Mr. Speaker, I move—

It is intended to refer this measure to a Select Committee for final examination before the Second Reading is taken.

After the task of civil defence had become the responsibility of the Department of Defence during 1969, and after consultation with the Administrators of the four provinces and South West Africa, the principle was adopted that the primary responsibility for the functional implementation of the task of civil defence would rest with the third level of government, namely, local authorities. As local authorities were activated in their task of civil defence and as their planning progressed, serious loopholes in the law were revealed in regard to civil defence, and also as far as the Civil Defence Act (Act No. 39 of 1966) itself was concerned.

It was accordingly decided to order a further inquiry. An intensive investigation was undertaken by representatives of various large local authorities and of the United Municipal Executive of South Africa, as well as representatives of the four provinces and of S.W.A.

The investigation was led by representatives of the South African Defence Force, and it was found that the loopholes that did exist could best be eliminated in a few specific ways. In the first place this can be done by passing legislation by means of which the provinces will be vested with the necessary authority to legislate in the sphere of civil defence with the retention of overhead control by the Minister of Defence. The empowering aspect of the proposed legislation is considered necessary because in the first place the Civil Defence Act contains no provision in terms of which local authorities can be brought into the picture. In the second place the envisaged legislation is deemed necessary because, in connection with their normal activities of rendering services, local authorities derive their powers from provincial legislation; and thirdly, because provincial councils do not have the power to adopt legislation to cover this particular sphere completely.

It was ascertained further that the existing loopholes could be eliminated by the adoption of a uniform ordinance by the four provinces and S.W.A., legislation drawn up basically on the pattern of the existing Civil Defence Act, 1966, with this important difference that the functional implementation of the action of civil defence would then rest with the Administrator and local authorities. It was with these aims in mind that the Bill which is now before the House was drawn up.

Further important provisions and aspects of the Bill to which I now want to refer are, firstly, that in clause 2 wide powers are given to the Minister to declare a state of emergency which are different to those for which provision is made in the Public Safety Act, 1953, or the Defence Act, 1975. Besides this, the clause provides that the Minister can declare the state of emergency in any way he deems fit so that, where necessary, he can act swiftly; that the state of emergency will remain of force and effect for three months; and that the Administrator will be able to take action in anticipation of the declaration of the state of emergency.

In clause 3 express authority is given to provincial councils to pass legislation in regard to civil defence because, as has already been explained, in terms of existing legislation the provinces are not vested with the power to act comprehensively in this sphere.

Subsection (4)(i) gives the Minister the authority to at any time take over any power or duty given to an Administrator or other person or authority in terms of an ordinance referred to in clause 3. Although this takeover has to be done in consultation with the Administrator concerned, it does on the other hand give the Minister a wide and unfettered discretion, and enables him, entirely as he deems fit and for a variety of reasons, to exercise his authority in terms of this provision. Powers have to exist in legislation of this nature in terms of which the Minister concerned can act as speedily as possible. An obvious reason would be if a national state of emergency were to arise, or a state of emergency affecting more than one province, where co-ordination and/or control on a central government level were required but where the position was nevertheless not of such a nature that action was warranted in terms of, for example, the Defence Act or the Public Safety Act. In view of the fact that the Minister remains the overhead authority, he is vested with the express power by clause 5(1)(a) to assist and advise through the medium of the S.A. Defence Force persons and bodies to whom powers have been given by an ordinance passed in terms of clause 3 to evaluate, co-ordinate and activate civil defence preparedness.

In order to prevent any loopholes in the law in regard to civil defence occurring between the adoption of the Bill and the passing of the relevant ordinances in the various provinces, it is deemed necessary as a practical measure to give the provinces the power to repeal the Civil Defence Act, 1966, as far as it affects them. There are precedents for this type of measure; for example, section 8 of the Financial Relations Further Amendment Act, 1968, and section 4 of the Provincial Powers Extension Act, 1944.

The Bill contains a number of clauses that have been taken over exactly as they are from the existing measure that we are now seeking to amend.

These are the most important provisions of the Bill. I did feel, however, that because this was a matter of national importance generally—it affects local authorities and the provincial administrations but what is more, civil defence affects each one of us—it was necessary for Parliament to be given an opportunity to consider this measure calmly and quietly. I have therefore decided to move that the Bill be referred to a Select Committee before it is read a Second Time in order to enable the Select Committee to try to make the best measure available. I want to express the hope that the Select Committee will succeed in dealing with this necessary measure as soon as possible so that the provinces will still be able to introduce and implement their ordinances this year.

In view of what I have said, I move—

Agreed to.

Mr. Speaker, I move—

This Bill was introduced in this House by my predecessor in 1973 and the discussion got as far as clause 55 in the Committee Stage. Owing to a lack of time, the Bill could not be taken any further during that session. The following year was election year, and after that the Viljoen commission was appointed to enquire into our penal system. It was then decided to wait for the commission’s recommendations in order to introduce a measure which would be fully up to date.

This Bill is the product of the activities of three commissions of inquiry. Firstly, there was the Commission of Inquiry into the Responsibility of Mentally Deranged Persons and Related Matters under the chairmanship of Mr. Chief Justice Rumpff. This commission’s recommendations, in so far as they affect criminal procedure, have been embodied in chapter 13 of the Bill.

The Commission of Inquiry into Criminal Procedure and Evidence, under the chairmanship of the late Mr. Justice Botha, judge of appeal, concentrated mainly on criminal procedure in its investigations, but also revised in its entirety the Criminal Procedure Act, 1955, and was responsible for the drafting of the Bill which was introduced during 1973. Subsequently, the Commission of Inquiry into the Penal System of the Republic was appointed under the chairmanship of Mr. Justice Viljoen. This commission’s report was tabled in this House last week.

The Bill is fully motivated in the reports of the commissions to which I have referred. In addition, my predecessor devoted a great deal of time in the 1973 debate to an exposition of the Government standpoint in respect of the Bill. The Bill was also thoroughly thrashed out in the course of a lengthy Second Reading debate. I do not want to cover this whole field again—in any event, it would be an almost impossible task.

I should much prefer to concentrate on the changes which have been introduced into the Bill since then. In the long period of time which has elapsed since the 1973 Bill was formulated, circumstances in the department have changed a great deal. This has necessitated certain changes to the Bill, and for this reason a fresh look was taken at the Bill at the end of last year. A very important factor which has now emerged is the fact that tape-recording machines are now used extensively in inferior courts and that the department is finding it very difficult to have records of criminal cases typed out.

It will be remembered that the 1973 measure envisaged the following, amongst other things: the accused had to appear before a magistrate as soon as possible in order for the charge to be put to him and to be examined by the magistrate for the purpose of identifying the issues. Then the record would have had to be typed out for later submission to a court of trial. Investigation showed that such a procedure would at present involve tremendous delays and a great deal of extra work. Lengthy consultations with chief magistrates and attorneys-general have led to the acceptance of the following idea. Examinations are still to take place, but on a completely different basis, namely by the presiding officer or judge by whom the case is being tried. Therefore examinations by a judicial officer other than the judicial officer of the court of trial fall away completely.

Nor is there an obligation on the presiding officer to examine the accused, as was formerly intended. On the contrary examination is left entirely to his discretion; i.e. if such a judicial officer believes, for whatever reason, that examination would serve no useful purpose in a particular case, he simply continues with the trial as is the case as present. This entails a further major advantage. Our procedure will not be revolutionized overnight. It will be possible to apply the system gradually and circumspectly. The superior courts will be able to take the lead, and it should be possible to introduce this system without any difficulty. These adjustments are contained in clauses 75, 105, 112 and 115 of the Bill.

However, it was decided largely to retain the old idea with regard to certain supreme court cases, more particularly murder cases of a less serious nature. The following example may serve as illustration. Ex facie the police dossier, a murder has been committed, say at Nelspruit. In the future, summary trials will become the rule and preparatory examinations the exception, and therefore all police dossiers of this nature will go to the Attorney-General in the first place.

The accused has refused to make any statement to the police, but all the circumstances indicate that it was no real murder. Consequently the attorney-general comes to the conclusion that if he could hear the accused’s side of the matter, he would probably refer the case to a regional court to be dealt with there. The next sitting of the circuit court at Nelspruit may only take place in three months’ time, and by having the case dealt with at an earlier date, the accused may be saved a great deal of unnecessary anxiety. Consequently it has been decided to give the Attorney-General the right to have the accused examined by a local magistrate, in the presence of his legal representative, of course. There will be so few cases of this nature that the typing problem will be of no account. The trial, if any, before the Supreme Court will then take place de novo. This system, which may be described as a miniature preparatory examination, is described in clauses 119 to 122.

The provisions to which I have referred up to now form the essence of the Bill and called forth the greatest number of objections to the 1973 Bill. In reformulating the provisions concerned, not only was an attempt made to overcome the problems of the department, but the objections raised against the Bill when it was first introduced were also thoroughly reviewed. Positive attempts were made to remove as many of the objections as possible, without giving up the principle of examination of the accused. I think the time has now come for us to accept this principle— especially in view of the fact that it is now being introduced into our judicial system in such a way as to be subject to all the legal controls which are known to us for ensuring that justice is done to an accused. The examination is restricted to a minimum and is conducted in an open court by the judicial official in the presence of the legal representative of the accused. Moreover, the legal representative of the accused may answer questions on his behalf—see clause 115(4). The examination forms part of the record of the criminal case which is subject to the usual legal remedies such as appeal and review. It is difficult to see how an accused could be prejudiced by this under these circumstances. Nor is this development confined to the Republic. In England and Wales, Scotland and Rhodesia, the matter has also been considered by commissions, and in every case similar recommendations have been made. These commissions, including the one in the Republic, cannot all be wrong, and I believe that the desirability of such provisions should no longer be questioned.

†Mr. Speaker, as I have indicated earlier, we have again gone into all the objections raised against the 1973 Bill to see whether we cannot make it more acceptable to all sections of the legal profession. This is not a political matter and one would have liked to see an unopposed measure going through the House. That, however, I suppose, is wishful thinking on my part. Members of the legal profession habitually disagree with one another on legal matters. I, however, believe that hon. members will be glad to learn that it was found possible to include some of their suggestions in this Bill. I now wish to deal with some of the other more important amendments to the Bill.

Hon. members will remember that clause 56(5) of the 1973 Bill provided for a new procedure in the place of the present system of the compounding of certain minor offences. This procedure provided for the attachment of written notices, having the effect of summonses, to the cars of offenders in their absence. We have decided to maintain the status quo. As a result, clause 56(5) has been deleted from the Bill and the compounding of offences reintroduced as clause 341.

The 1973 Bill also provided that all bail money should be paid in cash. It has also been decided in this instance to retain the present system. Clause 60(1 )(b) now makes provision for a guarantee, with or without sureties, to pay the bail money should the accused fail to appear in court.

You will also notice, Sir, that chapter 20 dealing with preparatory examinations has been rewritten. This was done mainly to fit in with the provisions of chapters 17, 18 and 19 dealing with the taking of the plea in court. You will find a great similarity between these chapters. One other important change has, however, been made. The Attorney-General will again be empowered to remit a preparatory examination for trial to the court which had taken the preparatory examination or to a regional court having jurisdiction. This is at present the position and will tend to streamline the new procedure.

Clause 153 of the Bill prescribes the circumstances under which criminal proceedings shall take place in camera. I have decided to accept to a large extent the amendments to this clause proposed by the Opposition in 1973. The clause has therefore been made subject to the proviso that where a case had been heard in camera, judgment shall be delivered and sentence shall be passed in open court if the court is of the opinion that the identity of the witness concerned would not be revealed thereby. The same applies to clause 154, which deals with the prohibition of the publication of information relating to criminal trials. Subsection (1) has been subjected to the proviso that a direction by the court shall not prevent the publication of information relating to the name and personal particulars of the accused, the charge against him, the plea, the verdict and the sentence, unless the court is of the opinion that the publication of any part of such information may defeat the object of its direction, in which event the court may direct that such part shall not be published. A proviso has also been added to subsection (2)(a) that the presiding officer may authorize the publication of information if he is of the opinion that such publication would be just and equitable.

That, Mr. Speaker, brings me to the proposals of the Viljoen Commission as far as they relate to the Bill under discussion. This commission was appointed on 30 September 1974 to inquire into the penal system of the Republic and to make recommendations for its improvement. The question of the retention, or not, of the death penalty was, however, not included in its terms of reference. The chairman of the commission was Mr. Justice Viljoen of the Transvaal Provincial Division. The members were: (1) Major-General M. C. P. Brink, Deputy Commissioner of Prisons; (2) Mr. B. J. Parsons, Deputy Secretary for Justice; (3) Professor P. J. van der Walt, head of the Department of Criminology at the University of South Africa; (4) Mr. J. W. van Greunen, ex-Chief Magistrate of Cape Town; and (5) Mr. G. C. Vermeulen, Deputy Secretary for Bantu Administration and Development.

I want to make use of this opportunity to thank the chairman and all the members on behalf of the Government for making their services and special knowledge in the field of the inquiry available to the commission and for their report, which was completed under pressure of time as the Government wanted to proceed with the introduction of this Bill.

In para. 2.92 of its report the commission recommends that rehabilitation centres be established for convicted offenders of all races and that it be made possible for a sentencing officer to order an offender to be detained in such a centre in pursuance either of a direct sentence to that effect or of a condition attached to a suspended sentence. Clauses 296 and 297(1) give effect to this recommendation.

Clauses 287 and 288 of the 1973 Bill were deleted in view of the commission’s finding that the mandatory sentences for corrective training and for the prevention of crime should be abolished—see paras 5.1.4.2.1. to 39 of the report.

It was realized by the commission that there are persistent and intractable offenders who are not only a nuisance, but who repeatedly commit serious crimes and are a menace to society. The commission therefore decided to retain the sentence for the declaration of a person as an habitual criminal, but came to the conclusion that only a superior court should be authorized to pass such a sentence in its discretion. I have decided to accept the recommendation of the commission, that the sentence be retained, but have difficulties with the latter part of the recommendation that the passing of the sentence should be restricted to the Supreme Court. I am afraid that if the recommendation is accepted, we would be placing too heavy a burden on the Supreme Court. Cases in which such a step is necessary are usually not of a complicated nature. The department has consulted the Chief Justice and all the Judges President on this point and the vast majority of them agree that regional courts should also have jurisdiction to pass the sentences. Effect has been given to this approach in the Bill.

*Since the commission has recommended the abolition of the mandatory sentences of imprisonment for corrective training and imprisonment for the prevention of crime, the commission realized at the same time that this would cause the trials of many recidivists presently taking place in magistrates’ courts to be diverted to regional courts and the Supreme Court, since the ordinary jurisdiction of the inferior courts are insufficient to take proper action against such offenders. The commission consequently recommended that the jurisdiction of magistrates’ courts relating to imprisonment be increased to 12 months and that its jurisdiction relating to fines be increased to R1 000, and that the jurisdiction of regional courts be increased to six years’ imprisonment and a fine of R10 000—see paras, 5.1.4.2.40 to 46 of the report. I merely mention this in passing, for this matter will actually come up for discussion only when the Magistrates’ Courts Amendment Bill is introduced. However, it has a bearing on the review provisions contained in chapter 30 of this Bill.

Mr. Speaker, I am anxious to support the commission’s recommendations concerning the jurisdiction of magistrates’ courts for the reasons mentioned by the commission. However, there is yet a further consideration which is very important. That is the overpopulation of our prisons. Hon. members will realize that the more cases are dealt with in the magistrates’ courts, the smaller we can keep the prison population. This is bound to be so, since cases are dealt with much more rapidly in magistrates’ courts than in regional courts and supreme courts. However, the problem is that any increase in the jurisdiction of the magistrates’ courts while the review limit remains the same will cause an increase in the number of automatic review cases. Such a step I cannot support, unless steps are taken to overcome the problems experienced in the submission of the records of these cases to the Supreme Court. Normally, administrative problems do not enter into considerations of this nature, but the typing of records has become such an acute problem in the department that it can no longer be disregarded.

The position has already been reached under the present dispensation where it is only possible in exceptional cases for typewritten records of criminal cases tried in magistrates’ courts to be sent to the Supreme Court for review within the prescribed period. Usually, the records only reach the Supreme Court a month later, and sometimes the delay is even greater. You will realize that this affects the whole principle of review. The official contractors for the transcribing of cases which have been recorded by mechanical recording machines are simply unable, owing to circumstances beyond their control, to get the records typed in time. At the same time, the department is obliged, in the interests of sound administration of justice, to continue with the large-scale provision of machines to magistrates’ courts, and this naturally aggravates the problem.

