This clause is the reason why we opposed the Second Reading of this Bill and constitutes in fact, as far as we are concerned, the principle of this Bill. It is a clause which takes away from the courts the discretion in relation to compulsory sentences. That is what I said, Sir: It takes away from the courts the discretion in relation to compulsory sentences. In other words, it takes away from the courts their discretion as to whether or not, where they are obliged to impose a minimum sentence, that sentence, most of it, all of it or part of it, may in fact be suspended. Now, I was not here yesterday but I have had the advantage of reading the hon. the Minister’s Hansard and the Hansards of other hon. members and I do not think that any case has been made out as yet by the hon. the Minister, and he is the only one on that side who has spoken, for the provisions of this clause. The hon. the Minister said yesterday during the Second Reading that the Legislature, we in Parliament, had been remiss in not saying more clearly what we in Parliament meant. Indeed, he went so far as to blame himself for being a little remiss in not being as clear as he ought to have been. I want to say this, that when you are legislating in this House, you have to follow the same maxim that the courts have to follow when interpreting the legislation of this House. The maxim when you interpret the legislation of Parliament is that Parliament knew the law as it was when it passed the legislation it did, and indeed parliament did know the law as it was when it passed the principal Act in 1971, and it knew at that time that the courts could suspend part of the sentence. When we dealt with that measure we knew that that in fact was so. What disappoints me is that all these hon. gentlemen who sit on that side of the House, and are members of the legal profession, and especially, may I say, those who are advocates when they are not in this House—and there are a number of them who are practising advocates—did not let us hear one word on the subject. [Interjections.] This is not a matter of being led by anybody. This is a matter of specialist knowledge. The hon. the Minister does not have this specialist knowledge. That is not his fault; he is not a practising lawyer.

He is just a Minister.

My hon. leader says he is just a Minister. Yet he is dealing here with a particular provision that is of the essence of the law and of the profession. This provision is that the courts may no longer suspend part of a compulsory sentence. I want to say at once that the compulsory sentence remains. The only question is whether, in the particular circumstances which attend that particular case, it is possible for the court, having regard to the circumstances, to suspend part of or all of the sentence.

The hon. the Minister will surely concede that Parliament cannot legislate for all the various different cases that will come before the courts, for all the various different people who will be charged in terms of this legislation. There are going to be hard cases if this is going to be applied, because quite obviously there will be cases in which a compulsory sentence, where a man is technically or in fact found guilty of peddling a drug prohibited in terms of the Act, will constitute a hard case if he is sentenced to gaol for a minimum of five years. Nobody can deny this. What answer can the hon. the Minister give to this but that there exists a provision that the Executive may in fact decide that a particular case is a hard case and that they are going to pardon the convicted person in respect of part of the sentence. If that is to be the argument, it means that the Executive is going to take over the function of the judge or the magistrate who hears the facts in each individual case.

I appeal to the hon. the Minister at this stage to ask the Committee to vote against this clause. I appeal to him to do so because there is no injustice done to Parliaments’ wish at the time, namely that if you are found guilty of peddling, you shall be given a minimum sentence. With what we are really dealing here is how that sentence should be executed. No Minister, no member of the Executive, no member of the Public Service, no member of Parliament can say how a sentence should be implemented or executed; only a judicial officer, having regard to all the facts, having regard to his background, can say how that compulsory sentence should be implemented, should be executed. This is the point. The sentence is there; part of it is suspended, but it is nevertheless imposed.

Some time ago, in fact only a little time ago, in relation to another portfolio that the hon. the Minister holds, it was provided that if a person was found guilty and sentenced to imprisonment without the option of a fine, he was prohibited from voting or holding public office. If such a person received a suspended sentence, if the court had sentenced him to, say, six months and then suspended the whole of his sentence, he was nevertheless disqualified because he had been sentenced to imprisonment without the option of a fine. We have amended that provision to say that it is only where he is actually imprisoned. The point is that the sentence is imposed by the court, the compulsory sentence Parliament said should be imposed. The manner in which it is to be carried out is a matter which the court, and only the court, can administer properly because only the court knows all the facts. If, in fact, that man breaches the conditions of the suspension, he will not only serve that sentence, but he will also serve the sentence when he is found guilty. In other words, that sentence is always there and if he ever breaches the conditions, then he has had it. The next time he does anything wrong, he will not only get the sentence which we, Parliament, said he should get, but he will also get the next sentence. So the sentence is imposed upon that person by the court.

I appeal to the hon. the Minister to reconsider the matter at this stage. I want to say that I appreciate that the hon. the Minister might have thought that he was under pressure, that when the court gave its judgment, these judgments were interpreted in the Press in a certain way and thrown at the hon. the Minister without justification as being a case of the courts saying: “Look, you are wrong”. That is not so. [Time expired.]

Mr. Chairman, I have listened attentively to the previous speaker, the hon. member for Durban North. Since the hon. member is complaining about the discretion of the courts and is implying that this is solely a matter for the lawyer, we could refresh his memory by referring back to Hansard of 7th May, 1971, when he said the following in column 6198, when the principal Act was under discussion here—

The hon. member then moved the amendment and went on to say—

Today the hon. member for Durban North said that he wanted to place the drug pedlar in the same category as that in which the other groups in clause 2 were being placed, whereas at that time he took up a position on the side of the Minister against the drug pedlar. I think, too, that I am in good company when I quote column 6096 of the 1971 Hansard to hon. members. I first want to point out that when the leaders of the people realize that certain offences are being committed among the youth of South Africa, they surely have the right to take action and to prescribe to the courts what they feel is in the interests of the people. There are so many theories today and so many sociologists offering differing solutions to the drug problem that one will not find two judges or two magistrates who will have the same feelings as to the seriousness of this matter. That is why I say that in considering what is said by the leaders of the people, we shall see that the National Party, through the Minister, the Cabinet and the previous Act, has proved what it thinks. When I speak of the leaders of the people, I refer also to the hon. the Leader of the Opposition. I want to refer to what he said in column 6096 on 6th May, 1971—

Here the hon. leader said they should be fought “without mercy”.

This provision was not in the Bill at the time.

The hon. young lawyer who has just made that interjection, may be very capable in the field of law, but perhaps I can tell him something from a medical point of view. When dealing with a drug pedlar, and in that respect I agree with the hon. the Leader of the Opposition, as well as with the hon. the Minister, then one is dealing with a man who is involved in this matter for financial gain. It should be kept in mind that a drug such as LSD sells at R20 000 per gram. Presumably, since metrication has taken place, hon. members know how much a gram is. When he gets R20 000 per gram, then he is without conscience. His aim is to make money out of the sorrow, the hardships and the misery of other people. We should not be discussing minor points of law here, but we should also remember what the hon. member for Durban North said in 1971. He introduced an amendment in which he wanted certain things, but he excluded the drug pedlar. Today we are dealing specifically with the drug pedlar. One need only consider the misery caused by the peddling of drugs, the families that are disintegrated and the young people who are destroyed. Let us forget about the discretion of a magistrate or of a judge, and let us look at the other side of the matter for a change. Must we act so justly that we are to lean over backwards for the sake of justice, while hundreds and even thousands of young people fall into the hands of drug pedlars? I should like to put it here that I do not believe that the hon. the Minister may give any consideration whatsoever to the possibility of an amendment to this clause. This clause is the most important amendment in the Act, except for the one concerning research in regard to dagga and other medicines which may be used as drugs. Consequently I want to appeal to the hon. the Minister that no consideration be given to the amendment of the clause as it is printed here. There are many theories on how drug pedlars, and even people using drugs, are to be dealt with, and for this very reason there are no two magistrates or judges who have made a study of this whole problem who will be like-minded in this regard. I feel that we should get away from the purely legal point of view in this regard. The hon. member for Durban North referred somewhat sneeringly to this side of the House and asked why our lawyers had not gone into this point. However, this is not a matter for lawyers alone, but a matter for the people as a whole. It is a matter concerning our most precious possession, namely our youth, and we certainly cannot hide behind insignificant points of law in a measure such as this. I want to give my wholehearted support to the Minister in that he appreciates the serious nature of this matter. I want to go so far as to say that while the Minister mentioned earlier on that he realized that no definitive measures were prescribed in the Act, or ones which were of a serious enough nature, a book by Loedollf and Louw appeared shortly after the publication of the Act in which they said the following (translation)—

I want to mention yet another point. There is the argument that a person could fall into the clutches of a drug pedlar, be stimulated by the drugs and eventually become addicted to them himself. Eventually he, too, deals in drugs and consequently one never catches the real drug pedlar. I want to say at once that if such a person is caught, there are still many other sections in the Act which could protect him; investigations may be instituted and such a person may also be sent to a rehabilitation centre after imprisonment. There are many ways of protecting him, but we should not try to protect the individual by means of this measure while we allow the dozens, the hundreds, to get away. I therefore want to give my wholehearted support to this clause as it stands in the Bill. I feel that to argue this matter on purely legal grounds, will amount to the large scale murder of the youth and the young people of South Africa.

Mr. Chairman, let me assure the hon. member for Caledon that we are not looking at this matter as a cold legal principle, but that we have as much a humanitarian approach as any other person in this House. It is humanitarian not only towards the accused, but also towards the public at large. I want to say to the hon. member for Caledon that his research has been insufficient and very superficial about what was said by the hon. member for Durban North in the Committee Stage in 1971. I do not know whether the hon. member was in the House when we debated this matter yesterday. I do not know whether he was here when we quoted what was said in 1971. Let me read exactly what the hon. member for Durban North said when he supported the clause that was in the Bill which is now the principal Act. The hon. member said (Hansard of 7th May, 1971, col. 6186)—

The hon. member for Durban North made it quite clear that the minimum enforceable penalty was for the pedlar in whose case there were no extenuating circumstances whatsoever, i.e. the cold-blooded pedlar. The hon. member for Caledon did not refer to that. He tried to give the impression that the hon. member for Durban North, and we on this side, had accepted this clause as it stood without any reservations or conditions. We on this side of the House accept that Parliament, this Legislature, is quite entitled and empowered by law to remove a discretion from the courts. It is quite entitled to remove the discretion to suspend or postpone sentence. What we are concerned with this afternoon is whether a case is being made out for that to be done in this particular instance. Is it right that we should do that? I am far from convinced that we should do that; in fact, I am convinced that we should not do it. The right to ensure that justice is done in all cases is an essential prerequisite for any legislation that we pass in this House. Rule of thumb directives as to penalties which must be imposed for a stated crime, can lead to the gravest miscarriages of justice in the administration of the law in this country. Yesterday, during the Second Reading, I pointed out to the hon. the Minister and I want to point out again that every lawyer, in fact every person who takes an interest in the administration of justice knows that each case, although it may refer to the same basic crime—be it assault, theft, forgery, embezzlement or whatever it might be—presents with it different circumstances, a different motivation and different degrees of culpa on the part of the person who is guilty of that offence. No two cases are the same. To the judicial officer sitting in a court each person convicted of a crime presents himself to the judge or the judicial officer as a different personality, differing in fundamental psychological make-up and conditioning, differing in his very approach to life, differing in his social circumstances, differing in his opportunities or lack of opportunities in life. Every convicted person presents to the judicial officer a problem as to how he should be penalized and punished, not only as a preventative measure, not only as a deterrent for the crime concerned, but in order that that person should benefit in the end for having served that particular sentence.

In Iran they summarily shoot the drug pedlars.

I do not think the hon. the Minister wants us to accept the rough and ready justice that is practised in some places. [Interjections.] Let me put it this way to the hon. the Leader of the House: When this Bill was introduced, my hon. leader said that he regarded cold-blooded peddling as murder, but there are circumstances in every murder case which differentiate the one from the other. You cannot say—and we have never said it in this House and never will—that every murderer must be hanged. What this Bill wants us to say is that every person convicted of peddling, as provided for in this law, must pay the minimum penalty.

Some of our courts are becoming too lenient—that is the trouble.

