laid upon the Table:

1. (1) Motor Vehicle Accidents Bill [B 68—86 (GA)]—(Standing Committee on Transport Affairs).
2. (2) Electricity Amendment Bill [B 69—86 (GA)]—(Standing Committee on Mineral and Energy Affairs).
3. (3) South African Mint and Coinage Amendment Bill [B 70—86 (GA)]—(Standing Committee on Finance).

as Chairman, presented the Second Report of the Standing Select Committee on Education and Development Aid, dated 7 March 1986, as follows:

Bill to be read a second time.

as Chairman, presented the Eighth Report of the Standing Select Committee on Trade and Industry, dated 14 March 1986, as follows:

Bill to be read a second time.

Mr Chairman, in the first place I should like to thank all the hon members who participated in the discussion of this Bill very sincerely for doing so. I think one could say that in general it took place in a very positive spirit.

†I want to come to the hon member for Walmer. He said politics and economics are interdependent, and the one cannot be separated from the other. He also said that unemployment was the responsibility of the Government. Now I want to ask the hon member whether the relatively high growth rate during the ’seventies and the early ’eighties was due to good government by this Government. Was it due to the good policies of this Government?

I also want to draw the hon member’s attention to the fact that unemployment is a worldwide problem. It is not limited to South Africa, but is a real problem virtually everywhere in the world. In Europe, for instance, 20 million people are unemployed. I can also refer him to the situation in Africa, where the position is even worse.

*I now want to come to the hon member for Port Elizabeth North, and thank him, first of all, for his support for this Bill. The hon member correctly pointed out that the Government voted R75 million for the Unemployment Insurance Fund when the Fund began to experience problems.

That brings me to the hon member for Brakpan. He said the Government had no control over the economy and that there was a lack of confidence on the part of investors. He also said the inflation rate was too high. I should like to point out that at present the inflation rate is high in our country, but that there were also times when the inflation rate in the United Kingdom, for example, was 25%. From time to time the inflation rate has also been very high in European countries. The fact of the matter is that we are going through a very difficult period at present, but a relative decrease in the inflation rate is in fact expected. The hon member for Brakpan had another problem and source of concern. The hon member said that he was very worried that I would also be unemployed after the next election.

No, I am not worried about you!

I wondered why the hon member asked that specific question, but then I realised that that was probably what he had on his mind. He is probably worried because he himself is going to be unemployed after the next general election. [Interjections.] I then thought about the hon member for Brakpan’s position. I know that he will not yet qualify for full pension benefits when the next election is held, but on the other hand I also know that if the hon member were to apply for a disability pension, he would qualify for all the benefits under that scheme! [Interjections.] In fact I think he would qualify for 100% benefits under the disability legislation! Having said this, I want to leave the hon member at that.

I come now to the hon member for Newcastle. He correctly observed that the Unemployment Insurance Fund did not only pay out unemployment insurance benefits. The general public possibly does not realise what a wide range of problems is in fact covered by this fund. For the sake of interest I shall point out that in 1985 a total of R221 million was paid out in respect of unemployment. But an amount of R45 million was also paid out in sick benefits, an amount of R45 million in maternity benefits, and R60 million was paid out to the dependents of deceased contributors. The hon member was also correct in saying that the Unemployment Insurance Fund was a self-help scheme. It is in fact nothing other than a kind of policy which one takes out to ensure oneself against unemployment.

I also want to thank the hon member for King William’s Town for his support for this Bill. The hon member asked whether all the funds of the Unemployment Insurance Fund had to be invested with the public debt commissioners. The answer is yes; that is in fact the case.

The hon member Dr Odendaal referred to the repeal of the section in the Act dealing with training. I agree with him that it is a good thing we are rationalising legislation in respect of training.

I come now to the hon member for Sasolburg. The hon member asked what the Minister was going to do in regard to unemployment and, as far as the future was concerned, the Unemployment Insurance Fund. The picture which the hon member sketched implied that the fund was heading for insolvency. He created the impression that we on this side of the House were simply watching in resignation as the fund became depleted. The hon member is certainly not with us all the time, but he probably did not see that we appropriated R75 million of the R600 million for the Unemployment Insurance Fund. That was the first step the Government took. The second step was to increase the contributions by employers from 0,3% to 0,7%. Furthermore we increased the contributions from employees from 0,5% to 0,7%. that was done since 1 December 1985. I want to tell the hon member that it was as far back as 1979 that we began to be concerned about the unemployment situation in South Africa. The National Manpower Commission was then directed to give in-depth attention to the question of unemployment in South Africa. The same directive was given to the then Economic Advisory Council of the Prime Minister. The investigation led to a White Paper on a strategy for the question of employment opportunities in the RSA, which was laid upon the Table in 1984. In that White Paper the long and the short-term programmes with a view to employment creation were set out. In that strategy factors impeding the development of the small business sector were inter alia addressed. The President’s Council, too, conducted several enquiries, inter alia into factors impeding the free market, an enquiry into deregulation, etc. On 1 December, too, we raised the ceiling for contributions to R26 000. Therefore more people can now receive benefits from the fund, but at the same time there are more contributions to the fund in order to expand it. The Government also announced an imaginative decentralisation programme aimed at creating and enhancing employment opportunities in South Africa. One cannot address an unemployment situation in isolation. The best long-term solution to unemployment is optimum growth for the country or for the country to maintain the highest economic growth rate reconcilable with the resources at our disposal. This is the long-term solution and also the best solution for unemployment.

