances.

Mr. Chairman, I wish to move the amendment standing in the name of the hon. member for Zululand on page 151 of the Order Paper, namely—

Sir, I did deal with this in the Second Reading debate. I think it is a matter of regret that the hon. the Minister did not respond to the points raised by us when he replied to the Second Reading debate.

These points can be dealt with better in Committee.

As I mentioned then, Sir, obviously we have no objection to the arrest without warrant of people who enter the Republic illegally. Indeed, our position was made clear on this point a long time ago. You will remember, Sir, that in at least one very unfortunate case—I refer to the case of a certain Tsafendas—we took the very strong view that the action should have been taken far sooner than it was. In fact, no action was taken at all, and then it was too late. Sir, what we are seeking to do here is to eliminate what we believe is essentially a humiliating, discriminatory provision that applies to citizens of the Republic who transgress provincial boundaries. It is quite obvious that these powers are intended to be used against Indians, against people of Asiatic descent, who are found to be illegally in what one might call the wrong province. We know that they are confined to certain provinces and that they can only move out of them with special permission, but, Sir, I believe that the hon. the Minister, who is in a benign mood this afternoon, will agree with us that there have been tangible signs of a change in approach on the part of the Government in relation to the movement of Asiatics especially. We believe that these are fellow-citizens of ours whose origins are obviously different, but nevertheless they are citizens of the Republic of South Africa. We believe they should not be subjected to the humiliation of summary arrest for being illegally in a province in which they should not be. We are aware of the fact that the Government is taking a slightly more relaxed attitude towards them, and we feel that unless we remove the words which this amendment seeks to remove, it will perpetuate an offence on the dignity of these people.

Has the hon. member moved the amendment?

I have moved it, Sir.

The hon. member cannot move an amendment on behalf of another hon. member.

Then I move the amendment in my own name—

Sir, I do not think that we on this side of the House are inclined to accept that amendment. This clause lays down the circumstances under which a peace officer may act without a warrant. If we examine the various sub-clauses, we undeniably gain the impression that it is aimed at those alleged offences where it is essential to take action. In regard to this particular subsection my submission will be that if there are circumstances under which arrest without a warrant is essential, they will indeed be those circumstances mentioned in this sub-clause, namely where a person is reasonably suspected of being a prohibited immigrant in the Republic or in any province in contravention of any law regulating entry into or residence in the Republic or any province. After all, Sir, we can imagine the circumstances in which action of this kind will take place, where a peace officer or a policeman is instructed to, or considers that he must, take action. It will be almost impossible for him, if justice is to be done, if, in such cases, he first has to adopt the tedious procedure of going to the nearest magistrate or police officer in order to obtain a warrant. This applies to offences where prohibited persons are acting in an illegal manner and where immediate action has to be taken against them. If we were to accept that amendment, it would make this subsection completely worthless and the Police would not be able to arrest a single one of these offenders. These are people who act in a cunning way, people who act during the night and who are bent on committing this type of offence. That is why I say that we cannot support the amendment.

I am afraid the hon. member for Ermelo is overstating the position grossly. He says that if we accept this amendment it will negate the whole purpose of this clause but surely the most important part of this clause is the provision for the arrest by a peace officer without warrant of people who come into the Republic illegally. Now, what we object to is for the same provisions to be applied to our own South African citizens, our fellow citizens, who may be of Asiatic descent and who happen to be found in the wrong province. I suggest that in this day and age this is really a technical offence. I do not think it calls for the summary arrest of these people. Surely, if the authorities felt so strongly about it, it could be met by a summons or warning but not by arrest. It is not a grave offence and has not been considered as such for a long time.

Except in the Free State.

Yes, except in the Free State where they seem to have built-in objections to the presence of Asiatics from the rest of South Africa. But I do believe that even in the Free State times will change. We have indeed seen radical changes in other parts of the country, like in Pretoria very recently, where there has been a complete change of heart in regard to these things.

Order! The hon. member must confine himself to the clause and the amendments.

It has a direct bearing on the clause because what I have suggested to the hon. the Minister is that the Government itself, in respect of Asiatics, is taking a very much more relaxed approach to things. It is common cause. It was even mentioned by an hon. member opposite in the Second Reading.

Order! The hon. member should come back to the clause.

What I am suggesting then is that in the light of this I am quite sure the hon. the Minister will agree that it is not necessary to have drastic provisions such as these for dealing with fellow-South Africans who at most are transgressing in terms of a technical offence, almost like a traffic offence. I suggest that in this day and age the most equitable thing to do would be to agree to remove it from the Bill.

I shall first refer to the amendment moved by the hon. member for Florida that paragraph (k) be deleted. Now, paragraph (k) deals with a case where a person has committed an offence outside the borders of the Republic. The Police find him within the Republic and they then have the power to arrest him directly. The possibility exists that such a man has already committed an offence and it may be a serious offence. It is being investigated. In fact, an application for extradition may already be on its way to the Government, or the information may have been received that the man has committed the offence there and that they will request his extradition. So while he is in the Republic he is really a fugitive from that particular country, say, Portugal or Rhodesia or Botswana. For that reason I do not know whether it is wrong to have this power. One should not waste time by first having to apply for a warrant. It must be borne in mind that this person is a fugitive. I think the provision is quite reasonable, that you may arrest that person directly if those particular circumstances arise. I really do not believe that the hon. member realizes all the implications and I do not believe he is taking account of all that may happen. Since such a person is a fugitive, he will try to get away as quickly as possible after being observed by the Police, if he is not arrested on the spot. Much as I would have liked to accept the hon. members’ amendment, I do not think it would be wise to do so.

I now come to the amendment moved by the hon. member for Kensington. Everything the hon. member said is perfectly true. It is true that the Government is adopting, as he said, a more relaxed attitude in this regard. In fact, I think the hon. the Minister of Indian Affairs said so the other day. I am aware of our attitude, but the fact remains that the provision which prohibits this is still on the Statute Book. As long as it is on the Statute Book and in view of the fact that it has been included in previous legislation, I cannot see that it would make things any easier if you had to get a warrant from a magistrate before arresting the person in such a case. As long as this is the position in terms of existing legislation I think we should leave this clause as it is. This was the position under the old dispensation and it will remain the same under the new. I do not know what the instructions to the Police in this regard will be, but I do believe that if there is to be a more relaxed attitude in general, this will also be the case in regard to the Police.

Mr. Chairman, I have the feeling that the hon. the Minister is still turning over whether he can accept the amendment which the hon. member for Kensington has moved. I hope he will go on turning it over a little longer and perhaps conclude that he can. In regard to the position of the Bantu people the whole attempt is to get away from the summary arrest of somebody found in a place where he should not be without a particular endorsement on his documents. I would suggest that this is something akin to that and that it would do us all the more credit if this was certainly not an offence for which summary arrest could take place. We admit that it is an offence, but we are not dealing with that. However, we feel that it would be perfectly possible merely to warn the man that he must appear in court; that is, if it is still felt that it will constitute an offence if he is found within certain areas where at this stage he should not legally be. I hope that the hon. the Minister will find it possible to remove this portion from the clause. It has been on the Statute Book for some time, but I think we have now reached the stage where it can be removed.

Mr. Chairman, I should also like to urge the hon. the Minister to accept the amendment which the hon. member for Kensington has moved. It is not merely that the hon. the Minister of Indian Affairs said that the Government was going to adopt a more relaxed attitude, but as I understand—I may be wrong—what the hon. the Minister said was that this was going to be abolished altogether and certainly in relation to the rest of the country if not in the Orange Free State. It seems to me that if that, in fact, is so, one ought not to have this provision in the Bill. I want to say as well that I think that this offence is committed more often than any other offence, without any prosecution being instituted deliberately. In fact, I am quite sure that Indian businessmen travel all over the country today without getting their permits, because they just do not have the time to do so. We feel that all these offences should be regarded as such and that there should be the power to arrest without a warrant because of the nature of the offence. But we do not agree that this particular offence should be regarded as an offence and that the person concerned should be subject to arrest without a warrant. The hon. the Minister says that this provision is not in the Act already. As far as I am aware, the equivalent section is section 22 of the Criminal Procedure Act. This is a very hurtful position. The offence is a very hurtful one. It goes back so many years. We do not like it, and I hope the hon. the Minister will consider the matter in the same light.

So far as the amendment by the hon. member for Florida is concerned, it really ought to be a matter in respect of which a warrant should be issued. How would any policeman know that “a reasonable complaint has been made or credible information has been received or a reasonable suspicion exists” that the person to be arrested has been concerned in any act committed outside the Republic? The only way in which that policeman would know whether the act has been committed outside the Republic would be as a result of information contained in a document. The only way he would know whether or not he could apprehend the person would be to know where in fact he was and what he had done. In those circumstances he would be on the look-out for him and a warrant could easily be provided. I think that, if the hon. the Minister looks at that amendment, together with the amendment on the Order Paper relating to clause 43— they go together—he might also be inclined to accept that one. But most certainly, so far as the amendment by the hon. member for Kensington is concerned, this is really a matter of principle in respect of which the hon. the Minister of Indian Affairs agrees with us. I do hope that the hon. the Minister therefore will relent in this regard.

Mr. Chairman, this amendment was only brought to our notice this morning or yesterday, and consequently it has not been possible to make any inquiries. But I am prepared to undertake that the department will make inquiries in this regard, that it will consult the Police and will also discuss the matter with the Minister of Indian Affairs, if it is possible to get hold of him. If I find then that there are no serious objections to this, I shall look at the amendments and introduce the necessary changes in the Other Place, in the light of the offence and of the spirit that exists in respect of this matter. I am prepared to do that.

In spite of what was said by the hon. members for Florida and Durban North, I really cannot agree to the amendment moved by the hon. member for Florida. I am just thinking of a case such as that of Rocha, whom no-one could succeed to keep in custody in any prison in the Republic or in Mozambique. Imagine such a person. Rocha is a man who goes about with at least two pistols all the time. In his case, when he has committed an offence in Mozambique, you really cannot sit here waiting in South Africa and first request a warrant when you happen to come across him, and then arrest him. This is only one case I have in mind. The other case is where you know very well that an application for extradition is on its way or where such an application has already been received. When such a person is encountered you cannot wait and you have to act at once. He is a fugitive as a result of an offence committed in another country and consequently such a person has to be arrested at once. I am sorry, but I really cannot accept this.