Mr. Chairman, that is an extraordinary statement from the hon. the Minister—who is probably as concerned as most of us are—when from what he sees in a short precis report of a case reported in a newspaper, he comes to the conclusion that the court is being too lenient. There are many arguments; there always are arguments; and I said in the House yesterday that there always will be arguments, when anybody has to exercise a discretion. The hon. the Minister of Transport, for instance, must decide when he exercised his discretion, whether he would follow the recommendations of a certain commission regarding transport. I do not think that he has the unanimous support of everybody that he in fact exercised his discretion in a sound and proper manner. But that is inherent in the exercise of discretion. Now the hon. the Minister wants to deprive the courts of this discretion in regard to penalties. Everyone of us knows that a judge or other judicial officer has frequently the gravest of difficulties in determining what is the best way to deal with a particular case. Why are our judges throughout the country now so concerned with the question of criminal reform, to see whether more effective use cannot be made of the penalties which are applied in criminal cases? It is because every case presents a different problem. There is the man who has just been to a party; he is caught drunk in the street, and is then had up for drunkenness. His treatment by the court must surely be different to that of a man who is an addict, who is sick and needs treatment, and who needs hospitalization to get him over the disease of alcoholism. One wouldn’t say that if a man is found drunk, his penalty should be this or that, “finish en klaar”. No, Sir, because the circumstances may be such that that man must be dealt with in a different manner. This principle is applicable in the Minister of Transport’s own department, a provision which I have welcomed. In the past, if a man in the Railways was convicted of drunkenness, he was sacked. But the department is now prepared to say that that man can have sick leave if he has treatment. Sir, I welcome it. It is an enlightened approach. So is the approach of our judiciary every day to try to find the correct penalty, within the limits prescribed by Parliament, be it minimum or maximum, to deal with a particular case. Legally, we in this House are quite entitled to remove that discretion. But it would be a sad day for South Africa if we were to remove this discretion of postponement or suspension of sentences from the courts in handling specific cases. The hon. member for Durban North has made it quite clear: The pedlar who receives a suspended sentence as a result of whatever circumstances the judge or the magistrate considered to be applicable, has a double penalty on his second conviction. He has the deterrent at all times of a suspended sentence hanging over his head, and he knows that for his second conviction he will receive the penalty prescribed for the second conviction and the suspended sentence to boot. That is the effect of it. I can see no reason, because there has been a difference of opinion, that we should remove for all time from the judiciary a discretion in dealing with penalties, the question of suspension of sentences. The hon. the Minister has not motivated his viewpoint. I think, with the hon. member for Durban North, that the hon. the Minister is too sensitive in regard to the reactions of the Press when they suggested that a horse and carriage is being driven through the laws of this House when sentences are suspended. We on this side of the House at least drew attention to the fact repeatedly in the debate that there could be extenuating circumstances to justify the suspension of sentences.

I want to suggest to the hon. the Minister that we have made tremendous progress in combating drug addiction in this country since this Act was passed in 1971, a mere two years ago. I think the hon. the Minister would be making a fatal mistake if he did not allow this Act to continue as it is, taking into account the good results it has already achieved without introducing this particular aspect which is contained in this clause. [Time expired.]

Mr. Chairman, I do not want to take up much of the time of this Committee. I just want to stress one aspect. It seems to me as if the hon. members of the Opposition do in fact, in their subconscious minds, want to place the seller of drugs, the dealer, in the same category as the buyer. But surely the position is that when a man intentionally sells this dangerous material he is committing a very serious crime. The hon. House is aware of the approach of the public in general to the pedlar of drugs.

The fact that legislative bodies have from time to time tampered with the discretion of the courts, is not a completely strange phenomenon. The hon. member for Green Point has also conceded now that there is no doubt that the legislature has the right to restrict the discretion of the courts. I just want to mention one example in this connection. Where someone drives a car under the influence of liquor, his licence must be suspended for six months in the case of a first offence, for a year in the case of a second and permanently in the case of a third offence. In that case the discretion of the courts has been removed entirely. This is a similar case.

It has been said repeatedly that the interests of our youth are at stake here. We cannot act strictly enough to stop the pedlars and to prevent them from continuing with this dangerous practice. I want to emphasize that it is the youth of our nation who are being threatened by the sale of drugs. It is the youth of our nation, who will have to take over tomorrow or the next day, who could suffer harm as a result of this evil. We cannot afford this.

We have just seen that in France the possibility has even been mooted of the death penalty being imposed for pedlars in the liquor trade. Let me remind the hon. member for Durban North of what he said here on a previous occasion. The hon. member for Green Point took it amiss of the hon. member for Caledon for not having delved deep enough, but let me just repeat what the hon. member for Durban North said in 1971 (Hansard, Volume 34, column 6198)—

Why this change of attitude now? Is this another example of the chameleon policy of the United Party? Sir, with these few words I as a lawyer on this side of the House want to give my full support to the provisions of clause 3 of this Bill.

Mr. Chairman, I must say that I am sorry to have heard such a lot of nonsense from hon. members opposite. It has been a long time since we have seen such a lot of twisting and distortion around a point.

Order! The hon. member must withdraw those words.

Do not twist so far.

I withdraw it, Mr. Chairman; I think my intention is …

The hon. member must withdraw the words “twisting” and “distortion”.

I withdraw the words, Sir. I want to say that we have had a lot of discussion here which was not to the point at all. What is involved here is not how serious the offence of the coldblooded drug pedlar is; what is involved is the principle of confidence in our courts. I listened to the reasons advanced by the hon. the Minister yesterday in regard to this matter, and he failed to make out a case for these changes, except as a motion of no confidence in the courts of South Africa and in the Supreme Court in particular.

You are talking nonsense.

That is precisely what it is. Hon. members opposite come here and stress how serious and terrible an evil drug-peddling is. We all know this. Does the hon. member think that the courts do not know this? Does the hon. the Minister think that the courts do not know how serious this evil is?

May I put a question to the hon. member?

Sir, I do not want to reply to any questions now. Does the hon. the Minister think that the courts do not know how serious this crime is, after this House had given such a clear indication of the serious light in which it viewed this matter? Sir, if that is the hon. the Minister’s attitude, then I say that he has no confidence in the courts of South Africa. If he argues that he has to introduce this legislation because this is a serious crime, then he implies by doing so that the courts are not aware of the serious nature of this crime. Sir, this is a serious crime and we on this side are satisfied with drastic steps; we have already said that we want drastic steps to be taken. The Minister now wants to make himself out to be a strong man. But the point of departure of this side of the house is that strength should be tempered by justice, and a man who is strong and who has no sympathy, has no wisdom; he is just a boor, and that is what this legislation amounts to.

Order!

This is a serious deviation from the principle that only the court has the right to determine what to do in regard to the accused before it. The court knows what the nature of the crime is; it knows that the crime is a serious one; it has heard all the evidence in regard to the specific accused, and it knows what a suitable sentence would be. Sir, we have had this legislation on the Statute Book for some time now and the hon. the Minister has seen how it works in practice, and now he is effecting this change. This change has one object only and that is to deprive the court of its discretion in regard to the suspension of sentences. The court has an inherent right to suspend a sentence. I want to know from the hon. the Minister whether he wants to imply that the courts have abused this right in regard to suspension.

Why do you want to protect criminals?

Does the hon. the Minister want to say that the courts have abused their right to suspend sentences? If that is the standpoint of the hon. the Minister, then he should tell us so in so many words. If the court has not abused that power, why does he want to effect this change? Sir, this is the crucial question; for if the courts have not abused their discretion, then surely the hon. the Minister must concede that he should not have introduced this legislation. Then surely he should admit that there may be circumstances where a suspended sentence is the appropriate sentence. This is surely the logical conclusion. Sir, hon. members on that side talk about social evils. Does the hon. the Minister realize what would happen if we undermine confidence in our courts? If this Government has no confidence in our courts, how then should the public have confidence in them? If the public of South Africa and the world outside no longer have confidence in our courts, what would the social consequences in South Africa be? I regard this alteration introduced by the hon. the Minister as being a motion of no confidence in our Supreme Court in particular.

You are talking rot.

Sir, a distinction is already being drawn between drug pedlars and people who use drugs, because in terms of a section in the Criminal Procedure Act …

Order!

… these crimes fall under Schedule 4.

Order! Is the hon. member deaf? The hon. member for Hercules must withdraw the word “rot”.

I withdraw it.

The hon. member may proceed.

As I have said, these crimes already fall under the Fourth Schedule to the Criminal Procedure Act, and in terms of the Fourth Schedule one can only act in terms of subsection (2) (a) of the section now being amended here, and in terms of that only a part of the sentence may be suspended; the whole sentence may not be suspended. Now I want to put this question to the hon. the Minister. In that same schedule other crimes such as murder and rape are mentioned. Does the hon. the Minister want to come and tell me, and this Committee, that is not a serious offence? Does he not think that murder is also a social evil? Does he not think that rape is one of the most serious crimes which can be committed against a female person? What is the hon. the Minister’s attitude in regard to rape? Does he say that this is a serious crime, or does he say that it is not a serious crime? If it is a serious crime, why then does he consent to the sentence being suspended in that case? Why does he consent to the sentence being suspended in case of conviction on a charge of murder? Or does the hon. the Minister not agree with that? Would he please tell us.

Are you a new teacher now?

Does the hon. the Minister want us to prohibit the courts from suspending sentences in the case of murder and rape?

Only if there are mitigating circumstances.

Of course, from the nature of the case, the sentence is only suspended if there are mitigating circumstances. If the hon. member accepts that there may be mitigating circumstances in the case of murder, does he not agree then that there would also be mitigating circumstances in the case of this crime? [Interjection.] Why not? Sir, hon. members on that side of the House take an ambivalent attitude because they ostensibly want to be strong, and because they want to adopt this frivolous attitude towards our courts. They are being “spiteful”, to express it in English, towards the courts because the courts have felt that under certain circumstances suspended sentences should be imposed, while the hon. the Minister wants them to imprison people unconditionally. Sir, after the court has found an accused guilty of a certain crime, a question other than the question of sentence arises. The question is not only how serious the crime is; the question is also: “Who stands before me; what is his background; what kind of sentence should I impose which will rehabilitate this person?” Sir, not only rehabilitate because he is a drug addict, but because he is a criminal, because anyone who is a drug pedlar is a criminal, which means that he is socially maladjusted and that he has to be rehabilitated. That is why the sentence has nothing to do with the degree of guilt; it has to do with the question: “Who is the person who is standing before me here as an accused; what is the sentence which will best succeed in stopping him from committing this crime again?” Sir, here a suspended sentence is a useful tool. Will any lawyer on that side of the House deny this?

We do not have to be lawyers to do that.

Will hon. members on that side deny that a suspended sentence is a valuable sentence in the combating of crime?

No.

The hon. member does not deny it. Why does he not want to allow a suspended sentence in the case of this crime? [Time expired.]

Sir, I think that it is necessary for me to enter the debate at this stage in order to state a few points. After that hon. members may continue with their arguments, if they have any new arguments. The discussion taking place at present is concerned with this specific provision in which the legislature wants to make it very clear that it takes such a serious view of this crime that once a person has been found guilty by a court, then, in this particular case, which is being defined very clearly, a suspended sentence is not possible. Sir. I do not want to reply individually to each hon. member. I shall deal with their arguments in the course of my speech. I just want to tell the hon. member for Florida that I find it a pity that he used the language he did use here in regard to me personally. I want to say to him at once that when he has been in this House long enough, he will learn that decency is respected on both sides of the House.

It became apparent from the arguments raised by the Opposition that the right to suspend a sentence was an inherent right of the courts. Sir, I am not a lawyer, but I know enough about law to know that no court in the world has an inherent right to suspend sentences. The right to suspend sentences is granted to the courts by the legislative body—in this case Parliament. If Parliament does not grant the right of suspension, then that right is not inherent in the powers of any court in the world. I should like to have that point debated by the lawyers. It is my point of departure that the inherent right to suspend is not implicit in the power of the court. This is a power granted to it by the legislature, and if the legislature grants it then the legislature is also entitled to withhold it. In this case it is the opinion of the legislature that the offence is so serious that we are going to withhold it, and that is why this proposal reads the way it does. That is my first argument. I want to state that if we should deem it necessary to grant the courts the right to suspend sentences—in this case we are taking it away from them—then there would be a reason for doing so, and that reason is the one which I stated very clearly in my Second Reading speech yesterday. That reason is that the House, the Government, the legislature, feels so strongly about this matter that it wants to withhold it in this case. And now I want to make a strange statement, Sir. I want to say that when the United Party supported this measure in 1971, the United Party members were not aware of the fact that these sentences could be suspended.