According to a calculation made in one of our magistrates’ courts, the cost involved in the preparation and transmission of records in review cases amounts to approximately R20 per case, which means that approximately R1½ million a year is spent on this. From the nature of the case, cost is usually of no consequence in the administration of justice, but under the present circumstances it must inevitably be taken into consideration, especially if the quality of the administration of justice in magistrates’ courts is borne in mind. From a survey made by the department, the following appears: Since 1972, the cases in which the verdicts of magistrates have been interfered with have decreased as follows: 1972—1,02%, 1973—0,85%, 1974—0,86%, and in 1975 it was only 0,65%. Judges agree that the standard of administration of justice in our inferior courts has risen considerably in recent years, probably as a result of improved academic and practical training, and this House may certainly take cognizance of this in considering the proposal I am about to make.

The commission mentions that it investigated the administrative problems experienced by the department in connection with automatic reviews. In the light of the standpoints of the majority of the judges, however, the commission did not see fit to recommend a change in regard to automatic reviews.

It has been concluded that the commission’s decision not to raise the automatic review limit is correct, since the Department of Justice, as well as the Department of Bantu Administration and Development, sometimes uses inexperienced or even unqualified officers on the Bench, so that it is desirable that the existing system should remain in force in respect of such persons. However, it was decided, after consideration of all facets of the matter, to amend clause 302 of the Bill in such a way that its provisions will not be applicable to criminal cases tried by judicial officers who are at least of the rank of senior magistrates, or who have held the substantive rank of magistrate for at least six years, and in respect of whom the Regional Divisions Appointments Advisory Board has certified that their work is of such a standard that automatic review of cases tried by them is not necessary. Because it may be necessary for several reasons to continue to have certain cases reviewed, even if they have been tried by approved judicial officers, it is also being provided that the Minister of Justice may, after consultation with the various judges-president, specify by notice in the Gazette that certain categories of cases or sentences are still subject to automatic review. Such a notice may be published, for example, with regard to all cases arising from complicated or controversial new legislation where it may be necessary to have problems sorted out by the Supreme Court before such cases are exempted from automatic review. The great advantage of such a provision is that the Minister, with the help of the judges-president, can keep a watchful eye on the scheme and can make adjustments from time to time to ensure that justice is done, though with due regard to administrative considerations.

The scheme has been submitted to the Chief Justice and the judges-president for their comment. They are divided on the matter. However, I am satisfied that these proposals eliminate most objections to a change in the existing system of review. Already, the cases of regional magistrates, approved by the same body, are not reviewed. Younger officers and those who do not comply with the required standards will still have to send in their cases for review. In this way we shall ensure that judges will still be able to keep a watchful eye on their work in the criminal courts and will be able to guide them. The work of those in respect of whom certificates have been issued will also be watched over constantly, so that the certificates concerned may be withdrawn again where the administration of justice so requires. I have also been assured that the board which will select these officials will be exacting in its requirements and that the certificates will not be issued without sound justification.

The commission also went out of its way to create measures which would keep accused out of prison. For this reason, clause 297, which provides for the conditional or unconditional postponement or suspension of a sentence, was thoroughly re-examined. It was recommended that two further conditions on which the sentence of an offender may be suspended be inserted into the clause: Firstly, arising from similar legislation in England, that an offender may be directed in terms of a condition of suspension to render some service for the benefit of the community—see para. 5.1.6.9.14. The idea of the commission is, for example, that when a person has damaged plants in a public park, he may be directed to go and work there for a certain period, or that public projects may be undertaken in which offenders may render some service. Secondly, it was recommended that it should be possible to compel an offender, not only to attend a specified centre, such as an institution for alcoholics, for a certain purpose, but also to reside there. Effect has been given to these recommendations.

As far as whipping is concerned, the commission recommended that the Bill be amended to provide that a maximum of five strokes may be imposed; that whipping may not be imposed upon a specific convicted person more than twice; that the age up to which whipping may be imposed be lowered from 50 to 30 years; and that, as far as inferior courts are concerned, whipping may only be imposed after conviction of violent offences against another person or of having defied lawful authority.

As far as the number of strokes is concerned, the Botha commission recommended that the maximum number of strokes in respect of minors be reduced from ten to seven. This recommendation is supported and has already been embodied in the Bill. As far as adults are concerned, the inquiry of the Viljoen Commission did not bring any new facts to light. Over a period of many years, the courts have accepted that six strokes by means of a cane is a serious punishment for adults. The result was that a normal whipping was limited to five strokes and that this was exceeded only in extreme cases. That such extreme cases do occur is indisputable, and if the number of strokes is limited to five, it will not be possible to inflict the proper punishment upon this type of offender. Consequently, the Bill has been amended so as to reduce the maximum number of strokes from ten to seven in the case of adults as well.

The recommendation that no one be sentenced to a whipping more than twice has been accepted only with regard to adults. As far as minors are concerned, it is our opinion that exceptional circumstances may arise which may necessitate the imposition of a whipping on more than two occasions. The recommendation that the age limit of adults be lowered from 50 to 30 years has been accepted.

The present restrictions with regard to whipping imposed by inferior courts are left unchanged and the commission’s recommendation in this respect is therefore not accepted. The commission concedes that the Bantu in particular have great faith in this form of punishment, and it would appear, therefore, that under these circumstances the recommendations of the commission are too restrictive.

The commission also recommended that a provision be inserted into the Bill which would enable the prosecutor, after the conviction, to address the court on sentence—see para. 5.2.14. Clause 274(1) has been adjusted accordingly.

The provisions in the Bill providing for imprisonment with solitary confinement and spare diet have been deleted at the recommendation of the commission—see para. 8.1.1.7.

Recommendations of the commission to which I have not referred or which have not been provided for in the Bill, and which affect one of my departments, such as that a permanent penal reform committee be appointed, that the parole system be amended, and so forth, are receiving my attention, and where necessary, announcements will be made in due time, or otherwise it can be discussed under one of my Votes. Recommendations concerning the activities of other departments, such as those in regard to influx control and curfew laws, the extension of probation services, and so forth, have been referred to the Ministries concerned for their consideration, and I take it that they will go into these recommendations.

Finally, Mr. Speaker, I want to summarize the Bill as follows. It retains all the basic principles required for ensuring a fair and equitable trial. At the same time, however, we have attempted to make court procedure more streamlined in order to save time and money for the State as well as the accused. I also trust that the measure and the remaining recommendations of the Viljoen Commission, which will be considered later and implemented as far as possible, will cause our prison population to be drastically reduced. Our legal system is held in high esteem in all Western countries, and I am satisfied that all these measures will serve not only to preserve that esteem, but even to enhance it.

Mr. Speaker, I have listened with attention to the speech by the hon. the Minister, because this is a Bill which is not without difficulty. It is a very long measure and seeks to restate in many respects the existing criminal procedure of this country. It is true, as the hon. the Minister has said, that in 1973 a measure was brought before the House in very similar terms to that which we are at present considering. Having regard to the fact that the House was then differently constituted from what it is now and that there are persons here today who were not present in 1973, and having regard to the fact that it is necessary both to give proper consideration to the hon. the Minister’s speech and to the Bill itself, I move—

Agreed to.

Mr. Speaker, I move—

Mr. Speaker, when a sectional plan, i.e. a plan which will enable a building, for the purpose of alienation of sections thereof, to be divided into two or more sections, is submitted for approval to a local authority and for registration by a registrar of deeds, the permission of all holders of registered leases and other real rights in the land concerned is required for the scheme in terms of which the division will take place and for the opening of a sectional title register in terms of sections 4(4) and 5(3)(c) of the Sectional Titles Act, 1971. Major problems are being experienced by developers in obtaining the necessary permission from, inter alia, holders of mineral rights in the Transvaal and holders of servitudes in Natal. In many of these cases mineral rights or servitudes had been registered in the Deeds Offices against the title deeds of the land many years ago and it is practically impossible to ascertain the present addresses of the holders. This is particularly the case where subdivision of the land has taken place and this can make it necessary to obtain the permission of hundreds of people before the provisions of the mentioned sections (4) and (5)(3)(c) are complied with. The result is that in these cases sectional title registers cannot be opened and sectional plans cannot be registered, or are seriously delayed.

†There is also evidence, Mr. Speaker, that certain holders of real rights abuse these provisions in that they claim exorbitant amounts before they give the required consent. This consent has no legal consequences as the interests of the parties concerned are fully protected by the provisions of section 10(3) of the Sectional Titles Act, 1971. This section provides as follows—

Such consent is not even required when buildings are to be erected on land.

After consultation with the Registrars of Deeds, the Association of Law Societies, the Association of Building Societies, the United Municipal Executive and the South African Property Owners’ Association it has been decided that an amendment to the Act is called for. The required amendments to sections 4 and 5 are contained in clauses 1(a) and 2 of the Bill now before the House, while corresponding amendments of a consequential nature are contained in clausés 4 to 7. These amendments will remove an insurmountable obstacle to the registration of many sectional plans without affecting the rights of any person. The proposed amendments contained in clauses 1(b) and 3 have become necessary as applications are made for the approval of development schemes by local authorities and for the opening of sectional title registers by registrars of deeds in cases where overhanging parts of buildings, such as balconies and gutters, encroach upon contiguous land controlled by local authorities or not belonging to the developer. Even though such encroachments may be authorized by law or servitude, the Sectional Titles Act does not provide for the registration of a sectional plan or the opening of a sectional title register in such circumstances. There is no reason why this should be the position.

Mr. Speaker, we on this side of the House support these measures, because we believe, as the hon. the Minister has just said, that it will facilitate the registration of sectional titles. I do believe there is some speculation as to why these provisions do away with the consent of holders of leases and holders of real rights. I believe the hon. the Minister has explained that sufficiently, but what I think we must take into consideration, is that, notwithstanding the fact that these holders are not being asked to consent to the registration of these certificates, their rights are fully protected, because in the certificate itself there will be a reference to these rights, and those rights will be there for all to see.

With regard to the question of encroachment, I want to point out that there are a number of people who feel that, when there is an encroachment over the property which is to be the subject of the title, they should be paid a very large sum of money for consenting to the registration of a particular title subject to the encroachment. On the other hand, when a plan is being submitted which is subject to any encroachment which already exists, such encroachments are merely indicated on the plan, and no consent is necessary from any person at all. So, it seems quite reasonable to expect that, when there are encroachments, and those encroachments are encroachments which are regulated by law, there should be no difficulty about registering the sectional title subject to the encroachment. In regard to the question of holders of leases, a little trouble is caused. However, it should be understood that, although the holder of a lease does not consent to the registration of a sectional title, it does not mean that the holder of the lease has lost his rights. His rights will very definitely be referred to, and the sectional title will be subject to the lease. One can understand that there may be people who are lessees and who will apply for sectional titles, but anyone who does that, is doing it at great risk. Quite obviously, anybody who then buys a section will realize that that section is subject to a lease, and will not very easily be persuaded to buy such a section.

I believe that the ordinary control of the market place is going to regulate this and I do not think we should worry about the fact that the lessor of the property is not to give his consent. It would, in fact, be a very foolish lessee who would apply for sectional titles without having consulted his lessor.

One of the clauses which amends the Act, is clause 5, which amends section 16. In issuing the rather complicated documents, or sectional titles (referred to in Section 16) it should be borne in mind that when there is a subdivision of an existing section into two, one of those sections has a separate title deed, which then becomes the certificate of ownership of, say, half of that section. However, at present the other half of the section is held in terms of the original title deed. The other half is, in fact, a remainder. This seems to be causing an unnecessary amount of trouble, because it means that the original deed is still in existence with a portion having been transferred away (being the portion subdivided) and a new title deed for one of the portions of the subdivision. As section 16 is being amended by clause 5, it has occurred to us on this side of the House that perhaps the hon. the Minister will be prepared to go a little further and amend section 16 further so that whenever there is a subdivision of an existing section, separate fresh titles will be issued in respect of each of those subdivisions, thus exhausting the original sectional title. This will mean that an awful lot of trouble will be obviated. As we all know, remainders always cause trouble because one has to follow them for many, many transactions to find out where they originally became remainders. If the remainder is dealt with in the fashion suggested by this side of the House, then in the case of a subdivision into two sectional titles, two certificates of title will be issued and the original certificates of title will be entirely exhausted and disappear from the registration system.

There is also a further point in connection with section 16. It is not dealt with in subsection (5), but in subsection (2)(b) which contains provisions regarding a mortgage bond over a section which is subdivided. As the law reads now, it appears that one cannot substitute a debtor for an existing mortgage bond under those circumstances. I believe that there are registries reading various laws together who consider that they are entitled to substitute a bond but I submit that they are taking a chance in doing so. It will be far better if the matter were put into perspective now and if that subsection could also be amended to provide not only that the bond must be cancelled or the property released from the operation of the bond, but also that the existing bond may be substituted. In other words, the new debtor, the man who gets the new title, can be substituted as debtor for the portion he is now taking. There will thus be a substitution in so far as a portion of the bond is concerned.

I believe that with these small improvements the system will work very much easier than it appears to be working at present. I hope that the hon. the Minister will find an opportunity of allowing these amendments at the Committee Stage.

Mr. Speaker, in the Bill in question we have legislation of a predominantly technical nature. However, I think we would also be justified in saying that the Bill is a compliment to the drafters of Act No. 66 of 1971. If one bears in mind that Act No. 66 of 1971 created an entirely new dispensation by enabling sectional titles to be registered, a concept which in the past had been entirely foreign to our procedure in respect of the legislation of deeds, it is striking that after six years it is only necessary to effect a few amendments of minor importance to the Act. I say that if we bear this in mind, then this Bill is indeed a compliment to the drafters of the original Act.

But as the hon. the Minister indicated in his speech it has become necessary to enable this Act to function more smoothly in that occasional hitches have in fact occurred. To be specific, it appeared that delays frequently occurred due to searches for certain holders of rights having to be instituted, which could sometimes be a lengthy procedure. When these people were eventually traced—people with rights of which they themselves were often unaware—then those people instituted excessive claims for compensation. The original Act also contained a few requirements which in fact served no useful purpose. An example of this is the requirement that the permission of a mortgagee be submitted to the local authority at as early a stage as the lodging of the sectional plan. In the nature of the matter a local authority has no interest whatsoever in the rights of a mortgagee. In any event, the rights of the mortgagee are protected in that a lodging of his permission is required by section 5(3)(b) of the Act, viz. by registration.

It is also true that if we see the Bill in the light of the need for housing, it is undoubtedly essential for obstacles encountered by developers to be eliminated, that we should not make it more difficult for developers to provide housing, but that we should rather make it easier for them.

I should like to convey appreciation of the fact that through the hon. member for Wynberg, the official Opposition supports the Bill. The hon. member for Wynberg also suggested certain additional amendments to which the hon. the Minister will probably reply in good time.

In conclusion, I just want to stress that the deletion of section 4(4) and 5(3)(c) of the principal Act poses no danger whatsoever that anyone’s rights will be prejudiced. If one examines these provisions closely, it becomes clear that whereas in theory it may appear that there could be prejudice, in practice there is no conceivable contingency which could result in the holder of a right being prejudiced by the deletion of these provisions. As far as clause 1(b) is concerned, it is clear that the words whose deletion has been proposed are superfluous in any event, in that the authorization in question is covered by the aforegoing part of the section concerned.

What we have here is in all respects merely an adjustment, if I may call it that, of the existing Act, without any really far-reaching change being involved. That is why it gives me great pleasure to support the Bill.

Mr. Speaker, I want to raise one matter flowing from the proposed amendments to section 16 of the principal Act. It deals with the question of real rights registered against a property, but it does not cover a problem which is perhaps peculiar to Durban and in particular to my constituency. It is a problem which I raised in correspondence with the hon. the Minister last year. In my constituency, along the beach-front, there are many large blocks of apartment buildings of which a large percentage have already “sold” flats on a share basis. When the Sectional Titles Bill was introduced, I raised this matter and was assured that leasehold properties were included. Now these blocks of flats situated on leasehold property with a 99 year lease, cannot be registered under the Sectional Titles Act, because the land itself is owned by the city council whereas the building is owned by a company. Where a company has sold shares which carry occupancy rights of flats and wishes to convert to Sectional Title they cannot convert. This appears to be a weakness which is not covered or rectified, because that right is not one of the rights of a lease referred to in clause 5. It refers to leases, but not to that category of leasehold property. I should like to ask the hon. the Minister, whilst he is amending the Act, at this stage or even in the Other Place to bring in an appropriate amendment to rectify what is clearly an oversight. At the time the original Bill was introduced, it was made clear that it had been the intention. It was discussed across the floor of the House and clarified. I am not a legal pundit or a conveyancer. The ruling that I received when I contacted the Deeds Office in Pietermaritzburg was that they could not accept registration. This is causing hardship to many hundreds—it literally runs into many hundreds—of people who have bought shares in flats which they believed they could convert to sectional titles. These people are now frustrated.