Mr. Chairman, I do not want to carry this matter to unnecessary extremes, but I do feel that the hon. the Minister and I are perhaps speaking at cross purposes a little. The problem with a person like Rocha to whom the hon. the Minister referred, is that he was a fugitive, and any other fugitive would be a prohibited immigrant and it would, in any case be possible to arrest such a person summarily without a warrant on the basis of the fact that he is in South Africa unlawfully. But this clause applies to a person who is in South Africa lawfully, and who is not a prohibited immigrant. I am thinking, for example, of a person who has committed an offence in another country, which is not an offence in South Africa. However, the peace officer who has to arrest him is not aware that it is an offence here as well, or whether the same punishment— and this is also something which applies in regard to extradition—is applicable. The person I have in mind is a person who is entitled to be in South Africa and one who is not necessarily a fugitive from another country. There ought to be a warrant for his arrest. I am thinking now of the provisions of the clause as it stands at the moment, namely that credible evidence shall have been received on reasonable grounds and so on. The chances of an unlawful arrest are considerable, and implicit in this is the possibility of actions being instituted against the State as a result of people who exceeded their powers. It would be much safer, under those circumstances if a warrant were properly issued before the arrest, particularly if it is a complicated case. However, we have no problems with fugitives for they are in South Africa unlawfully.

Mr. Chairman, we have taken cognizance of the suggestion made by the hon. the Minister in regard to the amendment moved by the hon. member for Kensington. We appreciate his approach but we wonder, however, whether it would not perhaps be better to let the clause stand over. We are on the verge of a rather long adjournment and this ought to afford the hon. the Minister the opportunity of holding the necessary consultation. We could then return to the clause at a later stage, for we would very much like to hear what the replies were.

You will hear them when the Bill returns from the Senate.

We have already let the first clause stand over, and if we do the same with this clause we could hear personally from the hon. the Minister what the results of his consultation were. If the hon. the Minister is prepared to do this, we would cease all discussion on this clause now and hold it in abeyance until we proceed with it at a later stage. We are definitely not going to make much progress with the Committee Stage of the Bill. In fact, I doubt whether we will dispose of an eighth of the Bill today. I think that this is perhaps the fairest compromise we are able to make so that the clause can subsequently be thrashed out properly. Mr. Chairman, I therefore move—

I hope there will be no opposition to this.

Mr. Chairman, I have been very accommodating in regard to this clause. I have accepted two amendments. In the past it has always been the practice that when a Minister undertakes to go into a matter properly and, if necessary, move an amendment in the Other Place, this was accepted by the House. The hon. member must really not insist on his request now, for it really seems as though he is not accepting my word. The hon. member may be quite certain that if it should appear that I cannot accept it, I will not accept it, no matter how long we discuss it. Leave it at that now. We shall go into this matter properly. This has always been the practice, and if it should subsequently appear that this can be done, I undertake to do so in the Other Place.

Mr. Chairman, the hon. the Minister has said that it is customary that, when the Minister in charge of a Bill undertakes to review a matter and consider amendments in the Other Place, it is usually accepted. That is quite right, but I should like to point out that this is not a normal Bill proceeding in the normal manner. We will be finished with this Bill only in two or three weeks’ time. We have the whole of next week off and then we have the Prime Minister’s Vote, after which we will come back to this Bill. In other words, it cannot be considered for another two weeks. Normally we on this side agree to allow the hon. the Minister to consider the matter in the Other Place because of the time factor but as far as this Bill is concerned we do have time. We have at least two weeks during which the hon. the Minister can consider the matter. Therefore I appeal to him to give this matter further consideration.

I accept that.

Motion agreed to.

Clause 43:

Mr. Chairman, in view of the fact that clause 40 is now standing over and the amendment I wanted to move on clause 43 depends on what happens to clause 40, I move—

Mr. Chairman, it is difficult for me to move my amendment before clause 40 has been disposed of because this amendment is consequential to what happens to clause 40.

Mr. Chairman, this is an ancillary amendment to the amendment moved by the hon. member for Florida in respect of clause 40 which is standing over. Therefore I think this clause should stand over too. It is consequential upon clause 40. It seeks to take out the provision from that clause and to put it into this clause, which deals with warrants of arrest as opposed to clause 40 which deals with arrests without warrant.

May I point out to the hon. member for Durban North that the hon. the Minister has indicated that he is prepared to allow clause 40 to stand over in view of the considerations with regard to clause 40(1)(k).

Order! I want to point out that the entire clause 40 is standing over, including all the amendments which have a bearing on it.

As I understand this amendment, the hon. member wants paragraph (k) deleted from clause 40(1). Clause 40(1)(k) deals with a person who is guilty of offences in another country and who is in the Republic as a fugitive from another country.

Mr. Chairman, on a point of order …

Order! The hon. member for Kensington wishes to take a point of order.

Mr. Chairman, on a point of order, the hon. the Minister is now trying to break up the decision on clause 40 which has already been taken by this Committee.

Order!

He cannot go back and try to argue …

Order! The hon. member can safely leave that to me. I am giving the hon. the Minister an opportunity to explain in connection with clause 43 why he is not prepared to let this clause stand over as well.

Mr. Chairman, the hon. the Minister is now arguing on clause 40.

No, the hon. the Minister is not. The hon. the Minister may proceed.

Mr. Chairman, the hon. member said nothing further except that the amendment is consequential. I do not quite follow that. I should like him to motivate it better.

Mr. Chairman, on clause 40—which is standing over —I moved an amendment which provides for the deletion of paragraph (k). I used the wording of paragraph (k) and it appears on the Order Paper in my name under clause 43 now. The wording of the amendment I propose, is exactly the same as the wording of clause 40(1)(k). In other words, this means that, instead of the provision falling under clause 40, i.e. the provision dealing with arrest without warrant, I now want it to fall under clause 43, which deals with arrests for which a warrant must be issued. Consequently, whatever happens to clause 40, will decide what happens to my proposal in clause 43. For that reason I ask that this clause also stand over just as clause 40 is standing over.

Mr. Chairman, when we were discussing clause 40, I indicated that we were under no circumstances, prepared to delete paragraph (k).

We have not divided yet.

That does not matter. I am telling hon. members now that I am not going to delete paragraph (k) of clause 40(1), whether we divide now, next week or whenever it may be.

Motion negatived.

Mr. Chairman …

Order! The hon. member has already addressed the Committee on this clause several times.

Only twice.

Order!

Mr. Chairman, on a point of order, the hon. member is allowed to …

Order! The hon. member for Florida may proceed.

Mr. Chairman, I now move the amendment standing in my name—

1. (d) which alleges that the person in respect of whom the warrant is required, is a person who has been concerned in, or against whom a reasonable complaint has been made of credible information has been received or a reasonable suspicion exists that he has been concerned in, any act committed outside the Republic which, if committed in the Republic, would have been punishable as an offence, and for which he is, under any law relating to extradition or fugitive offenders, liable to be arrested or detained in custody in the Republic.

I believe this is the proper time to move my amendment. I have already advanced all the arguments relating to it.

Amendment negatived (Official Opposition dissenting).

Clause agreed to.

Clause 44:

Mr. Chairman, with the leave of the Committee, I wish to withdraw the amendment of which I have given notice, and which reads as follows—

1. (2) A peace officer or other person arresting any person by virtue of a warrant under this Act shall, upon demand of the person arrested, produce the warrant to him, notify to him the substance thereof, and permit him to read it.

On closer reflection I see that the provision that I want inserted is in fact already in clause 39(2).

Clause agreed to.

Clause 46:

Mr. Chairman, I should also like to withdraw the amendment appearing in my name on the Order Paper, and which reads as follows—

I believe that the clause as it stands is satisfactory in relation to a person who is called in to assist another to arrest.

Clause agreed to.

Clause 49:

Mr. Chairman, this is the clause which provides for force to be used in circumstances where someone resists arrest, or for the purpose of arresting such a person. It provides that in certain circumstances, in respect of certain offences, if the person is killed that death shall be regarded as justifiable homicide. The offences in respect of which this applies—and we are dealing here with the Police, not really with anyone else—are those contained in Schedule I. Subsection (2) of clause 49 reads as follows—

Now, Sir, what are those offences? Those offences, listed in Schedule I, are the following: Treason; sedition; murder; culpable homicide; rape; indecent assault; sodomy; bestiality; robbery; assault, when a dangerous wound is inflicted; arson; breaking or entering any premises, whether under the common law or a statutory provision, with intent to commit an offence; theft, whether under the common law or a statutory provision; receiving stolen property knowing it to have been stolen; fraud; forgery or uttering a forged document knowing it to have been forged; offences relating to the coinage (this is almost unbelievable); any offence, except the offence of escaping from lawful custody in circumstances other than the circumstances referred to hereunder, the punishment where for may be a period of imprisonment not exceeding six months without the option of a fine; escaping from lawful custody, where the person concerned is in such custody in respect of any offence referred to in this schedule or is in such custody in respect of the offence of escaping from lawful custody; and any conspiracy, incitement or attempt to commit any offence referred to in this Schedule.