Read the speeches.

I am waiting for one single quotation to prove it. My argument is that the hon. member for Houghton opposed that Act in 1971 in all its stages and the Opposition defended their agreeing with the Government on this matter. Time and again they spoke about mitigating circumstances and about this and that, but not once in the discussion of that Bill was the argument used by these hon. members that a sentence could be suspended. The argument that the sentences could be reviewed by the higher courts was in fact put forward, but the argument that a sentence could be suspended as a right, was never used in that debate. I am open to correction. I should like to see this.

Extenuating circumstances.

I want to read out the speech made by the hon. member for Durban North in that specific debate (Hansard, col. 6186)—

The matter was argued by the hon. member and he said that there were no extenuating circumstances. To proceed—

And then further on—

I just want to state one other case, and that is this. The argument has been raised by the other side that this group is in fact one of the groups in which the suspension is such that the whole sentence may not be suspended, but the sentence may be suspended so that only four days of the total sentence need be served—only four days.

Has this happened?

It has happened.

Where?

I shall tell you. I want to state the matter clearly. To the person who has received a suspended sentence, that sentence hangs over his head like the sword of Damocles. That argument is true in respect of persons in South Africa who live here and who continue to live here and who therefore have that sentence hanging over their heads. In the case of drug pedlars, however, one often has to do with foreigners who are not South African citizens, who do not have permanent residence here, who come here from abroad for the distinct purpose of engaging here in drug peddling, and on such a person a suspended sentence has no effect whatsoever, because he serves the short sentence imposed on him and then he leaves the country, with the result that the rest of the sentence never comes into operation because he does not return to South Africa. This is a totally pointless situation. The sentence is rejected as a whole.

To conclude, I should like to put the matter in this regard as follows—I am not going to advance many arguments, because I stand unshakably by the standpoint I explained yesterday—in order to make the position, as I see it and as the Government accepts it, as clear as daylight. It is the right of this House as the legislative body, which is the lawmaker in a democratic state, to make the laws. It is the right of the executive, in this case the Cabinet, to see to it that those laws are carried out. It is the task and the right of the courts to impose penalties when the laws are not carried out or are infringed. Thus we have clearly delimited fields. I say that it is the clear right of the court to judge whether a person is guilty or not guilty. We do not want to interfere with that it is fully within the discretion of the court to find that the person is guilty or not guilty. The court hears the evidence of everyone. If the court, after hearing the evidence, finds a person guilty, not merely guilty of just any crime, but guilty of a crime in this specific category, namely that the person concerned dealt in these specific substances mentioned here and is over the age of 18 we say that the discretionary right to impose a suspended sentence, is being removed. That is all it amounts to. It is the right of the legislature to say that it regards that offence by those specific people in such a serious light that it is not prepared to allow a suspension of the sentence in such a case. The legislature feels that a suspension should not be allowed in this case.

In all the other cases suspension is possible. There is rehabilitation, there is committal to our rehabilitation centres if the weight of the evidence is in favour of rehabilitation, but in these cases, in the case of a person specifically seeking the destruction of our youth and wanting to enrich himself in that process, the Government want to show no mercy and we shall show no mercy. We want to make this very clear to the courts: The legislature feels so strongly about this matter that it is taking discretionary powers away in this regard. That is my standpoint and that is the only argument to which I want to adhere all the way.

In conclusion I want to argue as follows. I am sorry—I repeat that I am sorry—that the United Party is not joining us in our stand in this regard. I am very sorry about that, because this gives the outside world, the drug pedlar and everyone, the impression that we do not have a unified front here as we did have in 1971. Moreover, the people as such now has that distinct impression that whereas the Government could previously say that it had the support of 99% of the legislative body in South Africa—the exception being of course, the hon. member for Houghton—the position has now changed as far as this aspect is concerned. For a number of reasons I am sorry that this should be the case, for I am convinced that the hon. Opposition, in their heart of hearts, feel exactly as we do because they—I persevere in my argument—were under the impression in 1971 that these sentences could not be suspended. As a result of that they accepted the position that way.

I therefore make it very clear that I am unfortunately unable to accept any amendment to this clause. I am not prepared to retreat. We are not dealing here with strong action or refusal as a result of obstinacy. We are dealing here with the simple gravity of the matter, and we want to state this frankly to the whole world: This is how South Africa feels about drug pedlars.

Mr. Chairman, there it is! The hon. the Minister says: Do not confuse me with the facts or any argument; I have made up my mind, I am not going to accent an amendment and I am not going to do this or that.

No.

But that is what you just said. Is that not what you said when you said “ten slotte”? The peroration then was: I am not going to move an inch; I am not going to accept amendments, [Interjections.] The hon. the Minister said that it would give the impression, “die indruk daarbuite”, that we are not all agreed upon the Issue. If there was one Bill that indicated that we were, in fact, at one on the question of drugs in South Africa— when I say “we” I mean the Government and the official Opposition and the overwhelmimg majority of the pepole in South Africa—it was the drues Bill which this House now seeks to amend. The hon. the Minister must not be upset because the Press has attacked him on this. We have experienced the same thing. We have also been attacked by the Press. We have been attacked very much more by the Press because the Nationalist Party Press did not attack the Government in this regard, nor did they attack us, but we were attacked by the English-language Press because of our stand on the principal Act. We have all had to go through this, but it does not matter what they say and how they attack you as long as you feel you are right. We have all survived it. I am sorry that the hon. the Minister has taken this attitude. I agree that the attitude of the Press at the time was every time a judgment came out to inveigh against the Minister, to say: “Look you chaps there, you, the Minister, you in Parliament thought you were doing this and now the courts have said something else.” They were in fact absolutely wrong but I want to say that at the time this happened I was upset because I had the feeling that it would have the effect which in fact it had. The effect it did have, in fact, was that the hon. the Minister said: “If that is the way you feel, I am going to go back to Parliament and I am going to say that the courts may not interpret the matter as you, the Press, say they are interpreting it.” This Australian case, which is the only one I know of, was that of a girl in Durban. As I understand it, from what I have read about it, the counsel for defence said to the court: “Here is an Australian person who has been peddling and found guilty; you have to give her five years; now send this person out of the country. She can go back and we will ensure that she goes back if you suspend the whole sentence.” That was in fact what happened. What is the best thing to do? Here we had someone who was found guilty of trafficking. Whether this person is an Australian or whoever she may be, do we not want to be rid of her or him? How can that be an example of anything? Surely, if you can suspend the sentence—all but four days—the four days she has to serve, and she leaves the country, that is what is wanted in this context. How can that then be an example in respect of anything? When the hon. the Minister quoted what I had said during the Committee Stage when the principal Act was discussed in this House, he said that I had certainly accepted it “soos dit tans lui”. That is quite right. We accepted it “soos dit tans lui”, as it is and as it appears, knowing, and the courts assume, that the Legislature, Parliament, knew what the law was at that time. The law at that time was that the courts could suspend part or the whole of the sentence but for four days in this regard. Yesterday the hon. member for Musgrave dealt with the question of the Shangazi case where we had a judgment of the full Bench in Natal and the judgment of Mr. Justice Harcourt. He set out all the circumstances and all the advantages which accrue in these matters. The hon. the Minister talked about the inherent right. The inherent right of all our courts, especially of the Supreme Court, is to exercise its discretion where the law allows it. The Criminal Procedure Act allows the court a discretion in regard to matters such as these. I am sorry that the hon. the Minister of Justice who has been sitting here, has now crept out of the House because I wanted to ask him what he thought …

Which Parliament passed that Act?

Which Parliament? This Parliament passed it. This Parliament passed the Criminal Procedure Act too. This Parliament when it passed the Act we are now amending, did not exclude the provisions of the Criminal Procedure Act, and we knew it. The hon. the Minister may not have known it and all the “ja-broers” on that side may not have known it, but we knew it.

Why did you not use the argument?

Why should we use the argument? Had we in fact used that argument, the hon. the Minister might have adopted the same attitude he is adopting now. We were aware of it. I am surprised about this and will come back to it, but before I do so I want to take up another point. When the hon. the Leader of the House interjects, he deserves to get a reply. When he says that the courts are being too lenient, he himself has made the case against this amendment. How does he know whether the courts are being too lenient or not? What does he know about every case that comes before the courts? How can he make a statement like that? Then he complains that the Press sometimes say things that they know nothing about, or that we say something that we know nothing about. What does he know about every case that comes before the courts? I wish some of the hon. and learned members of this House who practise at the Bar will get up and express their views on the matter. One of them, the hon. member for Pretoria Central, has just come in, and I can only assume that he has had experience in court of this new Act and can tell the hon. the Minister and this Committee how difficult these cases are and how many different sets of circumstances arise. Make no mistake, the principle is not altered at all. The official Opposition still says that so far as cold-blooded pedlars are concerned, they deserve no mercy whatsoever.

That is not your argument.

That has always been my argument. That is why it was quoted by the hon. the Minister and by the hon. member for Brakpan. That has been our attitude. We indicated in the Act to the courts that we hoped that they would show cold-blooded pedlars no mercy whatever. We went further and said that if the man was in fact found guilty of being a pedlar, a trafficker in drugs, in whatever circumstances, he should get a compulsory sentence, but that the court should have a discretion about how it should be executed. If you have a million drug cases, you have a million different sets of circumstances. Does the hon. the Minister concede that? If he does concede that, then who is going to administer the different sets of circumstances? He is the Minister of Social Welfare and Pensions. Is he going to say that everyone who goes into his rehabilitation centres should be treated in exactly the same way, should be kept for exactly the same amount of time and should be given exactly the same treatment? Of course he does not say that. And why does he not say it?—Because every case is different. By the same token, every case that comes before the court in this instance is also different. If you make laws restricting the discretion of a court as to the sentence, you will find in the nature of things, because the court has to give a compulsory sentence, that our judicial officers, being human, will execute a bending of the very law all of us here are pledged to support. I want to remind the hon. the Minister that in Great Britain in the old days, or even 100 years or less ago, there were goodness knows how many capital cases. Theft was a felony, and if you stole something worth more than a shilling the court had to sentence you to death. What you found happening in Great Britain in those days because of this restriction was that juries would find someone guilty of the theft of a sheep, which even in those days was worth at least 10 shillings, but would value the sheep at only eleven pence. There could therefore not be a conviction on the charge of felony in respect of which the imposition of the death sentence was compulsory. [Time expired.]

Before I announce the next speaker, I should like to point out that fresh arguments must from now on be raised. There has been a lot of repetition already.

Mr. Chairman, what the last argument raised by the hon. member amounts to is that—and I want to say immediately that we are shocked by that argument—the courts shall, if they are deprived of this discretion, according to the example he mentioned of what had happened in England, bend the law in order not to make a conviction in terms of this clause. Since those hon. members supported this Act in 1971, and in view of the onslaught which is allegedly being made by Communist China for example with regard to drugs, we are shocked that that hon. member could make the allegation against our courts that they would bend the law in order to circumvent this clause.

I did not say they would; I said that there was the danger.

The hon. member strongly suggested it. We are shocked and on behalf of the legal profession on this side of the House we place on record our serious objections to that allegation.