Unemployment or the over-supply of workers also has a different side to it and this is the supply aspect. If we in South Africa continue to increase in number at the present rate, this economy simply cannot create sufficient employment opportunities in the years which lie ahead. For that reason the Government also initiated a population development programme in order to look after the demand aspect, for in the long run the country cannot afford to accommodate such a high population growth in the years which lie ahead.

Total unemployment in South Africa is estimated to be 8%. The USA, with its low inflation and high growth rates, has 7,4% unemployment. The United Kingdom is saddled with 14% unemployment, Germany with 9%, Italy with 10,8%, the Netherlands with 15,1%, Spain with 14%, and the average for all the EEC countries is 11%. Consequently there is no instant solution to unemployment. The only real permanent long-term solution is a relatively high economic growth rate.

Question agreed to.

Bill read a second time.

Mr Chairman, I move:

Agreed to.

Committee Stage

Clause 1:

Mr Chairman, I move the amendment printed in my name on the Order Paper, as follows:

1. 1. On page 3, in line 8, after “actuary,”, to insert:

The purpose of the proposed amendment is to ensure that only when it is absolutely essential is the capital market approached in order to raise loans subject to the concurrence of the Minister of Finance.

Amendment agreed to.

Clause, as amended, agreed to.

House Resumed:

Bill reported with an amendment.

Bill read a third time.

Mr Chairman, I move:

In terms of section 174 of the Companies Act, 1973, annual duty is payable by all companies incorporated or registered in the Republic of South Africa. At present this duty is a fixed amount of R80 which is payable before a specific date each year, depending on the date of incorporation or registration of the company concerned. Annual duty was introduced on the recommendation of the Commission of Inquiry into the Companies Act on 1 January 1974, the date on which the Companies Act, 1973 came into operation. Although annual duty is a source of income for the State, since the date of its introduction, the collection thereof has presented considerable problems.

As a result, annual duty has been associated with governmental red tape, it has become an irritating measure which, in my view, does not justify its continued existence. It has thus been decided to propose the abolition of annual duty. Although annual duty and additional fees will be abolished when this Bill becomes law, all outstanding annual duty will still be due and payable to the State as outstanding annual duty and all the provisions of the Companies Act relating to annual duty which are now to be repealed by this Bill, will still apply with regard to the payment and collection of outstanding duty and additional fees.

Give us hope that they take it away.

No, 1 April is not a long time to wait. Some consequential amendments to the Act will also have to be made. In the first instance, when annual duty is abolished, the requirement to lodge the annual returns in respect thereof will also fall away.

Further amendments relate to the deregistration of companies by the Registrar and the duties of auditors and companies. The Registrar of Companies is, in certain circumstances, empowered to deregister if that company has, for more than six months, failed to lodge an annual return in compliance with the Act, or when he has a reasonable cause to believe that the company is not, conducting business or is not in operation. Here again, due to the abolition of annual duty, the annual return will no longer be required to be lodged.

The only circumstances which remain under which the Registrar may initiate the deregistration of a company is when he has reasonable cause to believe that the company is not conducting business or is not in operation. It was therefore necessary to find an alternative way of assisting the Registrar in determining whether a company is still operating or not. It was found that the most practical way would be to extend the duties of the auditor of a company in order to require him to report to the registrar if he, at any time, had reason to believe that the company was not conducting business or was not operating and had no intention of resuming operations in the near future.

The abolition of annual duty will, of course, necessarily result in the loss of income to the State. In order to compensate partly for the loss, the fees, determined in the Companies Act itself in respect of certain services rendered by the Companies Registration Office, are to be increased. These specific fees have not been increased since their introduction in 1974 and are therefore, without doubt, out of date.

In order further to compensate for the loss, the fees prescribed in the Companies Administrative Regulations in respect of all the other services rendered by the State to companies, will also be increased and become effective on 1 April 1986. The latter fees were last revised in October 1980.

I should mention that with the abolition of annual duty companies will in future, in terms of the Companies Act, only have to pay for actual services rendered to them by the State.

Mr Chairman, this Bill had the support of the whole of the standing committee, and it is not my intention to delay proceedings here. I think the payment of an annual duty was a hassle for the companies who had to pay it. It was often paid late. It was something which was quite annoying. I think it had also become a hassle for the relevant authorities to collect it. I believe the buzzword was that it was not cost-effective. I am sure few will be unhappy to see that annual duty go. Likewise, I think the annual return was something which smaller companies particularly found aggravating. They normally had the auditor do it. This meant that the auditor became bogged down with a lot of paper work. He became virtually nothing more than a paper filler-in. I believe therefore that to the auditor it will also came as a general relief that this will no longer be required.

One of the points arising out of this Bill is that greater reliance is going to be placed on auditors in monitoring the affairs of companies, but I believe it is not appropriate to go into this in depth. I do believe, however, the question has to be raised in connection with what is indeed the correct function of an auditor, particularly when one is looking at proprietary limited companies. Historically, I believe, the Receiver of Revenue has tended to look upon them as performing his job in ensuring that companies completed their tax returns correctly and that their accounts were in fact correct.

If one considers the fact that we recently had a company on the Johannesburg Stock Exchange that had its listing terminated and if one considers the problems experienced by certain financial institutions, I believe we have to look at the whole function of the auditors and monitor their performance more carefully because to a large extent they are becoming the safeguarders of public interests. They are the people who keep the general public informed and who make sure that the accounts of companies actually reflect the true position of particular companies.