Mr. Chairman, this is more or less the position as it is today. Under the position as it is today, we have seen an alarming number of persons, especially in recent times, who have been shot and killed by policemen when the policemen concerned have tried to arrest them or when they have resisted arrest. There have been some tragic circumstances which have arisen. In one case a young man was trying to escape by climbing over a wall. He was shot dead in circumstances which I shall not speak of since the matter is sub judice. We had another example the other day where someone had used someone else’s credit card. He was suspected, therefore, of having committed fraud. This same person, at short range, was shot dead. These are just two examples of the very many that there are. As the hon. member for Umlazi pointed out in the Second Reading debate, you have a situation where a policeman, either wishing to secure an arrest or wishing to apprehend someone who is escaping, has the power to kill a person who is accused of an offence in respect of which the court is not empowered to impose the death sentence. Sir, as I said, there have been an alarming number of these cases. Unfortunately many of them are sub judice and unfortunately one cannot talk about the circumstances of a lot of them. But, Sir, I think we were all impressed by the voice of authority of the hon. member for Umlazi when he said, from his experience, that there were a number of these persons who were trigger-happy; that it was the younger persons rather than the older persons who resorted to shooting. I think it must be made quite clear that the standing orders of the Police prohibit the sort of behaviour that we have been seeing lately in these shootings. There is no doubt that the Police standing orders do prohibit this sort of behaviour. Sir, in the light of this, is it not time to limit the provision, in terms of which the Police may shoot to secure an arrest or to stop a person escaping in circumstances where, if that person is killed, the shooting will be regarded as justifiable homicide, to those offences in respect of which the death sentence is competent? There are a number of those offences: Housebreaking with aggravating circumstances, robbery with aggravating circumstances, murder, rape, treason, and so on —all the offences listed in clause 284. Sir, it seems to me that if there is a risk that you may be killed on arrest and that this may be regarded as justifiable homicide, then in the light of what has been happening, it might be wise to restrict the offences in relation to which shooting can take place and be regarded as justifiable homicide, to offences in respect of which the person could in any event be sentenced to death. In other words, he should not have to suffer beforehand, negligently, the fate which only ultimately and after due consideration the court would impose upon him. In those circumstances, Sir, and for those reasons I move the amendment which stands in my name on the Order Paper and which is designed to give effect to the situation that I have described—

Sir, the effect of the amendment of the hon. member would be as follows: Persons arrested by the Police who then tried to escape would in relation to the following offences not need to have any fear that the Police might shoot at them; I shall mention to you the crimes which, if the amendment of the hon. member were accepted, would be eliminated, and then we must look objectively in this Committee at the possible results. These are: Indecent assault; sodomy; bestiality; assault, when a dangerous wound is inflicted; arson; robbery; fraud; forgery; offences relating to the coinage; and then conspiracy to commit some of these crimes. Sir, let us now consider these from the beginning. Indecent assault could be of such a nature that at the stage at which an arrest is imminent or when the person is being arrested, it might be a case of rape, which is in fact a capital crime. In addition there is the case of assault, when a dangerous wound is inflicted. Suppose an attempt is made to secure an arrest shortly after the assault has taken place. The person is not yet a corpse. Now, the person assaulted is lying there seriously wounded. The policeman or the person authorized to carry out an arrest allows that person to escape because the assaulted person still has a little life left in him. I want to mention the case of arson. Suppose, Sir, a person is caught in the act of setting fire to a petrol dump. Suppose strategic supplies of the Republic were being set alight, or suppose a person breaks into a bank, steals R1 million and tries to escape. Then, as a result of the amendment of that hon. member, it would not be possible to use a fire-arm, for the action of the person then attempting to carry out the arrest, or who may be arrested and allows an escape to take place, would not be deemed justifiable homicide if he allows such a suspected or arrested person to escape. Sir, I do not know what the attitude of the hon. the Minister in this connection is going to be, but I want to make it clear to the Committee that this amendment of the hon. member should be considered with extreme care, for the consequences thereof cannot be foreseen. We do not want in this way to condone indiscreet action. We would say that such matters should be settled administratively. But in the interests of society, the public and the State I, and I believe the rest of us here as well, will not be able to support this amendment without very serious consideration.

Mr. Chairman, I move the following amendment—

This goes a good deal further than the amendment of the hon. member for Durban North in that of course I do not believe that people should be allowed to shoot persons attempting to escape custody. When I say people I mean people because this does not only authorize Police officers to shoot people escaping from custody. If hon. members would look at an earlier clause, clause 42, they will see that any private person may without warrant arrest any person. Such person is also covered under the protection of this clause. Sir, there is a slight improvement in this Bill on the existing law as it stands. The offences for which the use of a fire-arm is permitted has been narrowed to some extent. The actual offence of escaping from custody is not now included in the schedule, so there is that improvement. But there is still of course a very wide range of crimes for which persons attempting to arrest someone who tries to escape custody, may draw a fire-arm and kill such a person. This is justified in terms of the law. I am against that. Certainly in England no such thing can happen as the shooting of a person who attempts to escape from custody, because the Police there are not even armed. I know our society is rather different from that of England. But what has happened in our society as the result of permitting policemen or any other person—and I emphasize this—to draw a gun and shoot somebody who appears to be escaping custody—and what private person even knows of the existence of Schedule I and whether or not he is entitled to kill—is that an inordinate number of people have in fact been shot. I do not have the figure of the number of persons shot by private persons, but I do have the number of persons shot by police officers who were attempting to stop somebody from escaping, custody. According to answers given to me in the House, the Police shot 49 adults and five juveniles in 1970; in 1971 they shot 52 adults and two juveniles; and in 1972 they shot 91 adults and three juveniles. I do not know how many of those fall under the sort of spine-chilling types of cases that the hon. member who has just sat down enumerated: the arson, the blowing up of security installations, and so on. I have no idea, but I do know, from reading the newspapers, that among these cases are people who were shot while escaping from custody for relatively minor offences. I think that having a provision like this on our Statute Book encourages policemen, instead of arresting persons physically, to shoot them.

I do think that the Police are entitled to shoot in self-defence and when they are really dealing with a violent person who appears to be about to inflict injury on them. I think any other person is, in self-defence, also entitled to defend himself. Surely, that will be allowed in our common law? In our common law that will be permitted. Therefore I see no necessity whatever for our Criminal Law to contain a provision like this. One should also bear in mind the damage that this provision has caused. Apart from the Elliot case to which the hon. member for Durban North referred, we have only recently read about the case where a 14-year old school-boy was in a serious condition with a bullet lodged next to his spine and a collapsed lung after being shot by a policeman in attempting to escape custody for a supermarket theft.

In the heat of the moment any person, or any policeman—although policemen ought to be more disciplined in this regard—knowing that in the past it has been accepted that persons who are escaping custody may be shot, quickly draws a gun if he happens to have a gun on him— an awful lot of people in South Africa are armed, I might add—and shoots a person. He is thus turning a relatively minor offence into a capital offence.

I am against this; I am against this altogether. I think, as I have said, the only justification for killing a fugitive from justice or someone who is attempting to escape custody, is when such a person is a violent criminal who is attacking the person attempting to effect the arrest—whether that person is a policeman or a private individual. I believe that this is a golden opportunity to improve our Criminal Law at this stage, and I therefore have moved this amendment which will create this possibility.

Mr. Chairman, I do not think the hon. the Minister will be prepared to accept either the amendment moved by the hon. member for Durban North or the one moved by the hon. member for Houghton. These two amendments differ only in degree. Clause 49 draws a very clear distinction, and discriminates very clearly between the two types of arrest referred to in the various subsections. In subsection (1) mention is made of resistance to arrest, attempts to escape, etc. In the past the circumstances under which a police officer could use violence was emphasized very clearly by our courts, and there was no doubt about those circumstances. The courts also made clear what degree of violence could be applied in relation to the degree of seriousness of the crime, etc. But when we refer to subsection (2) the position is different. This does deal with an arrest, but with this kind of arrest, as is made very clear in this clause, in respect of which no other procedure exists and where the accused, or the person who has to be arrested, cannot be arrested by any other means. I think that, when we are dealing with this kind of arrest, it is basically wrong, under law and in principle, to allege that it should be applied only in the case of a crime for which the death sentence may be imposed. It will in all conceivable circumstances be impossible for a policeman, in such a situation, to calculate, only after having given thought to the matter, to what extent he is entitled to make the arrest. He has to act on the impulse of the moment. For that reason I maintain that it is an incorrect principle to apply. What we are dealing with here is an alleged crime, and an attempt by a peace officer or policeman to make an arrest. Now I maintain that if in that process something happens for which provision is being made here, he must have the right to arrest, regardless of whether it was a crime. I want to say here in passing that I am referring specifically now to the serious crimes listed in Schedule 1. In those cases it would be wrong to expect a person to sum up the situation first. I would be wrong to make a provision to this effect. I want to refer to a decided case, namely the case of the State v. Arlow, in the fifties, in which the court stated very clearly what action could be taken in these cases. In fact, this is all that is being embodied in this clause. This provision is merely a re-enactment of section 37 of the present Criminal Procedure Act. It has been very clearly laid down by our courts that there has to be proof of a crime; there has to be an attempt to arrest; there has to be resistance; and there has to be no other way in which the fugitive could be apprehended. If one applies that principle and adopts it as a premise, I maintain that a policeman is entitled to act in terms of this provision. It is the law at present and I believe that it is being reenacted here because it is regarded by the legislature as being essential and important. Those sentimental ideas raised by the hon. member for Houghton, may apply in certain respects. It would be a great pity if people were perhaps to lose their lives in this way, and I and all of us have sympathy in that regard. But when one is dealing with a serious crime, we cannot allow those considerations to apply; then we have to act in terms of this legislation.

Mr. Chairman, I cannot understand the reasoning of the hon. member for Ermelo. First of all, he maintains that Schedule 1 offences are all serious offences. That, of course, is not the case. Take for example the offence of theft. There it can be a case of minor theft.

What about a million rand theft?

And a case of treason?

I think hon. members can get up and state their case if they want to. I would like the opportunity, if they will listen, to reply to their arguments. I am replying to the hon. member for Ermelo. You could get a petty shop theft. Fraud, for example, was another case to which the hon. member for Ermelo, and also the hon. member for Bloemfontein West, referred. There are different degrees of fraud. There may be a very serious fraud and there may be a very minor type of fraud, but all these are lumped together under Schedule 1. In any event, what justification is there, even if a man has committed a serious theft or a serious fraud, for killing him simply because he is trying to flee? He can be arrested again if he does flee. What that side of the House has not yet answered is the point made by the hon. member for Durban North. In many of these offences listed under Schedule 1, assuming a court would find an accused guilty of the offence as charged, that court would not be able to sentence the accused to death even though the theft may be a serious one and even though the fraud may be a serious one. It is also the case with some of the other offences. And yet the policeman is being authorized to kill him, not to kill him for the offence he has committed, but because he is trying to escape.

No, that’s not so.

Of course it is so.

That is not the whole story. That is only part of it.