The hon. members opposite tried to draw a parallel between this clause and the appropriate penalty for murder. The fact of the matter is that, when the legislature decides to amend and punish a crime in a certain manner it will amend and adjust that punishment until it is effective. We have examples of this every day. So, for instance, we have had adjustments with regard to the road ordinances of the various provinces in connection with the prescribed penalties with regard to the driving of motor vehicles while under the influence of liquor. The penalties have been increased. We did not give the courts the power to pass any sentence. With regard to prescribed action, we have given an indication of our opinion of that crime, how seriously we regard it and to which extent we want the courts to pass sentences in order to deter criminals of that kind. In fact, we have numerous other examples which have been quoted here where no discretion is left to the courts. I am thinking of the various confiscation provisions in different Acts. For instance, I refer to the Stock Theft Act and other legislation where no discretion is given to the courts. If the Opposition agrees with us that this is a serious offence, then this crime must be judged on its own. One should not ask whether or not the courts have discretion of which they are being deprived. The fact of the matter is that that authorization which is already in operation under the Criminal Procedure Act, may be withdrawn if the legislative deems it necessary. With regard to certain laws it is a tacit provision that the courts have a discretion to suspend sentences. This was also the case here, but now the legislature says that it is withdrawing that discretion.

Let us suppose that the member was correct that this was the legal position in 1971. I want to tell him that this is, in fact, the case, for otherwise this provision would not have been before this House. Let us suppose that the hon. the Minister of Transport was to the point with his interjection, namely that our courts had been too lenient, and that this House should decide that it was its responsibility to indicate, with an amendment, that it wanted more effective punishment, then it has every right to do so.

That is assuming he is right.

Since those hon. members have already decided that it is a serious crime, they have no reason to differ from us.

Finally, what is the object of punishment? The object of punishment can be to deter or to rehabilitate, but the provisions of this particular legislation, also those that are not under discussion today, indicate that a serious attempt is being made to rehabilitate the innocent victim. This particular provision, where it is applicable, enables the legislature and those institutions which it has created to carry out rehabilitation, to maintain contact with the offender, i.e. in regard to that man who is a pedlar and also an addict. Therefore this is a very appropriate amendment.

Mr. Chairman, the hon. member who has just resumed his seat, tried to justify the abolition and prohibition of the discretionary powers of the courts in regard to sentence. I think that when one considers this matter, one must take into account the speech made by the hon. the Minister when he introduced the Second Reading and also when he replied to the Second Reading debate. I think the hon. the Minister indicated that he wished Parliament to give a clear guide to the courts in that Parliament considered the severity of the crime of drug peddling to be of such magnitude that the ordinary right for suspending or postponing a person’s sentence should not apply. However, I think we must bear in mind that when this side of the House supported the original legislation in 1971, very severe penalties were laid down in section 2 of the principal Act. Here, these two specific paragraphs of this subsection, namely (2)(a) and (c), appertain to the person who is a dealer. It was indicated that on first conviction there should be a minimum sentence of five years and a maximum of 15, and on the second conviction a minimum sentence of ten years and a maximum of 25 years. This indicated the serious light in which Parliament saw the crime of drug peddling and the traffic in drugs. We supported that legislation. But this clause obviously goes further than what was anticipated. The hon. the Minister has indicated that he would like to see greater clarity in this regard to stress the severity of the crime that is committed. Therefore, one can only assume that the hon. the Minister is dissatisfied with cases where a postponement or suspension of sentence has occurred. Therefore, I would like to ask the hon. the Minister whether he has made a study of the court records of these cases, and if he has ascertained whether there were any specific grounds as to why the court considered it necessary to postpone or suspend sentence. I feel that it is vital to the consideration of this very important and drastic step that is now being asked for in clause 3.

Secondly, I would like to deal with another aspect of this clause which has not yet been dealt with, namely subsection (2), which reads as follows:

The effect of subsection …

Order! The hon. member is discussing clause 2. We are now on clause 3.

With submission, Sir, I have quoted subsection (2) of the proposed section 2A under clause 3. This appears at the top of page 4 in the Bill. I raised this matter during the course of the Second Reading, and unfortunately, the hon. the Minister did not respond as to the reason why he wished to take this additional step of making this provision, which will prohibit the suspension or postponement of sentence for persons who are over the age of 18 years as is provided for in subsection (1) of the proposed section 2A. This subsection takes into account the fact that a person might have contravened this particular section of the principal Act, but when this clause is passed by this Committee, it will mean that he also will not be entitled to have his case considered in terms of the Criminal Procedure Act of 1955. Therefore, even if the crime was committed before the date of the commencement of the Bill that is now before us, this person shall be treated in terms of this legislation. I would like to ask the hon. the Minister why he considers this necessary. Why should it be necessary to make this provision retrospective in respect of a person who committed an offence before the commencement of this particular provision? I feel that this is a drastic step, and there must be some reason why the Minister asks that this provision should be applied retrospectively. Retrospectivity in regard to legislation is something which this House has guarded against in the past to a great extent, and the Opposition in particular has been vigilant in this regard. Therefore, we ask to have some explanation from the hon. the Minister why it is necessary to include this subsection of the proposed section 2A, which is now before the Committee.

Mr. Chairman, I should like to thank the hon. the Minister for putting into more eloquent terms some of the arguments which, I may say, I was going to use in contrasting the attitude of the official Opposition when this legislation was originally passed in 1971 and its attitude now. I am in fact delighted that they have changed their minds; I am very pleased about it. As I have said before, I am always depressed when the official Opposition abdicates from its duties in opposing legislation which I feel to be objectionable. [Interjections.] Having said that, I must say that I cannot help but feel a certain wry amusement at hearing the same sort of abuse now being hurled by hon. members on the Government side against the official Opposition as the official Opposition used against me when in fact I opposed the principal Act. But I leave that to one side, Sir. The session, thank heavens, is dying; it is in its dying days, so let us just leave the matter as it is.

I want to ask the hon. the Minister whether he will indeed take cognizance of the plea now put up by the hon. member for Umbilo about subsection (2), which makes the provisions of this measure retrospective. I believe, as I always have done, that retrospective legislation is manifestly unjust. To make something a crime which, when the act was committed, was not a crime, is obviously unjust. Indeed, Sir, I may point out that in the United States it would be against the constitution so to do. I think equally it is manifestly unjust to add an additional punishment retrospectively in respect of something which was known to be a crime, but which already carried a certain punishment. It is unjust now to make that punishment even stricter, retrospectively. I want to move the following amendment, following on what the hon. member for Umbilo has said, namely-

That is the first amendment I should like to move.

I should like to move another amendment, this time to subsection (1) of the proposed new section 2A. The hon. the Minister, I know, is adamant; he is not going to change his mind about restoring the discretion of the courts as far as suspended sentences for dealers in drugs are concerned. I do, however, want to point out to him again, as I did during the Second Reading, that the definition of a dealer includes a person who possesses a certain amount of dagga, namely 115 grams, which, I understand, for a person who habitually smokes or uses dagga, is not an enormous quantity. If he is an habitual user of dagga, it is not an enormous quantity to have. I have pointed out before that, in the case of the indigenous inhabitants, particularly the Africans, the use of dagga has been accepted over the centuries. It has been accepted as part of their normal lives.

“Part of the modern scene”?

Sir, the hon. member ought to be very careful in this respect, because I can quote words which he used in an interview with the Press, when he stated that as far as Africans and the use of dagga were concerned, that had been done by them for centuries. He agreed with me then that it is part of the scene as far as Africans are concerned. [Interjections.]

You said as far as the youth is concerned it is part of the scene.

No, he was talking about Africans; I did not refer to the youth. What I said was that it was part of the modern scene. And, I added—what hon. members very carefully omit—“Whether we like it or not”, just as murder is committed and as …

Do you like it or not?

Oh, you stupid little man; I do not like it, but it is part of the modern scene, whether you like it or I like it or anybody likes it. That is why … [Interjections.]

Order! The hon. member for Florida …

Do I hear “Skankwan van die Duine”? Is that the little dulcet tone I hear? Well, I wish he would just run along and play with his little friends. Now, Sir, as I was saying, whether one likes this or not, among African people the use of dagga—and I have a direct quote of the hon. member for Durban North bearing this out …

Please read it out to us if you have the quote.

Sir, could you please ask that hon. back-bencher to pipe down for five minutes?

Order!

Thank you, Sir. It has been used by Africans over the centuries. It is not considered by them to be a crime, any more than the use of alcohol is considered by Whites and other races to be a crime. Sir, the Coloured people, too, have been using dagga for years, and these are very heavy penalties which are now being imposed, not only on dealers but on possessors of a certain amount of dagga, who are considered as dealers in terms of the law. The onus of proof that they are not dealers but users rests on the accused, and this is a very heavy onus for people to discharge who are not familiar with the law and are very often undefended in the courts of law. Sir, I want to ask the hon. the Minister to consider a concession in this regard. I know he has said that he is not going to accept an amendment, but this is an amendment which does not really override the principle in this regard. I want him at least to give first offenders a chance of getting a suspended sentence. As the hon. the Minister knows, I am against minimum sentences anyway because they interfere with the discretion of the courts, and that is one of the main reasons why I opposed this measure last time. But what I would like the hon. the Minister to consider is the following amendment, which I now move—

In other words, the sentence will then read as follows—

That means that at least in the case of first offenders, where the people concerned may not be conversant with the law, it would be within the jurisdiction of the judge to give a suspended sentence. I do not think that it is an unreasonable thing to ask the hon. the Minister to consider giving first offenders the chance of a suspended sentence, particularly in the case of possessors of dagga to the extent of 115 grams, which in many cases would not be considered an enormous quantity for a habitual user, and in any case users are not normally included in this clause, and the hon. the Minister does agree to treat the users of dependence-forming drugs differently from the way in which he treats dealers. I think, Sir, that this is a reasonable amendment and I hope very much that the hon. the Minister will consider accepting it.

Mr. Chairman, the permissive hon. member for Houghton has for some time been trying to get this House to take a soft line towards dagga on the grounds that it is part of the modern scene. Sir, the question that she should answer to this Committee and to the country is whether she considers, even if one accepts that dagga has been part of the modern scene in South Africa, that it should continue to be part of the modern scene in South Africa. This is the question which she ought to answer. Apparently, judging by the way she speaks, she considers that it ought to be.

Rubbish!

Did the hon. member say “Rubbish”? In that case she considers it ought not to continue to be part of the modern scene, in which case we ought to take a harder line towards dagga. She ought to make up her mind what she really wants. The next time she gets up to speak on the subject, she can tell us what her present attitude is. In any event, we in the official Opposition have made up our minds. We consider that dagga should not be allowed to continue to be part of the modern scene, if in fact it is. The hon. member for Houghton is equally wrong in her statement that the official Opposition has changed its attitude in regard to the question of sentence in this Bill if she had been in the House yesterday and had listened to what I had to say on behalf of the official Opposition, she would have heard that we have in no way changed our attitude.

I listened to every word.

Perhaps if she now keeps quiet and listens to what I now have to say, she may understand the position a little more clearly. I said, yesterday that we had in no way changed our attitude towards the legislation as it was passed in 1971. Let us be clear as to what that involved. That involved a compulsory minimum sentence for pedlars as well as a maximum sentence, but above all a compulsory minimum sentence. I made it clear yesterday that we on this side of the House normally do not approve of compulsory minimum sentences because we believe that the question of sentence is one for the discretion of the judge. I will come back to the Minister’s argument in regard to this matter in a moment. But I made it clear that we do not normally like minimum sentences, but because of the gravity of the drug problem which the whole world is facing, and which is the case in South Africa as well, we considered that it was justified to place upon judges the obligation to impose a minimum sentence in certain circumstances. But, Sir, that had to be seen in the light of the law as it was at that time, i.e. the provision in the Criminal Procedure Act giving the courts a discretion to suspend sentences in certain circumstances or even to discharge with a caution; and it was because of that state of the law as it was then that we were prepared to support the provision of a minimum sentence in the case of a pedlar.

That argument has been used already.

I am not concerned now with whether speakers on our side of the House used this argument or not. I have not gone through the debate to investigate it but the fact of the matter is that we knew what the law was, if the Minister did not, and we knew that there was that provision in the law. We know that there is that provision in regard to any crime. Any practitioner who has practised in the courts of law, knows that in terms of the Criminal Procedure Act whatever the offence may be, except in certain restricted cases, the court is allowed a discretion to suspend the whole or part of a sentence and even to discharge with a caution. Every practitioner in the courts knows that that is the case not only in regard to drug cases; it is the case with regard to any other offence. The Minister must not try to give the impression that we did not know about this and that we supported him in ignorance of this provision. That is nonsense.