Finally, Mr Chairman, I notice that the fees are to go up from R50 to R170 in order to keep pace with inflation. This is interesting, seeing that we have just listened to the hon the Minister of Finance’s Budget Speech. I just wish that the marginal tax rate—I am talking of the R12 000 through to R60 000 scales—could keep pace with the increase in the fees.

With this short speech, Mr Chairman, we in these benches will be supporting this Bill.

Mr Chairman, here we have a good example of the suspension of Government red tape, and we on this side of the House want to thank the Official Opposition for their support. Nor did we have any problems in the standing committee in obtaining the support of all opposition parties there.

The revenue from this source is obtained by all companies’, including foreign companies, having to pay an annual duty of R80, and if they do not do so in time, a further R30. This in no way justifies the irritation on the side of companies, and on the other hand the red tape of the authorities. The abolition of the annual duty is therefore welcomed by those of us on this side of the House.

It is not only the payment of annual duty, however, but also the annual returns in this respect which fall away. Personally I think the annual return was a greater source of irritation to companies than the payment of that R80 or R30. There is a problem, however, and we support the hon the Minister in the new approach that auditors have to come to the assistance of the authorities in this respect. It is true that the Registrar of Companies has the power to deregister a company, and the existing mechanisms of the annual duty and the annual return were a good criterion for the Registrar to do this if a company did not pay the annual duty or send in the annual return.

The private sector can assist in this. This measure determines that the onus is on the auditor to inform the Registrar if a company is no longer functioning. The auditor knows, after all, whether or not a company is still in operation or has any intention of resuming its activities in the foreseeable future. That is why the authorities’ request that auditors assist them in this connection is a fair one. It is the easiest thing in the world.

This measure also compensates in part for the loss in revenue. I think the hon the Minister is being very fair with the arrangement that there is to be an increase in fees for certain services rendered to companies by the Registrar’s office. There is a beautiful principle which I think should take root throughout the public service. That is that people should pay for services rendered instead of tax being levied on anything. If a company makes use of services, therefore, it pays, and if it does not make use of services, it does not pay. We should like to support the hon the Minister in this because the fees have not been increased since 1974. In addition, the fees prescribed to companies by administrative regulations in respect of other services rendered by the State to companies, will be increased too. These fees have not been revised since 1980.

In other words, we support this measure because it removes irritation on the side of companies, because it removes red tape on the side of the Government, because it facilitates the duty of the auditors whose co-operation is required and because companies pay only for services rendered. We therefore support this measure and congratulate the hon the Minister on it.

Mr Chairman, we on this side of the House also support this Bill. There is something in this Bill, however, which worries me to a certain extent. I accept that the officials who submitted this legislation considered this matter very well and that their recommendation has great value. One would like to congratulate the officials on the enquiries they have made to reach the standpoint they have reached in this Bill. They can also be congratulated on the recommendations contained in the Bill.

Something that worries me is that the fixing of an auditor’s fees and services is an uncertain matter. The hon members will know that in this connection one may have to contend with a relatively large problem. Previously there was a fixed tariff for a service which was rendered. The situation changes now since one will be uncertain about one’s obligation because it will differ from auditor to auditor. The hon member is welcome to shake his head. Auditors are just like women. It is difficult to get rid of them. It is not something one can do easily.

It also costs one a lot of money.

Yes, it costs one a lot of money.

One cannot change one’s auditor easily since he has had knowledge of one’s finances for years and knows how he has assisted and supported one during this period.

I do not think people who own large firms will have problems in this connection. It is possible, however, that smaller companies will have to bear a greater burden in this connection than is necessary.

Nevertheless, the CP supports this amending Bill because we believe it is good.

Mr Chairman, we should like to thank the hon member for Langlaagte and his party for their support of this legislation. The hon member expressed a reservation about the tariffs payable. That is indeed cause for concern, but I believe the organised auditors’ profession can look at it and adjust it in the best way to ensure that the fees levied are fair at all times. I think one will also have to accept, as the auditors’ responsibilities are extended, the tariffs will probably have to be adjusted accordingly.

This amending Bill follows on the recommendations of the Standing Advisory Committee on Company Law which examines company legislation on a regular basis to ensure that it remains effective. Since the earliest times it has been a characteristic of our law that it is adjusted to comply with the requirements of the present time. This has been the case since the very first company legislation published in 1861.

What is of particular importance in this legislation—the hon member for Turffontein referred to it as well—is the fact that the auditor’s duties are extended. He now has to report immediately to the Registrar of Companies if it comes to his knowledge or he has reason to believe that a company has stopped functioning and does not intend to resume its activities in the foreseeable future.

In the light of today’s extended commerce and particularly of the corporate existence of the company, it is imperative that recent information on that particular company be made available as quickly and as conveniently as possible to everyone who wants to do business with that company. The auditor is probably the best person to know whether or not a company is carrying on business, and by placing the burden on him, a more effective procedure will be created for action against dormant companies and in this way for the exposure of the true circumstances of a particular company.

These amendments seem to be sound adjustments, and we should like to support the amending Bill.

Mr Chairman, each speaker thus far has emphasised the benefits of this measure. I think everybody has stressed what it will do for the businessman who at the moment is almost overwhelmed by a sea of paper. It will certainly help him to get out from under, as they say. It will also help his auditor who probably has an embarrassing time sometimes in remembering to pay this duty of R80 each year. As I said just now, each hon member who has spoken thus far has commented on that.