Of course it is. The hon. member for Pretoria Central will have the opportunity when I sit down to enter this debate and to justify the statement which he has made. I reiterate that in many of these offences, even though they may be of a serious nature, the magistrate convicting the person concerned would not have the power to sentence him to death, and yet in terms of clause 49(2) this Parliament is giving authority to a police officer, and in some cases, as has been pointed out, to other persons as well, to kill this person, and I repeat, not for the offence he has committed, but for attempting to escape arrest. What justification is there for that? One must concede that if the person concerned is a dangerous criminal in the sense that if he is at liberty he would be a danger to other persons, there would be justification for giving the policeman power to use a fire-arm to attempt to stop him from fleeing, and if by accident he happens to kill this person this should be regarded as justifiable homicide. But then the offences should be strictly limited, and not be this long list we have here.

The hon. member for Ermelo made the point that a person under such circumstances acts on the spur of the moment and that he does not have time to think whether the offence would be one which would carry the death sentence, and therefore he justifies the inclusion of this long list. Precisely the same argument applies in regard to these offences. These offences are limited and do not include every conceivable offence. The policeman must, in terms of this proposed clause, make sure or be satisfied that he falls within Schedule 1 in order to enjoy the protection of the clause. If he does not fall within Schedule 1, he will not enjoy the protection of the clause. One therefore sees no difference in principle if Schedule 1 were even further restricted, as we suggest, to include only those offences where the death penalty can be imposed, because those will be the cases where the accused may perhaps present some danger to the public if he is not prevented from fleeing. I would therefore ask the hon. the Minister to give further careful consideration to the amendment which has been moved by the hon. member for Durban North. Perhaps he could indicate to us what his views are in regard to this so that we can debate the matter further with him and, if he is not entirely in agreement with us, we may be able to suggest some other amendment which would restrict this Schedule which at the moment, in our submission, includes far too many offences in respect of which the use of a firearm to prevent the offender from escaping is too extreme as the person concerned may be killed.

Mr. Chairman, the hon. members are very concerned about the provisions contained in this subsection. I do not think that they should try to argue away the significance and the importance of the provisions of this clause so easily. Clause 49 of course to a certain extent codifies powers which already exist. Subsection (2) in particular is contained in section 37 of the existing Act. In that Act provision is made for the same matter. If we look at Schedule 1, we find the series of serious crimes for which the offender may be prosecuted. If the offender flees, he can be shot if that is the only way of arresting him. That is a provision which has existed for many years. It is a provision in regard to which warnings have on various occasions been issued by the Supreme Court calling for careful action. It is also a provision in regard to which the Police themselves saw to it that their people were properly trained, and that shooting was not easily resorted to. It is done only in essential cases. If we look once again at the crimes listed in Schedule 1, we will find that the crimes mentioned are escalating— they have to escalate in these days in which we are living—and that they are all extremely serious crimes. If a person should flee and should be shot, we have to accept or conclude that he simply got what he deserved. It is of course difficult for the person who has to make an arrest, in a period of time far shorter than the period we have in this House, to give due deliberation to a clause such as this and decide how he is going to act. He must act quickly, and if he is armed he has the necessary information enabling him to know in which cases he may use a fire-arm and in which not. I am aware that objections have been raised. In this way there are the objections from the opposite side of the House to which the hon. the Minister of course gives thorough consideration. Owing to the importance of the case and the length of time it has already been on the Statute Book, and because it deals with persons who may be identified as being persons who want to escape or flee, I do not think, however, that there ought to be any problem. In my opinion this clause ought to be accepted as it stands. I therefore associate myself with what my hon. colleague from Ermelo said in regard to this matter. I want to support it further by adding that events in the past have taught us that it is only by way of exception that serious inquiries stem from such cases which led to the death of a person. In any case every person is subject to an inquiry; the case is only settled after the magistrate who conducted the inquiry has had a proper opportunity of going into the matter. He can then find whether or not it was culpable homicide or not. A person cannot simply shoot someone and then try to allege that it was justifiable homicide. He will have to prove quite conclusively, and in clear terms, that this was in fact the case. That in itself urges a person to exercise great care.

Mr. Chairman, I find it rather tragic that hon. members on that side of the House who have spoken on this subject should be so intractable. They all seem to hold the view that Schedule 1 only deals with serious offences. For instance, the hon. member for Innesdal has just told us that all of the crimes mentioned in Schedule 1 are serious crimes. The hon. member for Bloemfontein West as well mentioned some of them. Did hon. members then not listen to the arguments from this side of the House? Let us take some of them again. I do not want to burden the record unnecessarily, but it seems as if they have not taken the point here. Let us take theft, whether under the common law or under a statutory provision. Theft is not only theft as such, but is also any conspiracy, incitement or attempt to commit theft. It could be a very petty theft indeed. How can the hon. member for Innesdal regard a theft of 50 cents worth of oranges as something for which a man should die, when he tries to escape arrest? Is he serious about that?

Are you serious?

I am asking the hon. member if he is, because that will be theft in terms of Schedule 1. Does any hon. member on that side of the House say that that will not fall under Schedule 1?

Make your own speech.

That hon. member seems to make noises but when I am asking him whether he disagrees with me he is not prepared to say “yes”. I believe that the hon. member for Houghton is seeking to go too far with her amendment as well. While one can sympathize with her point of view, I think it would be quite wrong for us to adopt the attitude suggested by her, which is that nobody should be allowed to shoot people escaping from custody.

Except in self-defence.

Yes. I do not think the hon. member for Houghton can really ask us that a person who is wanted for a crime, such as murder, should be able to escape without fear of being shot. Surely, if the person escaping is likely to be a danger to the community, it is quite reasonable that provision be made for him to be shot at, if circumstances dictate it. This, I believe, is precisely what the amendment of the hon. member for Durban North is trying to achieve.

The other argument put forward by the hon. member for Innesdal is that this is a long standing provision of our law. Well, this is perfectly true, but that surely is no argument. If it is wrong, it is wrong, and it should be altered. Our submission is that it is wrong and that it should be altered. Our submission, in brief, is that there are many offences provided for in Schedule 1 which should certainly not fall under clause 49(2), and I therefore support most strongly the amendment of the hon. member for Durban North.

Mr. Chairman, the clause we are now dealing with is a very difficult provision. That I readily concede, but the police must have certain powers. While we were dealing with this matter we asked the Council of the Bar, to which such frequent reference was made yesterday, at least twice—I was under the impression that it was three times—to draw up a clause for us. They have still not succeeded in doing so to this day. The hon. member for Houghton proposed that we delete the entire subsection, and in this connection she expressed certain ideas. I do not think there are people in this House who would agree with them. They are entirely out of the question. What I do in fact believe is that we could perhaps at some stage or other make some concession or other in regard to Schedule 1. But up to now we have not been able to find any common ground as far as this provision is concerned. As I have said, we even left it in the hands of the Council of the Bar, and asked them to draw up something acceptable to us. They could not succeed in doing so. We therefore find ourselves in that position. It is true that the clause has been restricted. Previously the position was that where a policeman wanted to arrest a person who had escaped, and he could not apprehend him in any other way, he could shoot him.

They often do not try any other way.

It has happened many times; I concede that point to the hon. member.

They often do not try any other way; that is the trouble.

How can you prove that?

You need only see what has happened.

Order!

No, I readily concede that. One could almost say that some of the young people were a little trigger-happy. But these days they cannot do that in terms of this clause. When a person escapes from custody, if he was in prison, and the policeman cannot apprehend him by any other means, the clause gives him the fullest right to shoot; not in order to kill him, but to thwart his attempted escape. In the case of an ordinary escape, where a policeman had a person by the scruff of the neck and was taking him to the police station, the position is different. If that person had been arrested for a minor crime and he were to escape, the policeman would not dare shoot. Only after the policeman has caught him a second time, and he escapes a second time, does the Act allow him to shoot, if that is the only means of preventing such escape.

He will say every time that the person escaped twice.

That would have to be proved. I admit that we are dealing here with a very difficult clause. The police must have certain powers. One would not like to go too far with those powers and one would like to prevent people simply drawing their revolvers and shooting. We tried to modify this clause as well as we could. We had talks with the police, and in regard to the proposal made by the hon. member for Houghton they said that it was out of the question; that it would make their work quite impossible. In regard to this other amendment, we decided on the formula as it now stands. The Council of the Bar was unable to make a suggestion to us which would be acceptable to them, and which would at the same time be acceptable to us as well.

What about the amendment of the hon. member for Durban North?

No, I am afraid that I cannot accept the amendment of the hon. member as it is printed here, namely—

It has been said that the death sentence is, after all, not imposed for robbery; that this is merely a minor offence; but what about this case where the thieves drove off with a Trust Bank van containing R50 000 or R250 000? Where such an enormous amount is stolen it is surely a serious crime. How is one going to distinguish between theft which is serious and theft which is not so serious? What about a person who walks around with a pistol in his pocket and who resists when the police want to arrest him on a charge of robbery, and who then pulls out his pistol and makes his escape? Is one to shoot him, or should one simply say that it was a minor offence; that it was only robbery and one should let him go? I concede that it is difficult to decide what powers should be given to the police. But that is as far as we can go; we have to a large extent restricted their powers, and in my opinion shooting will not be resorted to as readily as in the past. Sir, I am sorry that I can accept neither the amendment of the hon. member for Durban North nor that of the hon. member for Houghton.

Sir, I welcome the remarks of the hon. the Minister and of the hon. member for Innesdal. I rise to support the amendment of the hon. member for Durban North for this reason: Sir, in practice every policeman knows when he can shoot; make no mistake about that. You have the First Schedule offences where a policeman may shoot, in cases of rape, sodomy, bestiality, and so on, but the policeman knows in practice when he should shoot. Clause 278 tells us where the death sentence is competent, in cases of murder, treason, kidnapping, child-stealing, rape, robbery, attempted robbery and any offence, whether at common law or under any statute, of housebreaking or attempted housebreaking with intent to commit an offence. This clause gives the Police wide powers, but the average policeman knows when he should use these powers. As I said in the Second Reading debate, the experienced policeman never resorts to a fire-arm as a first resort; he only uses it in self-defence, where he is entitled to do so, or where there is a mass attack, which will never happen again, such as we had at Sharpeville. Our plea from this side concerns the young men in the Force. Most of us, except for the hon. member for Florida, and perhaps the hon. member for Pretoria Central and one or two others, grew up knowing how to use fire-arms. We had them at home and we knew how to use them, and we got a jolly good hiding if we did not handle fire-arms properly. When we joined the Police, and I know it from practical experience, we knew how to handle fire-arms, because the Police go through a course of musketry. But the Force is now taking matriculants at the age of 16 who have been drilling with an old carbine in the cadets and that is the only fire-arm he has ever had in his hands in his life, except that he might have fired a few shots with a ,22. But other than that he has never had a fire-arm in his hands. He is now entrusted with a fire-arm. …

But he is properly trained.