I hope the hon. the Minister will give the assurance that, either in the Committee Stage or in the Other Place, he will bring about an appropriate amendment or that he will, at least during this session, amend the Bill so that a sectional title can be registered in respect of these properties. Numerically this is a small group when compared with the rest of the country, but it constitutes an important element in the selling of flats in Durban with the majority of them, as I say, in my constituency. I shall take the matter no further now than to ask the hon. the Minister whether he has considered the representation I have made and whether it is possible for him to introduce the necessary correction in order to rectify the gap in the present Act.

Mr. Speaker, I have listened with interest to the hon. the Minister, with apprehension to the hon. member for Wynberg and with growing alarm to the two speakers who followed him, because a minor issue seems to be building into a major debate. I think before the matter gets out of hand, I should tell the hon. the Minister that we on these benches will support this Bill in all its stages. We have been persuaded by his arguments and also by our hurried consultations with one or two members of the legal fraternity, and we agree that the deletion in regard to the consent of the holder of certain real rights being obtained for the approval of schemes, be proceeded with. Accordingly, we shall not oppose this Bill at all.

Mr. Speaker, the hon. member for Durban Point raised a technical point, a point of quite substantial merit, but I am sure that the hon. the Minister will first have to investigate the matter before being able to reply to the hon. member’s argument. I am also pleased that the hon. member for Sandton supports the amendments on behalf of his party. We appreciate this. The Sectional Titles Act is, in essence, an instrument whereby right of ownership of sections of buildings is given to individual owners. In other words, it prescribes how one goes about becoming a lawful, registered owner of a section of a block of flats, for example.

Seen from this point of view it is true that it follows logically that the prescribed procedural arrangements should be not only as efficient as possible, but also as simple and streamlined as is practicable. For example, procedural requirements should therefore not be such as to cause the smooth functioning of the Act to break down entirely or to restrict or hamper unnecessarily the substantial and steadily increasing use of this procedure in business. Looked at objectively, such a provision was that contained in section 4(4) of the existing Act. As the hon. the Minister indicated, in practice these provisions give rise to quite a number of practical problems. Not only is it time-consuming to trace the innumerable holders of real rights—we are informed that there can be hundreds of them— and to obtain their permission, which is required; it is a factor which often also involves major additional and unnecessary expense. One is probably justified in asking why this provision was in fact included in the Act at the time. Although the precise reason is not known, it appears that the provisions of the Registration of Deeds Act, which does in fact contain the requirement that under specific circumstances these conditions have to be complied with, were simply followed. I believe that the provisions cannot simply be implemented in the Sectional Titles Act as well, particularly if one takes into account the fact that the Deeds Act specifies the circumstances in question. The possible objection of prejudice to the holders of real rights has already been mentioned here, but we have heard from the hon. the Minister and other hon. members that the holders of such rights are nevertheless afforded full protection by section 10 and also by section 5(3). In the light of this I am convinced that any real right of any economic value will continue to be fully protected by this amendment. At the same time, the proposed amendment in clauses 1(b) and 3 also states the position more clearly from the point of view of the developer, the local authority and the Registrar of Deeds. The developer now has to submit a plan of any encroachment, the local authority has to check it because they have to require it of him, and the Registrar of Deeds can duly register it as such. In my opinion the proposed amendment constitutes a major contribution to the smooth functioning of this Act and for that reason I support it with enthusiasm.

Mr. Speaker, they say: “All comes to those that wait.” I have awaited my turn very patiently to tell you that this Bill is totally acceptable to the group sitting on this side of the House.

*This amending Bill and the Act of 1971 were introduced because the authorities tried to make it much easier for people to own property. The Select Committee that dealt with the matter did work of such excellence that for six years we did not have to amend the Act. We realize that the amendment now proposed is necessary for the improvement of the Act, and for that reason we agree to it.

†We accept that the present Act launched a new era for home ownership in South Africa. These amendments will serve further to create a nation of home-owners instead of a nation of lessees. This makes for a stable and contented population. These amendments in no way detract from or interfere with the protection afforded to tenants in rent-controlled blocks. I would therefore like the hon. the Minister to stress this fact, and also to stress, as he did on a previous occasion, that the harassment of tenants in rent-controlled blocks will not be allowed. These amendments and the Act itself create an enormous amount of work for the building society movement, the legal profession, land surveyors, the registrars of deeds, local authorities and a host of other people. It is absolutely essential, therefore, that all those persons should be fully acquainted with the administration of this particular Act because one does not want to be caught up in a maze of red tape and delays. This draft Bill is designed to protect several categories of vested interests, but unfortunately the one category that is not fully protected is the buyer. For example, if a developer sells all his flats, in terms of the sectional title scheme, for say R200 000 and has a bond of R150 000, the purchasers would have paid in, say, R75 000. The developer, then, instead of taking that R75 000 and paying it off on the bond, instead uses the money for a totally different purpose, which means that to a certain extent the buyer is left out in the cold. If that developer then goes insolvent, the purchasers encounter very serious problems, as we have seen in the past. This, of course, can be overcome if there is a clause in this legislation, or perhaps in other legislation, making it compulsory to have a protective clause in the deed of sale involving the extent to which a developer can discount or pledge the deeds of sale or stipulating that the payments made by the buyers, by way of capital, must either be paid into a trust fund or used to pay off the original bond. The Sectional Titles Act and the amendments entitle the purchaser to obtain transfer and also entitle him to obtain a building society bond, and the Government has further allowed concessions such that if building societies value a sectional title property at R20 000 or less, the Government will subsidize the interest on the bond to the extent of 2% for amounts up to R15 000. This allows the sectional title buyer a wonderful advantage, but there is only one snag, indeed a very serious snag, and that is that the building societies do not even have enough finance for normal housing, let alone sectional title housing. I realize that the hon. the Minister must think very carefully about the matter, and I think he should make representations to the hon. the Minister of Finance asking him to give some assistance to the building society movement so that this specific amendment can be implemented effectively and so as to enable the building societies to grant the prospective buyers the bonds, thus enabling them to get the 2% concession on interest to which they are entitled.

In passing I want to tell the hon. the Minister that the amendment to clause 6, which deals with section 18, does not, in our opinion, go far enough, and the industry is very worried that this particular section has not been amended to cater for all the problems connected with the extensions to buildings or phase development. With the present-day shortage of finance we find that there is phase development of projects, the projects being done bit by bit. The result is that several bonds have to be registered. The industry expected that in this amendment this particular problem would be catered for. Having spoken to experts in the industry, I am quite willing, after the Second Reading stage, to discuss this matter with the department to see whether we can formulate an amendment to overcome the problems connected with phase development.

Mr. Speaker, I thank hon. members for their active support of this measure. Hon. members will probably excuse me if I thank the hon. member for Mossel Bay and the hon. member for Verwoerdburg more cordially than the other members! [Interjections.] Of course I am pleased that they are on my side of the House. Although I appreciate all the work, a certain part of the work does of course come from the Opposition side and another part from my side.

The hon. member for Wynberg will understand that I cannot formulate a reply to him at this stage. This measure is of course one which I want placed on the Statute Book in the best possible form, and consequently I am quite prepared to look at his proposals. If they are found to have any substance, we shall effect the necessary further amendments. I want to ask the hon. member whether he will not formulate an amendment on the basis of what he had in mind. If he would then hand it to me, I would peruse it and consider whether or not we could accept it. Then, at the Committee Stage, I could accept the hon. member’s amendments or furnish him with a reply after having investigated the matter.

The hon. member for Durban Point came up with an interesting question. He has already sent me a letter in this connection. I have sent that letter through for investigation and at this very moment I am waiting for a memorandum on the matter. The issue is a little more complicated than one would think, and I fear that I shall not be able to assist the hon. member in this specific Bill because it would involve a change in the principle of the Bill. However, when I have received the memorandum and considered the extent to which I am able to surmount this problem, I shall consider the possibility of coming up with a Bill before the end of this session which will in fact enable me to accommodate the hon. member.

The hon. member for Sandton raised no difficulties. He simply agreed, and I appreciate this. The hon. member for Walmer also raised a very real problem. The problem to which he referred is of course one experienced by everyone who makes use of hire purchase facilities. In hire purchase there is always a gap between the seller and the purchaser and between the seller and the mortgagee. The person buying on hire purchase never knows exactly what the other transaction involves. This is always a risk which one comes across in business. One must be careful when one concludes such transactions. One could, of course, go to a building society oneself and ask how much money is in arrears on a bond before one concludes the transaction so that one is quite certain that one will not have to pay more at a later stage than the amount one has agreed on. However, I shall investigate these problems. In view of what the hon. member has said, I shall also have clause 6 investigated and if any further amendments are necessary, we could amend the measure again at a later stage.

Question agreed to.

Bill read a Second Time.

Mr. Speaker, I move—

During the revision of Pre-Union Legislation the South African Law Commission was confronted by the problem of whether or not civil imprisonment should be retained. After a thorough investigation the commission came to the conclusion that the few arguments which could still be advanced in favour of this, were unconvincing and that the complete abolition of civil imprisonment would be the logical step. I am in complete agreement with this standpoint.

Years ago Mr. Justice Maasdorp summarized the history of civil imprisonment as follows in the case of Elliot v. Denyssen—

†The matter was taken further by the Civil Imprisonment Restriction Act, 1942 (Act 21 of 1942). Since the enactment of this measure, magistrates’ courts no longer have jurisdiction to impose civil imprisonment. It also provides that a division of the Supreme Court shall not have the power to order the civil imprisonment of a debtor because of his failure to pay a sum of money in terms of any judgment unless the claim enforced by the judgment arose from any delict committed by the debtor or from any liability of the debtor for maintenance.

*As is quite clear from clause 3 of the Bill, it is not envisaged to detract from measures aimed at enforcing judgments by our courts when the debtor is able to pay. However, I am convinced that there is no longer any room in our modern administration of justice for this institution which has, in the past, been called a “barbaric remnant in our legal system” and “a medieval relic”.

Mr. Speaker, for the reason the hon. the Minister has given we support this measure abolishing as it does those parts of our law which still relate to the old-fashioned idea of civil imprisonment. The hon. the Minister has, correctly, outlined the course civil imprisonment has taken over the years and it will be seen that this Act while abolishing civil imprisonment in general does not make any incursions into those powers which are contained in the Magistrates’ Courts Act with regard to a judgment debtor and his imprisonment in certain respects. As I see it, it means in effect that the only sanction approaching civil imprisonment which can still be applied, would be those sections of the Magistrates’ Courts Act which allow a committal for contempt after a proper inquiry has been made into a debtor’s ability to pay a judgment debt and his refusal, after notice and a proper inquiry, to abide by the decision of the magistrate in that regard.

In short, Sir, we support this measure at Second Reading.

Mr. Speaker, we on these benches shall not oppose the Bill at Second Reading. It has the effect of carrying out the recommendations of the Law Commission to abolish an obsolete Transvaal law of 1881 and, further, the limited right of the Supreme Court to impose civil imprisonment as a sanction. In fact the Supreme Court only had a very limited right in respect of restricted circumstances arising from failure to pay in regard to a delictual order, a maintenance order, seduction damages and, in fact, in relation to an order relating to paternity. This, then, is the main principle and we support it. The Law Commission, commenting that civil imprisonment is seen as a relic of the Middle Ages, recommended as follows—

In other words, the Law Commission recommended the total abolition of civil imprisonment as a sanction or as a remedy for civil litigants, with one exception, if I understand it correctly, namely that it does not affect the maintenance legislation in terms of which I think there is power, in terms of the Maintenance Act of 1963, I think which allows for the imprisonment of a wilfully defaulting breadwinner who refuses to support spouses and children. I assume that this form of sanction remains.

Under section 65.

That is correct. So far, so good. The Law Commission drafted a Bill and under clause 3 of this Bill we read as follows—

This covered the question of contempt of court by a person who is in wilful defiance or contemptuous defiance of a court order, which I think is correct and proper. If we look at the draft Bill before us, however—if I might just mention this point—it goes a little bit further and says as follows—

Of course, Mr. Speaker, this must be read in conjunction with the provision which we passed last year in, if I remember correctly, the amendment to the Magistrates’ Courts Act, where a new section 65M was introduced into the Magistrates’ Courts Act, in terms of which, if one now has a Supreme Court judgment, one merely lodges a notice of the Supreme Court and an affidavit stating that the debt is still owing. That then is recorded as a judgment of the magistrates’ court and the whole procedure under section 65—that is the procedure for holding an inquiry the end result of which may be imprisonment of the defendant—is then brought into play. I believe this Bill goes a little bit further than what the Law Commission had in mind, for while the limited right of the Supreme Court to imprison on a civil matter is abolished, magistrates’ courts now have this right in respect of any judgments of the Supreme Court, not only in regard to delictual matters and the like, but relating to any judgment for money. In other words, there is a broader basis on which persons can now be imprisoned in regard to Supreme Court judgments.

In some ways matters are being improved, as I have already pointed out. There is, for instance, a set procedure; there is an inquiry and the defendant obviously has an opportunity to show cause why he should not be placed in gaol. However, in practice, what is the effect of this? The effect of this is that civil imprisonment does in some form remain a part of our law, and on a slightly broader, not narrower, basis than before. What should our view be on this, the second, principle of the Bill? I believe that civil imprisonment, in any circumstances, as a sanction or a punitive measure, is anachronistic. As quoted by the law commission on page 15:

Furthermore, Mr. Speaker, I doubt the efficacy of the punitive value of civil imprisonment. Secondly, as a means of persuading defaulters to pay, I believe that experience has shown many of us that this is of very questionable value. I believe that the answer to debtors, to paying their accounts and to paying their debts, lies in a more circumspect and in a more disciplined credit control. In a country in which—believe me, Mr. Speaker—credit is as easy to obtain as a sun-tan at Clifton beach on ai Saturday afternoon, hundreds of thousands of South Africans overspend their income as a result of irresponsible and enticing advertising and sales campaigns. Millions of rands are wasted every year on unnecessary products made eminently desirable by glib sales talk and by so-called easy payment, long-term plans. Too many small men and their families are already at the mercy of big marketing companies. So, I believe that if civil imprisonment as a sanction were properly done away with, then perhaps, sales and marketing companies would pay more attention to quality, and not to quantity selling … I further believe that the answer to debt lies in economic attitudes and in disciplined selling, not at the door of the prison.

Therefore, in the Committee Stage I wish to propose a small amendment which will try to rectify the point that I have made in speaking here today, and which will, in fact, achieve what the Law Commission has recommended, that is to abolish civil imprisonment in all its forms. However, we support the Second Reading of this Bill.

Mr. Speaker, the hon. member for Sandton put a question to us and then proceeded to answer his own question. All the same, I just want to point out to him in passing that although imprisonment continues to exist in the sense that a man can indeed end up in prison if he does not pay his debts, this will only happen after the court has thoroughly investigated such a person’s financial affairs, has issued an order accordingly and the debtor does not comply with the order of the court. Therefore the hon. member will agree with me that in this case this really amounts to contempt of court and nothing else. I should not like to take up the time of this House unnecessarily with this measure because we have the wholehearted support of the Opposition parties. However, the hon. member for Umhlatuzana, too, has mentioned that civil imprisonment really has an interesting history in our law and that this Bill is a logical conclusion to that. The hon. the Minister accordingly indicated that civil imprisonment was as old as our law itself and although it ought not to disappear from our law solely for that reason, it was nevertheless true that many people referred to it as a remnant of barbarism.

For this reason and others which I am not going to deal with now the National Government virtually abolished civil imprisonment altogether as far back as 1932. I do not know which of the members can still remember it. In 1935, as things tend to happen, the United Party reinstated the legislation and returned it to the Statute Book, naturally against the wishes of the National Party, which was in the Opposition benches at the time. Seven years later during 1942, the United Party abolished it for the most part by Act 21 of 1942, with the exceptions which we have before us today. On that occasion in 1942, many speakers of the National Party rightly posed the question: Why make exceptions to the rule? Why do we not go the whole hog? Mr. C. R. Swart, who subsequently became State President, referring to civil imprisonment, remarked as follows at the time (Hansard, 1942, col. 2806)—

Mr. Speaker, I must tell you that if my debtors or creditors were to have to sit and wait on my stoep without eating or sleeping until the debt had been paid, a number of them would have to sit there for a very long time indeed. During the debate in 1942, other speakers, too, strongly urged the abolition of civil imprisonment but without the favourable consequences which we have here today. As a matter of interest, I also want to point out that in 1939 the United Party appointed a commission of inquiry into the matter of civil imprisonment and that the terms of reference of that commission were to conduct a thorough investigation into the whole matter. During 1940 this commission made the following unanimous recommendation (translation)—

And furthermore—

So you see, Sir, that in this instance too, we had a case of a commission of a Government making a unanimous recommendation which was not followed up by the Government of the day. Be that as it may, this final removal of the procedure from our law is to be welcomed, seeing that it has in fact fallen into disuse in our courts. Today there are adequate alternative measures—new methods of debt recovery, methods which are effective—and consequently this method may just as well disappear. For this reason I should like to congratulate the hon. the Minister on this measure and tell him that we support it gladly and wholeheartedly.