What I want to talk about is the very interesting statement that the hon the Deputy Minister of Trade and Industry made in his Second Reading speech. He said.

As a result, annual duty has become associated with governmental red tape … an irritating measure which, in my view, does not justify its continued existence.

I want to compliment the hon the Deputy Minister because he has come to this House and identified a matter which causes many problems and does not justify its existence. I wonder if the hon the Deputy Minister cannot start a movement in the ranks of the Cabinet. Perhaps he can start a movement for each hon Cabinet Minister to have a look at the legislation on the Statute Book that affects his department. Let each hon Cabinet Minister see in his own way what he has in his department that is unjustifiable red tape. Let us see what we have that is costing us nothing but money and irritation.

This hon Deputy Minister has identified one, and I believe there are many others. I know that I could stand here this afternoon and play politics quite happily. I could talk about legislation on the Statute Book for the best part of 30 minutes but that is not what I want to do. What I want to do is to compliment the hon the Deputy Minister sincerely on what he has done and ask him to talk to his fellow office-bearers to see what they can do towards removing these minor irritations to the businessmen and all the other people in this country who are affected by them.

This is indeed a measure that is worthy of support and we are happy to do so.

Mr Chairman, I thank the hon members for their support of this measure. I thank the hon member for Umhlanga, who has just sat down, for his kind words. We appreciate them; and I can assure him that we in this department are, in fact, very critically evaluating all aspects of the department. We have instituted a great many reforms or improvements at administrative level—the hon member will remember that the new national building regulations were standardised throughout South Africa—and we are currently carrying out a great many other tasks in this regard. Once again, I want to thank him for his words of encouragement. They do indeed encourage us. Moreover, what he has said is indeed important.

Of course, as far as the Government as a whole is concerned, his remarks would have to be more properly addressed to the hon the Minister for Administration and Economic Advisory Services who is attending to the matter of deregulation as a whole. Nevertheless, we thank the hon member for his kind words.

We also thank the hon members for East London and Turffontein for their kind remarks and for their support of this measure.

*However, the hon member for Langlaagte is reading something into this legislation which is not really there. I do not know what he is basing his objections on, but if he could perhaps motivate them better—he can also come and talk to me privately—I shall consider them.

†The hon member for Edenvale contends that fees are going up from R50 to R170. That is not true, of course. The fees are, in real terms, rising from R130 to R170 because the annual duty in the first year would have been payable against registration. In practice, therefore, the fees have not gone up from R50 to R170 but from R130 to R170.

He also said this represented a major advance in the tariffs. Of course, this too is not the case because both these sets of fees, the fees referred to in the Act and those in the regulations that are to be promulgated and become effective on 1 April, have not been raised or upgraded since 1974 or 1980 respectively. The fees have thus been kept down to very low levels. As a matter of fact, if the hon member is interested he could have a look at the user charges listed in the tariffs that are soon to be published. If he considers these user charges applied by the company’s office, right across the board, he will find that in practice the tariff increase to the public would be below 10%—in fact, the increase as a whole will amount to 9,9%. That is well below the inflation rate. However, when the public do have to pay a user charge—it is a reasonable charge considering what the registrar’s office is being asked to do—they will also be discouraged from making unnecessary requests because they know they will have to pay an equitable rate for the services they require.

With those few words, Mr Chairman, I thank all the hon members once again for their support of this Bill. I also thank the Standing Advisory Committee on the Companies Act which evaluated this legislation and gave their support to it, as did the Standing Committee on Trade and Industry.

Question agreed to.

Bill read a second time.

Mr Chairman, I move:

Sections 13 and 14 of the Stock Theft Act, 1959 prescribe certain fines for offences committed in terms of that Act. Section 13 empowers magistrates, in respect of, inter alia, stock theft or attempted stock theft, receiving stock knowing it to have been stolen and incitement to stock theft, to impose a fine double that of the general criminal jurisdiction of magistrates’ courts. Section 14 of the Act makes provision for the imposition of a fine not exceeding R1 000 in respect of offences for which no penalty is prescribed in the Act. In view of the depreciation of the monetary unit, the general criminal jurisdiction of the magistrates’ courts in respect of fines was increased from R1 000 to R2 000 during 1984. Furthermore, the penalties which may be imposed in terms of the Stock Theft Act are linked to the general criminal jurisdiction of magistrates’ courts in respect of fines. It is, therefore, proposed in clauses 1 and 2 that the maximum fines which may be imposed in terms of sections 13 and 14 of the Stock Theft Act, be increased from R2 000 to R4 000 and R1 000 to R2 000 respectively.

Mr Chairman, this Bill passed through the Standing Committee on Justice with breakneck speed and without demur from any quarter. It merely makes provision for increased penalties which do no more than keep up with inflation. In our view the increases are not exorbitant and we will accordingly support the Bill.

Mr Chairman, I should like to thank the hon member for Sandton for his support of this Bill. Stock theft remains a serious crime. It is a crime which, almost without exception, is committed with premeditation. It is also a crime which can seriously affect farming activities, particularly if it gets out of hand.

That is why it is very important that the punishment be a very strong deterrent. That is why it is also true that punishments for stock theft have always been greater than ordinary punishments which fall under the jurisdiction of the magistrates’ courts.