Now I want to come to the situation today. What is happening today, is that there is no change in regard to a compulsory minimum sentence. This is not being changed, in any way, and our attitude to the compulsory minimum sentence has not changed in any way either. As I said yesterday, we are satisfied with the way this Act has operated in practice. What we are concerned with today is not the question whether the judge should continue to be bound by a compulsory minimum sentence; what we are concerned with today is whether he should have the right, as it exists today, to suspend part or the whole of that compulsory minimum sentence which he is bound to impose on a finding of guilty. This is the sole question we are concerned with today. We have said that we cannot support this, and why can we not support it? We cannot support it because the facts vary so much. This is the argument we advanced in the House in the Second Reading yesterday, and which has not been answered by the hon. the Minister. The point of the argument is this. The Minister says glibly that the section applies only to dealers—the Minister emphasized this—who have been found, guilty by a court after hearing all the evidence, and that it will not apply to persons who are below the age of 18 years. Therefore, he asks, why the court should not be compelled to impose this compulsory sentence and have the power to suspend the sentence removed in every case. Sir. I have dealt with that in my argument. The reason why we consider that it is necessary to maintain such a power is that even if you have a situation where a person has been found guilty as a pedlar by a court after hearing all the evidence, the circumstances differ with every case, and it is unfortunate that the hon. the Minister has not practised in the courts otherwise he would realize it. But I gave him examples of the sort of cases which the court can deal with. I quoted some of the examples given, like Shangazi for example, the factual context in which the crime was committed, the motive of the accused, the fact that there was no premeditation, the degree of temptation to which an accused was subjected, the fact that there may have been some pressure exercised on the accused to commit the crime. He may have done it under duress, under intimidation. Those are all factors that the courts are faced with and which lessen his blameworthiness. It does not lessen his guilt, and therefore the courts are perfectly justified in finding the man guilty but those factors lessen his blameworthiness and that is why the courts are given a discretion to suspend a sentence in appropriate cases. This is why in the case of murder the sentence of death is not mandatory. To take the hon. the Minister’s argument to its logical conclusion, one should hold that in every case of murder there should be a compulsory death sentence. The hon. member for Brakpan stressed that in France the French Government is now looking upon drug peddling very seriously and has brought in the death sentence. That is so, but not the compulsory death sentence; it is a permissive death sentence. In other words, the court is given a discretion in appropriate cases to impose the death sentence but is not obliged to impose it in every case where a man is found guilty of peddling drugs. This is exactly what the Minister is asking the House to pass now. The hon. the Minister is asking this House to make it compulsory for judges to impose a minimum sentence without any discretion whatsoever to suspend either the whole or part of that sentence in appropriae cases. [Time expired.]

Mr. Chairman, not many new arguments have been raised, but I want to deal with a few of the matters and also the amendments as moved by the hon. member for Houghton, and that is why I am standing up. However, I first want to tell the hon. member for Musgrave, in respect of the hon. Opposition’s attack concerning the question of minimum penalties and the right of suspension that we are hereby removing, that the only practical consequence of this clause, as I see it, will be to make of the minimum penalty, as provided by this House, a truly minimum penalty without there being the right to suspend it or to make it less than the minimum.

That is exactly what I said.

That is exactly what it is. This is now truly making it a minimum.

But that is his complaint.

Good, I want to state this very clearly. According to this Act the courts can impose heavier penalties. Normally the sentence could be quite a heavier one if there are no mitigating circumstances. The House feels it ought to be heavier, but the minimum does not automatically have to be the maximum. However, that is what is now going on if the hon. member’s argument is correct. The minimum penalty as laid down by Parliament is now becoming the maximum and there may be no heavier penalty. However, according to the hon. member’s argument, the minimum ought to be further mitigated by a suspended sentence if there are mitigating circumstances. As I interpet the standpoint of this House, the minimum penalty has been provided and the maximum can therefore be more severe. For certain contraventions, therefore, the penalty ought normally to be more severe, but if there do happen to be mitigating circumstances, the courts would be able to reduce the sentence to the minimum. However, the courts cannot reduce the sentence by suspending part of it. If it were, in fact, possible to suspend the sentence, this would not emphasize the seriousness of the matter as we should like to have it emphasized. For that reason my argument is that I refuse to have the minimum, as prescribed by this House, become the maximum in practice.

Next I come to the question of the retrospective effect which the hon. members for Umbilo and Houghton raised. We are actually doing this in the light of a court judgment that has come to our attention, not in connection with this specific matter, but in connection with the general principle in respect of the practice of making a provision retrospective in effect. I want to explain. In the case of the State V. Silas an Appeal Judge said—

These remarks apply here mutatis mutandis. Therefore, if two persons have been guilty of an offence, and the Act is not retrospective in effect, it means that the first must be punished under certain conditions and the second under other conditions. We took into consideration the judge’s decision in this respect and decided that the provision should be made retrospective in effect. The date upon which the act was committed, is really the date upon which the responsibility for the act must be accepted. The judge’s decision makes it essential for us to retain subsection (2) as it reads at present. We do not want to create unnecessary problems for the courts.

I now come to the hon. member for Houghton’s proposal that first offenders should be given milder treatment. I am sorry that I have to disagree with the hon. member. We on this side of the House have adopted the standpoint throughout that we do not ask whether the person is a first offender or not. When a person is dealing in these preparations and making money out of that, I do not ask whether the person is a first offender or not, for the simple reason that it is too serious a matter, because persons buying of these preparations can have their whole lives destroyed. The person selling the preparations can be the cause of another’s life being destroyed. It therefore does not matter whether this is the person’s first offence or not. It may be his first offence in South Africa, it could be the tenth country in which he has committed a first offence, it could also be the first offence for which we have got our hands on him, but each sale of these preparations can give rise to a life being destroyed. I consequently do not ask whether it is the first offence or a twentieth offence that is being committed. If someone sells these preparations, he must know that action will be taken as provided for here. I am consequently not prepared to accept that amendment.

The hon. member objected to the minimum quantity of dagga being set at 115 grammes. Has the hon. member ever seen 115 grammes of dry dagga in one batch?

No, I have not.

But then the hon. member should not be voicing an opinion. When I had this provision drawn up, I asked the Secretary for Social Welfare and Pensions to bring me 115 grammes of dry dagga in a packet because I wanted to see how much it is. I wanted to determine whether it is a normal supply which one could keep for one’s own use or whether it would not possibly be kept for other purposes. Unfortunately I do not have that packet available now, because otherwise I would have shown it to her. However, she would do well to try to determine how large such a packet is. 115 grammes of dagga is too much for one person to use over a reasonable period. I want to mention an example. If we change this provision about the possession of dagga, so that possession is no longer an offence, as the hon. member advocates the matter, this would cause serious problems. We recently had a case of a Bantu being arrested in possession of 16 bags of dagga. He did not sell the dagga, but he had 16 bags in his possession.

But is that 115 grammes?

No, it is much more than 115 grammes. It was 16 bags. If I remove this provision, it means that those 16 bags of dagga do not make him an offender because we did not officially catch him selling it.

That is not really what I asked for in my amendment.

The hon. member says that 115 grammes is too little and that we should not regard that person as a dealer.

I have not pleaded that you should change that; I was just referring to the first offence.

In the case of a person who, as a first offender, is in possession of 115 grammes of dagga—the hon. member speaks of border-line cases, but wherever one draws the line one will have trouble— the onus is simply on that person to prove that he needed it for another purpose. That is all. If he can honestly prove that he is not smuggling with and selling the dagga, and that he is a heavy dagga-smoker who smokes so much per day, and the court believes him, then he is not guilty. The onus is on him to prove that he is not using it to peddle with. I want to add that this figure of 115 grammes has already been on the Statute Book for many years. In no way do I want to create the impression that this legislation is less harsh than the previous Acts. The dagga-smuggler must in no way think that less harsh action is being taken here than previously. For that reason I do not want to change the provision stating that the amount should be 115 grammes because this has been regarded as a reasonable quantity in our laws for many years. The courts do not have any problems with the 115 gramme provision either. They regard it as a reasonable quantity.

The other matter that I want to mention to the hon. member for Houghton is in connection with the question of the non-Whites as such. This legislation is also there to protect the non-Whites against exploitation by the dagga-smugglers and pedlars. It is also there to protect them. What is the position? The dagga-smuggler who has the capital and the money in hand, in other words the rich man, gets innocent Bantu to grow dagga and then he buys from them at a minimal price. Those Bantu endanger their whole life and future by growing the dagga, because they are contravening the law in every respect. They are encouraged to grow the dagga by the small amount of money offered to them by the dagga-smuggler. The dagga-smuggler or the pedlar buys it from those growers for a song and then makes a tremendous profit when he goes and sells it to the consumers. Does the hon. member want me to be lenient with him in the process? It is not only the Whites that are exploited, but also the non-Whites. That hon. member is constantly taking up the cudgels for the non-Whites. Here is an opportunity to do so for them. Here is an opportunity to vote with us and to say that merciless action should be taken against the person who exploits the non-Whites in South Africa, because it concerns him as well. The non-Whites are being exploited for the same purpose and in the same way as the Whites are being exploited, and that is why I have no mercy in this case.

And now I want to take up an argument which I have never yet adopted in respect of the Opposition. I want to refer to dagga as “part and parcel of the modem scene” today. When I was in Canada two years ago, I held discussions with someone there. I would prefer not to mention names, but when I was discussing dagga with him, that person told me that our laws are far too severe as far as dagga is concerned and that we would achieve nothing by that process. He also said that we would only drive the trade underground. When I asked him why he was saying that, his reply was that he has two daughters. I must state here that this was a person occupying a high position in Canada. In any case, he told me that he has two daughters, the eldest of which tried to smoke dagga, but she became so ill that she would never again try to smoke it. The second one, he said, “is a level-headed girl. She has been taking it for the last three years and I am very pleased that she has not gone on to anything stronger”. That was the reaction of a father in respect of his own children. That has been the reaction in Canada where it is regarded as “part of the modern scene”. That same country, Canada, has now intensified its legislation tremendously in connection with dagga-trading. I have data about the penalties here in my possession, and I can just mention that for dagga-trading exactly the same penalties are being imposed as for the abuse for the hard drugs. That is the same country, Canada, which adopted the said standpoint two years ago.

What about the news reels I read out to you yesterday?

That is so. In permissive communities such as Canada and the United States of America, the consumption is not such a terribly serious offence. They accepted it as such, but in South Africa we have put our foot down as far as this matter is concerned. We have stated our viewpoint very clearly, and I do not think we have any other arguments here. Neither do I want to argue about it any further.

In conclusion I want to state my viewpoint. If, in 1971, we did not express ourselves clearly enough in legislation by stating what it was we meant, we have now done so unequivocally. I am sorry the Opposition does not agree with us about this matter.

First amendment put, and a division demanded.

Fewer than four members (viz. Mrs. H. Suzman) having supported the demand for a division, amendment declared negatived.

Question put: That subsection (2) of the proposed section 2A stand part of the clause, and a division demanded.

Fewer than four members (viz. Mrs. H. Suzman) having supported the demand for a division, Question declared affirmed and amendment dropped.

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 W. M. Sutton.

Clause accordingly agreed to.