Mr. Speaker, the hon. member for Sandton and the hon. member for Verwoerdburg dealt extensively with the subject of credit control. I am not going to follow them in this regard, except to say that from personal experience I can assure the House that no magistrate will make an order unless he has gone into the position of the debtor very carefully. He examines his assets, his liabilities, his income and his expenditure. I can assure you, Mr. Speaker, that when the magistrate makes that order, he knows the debtor can pay. If the debtor can show that his expenditure exceeds his income, no order will be made against him. I just want to make that point clear—that the debtor is at no disadvantage, because he has no lesser person than the magistrate who protects his interest in this sort of matter. It is only when the debtor is in contempt of court, then obviously there is a question of a committal order.

We in this group accept this Bill. The way we see the position is that this 1942 Act could actually have been repealed some years ago. The continuance of this Act, I can only presume, is because the fair sex was to be doubly protected. I shall show just now why they were doubly protected. This Bill will not affect the powers of committal that the courts have in terms of Act 32 of 1944—in other words defaulters must not read this Bill as being a free licence to be absolved from committal. Act No. 21 of 1942, now being repealed, was put on the Statute Book to ensure that our Supreme Courts had no power to order civil imprisonment of a debtor unless the judgment arose from any delict committed by the debtor or from the liability of the debtor to maintain a wife, parent or child, or from the seduction of a girl or woman, or committed by the debtor from the birth of a child of which the debtor is the father. In all those cases one can see that it is mostly the fair sex which is being protected and have in fact been doubly protected. I believe that even though the Act is now being repealed, the hon. member for Houghton still wants that protection …

Certainly. I want it both ways.

We live in a very advance age and even with the repeal of this Act, of 1942, I can assure the hon. member for Houghton that the fair sex is still very well protected.

On maintenances.

The repeal of Act 21 of 1942 does not render victims powerless. I believe that there are many powerful remedies open to them. The laws of the land always protect those who are least in a position to protect themselves. I often wonder whether the ladies are the people who are least in a position to protect themselves! Often it is the men who have the toughest task to protect themselves!

Mr. Speaker, I want to thank the hon. members for their support of this measure. As far as the hon. member for Sandton is concerned, I just want to tell him that the Law Commission was of the opinion that it had also covered the Magistrates’ Courts Act. They have approved the Bill in the form in which it is now before this House. It is merely a question of formulation. I think this should satisfy the hon. member.

Question agreed to.

Bill read a Second Time.

Committee Stage

Clause 3:

Mr. Chairman, I should like to move as an amendment—

1. (1) On page 2, in line 11, to omit all the words after “court” up to and including “1944),” in line 14;
2. (2) on page 2, in line 14, after “judgment” to add:

This amendment will bring the clause into line with the original recommendation of the Law Commission, an amendment which, as the hon. the Minister has said, has now been amended, probably to cover the point that was worrying him. I realize that my amendment will in due course necessitate an amendment to the Magistrates’ Courts Act, because the relevant provision in section 65M of the Magistrates’ Courts Act will then stand alone, unsupported by the provision we are passing today. On the other hand, I think a start should be made, because in the 20th century, which we are in today, there should be other methods than the usage of civil imprisonment to bring debtors to book. I think the methods that should be embraced should relate rather to the way in which goods are sold by consumer corporations and not to the bringing of people to prison. I therefore hope that the hon. the Minister will accept this amendment, bearing in mind that this is not the end of the story.

Mr. Speaker, I do not quite understand how the proposed amendment makes any material change to the clause as it stands. The clause as it stands is a saving clause in respect of the Magistrates’ Courts Act. The Magistrates’ Courts Act—I believe I state it correctly—embodies a provision which is not civil imprisonment in the old-fashioned sense, but enables the court after a judgment debt has come into being, to inquire into the circumstances of the debtor. If it comes to the conclusion—and only if it comes to the conclusion—that he has an income which has a surplus sufficient to warrant an order for a monthly payment to be made to the creditor, only then is such an order made. In other words, we are not dealing with a man who has a capital asset, because those have already been excussed. We are only dealing with the individual who has an income which the court, after inquiry, assesses as being sufficient to warrant the man to meet his daily commitments and to show a surplus which he can be ordered to pay on a monthly basis to the creditor. I am not a practising lawyer, but apparently that is the position. If it is the case and thereafter it is found that despite the inquiry and the order of court, the debtor refuses to pay in terms of that order, he is in contempt of an order and must incur the penalties for contempt, which in a proper case, can be committal.

The hon. member for Sandton has proposed an amendment deleting the reference to imprisonment and to add “or any order granted by virtue of such power” at the end. The only order granted by virtue of the power to grant an order for committal is, as I understand it, imprisonment. I do not know what other order can be granted by virtue of such power. Although the wording is different, it seems that the result will be much the same in the end. Consequently it appears to me, that the amendment does not make any material difference to the clause. It will appear from what I have said that the limited powers of a magistrate’s court, in terms of the Magistrates’ Courts Act, should be left as they are in terms of the Bill. Accordingly, it seems to me that the amendment which is proposed, is redundant.

Mr. Chairman, I am inclined to agree with the hon. member for Umhlatuzana. As I have said before to the hon. member for Sandton, this slight change to the wording of the Bill proposed by the Law Commission was done with their consent, after discussion with them. Under those circumstances I am not inclined to accept the amendment and prefer to stand by the Bill as it is.

Amendments negatived.

Clause agreed to.

House Resumed:

Bill reported without amendment.

Bill read a Third Time.

Mr. Speaker, I move—

A provincial division of the Supreme Court of South Africa consists at present of a judge-president and so many judges as the State President may from time to time determine.

In some divisions the controlling and co-ordinating functions of the judge-president are of such magnitude that at times they cannot cope with them on their own. For that reason it has become necessary to make provision for the appointment of deputy judges-president when necessary.

In clause 1 of the Bill now before the House provision is made for such appointments, and in clause 2(b) the period of appointment and the functions are determined. The other amendments are of a consequential nature. Provision will be made in a separate Bill for the remuneration of deputy judges-president.

Mr. Speaker, we on this side of the House accept this Bill. As the hon. the Minister has said, it seeks to introduce a new office into the Supreme Court, viz. that of a deputy judge-president. If one has regard to the functions of a judge-president, one can see that the introduction of the office of a deputy judge-president is necessary. Amongst the many functions of a judge-president is that of deciding which work the various judges will do at the seat of the court, which judges will go on circuit to the various parts of the province and which cases will be heard in which courts and before which judges. He also decides who will do the review work, as he decides, in proper cases, whether a court of more than one judge should hear any particular case. In the case of the indisposition of the judge-president or of his going on leave, it is right and proper that there be no ambiguity as to who should take over his functions. It is also right, as will be seen from subsequent legislation which will no doubt still arise, that the person who takes over those functions for the time being, should receive a small additional remuneration for the work that he does. This Bill, although it has a number of clauses, really does no more than that and consequently it has our support.

Mr. Speaker, I rise to signify the support of this side of the House for the Bill introduced by the hon. the Minister. The hon. member for Umhlatuzana has explained the functions of a judge-president. It is necessary that a Bill of this nature should be aimed at promoting the smooth functioning of our Supreme Courts. One thinks of the large divisions of our Supreme Court which consist of more than one seat. Here Transvaal is a very good example with the seat of the Supreme Court in Johannesburg and also in Pretoria. Apart from the times when the judge-president is completely absent, as he is at the moment owing to commission duties, there are times when he obviously cannot be present at both seats. Sometimes urgent cases occur which necessitate changes to the court roll or when other instructions must be given to very senior judges, and then it is necessary and desirable that there should be a deputy judge-president to carry out these functions. For that reason this legislation is also aimed at facilitating these functions and tasks of the judge-president in a particular division, where necessary.

Mr. Speaker, the provisions in this Bill can, I believe, only help to facilitate the working of an already overloaded Supreme Court and to increase its efficiency. The introduction of this Bill is not an occasion to dwell at length on the question of the delays which are being experienced in the Supreme Court by practitioners, in many cases relating to vast losses being incurred by litigants as the result of delays before cases are brought for hearing. It is clear, however, that the Benches throughout the country, and certainly in some of the major centres, do need considerable expansion. I therefore trust that the Minister is giving his urgent attention to this aspect, because delays in the bringing of cases to trial, particularly in the Supreme Court where the amounts involved are very large, can mean a loss of income and a loss of productivity. I therefore believe that the State should act to curb these problems. In the meanwhile, however, the appointment of a deputy judge-president is, I believe, a useful measure. We therefore support the Bill from this side of the House.

Mr. Speaker, we on these benches support the second reading of this Bill and we support the provisions contained in this measure. I may say that I personally, as the representative in this House of the seat of the Eastern Province Division of the Supreme Court, welcome this measure very heartily as it will certainly relieve the pressure on the judge-president, more particularly in those divisions where the judge-president has to be away from the seat of the court for long periods of time on circuit. However, I must sound a word of caution in this debate. When the State President appoints the deputy judges-president, which are provided for in the Bill, he should carefully consider the compatibility of the deputy and presiding judges-president. As an analogy, may I mention that it would be an absolute disaster if, for instance, the hon. member for Umhlatuzana should become the judge-president of Natal and one found the hon. member for Yeoville, as a judge in Natal, being appointed as the deputy judge-president. I would imagine that the degree of compatibility would be such that it would bring the work of the Court to a standstill.

[Inaudible.]

We support this Bill but we think it is important to ensure, in appointing deputies, that there is complete compatibility between the deputy and the judge-president.

Mr. Speaker, I appreciate the support for this measure. This is a measure which has obviously become essential as a result of the amount of work the Supreme Courts have to do. Perhaps this is the right moment to point out that not only does our Bench uphold the high tradition of our administration of justice, but it does this under very difficult circumstances. The amount of work they have puts them under enormous pressure. Court cases are becoming longer and longer and it is evident from the newspapers that court cases are becoming bigger and more complicated. One thinks, for example, of the financial cases which appear before the Bench. The courts are expected to clear their rolls as soon as possible. One cannot think of this without a feeling of appreciation towards all the judges of South Africa for the fine way in which they acquit themselves of this enormous task. My thanks to all the members who support this measure.

Mr. Speaker, may I ask the hon. the Minister whether he is giving consideration to a re-think concerning the expansion of the Bench to take care of the tremendous backlog which is being experienced in some centres?

We expanded several Supreme Courts last year. I believe the Transvaal acquired up to four new judges. In this way the quota for almost every Bench has been raised. We must, of course, take the financial circumstances into consideration— nowadays one cannot do otherwise. I should like, however, to give the hon. member the assurance that we always try to ensure that the judges have just enough work and not too much.

Question agreed to.

Bill read a Second Time.

Committee Stage taken without debate.

Bill read a Third Time.

Mr. Speaker, I move—

This measure was put forward by the Association of Law Societies of the Republic of South Africa.

The Attorneys, Notaries and Conveyancers Fidelity Guarantee Fund, which is applied to compensate people who may suffer pecuniary loss by reason of theft committed by a practising attorney, notary or conveyancer, or by his clerk or servant, of any money or other property, entrusted to such practitioner or employer, does not authorize the payment of interest on proven or admitted claims against the fund. The result is that claimants suffer detriment in this respect and the Association is concerned about this. The Bill therefore provides that such interest shall be paid.

I am convinced that this measure will help to strengthen the confidence which is placed in the attorney’s profession.

Mr. Speaker, I have much pleasure in announcing and I am sure the hon. the Minister will be pleased to hear that we of the official Opposition accept the terms of this Bill. I think, however, that it may be of interest to go back some little while to consider the concept of what exactly was meant by a fidelity fund which was established by the attorneys themselves. The concept of the Fidelity Guarantee Fund first saw the light of day in 1941. Since then, of course, various improvements have been made to the operation of the fund itself in conformity with the circumstances of the day. Attorneys have always been—and I believe that people realize this—very jealous of and have actively guarded their professional integrity. By the very nature of their work they act as confidants, advisers and agents to the general public. Acting as such, they are frequently called upon to handle finance on behalf of clients, dealing extensively with large sums of money every day of their professional lives. With this in view, it is encumbent upon all attorneys practising as such to deposit into special trust accounts all moneys which belong to other people. Stringent rules are laid down by the various societies for the control of such trust accounts, but I do not believe that this is the right forum for us to go into the details thereof. Suffice it to say that the rules are so stringent and are intended to enable the law societies generally to spot any possibility of faulty dealing with the minimal possible delay. Human nature being as it is, there are occasions, unfortunately, when frailties occur. Despite, as I said, the most stringent precautions taken by the law societies, people have suffered loss due to defalcation by legal practitioners. It was in an effort to protect the general public further that in 1941 the Fidelity Guarantee Fund was established.

The control of the fund was vested in a board of control comprising senior members of the profession and powers were given to the Minister, acting in conjunction with the Chief Justice, and guided by the board of control, to make regulations regarding the general administration of the fund. The main function of the fund was to provide for the reimbursement to persons—as the hon. the Minister has mentioned—for pecuniary loss suffered by reason of theft by attorneys or their servants in the course of their practice or while acting as executors of deceased estates or administrators of estates, or trustees of insolvent estates. A condition of the reimbursement was naturally that the claimant should first of all exhaust all his remedies against the attorney personally before coming to the board. There were certain other requirements which had to be provided for or to be followed, such as that notification to the law society of which the attorney is a member of an intended claim and simultaneously notification to the board of control within a certain period of time. To my knowledge, however, as the board may in terms of the Act exercise its discretion in relation to time periods, no valid claims have ever been refused for failure to comply strictly with the time limits laid down in terms of the Act.

The fund has been built up into a formidable sum of money, and as the Act now stands, it relates that when a sum of R2 million has been reached the board will be entitled by law to utilize accumulations for other purposes. All this is specifically designed to protect the public and, incidentally, to enhance the status of the attorneys’ profession. For instance, there was a provision in the Act that after R2 million has been established the board of control could make grants to individuals and to universities for the purpose of education or research in law. This was as a result of determination by the attorneys that the attorneys profession should only be served by the most highly trained legal practitioners. Secondly, once the sum had reached this figure, the funds could be used to provide premiums for contracts for professional indemnity policies to protect the public against negligence on the part of attorneys in the conduct of their practice as such. In other words, the whole purpose of the fidelity fund, and the Act which governed the operation of the fund, was in order to protect the public against any defalcations and the frailties of human nature in the course of the practice by an attorney of his profession. Both these rights relating to the use of the fidelity fund moneys have been and, in fact, are now still being taken advantage of by the board of control, so that one can assume, therefore, quite validly that at the moment the fund certainly stands at a figure in excess of R2 million. This I believe will in the eyes of the general public, create a feeling of great security when dealing with the attorneys profession.

This then, Mr. Speaker, is a broad outline of the function of the fidelity fund as established in 1941. Now we have in terms of this amending Bill a further extension in regard to the utilization of the fund for the benefit of the public. A question mark, however, may be raised against the limitation of the payment of interest. Clause 2 of the Bill, which deals with Section 3 of the Act, reads—

1. (a) such interest shall not run from a date earlier than the date on which the board of control received notice in writing by or on behalf of a claimant of his claim against the fund; …

Some may well say that the discretion of the board of control should be further extended to establish perhaps an earlier date from which interest could run. This may, in certain cases, be a valid argument. But, in general, we believe that certainty in a law is desirable and that the obvious difficulties which would face the Fidelity Board of Control in relation to the establishment of an earlier date than the date upon which they in fact received the notification, would become an almost impossible responsibility. Although there is this question mark raised, we believe that it is better, as it is set out in the Bill, and we are prepared to support this particular clause.

Finally, I feel that the hon. the Minister should know that we have very carefully considered this matter and we generally believe that the measure will be in the interest of the public in general.