Yes, he is properly trained, but then you cannot make provision for a contingency where young men play Russian roulette and other games like that and do snap-shooting at each other. [Interjections.] You must use your common sense. You can get up and talk about it. I have had years of this, where policemen have shot themselves and others through playing the fool. With all the legislation and all the instructions these things can still happen. Here we are trying to place a sanctity on life. Every experienced policeman knows how to use a fire-arm and when. [Interjections.] I want none of the silly talk from members opposite who talk as if we are all angels.

Order! The hon. member must confine himself to the clause and the amendment. Hon. members must not interrupt the hon. member.

As I have said, clause 278 gives a long list of crimes where the death sentence is competent and I am saying that the experienced policeman who is worth his salt knows when to use a fire-arm, and you will find that those men never use their fire-arms irresponsibly. I am ashamed to say that at one stage things reached such a pitch that we issued instructions that when they came off duty their fire-arms had to be locked up in the station armoury because these men invariably before that, when they unloaded their fire-arms and went to their rooms they started playing the fool and that is where the shooting accidents took place. Here we want to put a bit of a curb on this indiscriminate shooting by young men. I am not against the seasoned man using his fire-arm. The hon. member for Innesdal well knows that any time a policeman shoots a person and kills him an inquest is always held and if the policeman is to blame he is charged accordingly. That is why I support the amendment of the hon. member and say that this should be confined to cases where the death sentence can be imposed.

Question put: That the words “(2) Where the person concerned is to be arrested for an offence” in line 18 stand part of the clause.

Question affirmed and amendment proposed by Mrs. H Suzman dropped (Mrs. H. Suzman dissenting).

Question put: That the words “referred to in Schedule 1” in line 19 stand part of the clause,

Upon which the Committee divided:

Tellers: W. A. Cruywagen, S. F. Kotzé, P. C. Roux and G. P. van den Berg.

Tellers: H. J. Bronkhorst and J. O. N. Thompson.

Question accordingly affirmed and amendment proposed by Mr. M. L. Mitchell dropped.

Clause put and a division demanded.

Fewer than four members (viz. Mrs. H. Suzman) having supported the demand for a division, clause declared agreed to (Official Opposition and Mrs. H. Suzman dissenting).

Clause 50:

Mr. Chairman, I move the following amendment—

It is a very simple amendment, which simply restores the position of the law as laid down in the original Criminal Procedure Act. I have tried to re-insert the words “as soon as possible”, which for some unknown reason have been omitted from this Bill. Originally, the Police had to take a person whom they had arrested to a Police station as soon as possible. Now they seem to be under the mistaken impression that they can in fact hold a person for at least 48 hours incommunicado, as it is. But now, with the omission of these words, I have no doubt that even more we will have the spectacle of the Police van, after an arrest early in the evening, driving around Soweto for half the night before the man is taken to the Police station. I am simply trying to restore the position as it was. I hope therefore the hon. the Minister will accept this amendment.

Mr. Chairman, I rise merely to indicate the attitude of the official Opposition to the hon. member’s amendment. It seems to us that if this amendment is accepted, it will make the work of the Police impossible, in the sense that the literal meaning of the amendment is that if you arrest someone in a street for doing something, and you want to investigate another offence, you will not be able to do so—you must immediately drive that person to the Police station.

As soon as possible.

Well, that is what it means. If the amendment read “as soon as is reasonably possible in the circumstances”, we would support it. We support the idea behind the amendment, but we cannot support it as it is worded.

Mr. Chairman, I withdraw my amendment.

Amendment, with leave, withdrawn.

Mr. Chairman, I now move as an amendment—

Mr. Chairman, I think this amendment in fact waters down the present wording. The present wording reads as follows—

As the provision now reads, it is an order. If it were to read “as soon as possible” one would actually be watering down the meaning of this clause. Apart from that there is another problem. The Police may want to apprehend a large number of people. They find the one person, and then want to go on to the next place where they want to arrest another person, etc. In this way they can drive around for most of the night with arrested persons. That is true. What is more, they sometimes need a person to identify someone for them. I really cannot see the sense of the amendment.

In the existing Criminal Procedure Act the provision is (section 27):

I do not think any adequate reason has been given why that should be changed. The amendment as it is now worded is even more helpful and goes further to help the position of the Police. I would suggest that in the absence of any substantial reason advanced why the amendment should not be accepted I believe it would be wrong to pass the clause as it is.

What about “as soon as circumstances permit”?

Mr. Chairman, I withdraw my amendment.

Amendment, with leave, withdrawn.

Mr. Chairman, I now move—

In line 25, after “shall”, to insert “,as soon as circumstanoes permit,”.

Amendment agreed to.

Clause, as amended, agreed to.

Clause 54:

Mr. Chairman, I move as an amendment—

This clause provides for summons as a method of securing attendance of accused in a magistrate’s court and subsection (2) (a) reads as follows:

Then follow the words which I seek to have deleted, namely the words “or, if he cannot be found, by delivering it at his residence or place of employment or business to a person apparently over the age of 16 years and apparently residing or employed there. One knows that this provision is part of the law as it exists today, but, with respect, it does not serve any useful purpose. If a court finds that a summons has not been served personally the court is not in a position to issue a warrant of arrest. My amendment seeks to provide that summonses shall always be served on the person concerned so that there will be no possibility of its not being brought to his attention. Looking again at the second part of subsection (2)(a), one finds that it is possible to deliver it to the residence or place of business or employment of the person concerned upon a person apparently over the age of 16 years residing there. There is no assurance that the person upon whom the summons would be served, would regard himself or herself as being in any way obligated or even related to the accused, so that, if there is no legal obligation, there is at least some moral obligation to see that that summons reaches the person who has been summonsed. If, in fact, this provision is intended to assist the messenger of the court, for example in getting the person to court, it is possible that in some cases where a summons has been delivered to a person such as is referred to in the second part of subsection (2)(a), an accused may receive the summons and may attend court, but in practice, I suggest, it happens more often than not that an accused person does not know of the summons and does not receive it. Then when the case comes before the court again it is necessary for the magistrate to postpone the case and to order that the summons be served personally upon the accused before any warrant of arrest is issued. My submission is that the second part of subsection (2)(a) should be deleted and I therefore ask the hon. the Minister to accept my amendment.

Mr. Chairman, I move as an amendment—

I move this amendment in order to permit a longer time to elapse so that a person will have a longer time to prepare his defence. According to the Bar Council the minimum period of ten days which is proposed in the Bill as the period before the trial and after the service of the summons is too short. Any period shorter than 14 days, according to the Bar Council, is felt to be inadequate to enable an accused to prepare his defence, especially when it is borne in mind that it almost always takes a longer time to prepare the prosecution. It seems to me that this is a very good case for extending the time period. It does not make an enormous difference; a matter of four days. Therefore I cannot see any reason why the hon. the Minister should not agree to this minor amendment.

Mr. Chairman, the basic question with which we are concerned here in analysing the amendments is whether something other than a personal service of a summons should be adequate grounds for the non-appearance of the accused and whether it should be adequate grounds for having such a person arrested and for conducting an investigation to determine whether he has committed an offence by not appearing in court. Actually this is a matter which is dealt with in the next clause, but in this regard I want to state clearly that the principle of delivering a summons to a person other than the accused himself is a principle which operates very well in practise in civil law and which hardly gives rise to unjust action, if at all. Delivery of a summons to a person over the age of 16 years at an address frequented by the person constitutes effective service, in terms of and the next clause we shall deal with he is afforded the opportunity of explaining, should he not appear and should a warrant for his arrest be issued. If he can satisfy the court that he was not absent on purpose, the case is thereby concluded. Therefore I want to express my strong opposition to the idea of deleting the words and requiring personal service as such.

As has been indicated already, this Bill was brought before the House in order that unnecessary costs may be eliminated and time may be saved. It was brought before this House to enable our criminal procedure to operate smoothly. Every accused and every potential accused in this country must know that the authority of a summons to appear in court is a high authority which he must obey and which cannot be wilfully ignored.

With regard to the question of time raised by the hon. member for Houghton, she will see in the clause which is before the House that Sundays and public holidays are excluded. Therefore a period of ten days, as laid down in the Bill, in practise generally comes to 12 days since Sunday, too, is included. As someone who has had considerable experience of this, I want to assure her that in practice such a summons very seldom mentions a date that is within ten days of the date of issue of that summons. In practice the date will be further in the future and the person will have longer than 10 days. However, I can imagine circumstances in which it may be important for a case to be dealt with quickly and in which a relatively short period of ten days will be necessary. In such an important case this period of time is long enough for any attorney or lawyer worth his salt to prepare himself properly.

Mr. Chairman, unfortunately I cannot agree with the argument advanced by the hon. member for Vereeniging. The hon. member for Vereeniging said this operated well in the civil procedure in which one also had other service than personal service. However, the difference lies in the consequences of such a summons. In a civil case, if the person to whom the summons is addressed does not act in accordance with the summons, he is sentenced. He may have his sentence set aside on application.

He may land in prison.

Not normally in the case of an ordinary civil summons, but he may in fact find himself in prison under certain circumstances. In this case the possibility exists that the person may in fact be deprived of his freedom by being arrested immediately after the summons. That is serious. Such a step should not be taken lightly, to arrest a person if there is a strong possibility that he did not receive that summons. I believe that in these circumstances the possibility is very strong that a person did not receive the summons. We know that it happens so often. A person may have been away, away on holiday or away on business or in a completely different city, when the summons was served on him. When he returns, the Police awaits him with a warrant. I think this should only be done when the court is convinced and where it was served on him personally. It is extremely important that this be done only under those circumstances. It is true what the hon. member for Vereeniging said, that it is a high authority. However, the court must be satisfied that the person did in fact take note of what happened. For that reason I support the amendment by the hon. member for Musgrave.