It is very interesting to note that stock theft has shown a decreasing tendency during the past five years. If one looks at the period from 1980-81 to 1984-85, one notices a decreasing tendency throughout. Every year comprises the period as from 1 July to 30 June.

The number of convictions in respect of cattle during 1980-81 came to 1 888. In 1981-82 it was 1 619 and in 1982-83, 1 532. No figures are available for 1983-84. In the last place the number of convictions during 1984-85 decreased to 1 339. The same tendency can be seen in respect of sheep and goats in which regard the number of convictions decreased from 5 390 in 1980-81 to 4 940 in 1984-85. The same tendency applies as far as poultry is concerned. In this case the number of convictions decreased from 2 341 to 1 575. In the same way the number of convictions in respect of horses, mules and donkeys decreased from 136 to 94.

This is a feather in the cap of our special stock theft units as well as the courts which deal with these matters. That is why I should like to support the Bill.

Mr Chairman, we support this legislation. Nevertheless I want to say something about it on this occasion.

Unfortunately it is true that fines are increased and that this is directly connected to the decrease in the value of money. That is why it is also true that one should enquire into the cause of the decrease in the value of money, but we shall speak about that on a later occasion.

As far as stock theft is concerned, it is one of the most serious misdemeanours in the class of theft. This is the case because quite often it also affects the sources of income and the capital assets of the underprivileged and the smallholders. That is why it is a good thing if stock theft is heavily punished.

In my constituency we have another problem with stock theft, and that is stock theft across the border. Unfortunately it is true—I should like to put it on record—that it causes great tension and great disruption for the border farmer. Indeed, stock theft is a form of terror in that part of the world.

The thief strikes from across the border and disappears over the border again. In this connection the question arises in the mind of the farmer who is affected, as well as the minds of the community as a whole, as to whether the movements of people from beyond the border are controlled properly. This is not in the hon the Minister’s domain. It is in the domain of either his colleague, the hon the Minister of Law and Order or the hon the Minister of Defence, depending on who is responsible for a certain section of the North-western Transvaal’s border area.

Earlier this year I sent a telegram in this connection to the State President. In it I informed him that stock theft in the Messina and Weipe areas had taken on epidemic proportions. This is demoralising, it is ruinous and it is a form of terror. I asked him to take action, forceful action if necessary.

I have asked the hon the Minister’s colleagues on previous occasions to take a very strong stand in their negotiations with our neighbouring states about their citizens’ stock thefts across the border. That part of the world is sparsely populated, except where there are concentrations of farmers who are involved in irrigation projects on the banks of the river adjacent to the border. Cattle farming is one of the most important forms of farming in this area. That kind of stock theft, in which the criminal crosses the border and in which one can do nothing to him unless one can catch him and bring him to court, has to be combated in another way. It is important to me that our Government take a very strong stand as far as this question is concerned. It ruins and demoralizes our people. Most of the people in those areas who are cattle farmers, are no longer young people. In one case in which such a theft took place at the end of last year, the damage suffered by the farmer concerned amounted to between R27 000 and R30 000. That amount is equal to the approximate total annual income of the average farmer. I want to tell the hon the Minister that as far as the farmers who are involved in this and I are concerned, the attitude of his colleagues, who are responsible for the maintenance of order and justice in that connection, is lukewarm in respect of this problem.

Order! I allowed the hon member to digress from the amending Bill under discussion. I think the hon member has made his point and should now return to the legislation.

I shall conclude now, Mr Chairman. With respect, Mr Chairman, I do not think I am out of order. This legislation concerns the increase in a fine, and a fine is directly connected to the misdemeanour. If the fine is to be applied, one can speak about the misdemeanour to which the fine applies. I abide by your ruling, however, but I did want to stress that point. We support this legislation.

Mr Chairman, the hon member Mr Schutte went into detail about the legislation before the House at present, viz the amendment of Act 57 of 1959, and one can scarcely add to what he said.

I should like to thank the hon members of the Official Opposition and the CP for their support. Mr Chairman, I agree with you that at first the hon member for Soutpansberg could not get under way, but once he was in his stride, he made a wide detour through the Soutpansberg. I want to agree with the hon member, however, that stock theft is indeed a crime which has begun to take on alarming proportions. The hon member referred to cases of stock theft across the border, and pointed out to us that his constituency borders on other states. Each of us in this House whose constituency borders on other states has a similar problem. That is why I think it is a good idea to draw the attention of other Ministers, for example the hon the Minister of Foreign Affairs, the hon the Minister of Defence and the hon the Minister of Law and Order, to this problem.

I should like to support this amending Bill, but I should also like to bring to the attention of the hon member for Soutpansberg that it is normal for consideration to be given from time to time to the quantum of the fine for such a misdemeanour and that the punishment will be increased accordingly.

Mr Chairman, we support this amending legislation. However, I should like to comment on a point made by my ex-“bankmaat”, the hon member Mr Schutte. I should like to point out that the statistics he quoted to the House are only in relation to those cases which have been brought to justice successfully. I would suggest that that is just the tip of the iceberg. The real problem lies with the miscreants who are not brought to justice, and the number of cases which therefore go unsolved.

Whilst supporting the increased fines and the action taken by the hon the Minister and his department in respect of this particular crime, I believe that one should really be looking at a more imaginative programme to curtail it. Despite these fines there are, on an increasing scale, areas where not only farming with the correct management to ensure profitability, for instance, has become impossible, but where small-stock farming has had to be abandoned entirely in some cases. It has a very serious effect.