Mr. Speaker, it would probably not surprise you to learn that we on this side of the House give the Bill our wholehearted support. It gives us great pleasure, especially those who were and are members of the legal profession, which is an honourable profession—and in particular those who are attorneys—to know that the proposal contained in this Bill was not initiated by the Government, but by the law societies themselves. I should like to associate myself with what the previous speaker said. He gave a long exposition of the establishment of the fund and how it operates. So far, the control of this fund has achieved a fine record in establishing the confidence of the public trust in the attorney’s profession. It was for this reason that the attorneys came forward with a proposal to grant further protection to the public by means of the payment of this interest. It was very necessary too, because from personal experience I can testify that there have indeed been cases where one had to deal with real rascals. Unfortunately, such rascals are occasionally found in the attorney’s profession as well, people who are very adept at cooking their books. This sometimes makes it very difficult to establish within a short period precisely what amount of money has been embezzled. Therefore, a relatively long period of time may elapse before the final decision on the extent of a claim against the fund is finalized. Therefore it is only fair that the board should, in its discretion, pay the claimant interest in cases of this nature.

Mr. Speaker, we will support the Bill before the House. I think the hon. member for East London City put his finger on one of the difficulties arising from the Bill. As the hon. member for Barberton has pointed out, claims often take long to settle and interest can in certain circumstances be a very important factor, interest which, I believe, should rightfully accrue to the claimant. It is quite correct that a further loss, in addition to the existing inconvenience relating to a claim—loss perhaps occasioned by capital lying idle— should not be incurred by the innocent party. Therefore there is from our side no objection to interest accruing at the rate set out in the Bill.

However, I have two queries to raise. I should like to know from the hon. the Minister why this provision is permissive. Why are the words “may in its discretion” used in the legislation at all? If the claim which the claimant may have is a valid claim

I think you should ask the hon. the Minister to listen to you.

Mr. Speaker, I should be grateful to have the attention of the hon. the Minister. [Interjections.] I thank the hon. the Minister for being with us again. The question that I pose is: Why is this provision permissive at all? In other words, why the words “The board of control may in its discretion pay an amount out …”? I believe that if a claim against the fund is valid and if it is allowed, then interest should automatically run.

My second query relates to the proposed subsection (3)(a) in regard to which the hon. member for East London City also raised a point. I understand that a judgment in terms of which a payout is to be granted may in fact include interest from an earlier date because the original claim may have included a claim for interest. A claim admitted may or may not include interest, but often the circumstances giving rise to a claim may have prevailed for several months without the claimant becoming aware that he should submit a claim.

I should therefore like to ask why the proviso in subsection (3)(a) is to be inserted in the Act to provide that the “interest shall not run from a date earlier than the date upon which the board of control received notice.” It seems to me that this provision penalizes an innocent claimant. I do not believe that it should be our intention in this legislation to create a rigid rule which enforces the payment of interest on every claim which is made, but rather to allow a situation where interest can be claimed ab initio from the time that the debt accrued.

I should like the hon. the Minister to react to the question about the permissiveness of the legislation and to the question about the proviso in subsection (3)(a). Apart from this we shall support the Bill at Second Reading.

Mr. Speaker, we on these benches are pleased to be able to accept the Bill. It is absolutely essential that the attorneys’ fidelity fund pays interest on claims which have been admitted against the fund, the reason being that the complainant must as far as possible be placed in the same position as he would have been if the attorney had not committed the offence concerned. This Bill, together with the 1941 and subsequent Acts, must compel the public to realize that where one of our colleagues in the legal profession errs, there will always be full retribution by the fidelity fund. The hon. the Minister told us that this Bill came at the request of the Association of Law Societies and that they realized the difficulties which many claimants had had over the years. We are going to have another Bill in respect of which the question of retrospectivity will be raised and I should therefore like to hear from the hon. the Minister whether there is any possibility of this Bill being made of retrospective effect.

In his conduct the attorney must be absolutely correct in regard to the control of his trust funds and we on this side have some difficulty. The difficulty was raised by the hon. member for East London City and also by the hon. member for Sandton. I refer to the proposed subsection (3)(a) which reads—

What worries us is that the attorney could have misappropriated the funds over a period of years and there may be minors and other persons concerned who may not be aware of the fact that the attorney is misappropriating the funds so that the actual claim may not be lodged for very many years. However, in terms of the legislation interest will only be paid from the date the claim is received by the board of control. In those cases the minors and other people concerned will be in a very unfair situation. This would be patently unfair and I am raising the issue at the Second Reading stage in order to allow the hon. the Minister an opportunity to consider a possible amendment. I should like him to consider an amendment which will give the board of control a discretion in regard to the date.

I may point out that the hon. member for East London City said that he did not feel that the board of control should have this discretion in regard to the date and that the law should be perfectly clear on this point. However, in view of the fact that the provision allows the board a discretion, nobody will be in a position to take the board of control to court on its decision. Let them therefore exercise their discretion fairly, even in respect of a person who has suffered loss from a date earlier than the date on which a claim was lodged with the board of control. If a discretion were allowed to the board of control there would be no difficulty whatsoever, so I do not have the same problems as the hon. member for East London City has in this regard. I want to point out that this is not a case of confusion in the law. It is merely a discretionary power, and therefore I believe that the hon. the Minister should seriously consider giving the board of control this discretionary power. I can assure hon. members that they will exercise that power with the greatest responsibility.

Mr. Speaker, I appreciate the unamimity which is once again prevailing in the House. With respect to the question of the discretion of the board of control, i.e. the provision that the board of control may pay interest in its discretion, I should like to point out that this Bill comes directly from the attorneys. The attorneys were never entitled to pay interest from this fund. Now they request authorization to pay these people a little interest. They are just being careful. They are trustees of a big fund, and they want to have the discretion to make payments or not. All they are asking us now is the following: “Give us the right to pay interest”. This is the first request they are making to us. At the present moment they do not have to pay interest. Therefore they are now asking us for a discretion in this connection, because they were previously not authorized to pay interest. Therefore I should like to leave the words “in its discretion” as they stand. The attorneys asked for this. I do not know anything about their fund, but they now want to divest themselves of certain moneys in the fund. We must allow them to do so, but we must not give them more than they are asking for.

The same applies in respect of the question of the date. I can imagine that there will be cases where it is due to the negligence of the client that his claim has not been put forward earlier. All that the attorneys are trying to do here, is to get people to go to the law societies as soon as possible. In other words, they are telling them: “You are only goint to receive your interest from the date on which we were aware of a claim against the fund.” In other words, as soon as one becomes aware that there is something amiss with one’s funds, one must inform the law society as soon as possible. After all one can not expect the attorneys to be prepared to pay out for years.

Therefore, Mr. Speaker, I think that at this stage, we should leave the Bill just as the attorneys presented it to us. I have the greatest confidence in the law societies, and if they had expected more than this from us, they would have asked for it. I repeat that this is not something which we forced upon them. It is something which they have offered to the public. Let us not be too hasty to break down the fund after it has been built up so well. It is to the advantage of the public as well as to the advantage of the attorneys. At this stage, let us content ourselves with what the attorneys asked us for.

Question agreed to.

Bill read a Second Time.

Committee Stage

Clause 2:

Mr. Chairman, I should for one moment like to take further the point first raised by the hon. member for East London City. He felt, if I remember correctly, that as there is a discretion granted as regards the paying of this interest, paragraph (a) of the new subsection (3) could well be left within the ambit of the discretion. I think that he is quite correct there. This takes away a discretion which could rest with the board of control of the fund. If not in every case, there may in fact be deserving cases which the board of control will then be able to deal with. I should therefore like to move as an amendment—

Mr. Chairman, I am quite surprised at the hon. member for Sandton, because I believe that he is a member of the legal profession himself. He has been told by the hon. the Minister that this is something which the board of control of the fund wants, that this is the way in which they want it to be done. Yet he still moves an amendment. Nevertheless, he is obviously tom between his duty and loyalty towards his profession and his duty and obligation to the people. I can understand this. But I want to assure the hon. member— and I think he might well consider withdrawing this amendment—that if he had taken the trouble to discuss the matter with the people in the legal profession who are dealing with this matter, the people on the board of control of the fund, he would have discovered the reasons why this particular aspect is being provided for so definitely. I am now referring to the question of the date from which the interest will run. It is purely a question of practicality, because the Fidelity Fund, lays down that it will reimburse for theft occurred. It is extraordinarily difficult for the Fidelity Fund to define exactly when the theft took place. On numerous occasions it is a continuing theft. The money itself is all involved in one trust account and it is from a common pool that the theft occurs. It is therefore very difficult to establish exactly when that claimant’s money was stolen. From a purely practical point of view it is almost impossible to establish any other date than the date upon which the Fidelity Fund receives the claim.

Secondly, the point which the hon. the Minister raised is very valid too. It will have the effect of making sure that claimants file their claims with the fund as early as possible. Unfortunately the experience of the fund has been that claimants are very quick to submit their claims, but when they are requested, in terms of the Act, to supply details in regard to that claim, they sit and wait and take no further steps for a very long time. This particular provision is included in the Bill in order to force them to file their claims timeously and in proper form. I regret that I am placed in this very invidious position of having to argue the hon. the Minister’s case, but I feel that it is only right that I should inform the hon. member for Sandton just exactly what the position is.

Mr. Chairman, I want to deal with the matter very briefly. As a member of the PRP I hold no special brief for the legal fraternity. I believe it is the right and the duty of every member to do his best to protect the man in the street, the individual, the citizen against closed shops and against organizations which have control over the affairs of people, of individuals. I look at this from the viewpoint of the ordinary man who has to be protected where his money is at stake. I do not look at this matter in the light of what would benefit the legal profession. I want this to be quite clear and let us be quite adamant about it. I believe that in this particular Bill we have the situation where it is already in the discretion of the legal profession, a profession which, as the hon. member for East London City has said, has already R2 million in the bank, to decide whether to pay out interest on a valid submitted claim or not. I say that there should not be a discretion.

If a claim is valid and it has been admitted, interest should be payable on it just as on any other matter. But that has been rejected and the general discretion remains. That is fair enough, but why then must we further limit and take away that discretion when we say that no interest shall be paid beyond a certain date? There may be circumstances where it is not only correct that interest should be paid, but where such payment is proper and just. I believe that that discretion should remain and if the hon. member for East London City, who is a learned boffin and who made an excellent speech, which I thoroughly enjoyed, on this matter, wishes to vote for the closed shop of the legal profession and against the people, let him do so. The people must be protected, and I therefore stand by this amendment.

Mr. Chairman, I was really surprised to hear an argument in this debate in which the legal fraternity was accused of being a closed shop, especially coming from a member of that profession who really should know better. I do not believe for one moment that that hon. member would like to open the doors of the legal profession further to admit every Tom, Dick or Harry. I will grant the hon. member that the legal profession is in a certain sense indeed a “closed shop”, because the law society places quite a high premium on the integrity and the training of attorneys before they are admitted. The hon. member tried to argue that we have here a special case where the poor, exploited public should be protected against a “closed shop”. However, I cannot understand that argument. What is more, any person who knows anything about the legal profession should know that normally, no client can claim interest from an attorney if he has invested funds in trust with that attorney. The attorney cannot pay interest to him on the money which he holds in trust, nor can he claim any interest under normal circumstances. Here we have a case where the legal profession has said—and with good reason: “After having realized or been informed by a member of the public that a member of the profession has embezzled money, we shall be able to pay interest to him.” It is as simple as that and I do not know why we have to argue about it in this case. I think the hon. the Minister made it quite clear that this Bill was instigated by the law society and that it was drafted at their request, not at the instigation of the State or of the Department of Justice. I think that the various boards of the various law societies in South Africa would probably know better than either myself or the hon. member for Sandton what is in the interest of the public in this case.

Mr. Chairman, I am not prepared to accept the amendment proposed by the hon. member for Sandton. This fund is not a Government fund and it is not a public fund. The fidelity fund is a fund that has been built up by attorneys. This is money that every attorney pays into the fund to protect the public. This is not a fund that can be strewn around. This is a hard-earned fund created by attorneys and they have voluntarily paid in this amount of money into this particular fund to enable the public to feel a certain amount of security when handing over trust moneys to an attorney. As the hon. member for Barberton has pointed out, once a man gives his money in trust to another man, he is not entitled to interest on that money. The attorney keeps it in trust for a particular purpose and the man who has handed him the money is not entitled to any interest. Therefore, if that money is lost, he should in actual fact just get his money back as redress. The attorneys find, because of the fact that their profession is so honourable, that the amount available in the fund is increasing; not getting less. Although we have a few bad attorneys, the fund is not being drawn on to the extent that they thought it would be drawn on. Here they come out of the goodness of their heart and they say to us: “Give us the right to pay a certain amount of interest to these people.” What more can the attorneys do than that but to say to us: “We retain the right to hand this interest out at our discretion and we also want to make certain of a certain time?”

This is their right. They are not only the custodians of the fund; they are also the owners of the fund. All the attorneys of South Africa own the fund. They have paid into it and it is their money they are giving out, so they are quite entitled to say that they do not want to give too much of it away and that they must be careful because they still want to protect the public. They therefore make the rules, and their rule is that they pay the money out at their discretion. They pay out the interest but not the other money. The lump sum, of course, they have to pay out, but the interest they can pay out at their discretion. The reason they are asking for the right is not in order to exercise their discretion against paying out the money, but in order to be able to pay it out. Therefore they also stipulate a fixed date. I do not know whether that date is arbitrary or not. I think the hon. member for East London has given us a good reason why they think that the date on which they get notice of this claim is the correct date from which the interest should run. I think this is a gift from the attorneys to the public of South Africa. I therefore do not think we can quarrel with this measure. I am not prepared to accept any amendments to this Bill. This comes from the attorneys in the form in which it is before the House, and I am prepared to stand by it.

Mr. Chairman, I wish to clarify a couple of points. Firstly, the fidelity fund has statutory recognition and, secondly, it is not charity, as the hon. the Minister says. The attorneys pay into a fidelity fund to protect the image of the profession.

They do not pay my money. They pay their money.

As I said, they pay into the fund to protect the image of the profession and also to see to it that when money is taken or stolen by other attorneys, in one form or another, the profession as a whole makes good the loss to the best of its ability. This is in the interests of the public and also in the interests of the profession. It is not a question of charity at all. It is a question of the attorneys doing their duty when the occasion arises.

Amendment negatived (Progressive Reform Party dissenting).

Clause agreed to.

House Resumed:

Bill reported without amendment.

Bill read a Third Time.

Mr. Speaker, I move—

In the Supreme Court Amendment Bill already dealt with by this House, provision is made for the appointment of deputy judges-president. The Bill now before this House contains a consequential amendment, namely to provide for the salary of a deputy judge-president. The average between the salary of a judge and a judge-president is proposed.

Mr. Speaker, we support this Bill. It is the Bill I referred to during the Second Reading debate on the Supreme Court Amendment Bill where provision is made for a small extra remuneration of R450 to a deputy judge-president for the work he will have to do should he be appointed. It is quite reasonable that a small extra remuneration be paid to a man holding that office, and this Bill consequently has our support.

Mr. Speaker, as stated, this Bill is consequential on a Bill already approved by us and we therefore shall support all stages.

Mr. Speaker, the responsible Opposition also supports the Second Reading of this Bill in view of the fact that it is consequential on a Bill we approved earlier this afternoon.

Mr. Speaker, I rise merely to thank the hon. members of their support of the Second Reading of this Bill.

Question agreed to.

Bill read a Second Time.

Committee Stage taken without debate.

Bill read a Third Time.

Mr. Speaker, I move—

It is the function of the police to maintain law and order at all times, even if it should sometimes be necessary to resort to force to achieve this aim. Due to the disorder which broke out in Soweto on 16 June 1976 and subsequently spread throughout the country, it was sometimes necessary to take drastic action in order to restore order. People were killed or injured and damage was done to property. This action will give rise to both civil and criminal proceedings. Our system of law gives the State wide powers to act in such times, but however slender their chances of success may be, no one is prevented by law from instituting proceedings against the State or its officials in an effort to recover damages. Such proceedings can give rise to the position that many of our police officers are kept busy in the courts to such an extent that essential police activities are seriously disrupted. Those people in particular who were the cause of the disorder and had a part in it and were injured or suffered damage in the process, cannot expect to be given another opportunity to burden the police with the task of defending themselves against unfounded claims.

It should also be borne in mind that due to the large-scale confusion that often prevailed at the time of the disorder, there is a strong possibility that false claims may be instituted against the State or its employees. Time and money involved in defence against such claims cannot be justified.

In the past, legislation has been adopted in such instances which has protected the State and its officials against legal proceedings which could be instituted against them due to acts carried out in good faith in order to deal with the situation. In this regard reference can be made to the Indemnity Bill of 1961.

In the Bill at present before the House, indemnity is again being proposed. However, I want to state clearly that it is not the intention to prevent people from obtaining compensation if they do in fact have a sound case. If, therefore, the legislation is adopted, the appointment of a committee to carry out due investigation in deserving cases and make recommendations, is envisaged. I want to give the House the assurance that all claims referred to my department will be considered with the greatest objectivity and that compensation will be paid in all deserving cases.