Clause 4:

Mr. Chairman, the official Opposition has indicated that we accept clause 4 of this Bill which could be referred to as the research clause, but I think it is right that we should record our regret that, as the result of an oversight in 1971 when the original Bill was Tabled, no provision was made to allow for research into prohibited dependence-producing substances. I submit that South Africa has lost a valuable 18 months of research, particularly in respect of dagga. We cannot afford to lose time in the research of dagga in South Africa. I believe that we in South Africa should be in the very forefront of any research in so far as this particular dependence-producing substance is concerned because, according to figures from the United Nations, South Africa has the largest amount of dagga seized, an amount which exceed the amount of dagga seized throughout the rest of the world. There are many quotations which one could use in regard to research, but I wish just to refer to the fact that not only we in South Africa in the Opposition benches are concerned about research, but that the American Medical Association has also indicated the need for research. President Nixon’s Second Report on Drug Abuse in America —The Problem in Perspective, only received in South Africa last month, also indicates the need for continuing research. I should like to quote from Press. Nixon’s own handbook, which was distributed in 1972, the following brief reference—

This is the point we have to note—

Sir, the side-heading of this particular clause reads—

Well and good, Sir. But if we consider section 4 of the principal Act, to which this clause proposes an addition, we find that the said section 4 is the saving section. It is a short section, and I wish to read it to make my point—

But there is no mention in section 4 of the original Act of the drugs referred to in this new clause, namely prohibited dependence-producing drugs. My concern is that, because there is no mention made of these specific drugs, the dependence-producing drugs. My concern is that, because there is no mention made of these specific drugs, the dependence-producing drugs, the proposed subsection (3) of this clause is too vague, really, to be of any effect. I should like to refer the hon. the Minister to the question of withdrawal as is provided for in this subsection. It reads—

I would seem that the Minister in his wisdom—and we accept this—is prepared to grant authority to certain bona fide persons for the purpose of research into prohibited dependence-producing substances. But any powers which may have existed under the Medical, Dental and Pharmacy Act, or any other Act, as I see it, do not apply to dependence-producing substances. They apply to dangerous dependence-producing substances or potentially dangerous dependence-producing substances. I feel that the withdrawal of drugs covered by the amendment is an important matter. It is important that no prohibited dependence-producing substance should get into the wrong hands. I would like some assurance from the hon. the Minister, firstly, as to whether he has any powers under the original Act to frame regulations which would give him powers specifically to state the basis on which these drugs should be withdrawn. I believe that they should be confiscated and that it should be made quite clear on what basis they should be confiscated, either by an inspector in terms of certain powers granted under the Medical, Dental and Pharmacy Act (Act No. 28 of 1913), or that the Minister should tell the Committee the basis on which he feels these drugs could be handed in or confiscated.

To me this is a very serious matter. We do not wish a leakage of drugs to occur under any circumstances, and I trust that the hon. the Minister will give this Committee the assurance that this matter will be dealt with in a manner which its importance deserves and, if possible, by some form of regulation, if he has the powers to make those regulations.

Mr. Chairman, the assurance, which the hon. member is now requesting of me, I immediately want to give him. Subsection (3) of the proposed new section 4(A) gives the Minister full powers to do what the hon. member has asked for here. I immediately want to tell him that here it is a matter of actual research in connection with these preparations. It is necessary for research to be done by scientific bodies that really want to do research. The hon. member concedes that this provision must, therefore, be present; it is essential. I just want to say, in defence of this, that when this legislation was discussed in 1971, the supposition at the time was that my colleague, the Minister of Health, would make provision for the research aspect in his Bill with respect to dentists and doctors. However, his legislation was not passed that year, and consequently such a provision was not placed on the Statute Book. It was an aspect which belonged to the department by agreement. The matter is now being arranged as follows: If someone applies to the Minister to do research legally in connection with this matter, the Minister can grant his permission, by way of notice, entitling him to possess these preparations for a specific purpose. This consequently covers him against any attack, or against arrest by the Police. However, there is also a safety valve in subsection (3). If anyone were to make use of this reason to obtain dependence-producing substances, and were then to make improper use of them for other purposes, the Minister would then be able to take action. As provided in subsection (3) the Minister could then withdraw such permission and also stipulate what should be done with those substances. The Minister has full control over that. Subsection (3), in other words, reads as follows—

The Minister consequently has the fullest right to specify precisely what should happen to such material if he withdraws his authorization from the relevant research body. In my view this subsection must be there to prevent this concession being used as a loophole by people to abuse such drugs under the cloak of wanting to do research.

I just want to add that this proposed section 4A is in no way connected to the old provision that has a bearing on this.

No, I understand that.

This new provision has nothing at all to do with that; it stands completely on its own; it is not a subsection of the existing provision; it is a provision that stands on its own legs. The new section is very clear; it reads as follows, inter alia: “Notwithstanding anything to the contrary in this Act or any other law contained, the Minister of Social Welfare and Pensions …” may take certain steps. In other words, this provision stands on its own legs. It is completely independent of any other provisions that could have any bearing on this. In terms of this new section the Minister can grant his permission so that research can, in fact, be done. If that concession is abused, it can be withdrawn. That is all we want to provide in this connection.

Mr. Chairman, I understand the Minister’s point of view, but I will have one problem which is basically an administrative problem. I know that the Minister has the power, but does he have the administrative facilities to ensure that a particular drug, in respect of which he has withdrawn his permission in terms of subsection (3) of this proposed section, will in fact be confiscated? Has the Minister the right to suggest, in his registered letter to the person who is conducting the research, that the remaining quantities of the drug in question must now be returned to an official of the Department of Health? I understand that this particular Minister has no inspector who could fill such a position. I want to give a specific example of what I have in mind. Let us take the case of a certain research project in Durban. The Minister knows about this case. I have been struggling for about 19 months to get permission for a woman, a research student, to obtain supplies of dagga with which to conduct experiments on the effect of dagga on rats. Supposing for example that this woman, at the conclusion of her experiments, has some dagga left over. I feel that the Minister should make sure that any surplus would be returned. All I would like to have is some sort of reassurance from the Minister not only that he has the power, but that he has the facilities at his disposal to see that this is done in a manner which is satisfactory, in the light of the fact that he is dealing here with a substance which is a prohibited dependence-producing drug.

Yes, I do have such facilities.

Clause agreed to.

House Resumed:

Bill reported without amendment.

Mr. Speaker, I move—

The policy of separate universities for the various population groups was given substance with the acceptance of the Extension of University Education Act, 1959, and created for the non-White groups the opportunity to be able to play, to an increasing extent, a role in the development and management of their own institutions for higher education. On account of the fact that the White officials were responsible for the administration of universities in the past and because members of the non-White groups have had no experience in this regard up to that stage, provision had to be made for a period of time which would ultimately culminate in every group taking over control of its own institution.

Consequently the Government decided at that time that the councils of such universities would consist of Whites experienced in the administration of a university and that advisory councils, consisting of persons of the population group concerned, would additionally be functioning during the initial phase of the transition period. A former Prime Minister said in this House on 10th April, 1959, that advisory councils “ … from the outset … will be given certain powers which they are fitted to exercise, inter alia, disciplinary powers, and in the course of time certain others will be added so that the councils can gradually learn how to control such institution”. He foresaw that this process of development would ultimately lead to these two bodies being converted into one control body which would be able to control the affairs of the institution.

†As time passed the Indian university developed from a University College with 114 students in 1961 to its present autonomous status as the University of Durban-Westville with a student enrolment of 2 302. Only the other day the hon. the Prime Minister officially opened the magnificent new campus of the university at Chiltern Hills. In the 12 years of its existence the institution grew from a college with two faculties and 14 departments to a fully-fledge university with five faculties and 45 departments. In 1961 there were two Indians on the academic staff; today there are 38. In the relatively short span of its existence the university has awarded 1 197 degrees and 720 diplomas and certificates. Hon. members will, I believe, agree that this is phenomenal progress for a university which had to develop from scratch and, clearly, the governing body of the university was deeply involved in and contributed to this growth. When I refer to the governing body of the university, I include the Advisory Council, which comprises one of the constituent elements of the university and which was very closely associated with and played an important role in its development.

Mr. Speaker, I am pleased to be able to say that the Advisory Council played an important role in the development of what we see today as the University of Durban-Westville. The university has been fortunate to have as members of its Advisory Council men of the calibre who were and are still serving there. These men, having been given the opportunity to participate in the administration of the university, have proved their worth, and this Bill aims to give Indians an opportunity to play a more direct part in the university’s affairs by enabling them to serve, on the Council itself. The Advisory Council served a very useful purpose in presenting the opportunity to members of the Indian community to gain experience in the administration of a university at the highest level and to take greater responsibility for their own affairs. I am satisfied, Mr. Speaker, that the time is now opportune for the next step in this process of giving the Indians a more meaningful part in the administration of what is after all their own university.

Mr. Speaker, the Bill itself is short and I trust not contentious. As hon. members will see, the Bill provides merely for the abolition of the Advisory Council and the Advisory Senate at the university. Perhaps I may just say something about the Advisory Senate which, as things stand, was never, in fact, brought into being. As hon. members will see, if they look at section 4(f) of the University of Durban-Westville Act, it was left to the university to decide whether or not such a body should be established at the university. The University of Durban-Westville elected not to have an Advisory Senate, and in part this Bill therefore abolishes a body which in fact never existed.

Finally, Mr. Speaker, I wish once more to pay tribute to the members, past and present, of the Advisory Council. Under the chairmanship of Mr. A. M. Rajab it became a respected and appreciated partner in the administration of the University of Durban-Westville.

Mr. Speaker, we in the official Opposition will, of course, support this Bill. As the hon. the Minister has said, it does two things and two things only really, and that is to create a university in respect of Westville, Durban, which consists so far as the Council and the Senate are concerned, merely of those two bodies; that is to say, the Advisory Council and the Advisory Senate are to disappear. Sir, we are very glad to see that this change is being made because we took the view from the beginning when this legislation was first placed on the Statute Book that there should have been merely a council and a senate and that there should have been a gradual introduction of members of the Indian community into those bodies in order that that community may gain experience in the administration of a university institution. Our view was that it would be more likely that a group of people would acquire experience in the administration of a university by serving on a council, even in a minority capacity, than by not serving on a council; and the amendment which is now brought in by this Bill indeed appears to take cognizance of that point of view. The point of view of the Government as expressed by the hon. the Minister this afternoon is that it was thought that that experience would be obtained by the Indian community serving on an advisory council. Having virtually no powers in respect of the administration of a university I cannot understand, and I never did, how such experience could be attained by persons who are not permitted to serve on the council but are permitted to serve on a council which has merely advisory functions. This hon. Minister was of course not responsible for the piloting through of the Bill at that time but I believe that the real objetion at that time to there being Indians on the university council was that there was an objection in principle having White people and Indians holding positions of responsibility on one council. The late Dr. Verwoerd told us over and over again that he did not mind them sitting round a table and consulting with non-Whites but he was not prepared to share responsibility with them in any sphere. I believe that was the basic reason for having an advisory council and an advisory senate. I am not speaking of the advisory senate now, because the hon. the Minister says, quite correctly, that it never came into being. Nevertheless, we now have the position where there will be merely a council for the university but I take it that the hon. the Minister’s methods of working the scheme under this amendment will be to introduce suitably qualified Indian personalities gradually into this council until, in the fulness of time, the likelihood is that there will be a majority of the Indian community serving on the council which caters for that community. As I said, this is in accordance with our thinking and the Bill therefore has our support.

Sir. I will be very brief. I am very pleased that the hon. member for 7ululand and his party are able to support this Bill. I think he has put his case perfectly reasonably. Our view from the start has been, particularly after this institution became a full university in 1968, or let me say rather that when the Act was passed and this became a university in 1969, that we should not appoint Indians immediately to the full council but that they should nevertheless acquire this experience. The hon. member has queried how members of an advisory council could acquire the necessary experience for service on the full council. I think that here one must be guided by experience itself. This has been a full advisory council in the true sense, and a very large number of matters have been referred to this advisory council over the years and, there is an absolute unanimous feeling that they acquitted themselves extremely well and gave very valuable advice and acted in a very responsible way. Our feeling is undoubtedly that they have acquired the specialized knowledge and experience of the council itself on which they can now serve as the result of this amendment. The hon. member is quite correct— our policy is that this is a transition stage, and we will appoint qualified members of the Indian community to this council as we go along until in time—I cannot of course give the date today—the council consists of Indians only because that is our policy. In good time this will be an Indian university with an Indian council. That is all I have to say.

Motion agreed to.

Bill read a Second Time.

Committee Stage taken without debate.

Bill read a Third Time.

Mr. Speaker, I move—

I want to say at once that I do not intend taking up very much of the time of the House.

As long ago as 1966 the Government decided in principle to make the metric system of measurement applicable in the Republic. In order to give effect to this decision, the Weights and Measures Act 1958 (Act No. 13 of 1958) was amended during the 1969 session of Parliament by amendment Act No. 55 of 1969 in order to introduce and legalize the exclusive use of the metric system of measurement in the Republic.