Mr. Chairman, when one looks at clause 54(2)(a), one finds that one is dealing here with different aspects. In the first place there is the serving of a summons on the person himself; a summons must be served to the person himself. There are altogether four different aspects. The first, serving a summons on the person himself, I have just mentioned. In the other three cases a summons may be served at a person’s residence, place of employment or business. In other words, if it is not served on the person himself, there are three other places he must nevertheless be at some time or other. After all, he has to be either at his residence, his place of employment or his business, if the summons is not served on him personally at some other place. Neither is the summons served to any person at his residence, his place of employment or business. It is only served to a person over the age of 16 years.

And if he is on holiday?

Sir, he may be absent from his place of business, but at his place of business there would most certainly be somebody who would come into contact with him. But I want to continue. This provision has been in operation for a long time, and all the spectres seen by the hon. member have never yet come to life. The provision has always existed, but suddenly, because it has been taken over from the old Act, the hon. member now objects to it.

Like the hon. member for Vereeniging, I also want to dwell on the period of 10 days to which reference is made in subsection (3), and to which the amendment by the hon. member for Houghton relates. Subsection (3) reads as follows—

What it actually amounts to is that the period is longer than 10 days. Some period or other has to be laid down. It may be 7, 10, 14 or 21 days, but somewhere a limit must at least be fixed. Provision is now being made for a period of 10 days, and surely that is sufficient. What does the hon. member want in place of that?

Fourteen days.

What does it matter whether it is 10 or 14 days? Is there such a tremendous difference between 10 and 14 days?

Yes; four days.

Why does the hon. member want to make provision for 14 days instead of 10 days?

Because it is such a long time.

Why does the hon. member not ask for three weeks then?

You can always ask for a postponement.

Yes, one can always ask for a postponement. If a period of 10 days is too short and a period of 14 days is sufficient, why does the hon. member not ask for 21 days?

Mr. Chairman, I will first deal with the amendment by the hon. member for Houghton. I am of the same opinion as the hon. member for Krugersdorp. I really cannot see what a tremendous difference there is between 10 and 14 days.

Why do you not make it seven days then?

Because it has always been 10 days. The 10-day period, as provided for here, is actually very close to 14 days when you take Sundays and public holidays into consideration.

Sir, the amendment by the hon. member is only intended to bring about change. That is all she envisages as far as that is concerned and I therefore do not accept it.

With regard to the proposal by the hon. member for Musgrave, I completely agree with him that the courts are hesitant to issue a warrant for arrest if they are not quite sure that the summons has been served properly. But “properly served” does not mean “served in persons”. When one looks at the existing article 309(3), one sees that it has to be served “properly”. For many years the practice was that one could leave the summons, at a person’s residential address, his place of employment or wherever, with somebody who is apparently over the age of 16 years, if one could not get hold of the person himself. I do not believe that difficulties have ever arisen in this regard. Why do we have to make a change now? Under the present Act the position is the same. Why can we not insert the present provision here? Sir, it is a useful provision. Sometimes it is very difficult to serve a summons on someone personally. Somebody who lives in a place like Stilfontein will know how difficult it is to serve a summons personally on a mine-worker who works shifts. He will know how many times he has to travel back and forth to get hold of such a person. Such a person is absent, but his wife or grown-up children, persons over the age of 16 years, are there. They then accept the summons. In how many cases do the people not react to it? There are a few instances when they do not react to it, but then there is the alternative mentioned by the hon. member for Musgrave. One must then go to the courts and an application must be made for a warrant for the person’s arrest. I said that the courts are hesitant to do this, but if it appears from the report that the summons was served on the person’s wife or on another adult person who also lives there, the court would be quite inclined to issue such a warrant. I cannot see why we must deviate from a system which has worked so well for many years, also with view to the fact that no arguments have been advanced to indicate that it has an adverse affect on our administration of justice.

May I ask a question? The hon. the Minister talks about serving a summons on the wife of the person concerned, or perhaps on adult children, but surely there may be other people, other adults, at the place where the summons is served. There may be a servant who then forgets about it, or something like that. Is the hon. the Minister satisfied with these all-embracing provisions?

Yes, I am perfectly satisfied. It has worked well so far, and I cannot see any reason for change. Many people react to such summonses or subpoenaes.

Amendments negatived.

Clause agreed to.

Clause 55:

Mr. Chairman, I move—

In a certain sense this amendment is consequential upon the amendment moved by the hon. member for Musgrave on the previous clause, but I want to put it to the hon. the Minister that the fact that he has not accepted the previous amendment does not change the position with regard to this amendment, because we now have the position where the House has agreed that a summons will be properly served if it is served in terms of clause 54. The effect of my proposed amendment is merely that the court may not issue a warrant of arrest on such a summons unless the court is satisfied that the summons was served on the accused. In other words, it removes the effect of the provisions of paragraph (a) of clause 54(2). It will still mean that the objections of the hon. the Minister will be met, namely that the mine-worker, for example, cannot be found, that he is often away and that you cannot serve the summons on him at his home. You can then leave the summons there and it will be regarded as having been served, but under those circumstances the magistrate may not issue a warrant of arrest unless he is certain that the accused has received the summons, because it must then have been served on the accused. In those circumstances, Sir, I submit that the hon. the Minister can accept my amendment, even though he did not accept the previous amendment. I want to relate to the hon. the Minister the type of problem that can be created by this section, and this is my own personal experience. I may say, Sir, that somebody, with my car, committed a parking offence in Johannesburg and a summons was then issued. The summons was served on my mother, who is living in our house. This was during the last parliamentary session. It was perfectly good service on my mother at my normal place of residence; of course, I was down here in Cape Town in Parliament. I did not receive the summons because my mother forgot about it, and when I got back home I discovered the summons in a drawer and I immediately went to the magistrate’s court and found that a warrant of arrest had been issued. Fortunately it had not been served yet because they hold it over for 14 days normally.

Unfortunately.

Well, that is a point of view. This however is the type of thing that can happen. I think this is a graphic illustration of the type of thing that can happen, so even though there is good service, let the court rather not issue a warrant of arrest unless the court can be certain that the summons has been served personally.

Mr. Chairman, I did not press the amendment which I moved in the previous clause because of the possibility of securing the position in this clause in terms of an amendment such as that moved by the hon. member for Florida. I rise now, Sir, to urge the hon. the Minister to accept this amendment. This amendment will ensure that a warrant of arrest will not be issued unless the court is satisfied that the summons was actually served on the accused. I would submit that the hon. the Minister should have no objection to accepting this amendment. On the contrary, it is an amendment which I would imagine the hon. the Minister would wish to accept because it ensures that no warrant of arrest can be issued except where the summons has actually come to the notice of the accused and the court is satisfied in that regard. The hon. the Minister must be aware that there have been cases where a warrant of arrest has been issued in cases where a summons has been served in terms of this previous procedure, namely by simply leaving it with a person who was apparently above the age of 16 years at the person’s place of residence, employment or business, and where it has turned out that the accused has not had notice of the summons, either because the person has forgotten to bring it to the notice of the accused, as in the case mentioned by the hon. member for Florida, or for some other reason. In such instances it could be harmful to the accused person. One can envisage that the accused may perhaps be a person of some prominence and that the newspapers, as has happened, publish the fact that a warrant of arrest has been issued against the person concerned. He then has to come to court and explain that he has not received the summons and the warrant is withdrawn, but in the meantime this person has been arrested.

In my submission no person should be placed in that position. It is not sufficient that he has the opportunity, once arrested, to explain that he has not received the summons. The embarrassment of being arrested, of being brought to court under arrest, is not overcome by the fact that he can make an explanation subsequently. I would therefore be pleased to hear the attitude of the hon. the Minister because it seems to me this amendment is a very reasonable one and it is not necessary for me to motivate this any further.

The hon. members of the Opposition are apparently losing sight of three basic aspects. In the first place, the magistrate is not compelled to find such a person guilty of an offence when he appears before him then. He has a discretion. The accused only has to furnish an explanation and the magistrate has the power to accept his explanation. In the second place, the Opposition is losing sight of the fact that this Bill also lays down that admission of guilt for lesser crimes—when we get to those clauses, this will be evident—may now also be paid after arrest, and even after the day on which the case—according to the summons —would originally have served before the court. This is a relevant aspect. In the third place, the hon. members of the Opposition are, to my mind, unnecessarily worried, because in terms of this Bill we are placing such logical and easy and simple bail-procedure on the Statute Book. If a person suddenly finds that he forgot to go to court or that his mother or his grandfather or his aunt or his sister or his daughter did not give him that summons, then it is the easiest thing in the world— if he does not want to go to court or run the risk of being sent to prison because he did not appear—for him to accompany the police officer to the police station and to arrange for bail, R10 or R15 or whatever it may be, depending on the seriousness of the crime, and to pay the amount of the bail and to go home. He will then have to appear on the fixed date. I do not think this is so dangerous and I think that we can trust our courts in this respect. I think that the amendment which has been proposed, is really unnecessary.

The hon. member for Vereeniging has just given the Committee all the reasons for exactly why this amendment should be accepted. He says he can go and do this and that and all sorts of things, but why should he, if he has not in fact had personal notice of the summons? Then the hon. member says the court has a discretion, and that when he comes before the magistrate, the magistrate can hear his explanation and if it is a good one he will accept it. But before that happens, he is brought before the magistrate on a warrant of arrest which is issued as the result of a return of service.

I want to say that the provision which is applicable at the moment reads that if any person fails to appear at the hour and on the day appointed for his appearance to answer any charge and the court is satisfied on the return of the person required to serve the summons that he was duly summonsed … “duly summonsed” means in terms of the existing Act “service in accordance with the provisions of the Act”, which is not always personal service. But in relation to those words “duly summonsed” the Supreme Court has ruled, in cases where magistrates have issued warrants for the arrest of a person, and in fact on convictions for contempt of court, that this is not a proper procedure unless there has been personal service of the summons proved to the magistrate. I think that is a proper attitude, the attitude of the Supreme Court today. That is what this proposes. It proposes that we should put in this Bill what the Supreme Court has said is right and proper and reasonable. I am sure the hon. the Minister will accept that amendment.