Initially it was deemed necessary to make provision in clause 1 (2)(c) for the awarding of costs in appropriate litigation. However, on reconsidering the matter I am convinced that a provision of this nature could cause problems, particularly in cases in which proceedings are already pending. The normal rule that costs are left entirely to the discretion of the courts ought rather to apply. I therefore intend to move in the Committee State that clause l(2)(c) be deleted.

Mr. Speaker, I think it is of use for the House to consider in the first instance exactly what an indemnity Bill is and also what it is not. There is nothing new in the idea of a Bill of indemnity, particularly where the country has been through a period of rioting and violence such as we have had since June of last year. Indeed, in South Africa we had a Bill of indemnity in 1914, another in 1915, yet another in 1922, one in 1940 and one in 1961. If one goes into the history of legislation of this kind in the British system, and those allied to it, I think it is fair to say that they go back to the time of Charles I.

In 1914 a Bill of indemnity was brought in as a result of the strikes and rioting which took place on the Witwatersrand. In 1915 a Bill of indemnity was brought in as a result of the disturbances which took place at the time of the expedition to what was called German South West Africa. In 1922 there was a Bill of indemnity again in regard to the rioting and strikes on the Witwatersrand and in 1940 there was one in relation to the war. In 1961 a Bill of indemnity was introduced after the Sharpeville disturbances and those which took place at Langa.

A Bill of indemnity, in the first instance, as I understand it, is designed to give protection to the peace officers, that is to say the police, and those officers who direct and control them, which of course include the Minister and the senior men in his department and may indeed include the State President himself. It is designed to give protection to those persons when they are exercising their duty to restore law and order in times of civil disturbance. A Bill of indemnity is brought in not because police officers are entirely without protection in the ordinary course of the law. They have a measure of protection, as is well known, provided they are exercising their function in terms of the order of a superior officer and provided they exercise no more force than is necessary to complete the job they are supposed to be doing. I think it is well known, and it is proper that it should be known, that circumstances arise when police officers having been detailed to control a riotous situation, do not always find it easy in the execution of their duty to make a finely calculated decision, after weighing up the pros and cons of the situation as to whether this particular course of action should be taken or that particular course of action should be taken. Indeed, I believe it can be put succinctly if one says that the officer in charge of a squad of policemen, whose job it is to deal with a riotous situation, does not have a lawyer standing at his elbow to advise him precisely what should be done. So one finds throughout history, one may say, police officers acting in good faith to contain a situation, while, when looked at in the calm light of the situation thereafter, from the point of view of what might be said is the point of view of the informed armchair critic, one could say that he has made an error of judgment in what he has done. Consequently, Sir, the defendant could possibly be liable in the ordinary course, when, in reality, one could not really blame him for that error in the circumstances in which he was operating. Similarly, cases could arise, in the heat of the moment, when he is in default of doing certain things which the law requires of him, before force can be used. It is not unreasonable, because of the heat of the situation and the difficulties in which he finds himself, he should be offered protection in that respect: That is the one category of cases where it is right and proper that the authorities which I have named should have the benefit of an indemnity Act. Throughout, as long as I have been able to go back, there has been general acceptance, on all occasions and by all persons concerned, that in principle an Act of indemnity to cover that type of situation is right and proper and has general support. As far as I am concerned, I accept the point of view that there are cases—especially when one has a situation of violence and riot to be dealt with—in which it is proper that the principle of indemnity should be applied.

On the other side one gets the extreme type of case which should not be protected, and which is, indeed, not protected, either by this legislation, or by any other legislation that I have read. They all follow, I may say, very much a similar course, in the sense that their terminology is similar. The type of case that I have in mind, is where there has been quite clearly a grave breach of duty on the part of the officers or the officials concerned. One can think of extreme cases which one hears about. Whether they are true or not, one does not know. However, there are extreme cases where one hears of a person’s bedroom being entered; the person concerned is asleep in his bed and he is assaulted by a policeman. Now, Sir, a case like that would not … [Interjections.] I cannot say whether it is true or not, but one hears … [Interjections.] I am making a point of the extreme type of case that ought not to be covered by a Bill of indemnity and, in my view, is not covered by this Bill of Indemnity. [Interjections.] I am dealing with the two sides of the question. I have dealt with the type of case which ought to be covered, and it is simply proper that we should consider those types of cases which can arise and which should not be covered.

Sir, there are other cases which one hears of, cases occurring in circumstances removed from the riotous situation, cases where force has been used against bystanders who are not involved. In my view cases of that kind are not covered by this Bill. Similarly, Sir, those cases one has heard of—whether they are true or not, I do not know—where classrooms have been entered by riot control policemen and where there is no disturbance in relation to the class or the school, but where force has nevertheless been used, should not be covered by an indemnity Bill. All similar cases should not be covered by an indemnity Bill, and in my view they are not covered by the present Bill.

What is the principal part of a Bill of indemnity—and one sees it in all of them—is the presumption which operates in respect of a deed done in good faith and with intent to prevent or suppress or terminate the violence concerned. That is not an irrebuttable presumption, but a presumption which can be rebutted by alleging and proving the contrary or by proving that the circumstances were such that that intent and that good faith could not have been exercised. The examples that I have given fall, I believe, into that category and would consequently not be protected by an indemnity of this kind. If, then, there are valid categories of cases where a Bill of indemnity should apply—and I have tried to outline them—and there are other categories of cases where an indemnity should not apply and which, as I have said, are not covered by this Bill, the question is to be asked: Why is it necessary to say anything more than “I support the Bill”?

[Inaudible.]

I am glad the hon. gentleman says that, because he has not given very much thought to this matter. Now, Sir, there is a third category of cases which is not dealt with by this Bill, and that is why the hon. the Minister felt it necessary to say in his opening remarks that he was to appoint a committee to go into the question of compensation in a proper case. It is that category that I have regard to when I say that there is a grey area in the middle. There is a grey area where two categories of persons have to be dealt with, persons who would or might prima facie be shut out by a Bill of this kind, but who in the circumstances ought to receive proper compensation for injury done.

In the first category are those persons who consult a lawyer because they believe that they have suffered injury, loss or damage as the result of action by the police in a riotous situation. It is an uncertain case and the people say: “I want your advice as to whether I am going to succeed, because unless I succeed it is likely that costs will be awarded against me and I cannot afford to run the risk of being mulcted heavily for costs in an action.” The lawyer may say to him: “I cannot say positively that you will succeed, but there is a fair chance that you might because yours is really a very hard case.” In many cases the individual in that position will say: “Well, I would rather not go to court than run the risk of being mulcted in costs. ” In reality, but for the presumptions which exist here and the circumstances of the police having to contain a riot, it is the sort of case where compensation ought to be awarded because he or she—the claimant—is what you might call an innocent victim of a riotous situation. This, Sir, is the one type of case. The other type is where a policeman genuinely has to use force in order to quell a riotous situation. This often takes place in a built-up area, and the policeman is obliged to use a gun and to shoot legitimately to contain a riotous situation, misses the target and the bullet strikes an innocent bystander who may be the breadwinner of a family. This is another case where compensation ought properly to be a paid and this is, no doubt, another reason why the Minister feels constrained to say that a committee will be established, a committee to review compensation matters of this kind.

When one considers that the greater part of the riotous situation which had to be contained was in areas like Soweto where tens of thousands of people were involved not only within what might be termed a central business area, but also within the residential areas themselves, there where the people live and where children go to school, when one has regard to police action within a built-up area of that kind, a residential area, not only is the job of the police made more difficult, and, consequently, one’s understanding for a Bill of indemnity all the greater, but, equally, there is a far wider opportunity for an innocent bystander suffering a loss in respect of person or property.

That type of loss is so much greater and so much more likely to be felt. Consequently, one of the crucial things to be looked at here is not the ordinary case which is covered by a Bill of indemnity such as I have outlined, or the extreme case, which would not in my view be indemnified in any event; it is the grey area in the centre which, as far as I can see, is the main question before the House. Now, what is one to do in that regard? The hon. the Minister has indicated very briefly, without any detail, that he proposes to set up a committee. I should like to see, written into the Bill, provisions for the establishment of a committee to assess compensation and the circumstances under which such compensation is to be paid, as well as an obligation on the hon. the Minister to pay compensation in those circumstances. Such a provision is written into the Defence Amendment Act, which came before this House last year. The House will remember that, in the case of that Act, the problem was encountered in the operational areas of South Africa and South West Africa, which are, as hon. members know, extensive areas. In that case a lengthy set of provisions was inserted into the Act, dealing with the fact that compensation was to be applied and with the categories in which compensation could be applied. In the first instance what was required was an application to the Minister in writing for compensation to be paid. I may say that the act of indemnity incorporated there was very similar to the act of indemnity which we are considering now. The additional provisions were that one could apply to the Minister in writing for compensation, setting out fully the grounds on which the application was based, and the Minister, acting in consultation with the Minister of Finance, could grant that application and make an ex gratia payment immediately. Otherwise, if the application was not granted or if it was granted and there was doubt as to the amount to be paid, the Minister was obliged to refer the application to a board established in terms of other provisions of that Act. A board was provided for, and it is interesting to note that the official who was required to be chairman of the board was a judge of the Supreme Court or a magistrate, and that two others were required to sit with him to determine these cases. In any case, there was something very close to an appeal, because if the claimant was dissatisfied with the Minister’s decision, he could appeal to this compensation board. The board was obliged to consider the matter, and the Minister was obliged to abide by any recommendation of that board.

Sir, I have mentioned briefly the sort of provisions that we on this side regard as essential in an indemnity Bill such as the one which is before the House at the present time. I want to make it quite clear that there are two aspects of the Bill which we support, namely the general idea of indemnity although we do not support the general idea of indemnity without adequate provision being written into the Bill, not merely a general and rather vague statement such as the hon. the Minister has made, but a provision which ensures the principle of compensation in the Bill, which obliges the hon. the Minister to pay in a proper case, which ensures that there is something in the nature of an appeal to that board from any decision of the hon. the Minister, such as we have in the Defence Amendment Act, and that it be presided over by a judicial officer as is there contained. Unfortunately, none of those things relating to compensation are present in this Bill. Accordingly, I should like to move as an amendment—

I have no doubt that in his reply the hon. the Minister will refer me to the debate which took place in 1922 in respect of the 1922 legislation introduced by Gen. Smuts. I am quite aware of that, because I have read that debate as also the previous debates of 1914 and 1915. Incidentally, Mr. Speaker, if you think that we talk at too great length in this House today, I suggest you read those debates.

Now, I am aware that the hon. the Minister of the Interior in 1922 during the course of the debate indicated from those benches, as the hon. the Minister has now done, that a committee would be appointed to award compensation. He did it then in far greater detail and with much greater precision than we have had it done today. Nevertheless, despite that, we now have a better precedent, in terms of the Defence Amendment Act, where the matter is set out far more fully than it was by the Minister of the Interior in 1922 and far more fully than was set out by the then Minister of Justice in the debates of 1961. Consequently, I think one cannot settle for anything less, if I may put it that way, than that the Bill be amended to contain the provisions which I have indicated.

I think I have covered the historical aspects relating to Bills of indemnity, the type of acts or omissions which could arise and which are necessary to be protected, the type of cases which fall outside an Act of indemnity of this kind and the very important grey area which, to us, is the key to the whole situation, particularly in present circumstances. Even before the report of the Cillié Commission has been received by this House I think one can legitimately say that the disturbances of the last six or eight months are not identical to those which have taken place in the past. They arose in circumstances different from those which took place in the past and they have given rise to tensions which are different and have a different significance from those which existed in the past. In the light of those circumstances, particularly the circumstances which I have referred to, as to the grey area in the centre—it is the phrase I used to describe it—I hope that the hon. the Minister will find it possible to give favourable consideration to the amendment which I have moved.

Mr. Speaker, this afternoon the hon. member for Umhlatuzana took up what was, in my opinion, a fairly moderate standpoint, especially in the light of their standpoint in previous debates in which the Opposition argued about similar legislation. I think that the hon. member and his party have made a little progress since 1961 because in 1961 that side of the House was only prepared to agree to anything concerning indemnity if such indemnity was in respect of the Police. Such indemnity in respect of other officials of the State and of the State itself, as formulated in the legislation, was unacceptable to them in that year. It is interesting that the hon. members will hear the speech of the hon. member for Houghton just after mine. In 1961, the hon. member for Houghton and the then member for the Transkei, now the Chief Whip of the UP, were 100% in agreement with each other. I want to anticipate in the light of recent events that we will probably have unanimity in this regard today.

The hon. member for Umhlatuzana has a problem with what he calls a grey spot in the Law, that grey spot which is not covered by the Law. As the hon. member said, we have had various indemnity laws in this country and he set out the history of these laws. Then the hon. member took the Defence Amendment Act, Act No. 1 of 1976, as an example of how an Act should be written in order to cope with this grey spot, viz. those cases which cannot easily be dealt with. However, the hon. Minister and the Department themselves also anticipated that there would be cases which were not easily definable. The hon. Minister therefore made provision for the committee which will be appointed for the very purpose of dealing with those cases which are not easily definable. The hon. member now wants to extend this further and to write this specifically into the Act, but the hon. member may as well go and look at the Defence Amendment Act,! the first Act of last year. In that Act, too, everything quite simply boils down to the discretion of the hon. Minister. The hon. member for Durban Point could enlighten himself a little on that matter because that hon. member was in fact opposed to the Minister being able to exercise too much discretion under the Defence Act. This is surely not the first time that we have argued about this aspect, namely, the case which is difficult to define. Surely we have conducted many debates on this aspect as far as indemnity laws are concerned. Hon. members will remember that on all previous occasions when the NP and the UP had to take up a standpoint on indemnity laws and one had problematical cases, both parties proceeded from the standpoint that there could be an ex gratia payment to people who had suffered bona fide damage in the process. That is precisely what the hon. Minister is now doing again. The system of ex gratia payments which obtained in the past is now being extended a little by the hon. Minister by the appointment of a committee which can delve deeper into the cases, because after the recent disorder it has become essential that there be a committee. It was not disorder which was directly comparable to any previous disorder which we have had in this country. Not only in respect of the intensity but especially in respect of the methodology it is not even comparable to the disorder of 1961. I think the hon. member for Umhlatuzana will concede that a committee is the correct approach in this case, for here we are probably going to get many such doubtful cases where we will be dealing with school children, whereas in the past we were not dealing with minors or school children. Therefore by far the best procedure will quite simply be the one which the hon. Minister has proposed, viz. that a committee should consider these cases which are difficult to define.

I am very grateful that the hon. member for Umhlatuzana conceded at once that the Police must be protected in this indemnity legislation. It is essential that we introduce this legislation, not only in order to compensate people who have suffered bona fide damage in the process but also so that our police—the people who continually have to maintain law and order in this country—may know that this House is aware of the difficult circumstances under which they have to maintain law and order and that this House will be prepared, as it has been in the past, to accommodate them by enacting legislation of this nature. Under more normal circumstances such as strikes in the past, very little use has been made of ex gratia payments, it is even more essential to appoint a committee. We applied precisely the same principle after Sharpeville in 1961. This side of the House, the NP Government, also made ex gratia payments after 1961 and investigations were also instituted into all cases which came to the attention of the Department of people who thought that, through no fault of their own, they had become involved in a situation and had suffered damages as a result. Today, much evidence can be brought forward to bear testimony to the satisfaction of those people whose cases were handled in this way after the 1961 disorders at Sharpeville and elsewhere. We are therefore in precisely the same position today as the one in which we were after 1961 and, historically speaking— as the hon. member for Umhlatuzana has indicated—we must have this legislation. We are in precisely the same position as the one in which all other parties found themselves in the past. Under such circumstances, therefore, the police have to be protected, and we must also extend it to the officials of the State, so that they too may be protected in such cases. We are ad idem that we do not want to afford protection by way of this legislation to extreme cases such as those which the hon. member for Umhlatuzana mentioned as examples here today. We are ad idem that there should indeed be compensation for people who have suffered losses under these circumstances. However, we differ in one single respect and that is that that side of the House wants provisions similar to those in the Defence Act to be written into this legislation. The hon. Minister said however, that we did not need them and that he was going to appoint a committee to see to the cases which the hon. member for Umhlatuzana mentioned. If we only differ over that one point today, then I believe that we have already made considerable progress.

In conclusion, there is something else I should just like to say to the hon. Opposition. Since they have reached the point where they are now beginning to accept these principles, over which they differed with this side of the House in 1961, why, in these times in which we find ourselves, does the Opposition not support the Government seeing that the hon. Minister and his Department are prepared to go further than a mere ex gratia payment, in other words, seeing that they are prepared to appoint a committee to institute a really thorough investigation? Why can we not get those hon. members to support us in that particular aspect as well? Then, as far as this whole matter is concerned, we shall surely have collaborated well.