The existing Weights and Measures Act relates primarily to measuring activities in commerce, and consequently only the basic measurement units of mass, length, volume and surface area are included and defined in that Act. However, the variety of measuring units for approximately 80 quantities which are at present being used in industry, in science and in other activities of the national economy have not yet been included or defined in legislation, and it is considered to be highly desirable that such measuring units should also be included and defined in legislation.

During 1960 the General Conference on Weights and Measures (the international body in the field of measurement), of which the Republic has been a member since 1964, recommended the International System of Units (internationally abbreviated as SI) for international use. The SI is consequently being systematically introduced by various countries in which the metric system is applied.

In line with the use of the SI in the international sphere the Metrication Advisory Board of the Republic, on which commerce and industry, agriculture, the State and other interested bodies have representation, recommended that with conversion to the metric system of measurement in the Republic and South-West Africa the SI be accented and that this system should eventually be the only legal measuring system in the Republic and South-West Africa.

The Bill now before the House consequently provides for the systematic introduction and application of the SI as the exclusive measuring unit system in the Republic and South-West Africa.

Just as in those countries where the SI has been made applicable, the parallel use of the SI measuring units, the old metric measuring units and the imperial measuring units will still have to continue for a time during the transitional period until such time as all the non-metric units have been eliminated.

The Bill will facilitate considerably the task of the Metrication Advisory Board which was appointed to advise the Government on metrication, as well as that of the Weights and Measures Division of the Department of Commerce which is in charge of the implementation of the recommendations of the above-mentioned board with regard to commerce.

The passing of the Bill will entail that the Weights and Measures Act which, as mentioned earlier, defines only the basic measuring units of mass, length, volume and surface area and the national standard kilogram of mass, will have to be suitably amended and consolidated in order to bring it into line with the provisions contained in the envisaged Bill. I just want to point out that reference is already being made in the Order Paper to legislation in this connection.

The principal provisions of the Measuring Units and Measuring Standards Bill are as follows—

Clause 2 confers the application of the Act, with the exception of clause 6(1) and (2) dealing with the establishment of the Metrication Board and which has to be carried out by the Secretary for Industries, upon the Secretary for Commerce, under the control of the Minister of Economic Affairs. Provision is also being made in this clause for the delegation of powers to officers of the Department of Commerce and Industries in order to facilitate the implementation of the Act.

Clause 3 provides that the use of the measuring unit, the symbols thereof and the rules of the International System of Units shall be published by the Minister by way of notice in the Gazette. As has also been mentioned above, the use of the imperial measuring units will have to continue for a while during the transitional period. Consequently their continued use, until such time as they have finally been eliminated, still has to be legalized.

Clause 4 makes provision for the gradual elimination, for all purposes, of the expression of the magnitude of quantities by means of units which are not metric units, or the designation of a unit by means of any symbol other than the symbol prescribed for it.

I come now to clause 5. With the conversion from one measuring system to another it is indispensable that the equivalents of units should be determined. Clause 5 makes provision for this eventuality.

Clause 6 relates to the establishment of a board, meaning the Metrication Advisory Board, which provides the Minister with advice concerning metrication and which has to be consulted in advance before a notice is issued in terms of clauses 3, 4 and 5. The Metrication Advisory Board was appointed at the commencement of metrication, and works in very close association with the Metrication Department of the South African Bureau of Standards to carry out the process of metrication. This clause therefore makes provision for consulting procedure which is already being applied in practice, and simply confirms the status quo. The system of consultation which is being used by the Metrication Advisory Board ensures that interested parties on all levels and in all sectors will be consulted before a restriction will be placed on the use of non-metric units.

Clause 7 empowers inter alia the designation of any measuring standard as a national measuring standard and provides that the Council for Scientific and Industrial Research shall keep and maintain all national measuring standards. The Council also has to perform the functions as defined in the clause to maintain the national measuring standards and equipment and available for measurement for the purposes of this Act. This provision simply confirms the existing position with regard to measuring standards.

Clause 8 contains the penal provisions which may be applied upon non-compliance with the provisions of a notice issued in terms of the Act.

Clause 9 provides that the Act shall also be applicable in South-West Africa, and Clause 10 that the Act binds the State and the Administration of the Territory of South-West Africa.

Clause 11 contains the short title and the date of commencement of the Act.

Mr. Speaker, this Bill deals with matters which in effect are the technical aspect of standards and units as opposed to what one may call the commercial and trade side of metrology which we will deal with in another Bill which will be before us shortly. This Bill is another step in the change-over to the metric system and we are slowly saying farewell to pounds and ounces, gallons and pints and feet and inches. The units in the Republic and their symbols in terms of this Bill are to be the units and the appropriate symbols of the international system of units as published by the Minister from time to time in the Gazette and which will bring us into line with most countries in the civilized world. The Bill also places the responsibility of keeping and maintaining the national measurement standards and from time to time comparing them with the international measuring standards on the C.S.I.R. It is right that one of our senior scientific bodies should be charged with this task. The Bill, in terms of clause 4, makes provision that “the Minister may by notice in the Gazette prohibit the expression in the circumstances or for the purposes or in connection with the matters and in respect of the goods or things specified in the notice, of the magnitude of quantities by means of any unit other than the unit so specified”. It seems to me that this simply means that you will only be able to use specified units in future—for example, litres and not gallons. Clause 4(1 )(b) states that the Minister may also prohibit “the designation, in the circumstances or for the purposes or in connection with the matters and in respect of the goods or things specified in the notice, of any unit so specified by means of any symbol other than a symbol so specified”. This again appears to me to mean that we will only be able to use accepted symbols such as km for kilometre and so on.

In the long term no doubt the provisions of this Bill are necessary once we have accepted metrication and we obviously have to go along with the situation. But I think it is right to say that most of us in this House are going to suffer quite considerably with this change-over to the metric system. But I suppose that one has got to be with it and say that although we may suffer, our children, or if not our children, our grandchildren, are likely to thank us for it. In this day and age it is not very often that we find that our children or grandchildren really want to thank us for anything.

There is one matter I do want to bring to the notice of the hon. the Minister, namely the use of the point or comma. We accept that a tenth of a unit should be denoted by a comma, that is to say the physical writing of that point should be a comma. But do we have to call it a comma? This is the question. I believe that in Europe although they denote this metric point by a comma it is still referred to as “the point”. Everyone will know from listening to debates in this House that there is a general mix-up some members calling it a comma and others a point. I know that we have a problem, in that while in English a point clearly defines a decimal fraction, in Afrikaans when you use the word “punt” it can also mean a full-stop. Here you might have a problem in regard to using it as a point. I think most of us would much prefer the use of “point” to the use of “comma”, but this is something the scientists will have to guide us as to the correct thing to do.

The provisions of this Bill are essential for the progress we have to make with metrication and we therefore support the Bill.

Motion agreed to.

Bill read a Second Time.

Committee Stage

Clause 6:

Mr. Chairman, I move—

This is merely an administrative measure. Because this name already appears on the stationery, we should like to keep this name.

Amendment agreed to.

Clause, as amended agreed to.

House Resumed:

Report Stage taken without debate.

Bill read a Third Time.

Mr. Speaker, I move—

The Trade Metrology Bill repeals the existing Weights and Measures Act, 1958 (Act 13 of 1958). This step follows on the introduction in this House of the Measuring Units and National Measuring Standards Bill, in which certain of the provisions which occur in the Weights and Measures Act were included. Since 1958, when the existing Weights and Measures Act was passed, the terminology used in relation to measuring, has changed drastically. Under these circumstances it was deemed desirable to replace the existing Weights and Measures Act with completely new legislation.

The Trade Metrology Bill, which was drawn up with this object in view, corresponds for the most part to the existing Weights and Measures Act. The main purpose of the legislation is of course to regulate matters in relation to measurement in trade and to protect the public against the use of false measures. However, there are in certain respects departures from the existing Act in the Trade Metrology Bill, and I shall deal with these departures briefly.

Among the definitions in the Bill new concepts are being defined and the definition of certain existing concepts amended. The most important new definitions which are being inserted, are as follows:

1. (a) “Goods in prepacked form.” This definition has become necessary owing to the large quantity and variety of prepacked goods which are being offered in trade;
2. (b) “Physical quantity.” This definition is being inserted to indicate the distinction between concepts of measurement such as mass, volume, length, and quantities which are expressed through suitable measuring units of those quantities such as kilograms, litres and metres;
3. (c) “Measuring units.” The object with the inclusion of this definition in the Bill is to clarify the relation between this legislation and the Measuring Units and National Measuring Standards Bill which the House has just passed and which prescribes all measuring units which shall be used in the Republic, as well as the measuring units which are subsequently going to be finally eliminated.
4. (d) “Unauthorized measuring unit.” This definition is necessary to indicate, for the purposes of this legislation, the difference between authorized and unauthorized measuring units.
5. (e) “Prescribed purpose.” This definition is being inserted so that the purposes of usage to which the relevant provisions of the Act will apply may be prescribed by regulation.

The principal amendments of definitions which are being included in the Trade Metrology Bill, are as follows:

1. (a) The definition of “measuring instrument” now includes all apparatus used for the purpose of measuring or weighing, whereas previously the definition was of a more limited scope.
2. (b) In the existing Act a clear definition is not given of the two groups of officials who may perform the various inspection duties in terms of the Act. A definite distinction is now being drawn between the two categories of officials. The definition of “examiner” includes those officials who for the most part undertake examinations in regard to goods, while the inspector may verify and certify massometres and similar apparatus, and may also undertake examinations.
3. (c) Provision is being made in clause 7 for the Minister to entrust a function in terms of this Bill to a statutory body. The definition of a “statutory body” is therefore being substituted for the definition of “local authority” which occurs in the present Act. I think hon. members will understand why this is being done.

Clauses 2 to 7 make provision for the administration of the Trade Metrology Bill. In order to eliminate any confusion in certain designations and in order to define more clearly the meaning of certain words, a considerable number of adjustments have been made. The following are examples:

The designation “superintendent” is being changed to “director” with a “deputy director” as his substitute; “assizer” now becomes “inspector”, “verify or test” is substituted for “assized”, the “assize board” becomes “metrology council” and “local authority” now becomes “statutory body”.

In terms of section 3 of the existing Act, the Assize Board consists of four members. Provision is now being made to increase the membership to five members. The step is being taken in order to obtain broader representation of trade, industry and science on the council.

Clauses 8 to 11 contain the provisions in regard to standards and, are an abstract of the existing provisions of the Weights and Measures Act, except in respect of the provisions in 14 which deal with divisional standards which are being omitted from the Bill.

Clauses 12 to 17 deal with inspections, examinations and confiscations. Except for minor changes effected in the provisions of these clauses, the power to inspect goods is being set out more comprehensively. Powers of inspection or examination in terms of this Act may now be extended to inspectors of statutory bodies as well. This need has been felt for a considerable time now, and this power will contribute to making more regular inspections of certain types of goods possible. As an example of how these inspections are carried out, I should like to mention the case of the inspection of bread. Inspectors of the Wheat Board, for example, carry out quality inspections at bakeries, but they do not possess statutory powers to prohibit the sale of bread which is undermass.

In clause 14 provision is being made for the sale or withdrawal from use of measuring instruments which do not comply with the requirements of the Act. This is a new provision and will definitely contribute to protecting the interests of he consumer.

Clauses 18 to 26 contain the provisions in regard to the approval, verification and certification of measuring instruments. Clause 18 is an abstract of section 21 of the Weights and Measures Act. In addition to applying in regard to the sale of measuring instruments, this clause is also being adjusted to apply where instruments, as happens in many cases, are provided free of charge for use in trade. The clause now provides for approval by regulation of equipment relating to the use of an approved model measuring instrument, and to which any additions have been made.

Clause 20 provides that an inspector may on occasion personally direct a user to submit any measuring instrument to an inspector for examination and certification at a place as far as 5 kilometres from the place where the user is carrying on a trade. This amendment has as its object to reduce the amount of repeated off-loading and loading of test equipment conveyed by inspectors in vehicles. This procedure will save a great deal of time at places where the business concerns of a number of dealers are situated in close proximity to one another and where measuring instruments which are easily conveyable can be brought together.