Mr. Chairman, this clause provides for a summons to be served personally and it has exactly the same effect as the effect we argued about in the case of the previous clause.

†The hon. member for Musgrave said this procedure could be very harmful to a person who is subpoenaed.

Yes, imagine the indignity such a person may suffer.

I should like to tell him that it could be very useful.

You mean in actions for damages against the State?

No. It could be useful because such a person could collaborate with his wife, his good lady. He could always be absent when the summons is delivered and she would then receive it. It is in many instances the case with miners who are working all sorts of shifts.

*That is where the difficulty arises. Under the present provisions such a person is never properly summonsed and this is the only way in which this can be done. Of course, by “proper summonsing” I mean the different forms of summonsing. Because this system may be abused and may be abused to a large extent, it may be, rendered completely powerless and the magistrate will never be able to issue a warrant. Therefore I cannot see my way clear to accept the amendment.

I am rather interested in the authority quoted by the hon. member for Durban North. I should like him to tell me in which case the Supreme Court gave that ruling. I am not aware of such a case, but I shall appreciate it if the hon. member can tell me which case it was. At the moment I cannot accept it.

I do not have it here at the moment.

You can show it to me later on.

Yes, I shall do that.

Mr. Chairman, in view of that may I ask whether the hon. the Minister will agree to allow the clause to stand over?

No, I really do not think a sound case has been made out for this.

If the hon. the Minister wishes to give serious consideration to this case, it is not unreasonable to ask that this clause stand over. Obviously we are not going to finish the Committee Stage of this Bill tonight.

We could if you would co-operate.

There are only 35 minutes left. [Interjections.] Mr. Chairman, I intend to deal with this matter seriously now. There are a great many clauses still to be dealt with in this Bill and we still have not come to the more serious clauses in this Bill which obviously are going to have quite lengthy opposition from us. There are only 35 minutes left for debate this evening and I would submit that I am not exaggerating the position when I say that we shall not finish the Committee Stage of this Bill this evening [Interjections.] I do not think that it is unreasonable, if the hon. the Minister intends to consider this case seriously to which the hon. member for Durban North has referred, to ask that this clause should stand over. If, on the other hand, his attitude is that he is not going to consider it, then of course we shall have to continue arguing the clause. Frankly, as it does appear to be the hon. the Minister’s attitude, that he does not wish to give consideration to this case, I must point out to the hon. the Minister that he must make a distinction between the method by which that summons must be served which is dealt with in clause 54 and the issuing of a warrant of arrest. We have already passed the clause which provides that the summons may be served not only personally, but it may also be served by leaving the document with a person above the age of 16 at the place of business, employment and so on. Clause 55 now deals with the next stage, the stage as to when and under what circumstances a warrant of arrest may be issued.

Surely the hon. the Minister is not going to agree that it should be possible to issue a warrant of arrest where the court is not satisfied that the summons has come to the notice of the accused. This is what his argument suggested: That it is perfectly convenient to issue a warrant of arrest despite the fact that the summons has not come to the notice of the accused person. If that is the hon. the Minister’s contention, then, frankly, his view of what is reasonable and mine differ very greatly. In my view it is most unreasonable that a person should be put to the embarrassment and the indignity of having a warrant issued against him when he has not even received the summons.

He does not know anything about it.

Yes, he does not know anything about it. It is all very well, as the hon. member for Vereeniging has suggested, to suggest that he can come to court and can say that he has not received the summons. This does not help him; he is still put to the indignity of having been arrested. The alternative suggestion of the hon. member for Vereeniging does not help either. He said that once such a person is arrested, he can go with the policeman to the police station where he can pay bail and then be released from the arrest. This still puts him into this embarrassing position and puts him in circumstances of the indignity of an arrest.

Will you argue the way in which it is abused; the example which I used?

How can there be abuse? If he has not received the summons …

Personally.

If he has not received the summons personally, what justification is there for issuing a warrant of arrest?

If there is collaboration between him and his wife that she should always receive the summons.

Is the hon. the Minister suggesting that there could be collaboration between a husband and wife in such a way that the service of summons is avoided?

To avoid the personal service of summons.

Yes, to avoid the personal service of summons.

You are putting wrong ideas into the public’s minds.

These are ideas which have been in their minds a long time; do not worry about that.

How does that situation help the hon. the Minister? If the warrant of arrest is issued under those circumstances, the accused simply comes to court to say that he has not received the summons which was served on his wife. That is the end of the matter.

Yes, unfortunately that is then the end of the matter.

It is the end of the matter.

He will be arrested and taken to court.

The hon. the Minister misses the point entirely. If a person has not had the summons served upon him personally, he is subjected to the indignity of an arrest. This is the point that I make and this is the point with which he does not want to deal. I do not know how to take this matter any further, because it seems to me that the hon. the Minister’s attitude as to what is reasonable and my attitude differ totally.

Mr. Chairman, it is not a question of an “attitude to what is reasonable”. I told the hon. member that I could not accept that a person would be arrested if the warrant were served on him personally, the simple reason being that it could easily be the case that he and his wife could be collaborating. Should he be expecting anything of this nature, he would just say, “I do not take receipt of a summons; I shall be down in the mine or under the bed, but I am not taking receipt of it. You must receive it”. In terms of clause 54 of the Bill this is a proper form of serving. If the amendment were to be accepted, it would not be possible to arrest him if he failed to put in an appearance, even if the summons had been served properly and had been received by his wife. To me the matter is quite elementary. This is not an imaginary possibility; it is something that does happen.

Mr. Chairman, if I understand the hon. the Minister correctly, then he agrees basically with the arguments advanced by this side of the House. But he has one reservation and problem concerning people who organize, and this is the major reason why he does not want to accept the amendment. Am I correct, Sir?

I may add that one-third of the people who are summoned in Johannesburg, accept a personal service.

In other words, this is the hon. the Minister’s major problem. But I want to tell him now that I have no problem in that regard. There is a simple reason for this. If the magistrate issues a warrant for the arrest of such a person, surely the policeman must serve the warrant on him personally. In order to arrest the person, it is necessary to get hold of him. If he gets hold of him in order to arrest him, he can also do so in order to serve a summons on him. It is so simple. Surely this is the hon. the Minister’s whole problem. If a policeman can get hold of the person in order to arrest him, why then can he not personally serve the summons on him? I think this solves the hon. the Minister’s whole problem.

But then he must …

Then he must what?

Order! The hon. member may proceed. He should not pay any attention to interjections.

Thank you, Sir. Particularly in view of the fact that the hon. the Minister obviously agrees with the arguments advanced by this side of the House, I believe that under those circumstances, too, he should agree that we are proposing a good amendment here, and that, since this is also the practice in the courts at present, it should remain the way it is in terms of this Bill.

Mr. Chairman, let us just analyse the arguments of this hon. member right from the beginning. A warrant will only be issued in terms of clause 55(2) if the court is satisfied that the summons has been served on the accused and that there is a return to this effect before it. That return is defined in a clause which we have already dealt with here, viz. clause 54(2). That particular clause places an onus on the official who serves the summons to give meaning to this most important word in the clause, namely “apparently”. In other words, the person described in the summons must “apparently” be employed or residing at a certain place. If, therefore, the return comes before the magistrate concerned, he will, in terms of this clause, have to examine that return very carefully in order to see whether that official who served the summons did his duty, and whether he made sure that the accused “apparently” resides there. If the court is not satisfied that the official who served the summons did satisfy himself that such an accused is “apparently” employed or residing at a certain address, it will not take steps in terms of the subsequent clauses. Let us now dismiss the first part of the hon. member’s argument by saying that the court has a specific task here, namely to interpret a return.

The second aspect of the hon. member’s argument is that if a person can be found for the purposes of arrest, he may just as well be found for the purposes of receiving a summons. What the hon. member forgets, is that if officials who serve summonses are continually to be made available by us for the purpose of executing a process in the same way as is done in the case where a person has to be arrested, that would involve a tremendous delay in the serving of those processes. We cannot use the exceptional case which the hon. member has referred to, and which he now wishes to elevate to the status of the general norm, for bringing about the more speedy disposal of the serving of processes. I think that this ought to be a decisive reply to the argument advanced by that hon. member. This legislation does not seek to provide for the absolute exception, but for the general, the most common, and we have here sufficient precautionary measures to prevent a warrant being received by a person who is apparently not residing at a certain place, because the presiding officer in the court will have to give an interpretation to that return.

Mr. Chairman, I appreciate the hon. the Minister’s problem and that of those administering this aspect of the law. But, first of all, I think that one must realize that this particular clause has application to what one could term “offences” rather than “crimes”. It refers mainly to traffic offences, municipal regulation offences and matters of that nature, where a summons is normally issued, and in respect of which I suppose a large percentage is accompanied by admissions of guilt. First of all, there is a sifting out of the summonses to the extent that admissions of guilt are paid immediately upon receipt of the summons. But then we come to the second stage. I am not certain, but perhaps the hon. the Minister has some indication of the statistics, say in one of the metropolitan areas, indicating the percentage of this type of summons issued which are not acted upon, i.e. where the recipient or the accused, does not pay an admission of guilt or appear in court on the day of the trial. I believe, subject to correction, that the practice, as far as the Cape magisterial district is concerned, is that, where the summons has been served personally, there is no question that a warrant of arrest is issued. But where there is not proof of a personal service, namely in instances where a summons is served on somebody else, the individual is warned to come to court on a certain date. He is then visited personally, and not arrested. He is informed that there is a warrant for his arrest which has been issued. He must attend court at a certain time and give an explanation as to why he was not there on the first occasion. If it is accepted, of course, the warrant is withdrawn and nothing happens. If he does not give a satisfactory explanation, he then pays his fine for contempt of court in addition to being dealt with for the charge on the summons. I believe that system works fairly effectively in the Cape magisterial district. I am not certain what the practice is in other areas. It seems to me that here one is looking for some intermediate step instead of the drastic step where one cannot be certain that the individual who is now to be arrested, is in fact aware of the fact that a summons has been issued against him. It is that clause which presents the difficulty. As the clause stands here, once the magistrate issues the warrant of arrest, then strictly in accordance with the law that warrant should then be executed. The way that is being done in the Cape magisterial district is really an administrative alleviation of the law, although it is not in terms of the law. I wonder whether the hon. the Minister could help us by indicating to what extent this is necessary. How many of these are, for example, being issued at the present time in one or other of the major magisterial districts? I want to emphasize that the type of person who is being charged here is charged for an offence and not so much for a crime. After all, a man who has committed anything of a serious nature would have been arrested initially. Or if he is out on bail he would certainly be aware of the fact that there is a charge against him and that he has an obligation to appear in court on a specific day. These summonses, on the other hand, are sent out to persons who have not paid dog licences, or because they have not done this or that, e.g. in contravention of municipal regulations. I feel that in those circumstances it is harsh that there should be a provision in the law that, which if carried out to the letter—which one expects the law to be—would incarcerate people, or at least have them arrested while they have not really committed an offence to justify such severe action. The hon. the Minister might assure us that he will look at this again to see whether if a warrant has been issued that it is not executed without the accused having been warned to appear in court. The hon. member for Florida is quite correct that personal contact must be made if you are going to execute a warrant of arrest. It can just as easily be done by a personal directive or a person saying to an accused, “I have a warrant for your arrest and if you are not in court at such and such a time and on such and such a day, this warrant will be executed”. It certainly does not release that individual from the obligation, if he does go to court on that warning, of explaining why he was not there on the first occasion and being subjected to a fine for contempt of court if he in fact failed to act in accordance with that first summons.