There are, of course, very many different types of stock theft and I often wonder whether the penalties involved should not, in fact, be related to the type of stock theft. A bunch of youngsters out for a bit of Zulu or Xhosa sports at the weekend may steal for the pot. A certain degree of mischief is involved of which, I am sure, the presiding officer at the court takes account when he considers the nature of the offence and the fact that it may be a first offence. Further up the scale, however, there is full-scale rustling. This is a profit-making enterprise in respect of which the fine is peanuts. There is also, of course, stock theft organised by people who have agents throughout an area. In many cases specific farms become targets due to their accessibility and situation in relation to the area in which the loot is to be disposed of. In that respect there should, perhaps, be different grades of stock theft and a different approach to it. Without seeking to contradict your ruling, Mr Chairman, I would suggest that this matter does, to a large extent, fall within the portfolio of the hon the Minister of Law and Order who is currently having a very tough time in respect of law and order in this country generally. The facts of the matter are, however, that we do not have enough people on the ground, our methods are outdated and there appears to be no real campaign to restore confidence in those areas which become the real targets of stock thieves. So the boundaries of secure stock-farming are rolled up as the stock thieves advance. Whilst the Department of Justice deals with this matter as best it can within the area of its jurisdiction, I would like to support the suggestion of the hon member for Soutpansberg. In certain areas there is a very, very strong call for members of the local commando to be used to a far greater extent in curtailing and preventing this crime, so that we do not have to rely purely on penalties.

Stock theft is a very serious problem which, in a stock-farming area, gets at the very root of the security of the individual and is not just a matter of economics. It fundamentally affects a person’s attitude towards the security of his existence. If it cannot be curtailed, the stock-farmer will begin to experience other forms of insecurity on his farm. His family, fences and possessions will be threatened. It is the beginning of a process.

While we in these benches support this proposed legislation, we would like to place on record that we believe it to be a very small part of the solution to the problem.

Mr Chairman, the principle that much heavier punishments should be imposed in the case of stock theft than in other cases of theft was accepted a long time ago. Through the years and decades it has been a generally accepted principle, and I actually expected an argument today that in the changing times we are experiencing, an end should be made to this principle. I am very pleased that did not happen and I should like to express our support of this measure.

It is interesting that Die Nuwe Afrikaner, a publication issued in Cradock reported that last year there were 308 cases of stock theft in Cradock alone. The value of the stolen stock is estimated at R295 000—all this in one year, in one district. Fortunately there was a breakthrough in this connection and the Police acted efficiently.

I cannot agree with the hon member Mr Schutte at all, however, that the decrease in the number of convictions is an indication of an improvement. Surely it is a fact that the Police have their work cut out at present to combat unrest, particularly in the Cradock district which is a good example, so that almost certainly this decrease can be attributed to the Police’s not being able to deal with these cases as they would have otherwise.

One has the greatest appreciation for the work done already, but shocking cases come to light. I was asked specifically by someone from the Eastern Cape to bring to the attention of the House that a farmer who lost 300 sheep in one year and sent a telegram of R50 to the authorities—I do not know what the result of this was—was forced to call a halt to his farming activities. There is also the case of a police official who had to abandon his part-time stock-farming after he had lost 80 sheep. In addition there is the interesting case of a man—I shall not mention his name—who is a very staunch NP supporter and even went to ask the NP branch for assistance in the problem he is up against.

This is a very serious matter since a farmer’s stock, unlike a shopkeeper’s, is livestock which can move around during the day and at night. The number of points at which stock thefts can take place is almost incalculable if one takes the movement of this “stock” into account. One is rendered speechless if one thinks of the opportunities created for stock theft by a farm of this kind.

I should like to express my thanks and appreciation for this measure before the House. We give it our full support.

Mr Chairman, I want to thank hon members who supported the Bill on behalf of their parties and comment very briefly on a few speeches.

The hon member for Sandton supported the legislation, and I take it he has had experience of a chicken theft or two in his area. However, he could not speak about cattle with as much commitment as the hon member for Soutpansberg. One can understand that.

That brings me to the hon member for Soutpansberg. If one knows that part of the world and the circumstances under which farmers there carry on their farming activities, one has the utmost sympathy if a single head of livestock is stolen from a farmer. One must live close to the soil to realise what stock theft does to the mind of a farmer. Therefore I wish to express my unequivocal censure of those who steal livestock from our farmers who have to supply this country with food. One of the most serious crimes that can be committed is to harm those who have to produce food for others to such an extent that they cannot fulfil that basic role.

I want to make a second point. If an artisan’s tools are continually being stolen, with what must he continue to ply his trade? The hon member for Soutpansberg is a lawyer. How would he manage if his legal books kept on disappearing? Some people would argue that it would perhaps be a good thing if his books, and those of other lawyers, were to disappear! The fact remains that such theft must simply not occur. That is why I want to say that the Government, which is know for understanding and sympathising with the farmers’ circumstances, is keeping an eye on this matter. Amendments are being effected to this Act year after year, so that this crime can in fact be combated.

The hon member Mr Schutte mentioned very interesting statistics. I found it very significant that he omitted the question of poultry theft. Perhaps one would be able to argue that the decrease in stock theft—I am excluding from this the theft of chickens, which are not livestock—is coincidental. As far as poultry is concerned, however, the situation is as follows: In 1980-81 there were 2 341 convictions for poultry theft; in 1984-85 the figure was 1 575. In respect of each of the categories in which the Stock Theft Act is applicable there have consequently been considerably fewer contraventions.