Do you accept the amendment?

We cannot accept that amendment because what that amendment contains is precisely what the hon. Minister wants to do. Why, then, should we accept such an amendment? [Interjections.] The procedure which was accepted and applied by this Department in the past, has brought satisfaction. All that those members want now, is that we should put it in writing, as has been done in Defence legislation. But then the hon. Minister would probably have to forgo some of his discretionary powers, while the Defence legislation is, in truth, based on discretion.

But you have not read it yet.

Mr. Speaker, if the hon. member for Durban Point would like a turn to speak, he is welcome to let his Whips know. I will not permit him to tell me that I have not read that legislation. The hon. members on the opposite side now want us to forgo the passing of the Second Reading of this Bill completely, whereas it must in fact be placed on the Statute Book urgently. This was the case on all occasions in the past. This was also the case in 1922 when Gen. Smuts was in office. At that time, too, a similar measure was placed on the Statute Book urgently. The danger exists that what this measure seeks to prevent, may already be done against policemen and officials of the State. It is thus essential that this Bill be placed on the Statute Book.

I cannot see why it should be necessary to spell out, as in Defence legislation, the fact, that we have to create precisely the same machinery. After all, it concerns indemnity in the area of internal security. It has to do with disorder. Why must we put precisely the same machinery into operation as that which was introduced under Defence legislation, which makes provision for the case in which we are involved in total warfare? Surely the hon. members realize that it cannot be expected of the State to act under precisely the same set of rules which obtain during a state of war? Surely it is absurd to reason in this way, unless those hon. members are prepared to say that they regard the situation of disorder which prevailed as being a state of war. If they want to regard the situation of disorder as being a state of war, they must also tell us who declared war or who made war. They must tell us because in the no-confidence debate they adopted the standpoint that the unrest and disorder arose as a result of nothing other than the Government’s policy.

That is true.

Well, we debated that issue. I do not believe that it is relevant in this debate. We are not dealing here with a state of war but with legislation which was passed on every occasion in the past after a state of emergency had been declared in a certain area. We are doing precisely the same thing as we have done in the past. I can therefore not accept that we will make any progress whatsoever by accepting the amendment of the hon. member for Umhlatuzana. I am simply not prepared to accept that the unrest which we had constituted a state of war in South Africa.

Mr. Speaker, the hon. member for Schweizer-Reneke informed the House that the Bill which the hon. the Minister has introduced today precisely matches measures that have been taken in the past. He forgets, of course, to mention one very important thing, viz. that on every single occasion when this House has debated an indemnity Bill, it has been after a crisis in which a state of emergency or martial law has actually been declared. That is the difference. 1940 was an exception, but then there was a declared state of war. The hon. the Minister has introduced this Bill without there being a declared state of emergency.

But you said there was. You are arguing against yourself now.

Yes, but the hon. the Minister should have declared a state of emergency. He does not understand that I do not want him to take unto himself all sorts of powers without declaring a state of emergency. I might even have been prepared to grant him those powers in a declared state of emergency. But he wants his cake and he wants to eat it as well. He wants to have all the powers which might reasonably be taken in a declared state of emergency, or after martial law has been declared or when we are in a state of declared war, but he does not want to declare a state of emergency. He thinks somehow, that in this way South Africa will manage to keep its difficulties from the knowledge of the outside world. Of course, this is ridiculous! The hon. the Minister might just as well just go ahead and declare a state of emergency so that everybody knows where they are. It was more than a year after Sharpeville that the then Indemnity Bill was introduced. That was in May 1961. As we all know, Sharpeville was in March 1960. There was no Indemnity Bill as such introduced then. What happened, however, was that a state of emergency was declared and the indemnity clauses were written into the emergency regulations. That is what happened after Sharpeville.

Now, the hon. the Minister introduces this Bill without giving any warning. He gives no Press release about his intention to set up a standing committee which is similar to the one that was set up after Sharpeville to examine claims by people who might have suffered wrongfully by injury, damage or loss during riotous times. He tells us nothing; he springs it on the House as a surprise. [Interjections.] What I want to know is whether the hon. the Minister informed anybody about this. Did the Official Opposition know? We of the PRP certainly did not know. Neither the official Opposition nor we in these benches knew, but maybe he told the smallest Opposition in this House. I do not know.

Sensible Opposition!.

Certainly he did not tell anybody else in the House nor did he even bother to inform the Press. I want to say at once that although a committee like that is better than nothing, because it may mean that damages are paid out to people who otherwise would not get a brass farthing for the damage which they have suffered through wrongful action, it is no substitute for access to the courts of law as far as these benches are concerned.

That is why it is not in the Bill.

Well, I agree, I do not care whether or not is is in the Bill, quite honestly.

You can go to court any time you want to.

We on this side of the House are going to oppose this Bill. Of course, this comes as no surprise to the hon. the Minister. We are going to move that the Bill be read “this day six months”, the most extreme form of parliamentary opposition to this Bill.

You are being ridiculous …

That happens to be parliamentary procedure.

You are making a farce of Parliament.

I believe that this Bill should not be accepted by this House under any circumstances.

Why?

I shall tell the hon. member why. I have quite a lot of time at my disposal and I intend using it. First of all, as I say, it is no substitute for the courts, even if a committee is set up. Hon. members must not forget that it will be a committee with an official no doubt appointed by the hon. the Minister, as happened after Sharpeville when the State Attorney acted as the chairman of that committee, to decide whether the claims were valid or not. I think claims of up to something like £500 000 were in fact lodged after Sharpeville. I believe a committee is no substitute whatever for the normal access to the courts of law which can then decide whether or not those claims should be met. The police have a measure of protection as it is. Everybody accepts that in times of violence, the police must have the right to defend themselves when their own lives are threatened, when other people’s lives are threatened or when people are acting in a violent and riotous fashion. Everybody accepts that.

Then why do you complain?

Indeed, the police standing orders, which I presume still hold, lay this down. The police standing orders are very strict about the use of firearms and I shall read out the relevant paragraph so that hon. members in this House will know what these standing orders say, not what the dangerous, leftist liberals say who want the police to be exposed to all sorts of dangers

Your difficulty is that you have not thought about the Bill …

I have thought about the Bill and these arguments are perfectly valid. The Bill is giving indemnity to the police, to the State and any agents of the State who might have acted in good faith, but who might otherwise be construed as having acted in a wrongful manner. The standing orders, as far as firing and the use of arms are concerned, state the following in para 9 on page 27—

And members of this House, I might add—

Then, Sir a number of conditions are detailed allowing them, among other reasons, to use their firearms if their stations or barracks are attacked, if an attempt is made to deprive them of their arms or of their prisoners, and—this I believe is the relevant reason in this particular case—to defend themselves against death or serious injury and to defend another person, or persons, unlawfully attacked, from death or serious injury. Sir, that gives the police protection. They do not need the order of a superior officer to fire, which they do need in all other circumstances. The stories vary as to what happened on that fateful day of 16 June, when that mob of students was proceeding to hold its demonstration and was confronted by the police. One story says that the police threw teargas and then the students threw stones, and the other story says that the students threw stones and then the police threw teargas.

Which story do you believe?

Well, I am prepared to believe either, quite honestly. But then, shots were fired, and that was the fateful thing. That was what turned the whole thing into a riot, and I want to ask the hon. the Minister whether he knows or whether he has established whether, indeed, an order to fire was ever given by a superior officer.

Mr. Speaker, when the hon. the Minister has finished his little side-joke with the hon. Whip, perhaps he will answer my question.

[Inaudible.]

Are you ready?

[Inaudible.]

I have asked the question …

[Inaudible.] [Interjections.]

The hon. Whip can leave the room while the debate is on, and the hon. the Minister can talk to him afterwards. This is my half-hour and I am entitled to have the hon. the Minister’s attention. [Interjections.] Now, I want the hon. the Minister to tell me whether any order was ever given by a superior officer to fire on 16 June. That, Sir, would be the one very important factor which would be examined by a court of law. The standing orders say—and I quote from page 110, chapter 27—

The very last sentence in this particular chapter—on page 114—says—

I believe that, in terms of these standing orders, numerous people would have been able to go to court and would have been able to claim compensation for actions taken against them from 16 June last year right up to the present time, and that is in order to obviate those claims that the hon. the Minister is introducing this Bill.

Mr. Speaker, I have been making some investigations over the weekend and I have discovered that something like 65 claims are already in the pipeline. Thirty-seven claims are already in the pipeline in Cape Town, and something like 26 or 27 in Johannesburg. Those are just the ones that I know of. I do not know how many others there are. I have no idea. I say to the hon. the Minister that for him to introduce this Bill, when nobody can go to court, or where, if they go to court, they have to prove mala fides, something which every lawyer—even every non-lawyer—in this hon. House knows is impossible, is a shame. It is a shame because the riots have released in South Africa a flood of hostility and hatred against the Government, against the police and against the White man as a whole, and I want to …

Order! The hon. member cannot discuss the riots, the background to the riots and the effect of the riots now. The hon. member may discuss those aspects only as far as the preservation and the maintenance of order and the actual deeds are concerned.

Sir, with respect, that is what I have been trying to do. This hon. Minister now comes forward with a Bill which is going to deny people who were wrongfully—I want to stress, wrongfully— injured during the riots any compensation save that compensation which the standing committee is going to give them.

[Inaudible.]

I am sorry, Sir, but that is no substitute for a normal court of law, where evidence can be led, where the whole case can be put, where the actions of the police can be examined in contrast to the standing orders. It is no compensation whatsoever. I want to tell the hon. the Minister that I have here statements and affidavits which I have no doubt, if produced in a court of law and if there were no indemnity, would result in very considerable compensation being awarded to these people.

I saw in the newspaper the other day that the hon. the Minister now comes along and provides his riot police with all sorts of protective devices. I asked him about that months ago, and he laughed and jeered at me. I say, categorically, that if that sort of protection had been provided to the police earlier on, there would have been many fewer fatalities during the riots in this country. It would probably have save the hon. the Minister the necessity for a Bill like this and the necessity of having to set up the standing committee. [Interjections.] I can read out to the House many statements and affidavits made by people who were not engaged in rioting at all.

We do not want to hear all your gory details. [Interjections.]

These are “skin-derstories”, I suppose, “skinderstories” to the hon. the Minister. I really do not care whether the hon. the Minister wants to hear these gory stories or whether he does not want to hear them.

We know why you are doing it; so carry on.

I am doing it to bring to your attention, Sir, the fact that very many people have got legitimate claims and will get much more out of a court of law than out of the hon. the Minister’s standing committee. [Interjections.] I do not care if hon. members shout and scream at me. It does not affect me in the slightest, because I am used to it. I am quite used to it. [Interjections.]

Order!

There is the notorious case of the green Chevrolet which the hon. the Minister tells me was never used by the police to shoot at passers-by, but simply that the police only shot when their lives were in danger. From a car, mark you! I have the case here of a youth who was shot from the green Chevrolet and was killed. He was a young man of 20. There is also the case of the famous white Valiant which drives up and down in Soweto and which is a known police car with a identified police car number. Rifles have been seen to protrude from this car and people have been shot as a result of the actions of people in that car, not riotous people, but passers-by, people walking in the streets of Soweto. [Interjections.] There is the case of the eight young boys playing football who were shot at from one of these police cars. I think it is a disgrace.

That is a lie!

Now these people have to go and claim compensation from the hon. the Minister’s standing committee. I say that we stand by the law courts, we stand by the right of people to claim compensation when wrongful actions have been taken against them, be it by the police or by anybody else. [Interjections.]

Order!

Finally, I want to say to the hon. the Minister that he ought to realize the psychological effect of a Bill like this. It has a great psychological effect. It causes people to lose the last remnants of faith that they have in the law courts and in justice in South Africa. The hon. the Minister should talk to some of the ordinary people of Soweto, Langa and Guguletu before he brings a Bill like this to the House. I believe that this Minister and the Government will be responsible at their peril if they introduce this Bill to this House today and pass it. The last vestiges of faith in the system of justice in South Africa will disappear when people know that they cannot go to the courts of law and that they are unable to lodge claims against the Government for the wrongful actions that were done by some police during the course of the riots in South Africa. [Interjections.]

Order!

I therefore move as an amendment—

Mr. Speaker, if any member of the House was under the impression that a working arrangement existed between the PRP and the UP, that impression has just been shattered by the hon. member for Houghton. In fact, it appears to me that there could be co-operation between the rest of the PRP and the UP, but not between the UP and that outrider. The hon. member for Houghton started her speech, and up to now she has not yet explained why she opposes the Bill and which motivation she feels to be the strongest. She did, however, indicate that the indemnity legislation previously adopted by Parliament followed on the declaration of states of emergency, and she referred to the various occasions in the past when this was in fact done. In the course of her argument, the hon. member came to the essence of the situation in 1976. What is that essence? The essence is that a classic state of emergency as we knew it and on the basis of which the British developed their indemnity laws and state of emergency laws, simply no longer exists. The situation as we know it today prevails throughout the world and not only in South Africa. Various countries are coming up with various measures with which to deal with this situation, and states of emergency are never declared any more in order to promulgate emergency measures. It is well known, for example, that in a country like Germany the security situation is dealt with, inter alia, by questioning and detaining people until they have certain information. They do not declare a state of emergency if an embassy is taken over or an Olympic Games is disrupted. They have other methods of operation because in the face of this threat which menaces the entire world, namely terrorism and the specific methods of terrorism, it is impossible to take steps with regard to a state of emergency and act in accordance therewith, because one would then be living constantly in such a situation. This does not apply to South Africa alone. That is why countries throughout the world have become accustomed to living with a situation in which terrorism has to be combated.

In view of this it must be seen that the hon. the Minister takes steps which are not linked to the declaration of a state of emergency in terms of the Public Safety Act of 1953. In view of this the hon. member for Houghton has not yet furnished us with an adequate indication as to how they wish to and would deal with these new times we are living in at present. Time and again they ask that, as in the past, a state of emergency be declared before the State may take these other steps. They have not yet provided an adequate answer to what we could describe as a deviation from the classical form of a state of emergency. Consequently we can in no way accept the argument advanced by the hon. member for Houghton in regard to this point. Nor could I detect whether she indeed agrees with the hon. member for Umhlatuzana in so far as the protection of the police is concerned. In no way did she concede that the police must, after all, be protected. The hon. member for Umhlatuzana based his argument on that. If the hon. member for Houghton concedes that the police must be protected, I want to ask her now: Does she concede that the police acted justly and lawfully against, say, a single agitator? Answer me, please!

Of course, they did!

The hon. member concedes, therefore, that they acted lawfully against a single agitator. Does the hon. member concede that it could have been a 100? It could just as well have been a 1 000 or 2 000. Does the hon. member want to dispute that? The hon. member does not dispute it and this brings me to the point that the hon. member for Umhlatuzana wanted to draw an analogy with the Defence Act. Now, what is the radical difference between this and the situation which the Defence Act is designed to meet? The Defence Act deals with a situation in which the Defence Force acts against terrorism in the operational area. Who will one come across in an operational area? Will one find 2 000 citizens strolling around there, will one perhaps come across a few individuals there or will one have the situation that the property of citizens—being limited properties—are affected? This is undoubtedly the case, but the hon. member does not want to reply to me and in the absence of a reply I take it that the hon. member agrees with me that there could just as well have been 2 000 people against whom they took lawful action. According to her there could perhaps be 1 000 borderline cases, because so many citizens were present in certain areas owing to curiosity. The question then arises whether the hon. member wants to take such cases to our courts. Under the Defence Act we have to deal with situations that can be easily handled. In this specific instance there is the possibility that large numbers of borderline cases could crop up. The hon. member is now asking that our courts should deal with this and I concede that there may be a few borderline cases, but what about the people with malicious intent? We know that the hon. member spent the weekend tracing a large number of people and finding out whether they did not perhaps want to make statements. The hon. member already has a large number of statements and hon. members can think for themselves what pains she will go to to obtain a still greater number over the next weekend and the subsequent one. Parliament is still going to be in session for six months and we can think for ourselves what an instrument it could be in the hands of the hon. member for Houghton if she could go to a body established by the Act with such cases. Consequently I think the hon. the Minister acted wisely in dealing with the matter in this way. I want to go further and express my confidence that the hon. the Minister will streamline this instrument which he will create to enable it to deal with situations of this nature.