A new provision is being inserted in clause 23, namely that exemption from the certification of certain containers for the measuring off of fluids.

Provision is also being made in the Bill for the compulsory certification and recertification of measuring instruments used by the State or by an authorized person.

Clauses 27 to 33 contain provisions in regard to the use or possession of measuring instruments and containers.

Provision is being made that the manufacture, the import, the use or the possession of measuring instruments and containers which may prejudice the effective application of the introduction of the International System of Measuring Units may be prohibited. However exemption from this provision may be granted in cases where a person, for very good reasons, has not yet been able to comply with the requirement of the notice in which the prohibition is contained. Cases occur for example where instruments have to be rejected owing to a minor technical deficiency. In such cases the continued use of the instrument may, however, be allowed if the dealer does not carry on a trade near a repairer of instruments, and the dealer will be inconvenienced by this prohibition if he is denied the further use of the instrument. Before any prohibition may be issued against the manufacture, the import, the use and the possession of a measuring instrument or container, the Minister shall first consult the Metrication Advisory Board, or if the board no longer exists, the Council of the South Africa Bureau of Standards and the Council for Scientific and Industrial Research.

Clauses 37 to 41 deal with the trade dealings and sale of goods.

Section 30(1) of the existing Act provides that any contract, bargain, sale or dealing made or effected in the Republic for any land situated therein or any interest in land so situated or for any work, goods, wares or merchandise, by weight or measure, shall be made or effected according to denominations authorized by that Act, and if not so made or effected, shall be void. It is felt that the nullification as set out above, could have far-reaching consequences in the trade; consequently it has been decided to omit the nullification of contracts from the Trade Metrology Bill.

Clause 40 of the Bill prescribes the manner in which goods shall be sold. The provision in respect of the use of the troy, metric carat and apothecaries’ measuring systems are, in view of metrication, being omitted from the Bill. This justification should exist for making provision for the use of the troy, metric carat and apothecaries’ measuring systems, this may be done by way of regulations. Similarly the use of “mass per bag” is also being abolished because “bag” no longer exist as a unit of measurement. However, provision will be made by regulation to lay down the mass of specific wares and goods which may be sold in bags.

In clauses 42 to 47, which contain general and miscellaneous provisions, provision is, inter alia, being made for the making of regulations by the Minister.

In clause 46 provision is being made for the repeal of the First and Second Schedules to the existing Act.

The provisions relating to land measuring units, units of standard, and measures, relative values of various kinds of measuring units and the definition of the national standard kilogram which appeared in sections 9, 11, 11B and 12 of the existing Act, have also been omitted from the Trade Metrology Bill since they have been included in the Measuring Units and National Measuring Standards Bill.

Since the certification services of the Council for Scientific and Industrial Research are readily available, it is no longer deemed necessary to entrust the keeping and maintenance of a duplicate system of measuring standards to the Weights and Measures Division. It is also desirable that departmental measuring standards be verified and certified every five years instead of every ten years by the aforesaid Council. The relevant provisions of the Weights and Measures Act are accordingly being adjusted in the Trade Metrology Bill.

Section 25 of the existing Act lays down a specific penalty for assizers who are guilty of breach of duty. However, clause 24 of the Bill provides for such penalties, and consequently the provisions of section 25 of the existing Act have been omitted from the Trade Metrology Bill.

Sections 28 and 39 of the existing Act require that an indication of the measuring capacity should be affixed to instruments and that the measuring values should appear on measures and mass units. In addition section 40 contains certain requirements in regard to the construction of weighing instruments. These matters may be regulated equally well by way of regulation, and the retention of these provisions in the Bill are regarded as unnecessary. Consequently they are being omitted from the Bill.

In conclusion I just want to say that I shall, during the Committee Stage, move the amendments as printed in my name.

The hon. the Deputy Minister has given us a detailed analysis of the Bill, and I do not want to cover the same ground. This Bill is really the second of a twin, the first being the Measuring Units and National Measuring Standards Bill that we passed a short while ago. This Bill repeals the Weights and Measures Act of 1958 and its amendments and takes its place, but at the same time, as the hon. the Deputy Minister rightly says, it tightens up many of the provisions of the Act so that there will be greater protection for the public, and this we welcome.

Sir, the presumptions in clause 16, in the case of a prosecution of an offender, gave us a considerable amount of worry. We believe that too many presumptions that you are guilty unless you can prove your innocence are creeping into our legislation. It has always been a basis of our law that you are innocent until you are proved guilty, and now we are finding in many pieces of legislation that come before us that these presumptions are being created; we do not like them; they worry us. But here, because the purpose of the Bill is to protect the rights and the welfare of the public and because we presume that these presumptions are necessary for that protection, we are going to accept them, although I must say that we do so somewhat reluctantly.

Clause 20 of the Bill is one which I think could be looked at again. Clause 20 provides—

Sir, what does this mean? This means that no matter what the mass of the instrument may be—and it may be a mass meter to measure the mass of a fully-loaded ten metric ton lorry—no matter what the delicacy of the instrument may be, and irrespective of the fact that it cannot be conveniently moved, when an inspector says, “Bring the instrument”, you have to bring it, and if you do not you are committing an offence. Sir, in clause 19, which also deals with inspection, certification and recertification, there is a saving clause, in that under certain circumstances the provisions of the clause do not apply; they do not apply in respect of a measuring instrument which is fixed in such a manner or is of such delicate construction or has such a mass that it cannot be conveniently moved. We believe, Sir, that clause 20 should have the same exemptions. As the clause stands, if you are within five kilometres from where the inspector wants the measuring instrument brought, you have to take it, irrespective of its mas or the impossibility of moving it. I will move an appropriate amendment in the Committee Stage. Sir, there is one major difference between this Bill and the Weights and Measures Act which the Bill repeals, and that is that in terms of the Weights and Measures Act we deal almost entirely with weights and measures used in trade, whereas in this Bill we deal with all measuring instruments, whether concerned with trade or not. There is no provision in this Bill to apply it only to trade. In other words, the most sensitive scientific measuring instrument could be the subject of this Bill. It is true that regulations must be promulgated and that these regulations must first of all be approved of by the council, but this does not change the fact that the entire spectrum of scientific instruments, of any description, can be covered by this Bill. We believe that the Bill should only cover instruments for trade purposes and for such other purposes as may be prescribed. There should not be a completely general application of this Bill, and I hope that the hon. the Deputy Minister will amend the Bill accordingly, or, if that is not possible at this stage, that he will give us an assurance that the provisions of the Bill will not be applied to any greater extent than were the provisions of the present Weights and Measures Act. If we have that assurance from the hon. the Deputy Minister, then when we have moved our amendment in the Committee Stage, the Bill will be satisfactory as far as we are concerned and we will support it.

Sir, I want to express my gratitude to the hon. member for Parktown straight away for his co-operation in regard to this Bill. I also want to concede at once that his arguments in regard to the provisions of clause 20 are sound. To my mind a proviso such as the one contained in clause 19 of the Bill would not be unreasonable, and I am quite prepared to accept an amendment as suggested by the hon. member in this regard during the Committee Stage.

I should like to reply to the final point raised by the hon. member, i.e. that the existing Weights and Measures Act applies only to trade. I want to say at once that it has been brought to my notice in this regard that some people are afraid that the scope of the Act will be extended and that the Act will not apply to trade only. Sir, I want to make haste to say that it is the intention— as is the case with the Weights and Measures Act—only to make measuring instruments used in trade applicable to certification in terms of this legislation. I therefore want to give the hon. member the assurance that it is the intention to limit this measure to measuring instruments used in trade. I want to say immediately that I am unable to effect an amendment at this stage, but I want to give a further assurance—and I think this will satisfy the hon. member—that in cases where requests are made for the certification of measuring instruments which are not used in trade, such measuring instruments will only be made subject to certification after the Metrology Council has been consulted. I mention this because the matter was raised by the hon. member and also because representations were made to me from other quarters, inter alia, by the Chamber of Industries.

In conclusion I just want to point out that I am going to move an amendment to clause 1 during the Committee Stage. I think the hon. member is aware of these proposals. These relate to the definition of “measuring instrument”. I think I must furnish and explanation right now, because then there will be no need to do so during the Committee Stage. The definition of “measuring instrument”, as it appears in the Bill, gives an incorrect definition of the function of the measuring instrument. The amendment I am going to move, states clearly that a measuring instrument a measurement of physical quantity may be made. …

Order! I think that the hon. the Deputy Minister may just as well furnish the explanation during the Committee Stage.

Yes, if that is your ruling, Sir, I shall leave the matter at that. I just want to point out that I shall also move amendments in clauses 2 and 31.

Motion agreed to.

Bill read a Second Time.

Committee Stage

Clause 1:

Mr. Chairman, I move as an amendment—

Just for the record I want to explain that this has a bearing on the definition in respect of “meetinstrument”. The definition of a measuring instrument as it appears in the Afrikaans text of the Bill does not describe the function of a measuring instrument correctly. The amendment which is now being proposed makes it clear that a measurement of physical quantity may be made by means of a measuring instrument and expressed in any measuring unit or a mathematical function of measuring units— a measuring instrument cannot perform a mathematical function of measuring units as is in fact stated in the Bill. The proposed amendment is merely aimed at correcting the position.

Amendment agreed to.

Clause, as amended, agreed to.

Clause 11:

Mr. Chairman, I move as an amendment—

Through an oversight the words “direkteur of die” were omitted in line 20 on page 11 of the Afrikaans text. In order to bring the wording of the Afrikaans text into line with that of the English text the words “direktem of die” have to be inserted.

Amendment agreed to.

Clause, as amended, agreed to.

Clause 20:

Mr. Chairman, I move the following amendment—

I motivated this amendment in the Second Reading and I have no more to say about it, except to thank the hon. the Deputy Minister for indicating that he will accept it.

I am prepared to accept the amendment.

Amendment agreed to.

Clause, as amended, agreed to.

Clause 31:

Mr. Chairman, I move as and amendment—

On page 29 we have the word “measure”. The word should be “denomination”. The Afrikaans text is being amended accordingly by deleting the word “volumemaat” and by inserting the word “volumemaatwaarde”.

Amendment agreed to.

Clause, as amended, agreed to. Title:

I merely rise at this stage to express my thanks to the chairman and to the Metrication Board the efficient work they have done in this regard. On behalf of us all I would like to express my thanks to the board and to its members for the fact that they have handled this process of metrication with the minimum of disruption up to this stage.

Title agreed to.

House Resumed:

Bill reported with amendments.

Report Stage taken without debate.

Mr. Speaker, I move—

Time.

Mr. Speaker, I rise merely to thank the hon. the Deputy Minister for the assurances he gave the House in the course of his reply to the Second Reading debate. There was some concern in regard to the Bill, but the hon. the Deputy Minister’s reply will now allay the concern of those concerned.

Motion agreed to.

Bill read a Third Time.

Mr. Speaker, I move—

This Bill gives effect to the recommendations contained in the report of the Select Committee on Pensions. As hon. members know, these recommendations have already been approved by this hon. House and by the Other Place.

Mr. Speaker, we on this side of the House welcome the Second Reading of this Bill. It is a Bill which normally comes before the House towards the end of a session and, indeed, I think it is of interest to note that the number which is allocated to the Pensions (Supplementary) Bill each year is normally that of the last Bill to be introduced in the House of Assembly. In this instance it is Bill no. 86 for the year 1973. Therefore it is an annual Bill which we on this side of the House welcome. It is one which gives legislative effect to the recommendations of the Select Committee, which have been agreed to, as the hon. the Deputy Minister has indicated. It is a non-contentious issue and I think it will only become contentious if the debate on this Bill lasts until after 6.30 tonight. We therefore accept the Second Reading of this Bill.

Motion agreed to.

Bill read a Second Time.

Committee Stage taken without debate.

Bill read a Third Time.

Mr. Speaker, I move without notice.—

Agreed to.