The hon member for King William’s Town and the hon member for Sasolburg think this news is not good enough yet. We know that the hon member for Sasolburg in particular does not like good news, because it is with bad news that he plies his politics. We know that, and that is why I understand his dilemma, namely that he had to argue this item away.

He was successful!

It was a short-lived success, Daantjie.

The fact of the matter is that the tendency is that in respect of the solution of livestock cases, too, the figures were at least maintained at the previous years’ levels.

It so happened that I received the statistics for the Northern Free State just before the weekend. In 1984 the solved case rate for the Northern Free State, which included approximately 20 districts, was 62%. In 1985 that figure was 64%, and I make so bold as to say that if one looks at the number of convictions, one can say there is a correlation between these two matters. One finds this tendency throughout the country. But I do not want to be dogmatic about this; we can debate this matter again on another occasion. The fact of the matter is that there is a very clear correlation here between convictions and the solved case figures.

†I want to repeat this for the sake of the hon member for King William’s Town. [Interjections.] The hon member seems to indicate that he understood. The percentage of cases solved in 1984 in the Northern Free State was 62%, and 64% in 1985.

*The hon member for Soutpansberg expressed disapproval of the stock theft situation on the border. This is a serious matter. It falls under a different portfolio, but I nevertheless want to say that the Government is sensitive to this matter. As regards the situation in Lesotho, committees have been established which operate across the border. The endeavour there is very definitely to combat stock theft rather than allow a situation of stagnation to develop. What was the result? The department informs me that talks have recently been held with the National Wool Growers’ Association—I am referring to tendencies now, and not to the specific situation in the Northern Transvaal—and that they were informed that thefts which occurred across the border had decreased considerably in recent times. That, however, is merely an observation. I would prefer to rely on permanent figures based on a survey over a period, which will enable us to ascertain what the tendency is before I express a dogmatic opinion in this regard. The fact remains that sensitivity exists in regard to this very difficult matter. In addition, action has been taken in this connection and a very strong fence is being erected across a large area of the Northern Transvaal, as the hon member for Soutpansberg knows. I want to assume that thefts across the border are taking place to a greater extent in those areas where there are as yet no boundaries. It seems to me that Escom electricity has not yet reached the Northern Transvaal, but that is not relevant. The fact remains that an effort is being made to resolve this situation as well by means of boundaries, and in the Eastern Free State, too, a great deal of progress has been made in this regard. This still does not mean, however, that attention should not be given to this matter in other ways, and I shall request the department to bring the contents of this debate to the attention of my hon colleagues whose names were mentioned here.

The hon member for Roodeplaat supported us, and this gives me an opportunity to make a marginal reference to what he said. This is perhaps not entirely relevant but it concerns that matter. At the same time I want to make an appeal to those people who are affected by stock thefts. One is so often inclined to think that it is the end of the threat when a law is placed on the Statute Book. We are so often inclined to think that it is the end of a case as soon as a charge has been laid with the police. Things do not work like that. It is the duty of every citizen to ensure that when he is called as witness, he attends that court case, gives evidence and makes sure not only that justice takes its course but also that justice is done. This can only happen if sufficient evidence is presented to the justiciary, in accordance with which he can apply his discretion. We have now extended the jurisdiction of the magistrates’ courts considerably as far as stock theft is concerned. Of course this is going to vary from case to case, in regard to a small stock unit or a large stock unit. That, too, is the reply to the hon member for King William’s Town.

Discretion is an integral part of this matter. The hon member touched on that point. In order to apply that discretion, the justiciary needs evidence. To obtain it, evidence must be given. It cannot be fabricated by the police officer or whoever undertook the investigation. We have a great deal of correspondence available in which we point out to complainants that trouble was not taken to submit evidence to the court. Consequently I cannot emphasise this point strongly enough. It is of no avail for Parliament to place this law on the Statute Book while the citizens affected by it are not prepared to give evidence.

This brings me to another point. There have been complaints that people sometimes have to wait too long at the courts. At this juncture our courts are very busy, particularly with economic crimes, but we dispose of our cases as quickly as possible. Naturally, we now have the problem of witnesses who have to wait too long. On a previous occasion I said we were considering this matter, and we are now considering the introduction of a new official, viz a witness’s friend, who can look after the interests of witnesses coming forward to testify in such a case. It is frequently possible that the prosecutor has five or six cases on one day. It is also possible that a witness may have to wait a little longer than he feels ought to be the case. His employer is impatient, etc. Therefore we hope that this post of witness’s friend can alleviate the matter. We have to experiment and see whether it does in fact do so. That is why we have launched such a project. The first witness’s friend is beginning to operate in Bloemfontein. If one should ask why in Bloemfontein, the answer is that it is the judicial capital of South Africa.

The hon member for King William’s Town made a few further interesting observations. He is one of the hon members who regularly request statistics. The hon member indicated statistically that there had been a decrease in the theft of small livestock. I do not know whether there is a police unit for stock theft in the hon member’s district. I think the hon member will realise that, in the case of such an increase, the preventive actions extend over another area, and that he will also have to bring this debate to the attention of the Minister of Law and Order.

Hon members conducted an interesting debate on a very interesting subject. I think we have come to the end of the matters that could be relevant, and anything further that may be added could harm the fine disposition that is prevailing among us.

Question agreed to.

Bill read a second time.