The hon. member for Houghton provided no further material to which I can reply, apart from her final statement to the effect that by means of this legislation we were dousing the last glimmer of confidence in our courts and in the Government as well. If we analyse this argument we see that due to its sales value abroad, in terms of propaganda, it constitutes the worst form of sabotage possible, because it is untrue. In what respect is the integrity of our judges being assailed? In what respect is any person charged under the security measures deprived of the right to a hearing? What people are being affected by this measure? It is only those who were involved in the riots and no one else. What about the rest of our legal administration, which remains absolutely unaffected? Was it the hon. member’s intention to insult our judiciary? The hon. member is welcome to attack the Government; she says that she is paid to do that and I am of the opinion that she is paid too much. I think the hon. member brought a blatant indictment against our judiciary and I should like to hear hon. members of the UP stand up and repudiate it, because according to the present dispensation among them, they stand and fall by what their outriders say.

I want to conclude by saying that the hon. member for Houghton cast no new light on their reasons for their opposition to the Bill. We expect the UP to take the part of their outrider or to reprimand her and explain to us why—if there is co-operation among them— she went further with her amendment than did the hon. member for Umhlatuzana.

Mr. Speaker, we on this side of the House have endeavoured to approach this Bill with a complete sense of objectivity. As does every good South African, we certainly deplore what has taken place over the last seven or eight months. Many of us have conflicting emotions over what has occurred but the matter is being dealt with at the moment by an important commission presided over by the Judge-President of the Transvaal and no doubt, as the hon. the Minister has promised, we will see the report of this commission, I hope as soon as possible, but certainly during this session of Parliament. Our viewpoint, as stated so clearly by the hon. member for Umhlatuzana, has obviously been based on a very careful consideration of the Bill, its terms and implications and the legal situation as far as constitutional law is concerned. We have authoritative cases in our own law. One such instance is the Appellate Division decision given by Chief Justice Innes in what is known as the Krohn case, and then there are also the excerpts which one will find in Dicey’s Law of the Constitution. I quote Chief Justice Innes in Krohn’s case—

Dicey goes on to deal with the fact that in times of stress and danger, which affect the safety of the State and the community, it is necessary for steps to be taken in order to quell those conditions, to restore the situation to a peaceful one and to maintain law and order. That is regarded as one of the fundamental duties of the State. Therefore we support the fact that some provision for indemnification should be made and should be provided by the State. However, we go further and say that those unfortunate innocents and their dependants who suffer as a result of these particular riotous conditions or conditions of unrest, should be entitled to receive the consideration of the State, as should those who have suffered either damage to their person or their property as well as dependants of those who have suffered fatal damage to their persons.

This was the basis of our opposition to the Bill in 1961. We have not come, as the hon. member for Schweizer-Reneke said, a “long way” since 1961. In 1961 we accepted the principle of an indemnity Bill. We stated, however, that the State should not be exonerated from certain responsibilities. That was the tenor of the whole Opposition attitude in this matter and the basis on which we voted on an amendment moved by the hon. member for the Transkei. We have accordingly not differed at any time in our attitude on this matter and therefore, when the Defence Bill last year entrenched these provisions in similar clauses to indemnify people who are acting under certain commands in operational areas, and further provision was made to compensate innocent sufferers, we supported the amendments. In fact, the whole issue arose as a result of someone who had unfortunately been inadvertently killed by a bullet which had ricochetted. This brought the matter very sharply to the attention of the hon. the Minister of Defence, and he therefore provided these amendments to the Defence Act. To move that this Bill be read this day six months means that one votes against the entire concept of an indemnity. For that reason we cannot support such an amendment, and we accordingly support the amendment that we have moved which, as I have said, deals objectively with the situation, supporting the necessity for indemnification but seeking simultaneously to entrench in the Bill the necessary protection for the innocent sufferer.

I do not doubt the assurance of the hon. the Minister. I accept it because he is, after all, an honourable member of this House. I do believe, however, that the purpose of entrenching this provision in the Defence Act was not because anyone would doubt the undertaking given by the hon. the Minister of Defence. It was to incorporate, simultaneously with the principle of indemnification in our law, and the principle of the payment of compensation to the innocent sufferer, thus setting a precedent so that it could become law in this country. It should not merely be a question of assurances given, but a question of law. Let me further point out where the hon. member for Schweizer-Reneke went wrong. It was not Just a question of a committee that was appointed by virtue of the amendment to the Defence Act; because if the Minister, for instance, decides not to grant compensation, the matter would go to the particular board presided over by a judge or a senior magistrate. Let us assume that the hon. the Minister, in his discretion, decided it was wise not to grant compensation at all, or that he granted inadequate compensation. Let me now rather deal with the more important case where he decided not to grant compensation at all. The fact that he had the discretion was merely to enable him to deal with it himself as a type of court in the first instance. If he decided not to grant the compensation, however, the matter would then go to the particular board, and that is borne out in the clause itself.

That is taken away from the courts altogether.

No, no. It is not a question of taking away …

If we leave “the courts” in the Bill. In the Defence Act it is taken away from the courts.

No, I want the hon. the Minister to understand very clearly the way we look at this Act. We say, as the hon. member for Umhlatuzana tried to stress, that if any act is committed for which the presumption can be rebutted, the person concerned can go to court. His rights to the courts are not in any way hindered. He has the right to challenge any act in a court of law, but the court is guided by a presumption of good faith with intent, and he has the right to rebut that. Therefore, he has the right to go to court.

Are you talking about the Defence Act?

No, I am talking about this particular Bill. Therefore his rights to the courts …

Are you dealing with the Defence Act?

I am illustrating the position in the Defence Act since the question of courts of law probably did not arise in that instance because the issue involved an operational area. After all, there virtually a state of war was involved.

That makes the two things entirely different.

I think there is a sharp distinction to be drawn between an operational area which virtually involves a state of war …

That makes the two things different.

I say I think there is a sharp distinction to be drawn. I think the hon. the Minister concedes the fact that in the Defence Act the final adjudicating body is not the Minister but this particular board the hon. the Minister sets up, and that is what we are asking for here because we believe that if the hon. the Minister does not accede to our request, the Bill will be an inadequate one. I therefore want it clearly understood by this House and by the country …

There are the same rights in the Defence Act, but here one has the courts of law.

I want the House to understand clearly where we stand. We support the principle of the indemnity and we feel that no one has been denied his right of access to the courts, but we also say that it is inadequate to provide a Bill of this nature unless, at the same time, the matter of compensation is subjected to the processes of law and not made subject merely to someone’s discretion. Nor should the matter be determined by persons who may not have sufficient legal training and could reach a conclusion in some arbitrary manner. That is the whole object of the Defence Act.

Let me put it to you that the innocent bystander normally does not have a case against the State.

You mean because there was no negligence. Yes, I see the point.

Let me put it to you further that if he has no case against the State, he cannot go to court.

I see the point.

[Inaudible.]

I shall answer the hon. the Minister’s point. Let us take into account the circumstances that prevail. Let me give the best example of all, though it is a most unfortunate case. Dr. Edelstein got caught up in the riots on the first, second and third day and was virtually slaughtered in a small room in a building where he tried to seek protection, but he then ran and was found in the fields.

What has that to do with indemnity?

One moment, please. His car was destroyed, etc. Nobody was responsible for that except some persons whom the police department may possibly not yet have found. It would be iniquitous if, under circumstances of that nature, the State did not accept the responsibility of protecting life and property. It is in this regard that we are seeking the compensation because these are not normal circumstances. In the question of an operational area, I accept what the hon. the Minister says, and that is why there was some provision made here. Although they could not go to court, the hon. the Minister of Defence was wise enough to ensure that even if his discretion was, by any chance, not correctly exercised, another board could virtually be a court of appeal to which the matter could be taken to provide for compensation. I therefore do not think that the civilian situation, as we have experienced it throughout the country, is of such a nature as to exempt the State from some or other manner of involvement with regard to culpability or compensation to innocent persons. This was our attitude in 1961.

That is purely an ex gratia matter. It is not a question of culpability.

That is a matter of semantics. I am not speaking from a prepared speech. I want the hon. the Minister to know that I am dealing with this matter as a debate this afternoon and not as a prepared address which I am delivering. I want to say further that one of the hon. the Minister’s colleagues, the hon. the Minister of Community Development, many years ago introduced a private member’s motion advocating that people who receive injuries of this nature as a result of violence or other occurrences over which they have no control, should be compensated by the State from some special fund that should be established. Although I have not had the opportunity of investigating this matter fully, I believe there are some countries where this type of provision is made so that innocent people should not have to become dependent upon charities or other welfare bodies because of unfortunate circumstances that have overtaken them. Therefore, the House must clearly understand where this party stands in this particular matter. The whole of the discussion of the hon. member for Schweizer-Reneke was based on the fact that attitudes have changed. We do not require any thanks for supporting the Government on the question of indemnity. We are doing what we believe is right in constitutional law and we believe we are doing what is right for the country. In that sense we have no other criticism to offer. I do not want to go into the question of the rights of law because this is not a matter where either the Government members or members of any other parties should be roused to any high pitch of emotion because the matter is the subject of investigation, though many of us could give vent to our feelings in regard to the conditions and events that prevailed at the time.

Very relevant.

That is consequently the attitude we should like to adopt, and I want the hon. the Minister to know that. Furthermore, I appeal to the hon. the Minister, in all sincerity, before the debate goes any further. Unless the hon. the Minister gives any contrary indication, members on the Government side will stand up and defend the Bill, opposing any question of amendments. I therefore appeal to the hon. the Minister to consider this issue that we place before him. It does not prejudice him in any way. It gives all the necessary protection to people who have risked their lives or who have placed themselves in situations of danger. We have the responsibility of protecting them as we are doing here. Therefore the hon. the Minister must realize that our approach is a sound and sincere one. I do not see any harm in entrenching in law something that may be done in a haphazard way, and has been done on a few occasions in the past. I am not criticizing the hon. the Minister for merely suggesting the committee—he has precedents for it, but I think they are bad precedents at this stage in our affairs. I think that the precedent set by the Minister of Defence was a good one, albeit that it was not in similar circumstances, albeit that, legally, it perhaps does not accord with the two sets of circumstances. It is nevertheless a very sound principle.

The hon. the Minister and all members of the House agree that compensation should be provided for innocent people. We are not going so far as to say that every case must go to the law courts, for this may clutter them up, delay the matter and, perhaps, take up valuable time and effort on the part of the police force. Nevertheless there should be some type of tribunal in respect of which people will feel there is the application of a just attitude, a tribunal consisting of trained legal people who can deal with their particular cases and provide the best compensation possible in the circumstances. That is the hon. the Minister’s attitude. That is what he believes in, because he made that offer. Therefore, in these circumstances, where the country is interested—not the Nationalist Party and not the Opposition, but the people of South Africa—let us be big enough to accept an amendment of this nature so that we do not parley with each other on insignificant matters when we actually have common ground on the entire issue.

Mr. Speaker, I think it is essential, for the sake of the flow of the argument in the debate, for us to determine the difference in effect between the compensation board which may be established in terms of the Defence Amendment Act of 1976 and the ex gratia payment which, as the Minister announced, he is prepared in principle to have paid to people who may be entitled thereto. What the hon. the Minister announced here today corresponds fully with the procedure adopted in 1961. In 1961 the then Minister of Justice announced that he would appoint a committee which would give consideration to the claims of people who had been prejudiced or suffered damage and that he would make recommendations to the Minister in this connection. Subsequently the Minister could make certain ex gratia payments, at his discretion, to the people concerned. It is essential to consider the provisions of the Defence Act at present on the Statute Book. In the first place, section 103quat (1) clearly provides that when the Minister receives an application for such payment, he can make that payment in his own discretion. In other words, the person who feels himself to be prejudiced, applies to the Minister of Defence and informs him as to his circumstances. Subsequently the Minister of Defence has to decide what he wants to pay that person and compensates him accordingly. However, the Defence Act goes much further. If the person in question is dissatisfied with the payment he receives from the Minister, he can apply to the Minister for the appointment of a compensation board. The Minister then has a discretion whether to appoint such a board or not. The Act clearly gives the Minister such a discretion. Section 103quat (3) provides—

In other words, until the compensation board is appointed, the Minister has an absolute discretion, in any event. When he has appointed a compensation board and that board makes a recommendation, the Minister is deprived of his discretion. Section 103 quat (7) provides that—

Is this in any way the intention with regard to this case we have before us? When an ex gratia payment is involved, the State takes upon itself the responsibility which individual members of the Force or the Public Service may have had. In other words, the State takes upon itself an additional function of protection in that it takes upon itself the responsibilities of individual members of the police or of other State officials. That is why the principle of an ex gratia payment must be upheld. The moment a compensation board has been appointed, as is provided for in the Defence Act, one immediately waives the principle of an ex gratia payment. The hon. the Minister’s choice with regard to the damage which may be caused in such a case, is a clear one. We must, however, bear in mind that the State is not really responsible for such damage. The State is not the body which started with these things—they were started by unlawful elements in the community. The State may decide out of the goodness of its heart to compensate some of its citizens for damage they have suffered. Under this provision the State is deprived of its discretion and the principle of an ex gratia payment falls away entirely. However we must not fail to bear in mind that the circumstances to which the Defence Act applies, differ greatly from the circumstances in which internal disorder is involved.

As the hon. member for Bloemfontein West indicated, the scope of the compensation for which provision is made in the Defence Act is, in the nature of things, far more restricted than applies in this case. The acts of our Defence Force, to which the indemnity provision of the Defence Act apply and to which the compensation board also applies, are limited to warfare on the borders of South Africa and, in certain cases, beyond the borders of South Africa as well. In the nature of the matter, the Defence Force is designed for the defence of the borders of South Africa. That is why, in the case of the actions of the Defence Force, the State can take upon itself such a wide responsibility. However, where the State has to act, through the police, in the residential areas of South Africa, and when the aim of the inciters of internal disorder is specifically to act in the presence of the maximum number of people, and since the aim is to involve as many people as possible in the action, we suddenly find that the potential accountability of the State becomes impossibly wide. It is therefore out of the question that the State should be able to take upon itself that vast accountability. We must bear in mind that the State takes this accountability upon itself in conflict with a principle which has been determined over decades, because if we look at indemnity laws in other parts of the world, we can see that the principle of compensation, or the principle of ex gratia payment, is not in those indemnity laws as a matter of necessity, since the principle of indemnity is so strong in all respects. For example, we could consider the book Constitutional Law by Wade and Phillips, from which I quote as follows—

In this connection we must also bear in mind that the legislation does not put an end to all actions against the State. A short time ago, the hon. member for Houghton made a big fuss about people who drove around there, cars which drove around there and people who fired from the windows, and so on. If the police had in fact done this, then surely they were not acting bona fide to maintain public order. If the police acted in the way she described, then surely it is clear that such police acted male fide. The hon. member for Houghton had a great deal to say just now when the hon. the Minister of Justice was not listening to her, but I wonder why she does not want to listen to me now.

It is important to note that the legislation does not afford the State absolute indemnity. It does not provide that the State or the police or people who acted to maintain the security of the State are not accountable under any circumstances. On the contrary. In the same way as the principle has been laid down in the constitutional law of various countries, particularly in the constitutional law of England and all the countries of the Commonwealth, it is clear that in this case, too, there is a limitation. The limitation is clearly stated in the Bill. In clause 1(1) of the Bill it is said that no civil or criminal proceedings shall be instituted in any court of law against the persons whom we already know “by reason of any act, announcement, statement or information … (done) in good faith on or after 16 June 1976, and before the commencement of this Act” by the person in question. In other words, what the hon. member for Houghton did today in my opinion—viz. if she correctly understood the Bill—was to shade her argument in such a way that it inevitably had the effect of misguiding the House. She describes to this House obvious male fide actions of the police—viz. assuming them to be true. That it is true will, of course, be denied. She gives the world at large the impression that this House is now passing an Act which will place these male fide actions of the police on a level at which no proceedings may be instituted against them. It is, after all, absolutely scandalous of her to do this, and that argument must be rejected in its entirety. The hon. member for Houghton made a big fuss today about the fact that this Bill, as she said, legalized something illegal. However, one must remember why the police acted as they did. They acted in my interests, her interests and the interests of everyone in the country. The police did not act in the first instance, but in reaction to other things which occurred. The police acted in order to react against agitators and such people. I now want to ask the hon. member for Houghton across the floor of the House—she says that the actions of the police were illegal and are being legalized by the legislation—whether she is in fact prepared to accept that the actions of the agitators during this period were illegal.

Of course. You do not have to be shocked!

If the hon. member accepts that the actions were illegal, who is she to sit on one side and pass judgment on what is right and what is wrong? This hon. member, who made such a fuss about the rule of law, asked the hon. the Minister of Justice whether he had ascertained whether the police who had fired, had acted under orders. She wants to know whether the police had an order to fire. I want to ask the hon. member for Houghton whether she does not think it would be proper for her to wait for the outcome of the commission of inquiry. Does the hon. member for Houghton not consider that it is right for the House and members of the House not to anticipate the findings of the commission of inquiry that was appointed?