Before I see the next hon. member, I wish to point out that a lot of repetition is taking place and that I am not going to allow it to continue.

Mr. Chairman, I wish to agree with hon. members opposite that this is a drastic provision, but here it is a matter of the problem experienced in the administration of the law and the accumulation and duplication of work as a result of the attitude of members of the public who act with contempt towards court documents on the one hand or try to evade receipt of court documents on the other.

Order! That argument has already been raised from the Government side.

The expense involved in this must be eliminated and hon. members opposite must realize this. All extra steps, such as those the hon. member for Green Point has just suggested, actually create additional documents which again make it more difficult to bring such a person before the court. As he rightly said, and this is why it is so strange to me that they are still opposing this matter so obstinately, it is a fact that a person who has committed an offence can, in any case, be arrested. I shall indicate at a later stage how much it costs to bring people before the court, in respect of parking tickets alone, by means of summonses or personal service. Here it is quite simply a matter of the problem of administration and I therefore support this provision.

Mr. Chairman, I hope I will not contravene your request that there should be no repetition. I would like to draw the attention of the hon. the Minister to two aspects which I feel have a relation to this particular clause and to the thinking that has motivated the Opposition to ask the Minister to take some form of change into account.

Firstly, let me tell the hon. the Minister that it was my privilege as a student to read one of the finest contributions ever made to the law of evidence by a great jurist called Best, an English jurist, who stated that most people, most witnesses, talk the truth. If that were not so, he says, the whole of the machinery of the law would grind to a standstill and could never accomplish the maintenance of proper law and order in society. That is human reaction, but fortunately, he says, for those who study the law of evidence and the intricacies thereof it is evident that most people tell the truth. That is the first point I want to make. The second point I want to make to the hon. the Minister is that one of the main objectives of this legislation has not been to draw up a new Criminal Procedure and Evidence Act because the present one was per se old; its objective is to bring it up to date. In other words, its objective is to have some sense of reform in regard to what is taking place, to bring up to date the methods that are being used in view of the experience we have had. The hon. member for Green Point made reference to what happens in the Cape. All practising lawyers know that with all serious crimes warrants for arrest will be issued. With any crime of note a man will be arrested and brought to court where bail will be negotiated. If he is arrested over a week-end the question of bail will be arranged by the senior officer in charge and the man will be released to appear the next day. But he will have been apprehended. To the average type of case this service is not meant to apply and there is a relevance also on the civil side, where inquiries into debt have met with the same experience. There you can serve documents on a person or on somebody over the age of 16, an adult person in his employ or on his man or maid servant. Very often it is served on a Banty person many of whom are in fact illiterate. Let me put this to the hon. the Minister: If we are to save expense as the hon. member for Vereeniging has endeavoured to suggest, then you will find that on average most people will appear in court. In accordance with Best’s point of view, you will find that on average most people will appear in court. Therefore you are saving time and the procedure is satisfactory. By all means serve the summons on a person or on someone in his employ who is over the age of 16.

What is the experience of your own municipality, that of Johannesburg?

I will give it to you in a moment. By all means, as I have said, serve the summons on him because on average you will find that the form of collusion to which the hon. the Minister referred, is rare. It is not usually the case. I need not tell the hon. the Minister his business. I do not even need an interjection to encourage me because I have a high regard for the experience of the hon. the Minister, who himself has been in practice for a number of years. In my opinion he is a man who has studied the law and knows the law. As the hon. the Minister himself knows, the position is that the average person will appear in court. This form of collusion is rare. The experience in Johannesburg, particularly with regard to municipal matters—just to answer the hon. the Minister’s question—shows that, if they do not appear and the evidence shows that they have not been served personally, it is asked that a personal summons be served. They do not issue warrants of arrest if a summons has not been personally served. Thousands of traffic summonses are issued in Johannesburg and there are quite a number of people who rely on the possibility of getting free if they have not been served personally, but eventually they are caught up with. However, the average person is an honest person just as the average person will tell the truth.

The plea here is not made to meet the particular case which the hon. the Minister mentioned. The plea here is to avoid a person, who unfortunately does not have the document given to him, from suffering the indignity of being arrested. It could happen to each and everyone of us—ordinary, honest people who find that a summons is served to a maid-servant or man-servant who may be an illiterate person who does not even understand what the exigencies of the occasion are when the summons is served and consequently thrusts it away. So a man may quite innocently not even be aware that he has to appear in court. I want to ask the hon. the Minister whether from an administrative point of view, a point of view of justice and a modern approach in the administration of justice, it is right to retain something which does not even work in terms of the actual statute. Even some of his people have questioned this. Over a number of years it has been borne out, as has been pointed out so well by the hon. member for Green Point who is also a practising lawyer, that this system, administratively, does not work in terms of the actual statute. As we are reforming it and bringing it up to date, why should we not put the position in its truest and most practical way? It will not encourage breach of the law; it will not encourage contraventions; it will not encourage dishonesty or subterfuge. I feel that it is to our credit that, in the administration of law in this country, the average person is not dishonest, nor does he stoop to subterfuge. My final point, so as not to repeat myself, is that if we did find that to be the case, God help us in the administration of law in this country or any country.

Mr. Chairman, I have only one point to make. I think that the hon. the Minister has perhaps been driven in a large motor-car for too long and has, perhaps, forgotten that ordinary, decent, normal, nice people commit traffic offences.

I also drive a car.

Ordinary people also commit traffic offences. The largest proportion of the summonses are, of course, in respect of traffic offences, which, by law, are offences as my hon. friend indicated. The hon. Minister, however, says that it is a good thing to serve summonses not only personally, but also to a place of business, a place of residence, and so on. That is fine. According to him it is good to have that service because you get an awful lot of reaction from it even though there has not been a personal service. That is a perfectly valid point. We do not object to it. It has the benefits the hon. the Minister talks of. However, that is not the point. What disturbs me about what the hon. the Minister has said here is that he has indicated that he wants, in fact, a warrant of arrest to be issued if a summons has not come to the attention of the accused.

No, I did not say that.

It can happen.

Yes, that is what it comes to. Even if he does not have personal knowledge of the existence of the summons against him, the hon. the Minister says he still wants a warrant of arrest issued and he wants him brought before the court. That is a most unreasonable attitude ! It is most unreasonable for various reasons; one of those reasons is that the offence for which he has been arrested, the offence in respect of which the warrant of arrest has been issued, is the offence of contempt of court. That offence is only committed if you are in wilful contempt of the court. You cannot be in wilful contempt of the court unless you knew that you should have appeared before the court. What the hon. the Minister has in fact suggested is that he wishes the situation to occur where persons in respect of whom there is no prima facie proof of the fact that they have committed an offence for which they are to be arrested are not summonsed, but arrested so that they can be brought before the magistrate. Such a person will then explain why it was that he did not get the summons. He might not have seen the summons at all. I think the hon. the Minister will concede that this attitude is not only unreasonable but that it is against the whole spirit and tenor of the present laws. If this is going to happen as of course in every case, the hon. the Minister will find that he will get no cooperation. If an attitude like this is adopted, he will find, because this is so manifestly unjust, an interpretation given to it by a Supreme Court which will then be binding in that area. Then somebody will find a few loopholes and everyone will take all the loopholes. What happens at the moment? At the moment they do not take the loopholes, as the hon. the Minister has said. Even though there was not strictly personal service, if they know about the summons and if it comes to them somehow, they will then go to pay their admission of guilt. This happens, as the hon. the Minister conceded, almost every day. Therefore I wonder how many people the hon. the Minister thinks this is really dealing with. I hope that the hon. the Minister will tell us that my interpretation of what he said is not in fact correct because I would hate to feel that my interpretation was in fact correct.

Mr. Chairman, hon. members opposite have now made a big argument out of a clause which we included to facilitate the administration of law. I think that for the publicity value they are going to get from this, we should ask them first to reply to arguments which we on this side have advanced so far. To be specific, we asked hon. members opposite whether they agree that a particular meaning should be attached to clause 54(2)(a).

†That subsection provides that—

Yes, maybe in the dustbin.

In other words, there is a definite onus on the person serving the summons to ascertain certain facts which will entitle him …

Not to ascertain.

… to reasonably come to the conclusion that the person named in the summons lives, resides or is employed at a particular address.

It does not cover a daily gardener.

In other words, once this return of service is brought to his notice in terms of clause 55(2), the presiding officer will have to give specific and particular attention to this return of service. I maintain that this was not a particular duty in the past. Now it becomes of paramount importance that the presiding officer should convince himself …

It is not very much different from what it was in the present Act.

To meet the hon. member’s arguments, such a person will have to give particular attention to the return of service.

Yes, they always do.