Mr Chairman, I move:

The Commission of Inquiry into the Structure and Functioning of the Courts, the Hoexter Commission, found that with the exception of the courts of chiefs and headmen, the policy of separate courts for Blacks is obsolete and recommended that these special courts be integrated with the ordinary courts under the administrative control of the Minister of Justice. In order to bring about the integration of special courts for Blacks with the ordinary courts, the commission proposed certain guidelines, the following of which are the most important:

1. (a) That courts of chiefs and headmen be retained for as long as they continue to meet the needs of Blacks;
2. (b) that appeals from the courts of chiefs and headmen be heard by magistrates’ courts instead of commissioners’ courts;
3. (c) that commissioners’ courts and appeal courts for commissioners’ courts be abolished;
4. (d) that all criminal cases at present being heard in the commissioners’ courts in future be tried in the lower courts, while all civil actions between Blacks which involve claims not exceeding the monetary jurisdiction limits of the lower courts and which are at present being heard in the commissioners’ courts, in future be heard by the lower courts, but subject to the retention of the provision presently in section 11 of the Black Administration Act, 1927, regarding the application of Black law in actions arising out of Black customs;
5. (e) that all civil actions between Blacks which involve claims exceeding the monetary jurisdiction limits of the lower courts and which are at present being heard in the commissioners’ courts, in future be heard in the Supreme Court of South Africa;
6. (f) that the Black divorce court will be placed under the administrative control of the Minister of Justice pending the establishment of the family court, also proposed by the commission; and
7. (g) that the abolition of the Black divorce court be effected at the same time as the establishment of the family court, and that all divorce actions between Blacks thereafter be heard in the family court.

Mr Chairman, in order to give effect to the recommendations of the Hoexter Commission in accordance with these guidelines, the first step taken was to identify and separate all legal functions and other functions relating to special courts for Blacks and with effect from 1 September 1984, all legal functions, relevant legislation, legal institutions and relevant personnel which at that time fell under the control of the then Department of Co-operation and Development were placed under the control of the Minister of Justice.

Since amendments to existing legislation are necessary to give effect to the commission’s recommendations, this Bill is being introduced as a second step.

Clause 1(1) of the Bill proposes that the commissioners’ courts, established under section 10 of the Black Administration Act of 1927, and the appeal courts for commissioners’ courts, established under section 13 of that Act, be abolished, and that the powers conferred on a commissioner in terms of section 9 of that Act lapse.

Clause 2 intends to amend certain legislative provisions, as set out in the Schedule to the Bill, so as to provide for, inter alia: (a) the retention of courts of chiefs and headmen; (b) the appeal procedure from the courts of chiefs and headmen; (c) the retention of Black divorce courts; and (d) the application of Black law by our courts.

Regarding the application of Black law by our courts, it is important to point out that in item C(e) of the Schedule it is proposed that a new section be inserted in the Magistrates’ Courts Act of 1944. This proposed section is moulded along the lines of the provisions of section 11(1) and (2) of the Black Administration Act of 1927, which at present confers the power on a commissioner to apply Black law in commissioners’ courts. Provision is now specifically being made in the proposed section for a magistrate’s court—and for the Supreme Court in the case of an appeal from a magistrate’s court—to take judicial notice, in its discretion, of Black custom in all legal actions between Blacks where questions of Black custom are involved and to decide thereon in accordance with the Black law which is applicable to such custom.

In order to make provision for the finalising of pending actions, clause 1(2) of the Bill proposes that such actions can still be finalised in existing commissioners’ courts and appeal courts for commissioners’ courts after the coming into operation of this Act.

Mr Chairman, this Bill received the unanimous support of the Standing Committee on Justice, and broadly, Sir, the Bill follows the recommendations of the Hoexter Commission which went into the functioning and the structure of the courts. The basic premise of this Bill is that justice should be undivided and should be an undivided right, available to all under the same rules and according to the same standards in a single court structure. Of course, Sir, this laudable principle cannot be completely fulfilled whilst separate laws remain on the Statute Book affecting only certain sections of the population according to their race.

Not only is it necessary for the court structure to allow equality for all and to be available to all, but also that the laws concerned which the courts administer must be laws which apply to everybody irrespective of race. The law, Sir, should be colour-blind, and only when all apartheid laws, all laws which apply only to certain sections of the community, have been abolished, will our system of justice be held in respect by all sections of the community.

Be that as it may, however, this Bill goes some way towards improving a difficult and an unjust dispensation. The Bill provides that, except for the chiefs and the headmen’s courts, all special courts will be transferred to the control of the Department of Justice and integrated into the normal court structure; in other words, Sir, they will vanish as special courts. This means, inter alia, that appeals from the chiefs and headmen’s courts will be heard by the normal lower courts, viz the Magistrates’ Courts; that the Commissioners’ Courts will in fact be abolished; that all criminal cases presently being heard in the Commissioners’ Courts will be heard in the appropriate lower courts; and that all civil actions between Blacks will be heard in the lower courts having jurisdiction, subject to the welcome provision of the retention of Black law in certain circumstances, for example, in regard to actions arising out of recognised Black custom. On this particular aspect the hon member Prof Olivier will be addressing the House.

The Black Divorce Courts, while being transferred to the control of the Department of Justice, are not to be abolished, depending, according to the memorandum, on a decision on the introduction of family courts. If the mood of the Standing Committee on Justice is to be correctly assessed, I would say to the hon the Minister that the Hoexter recommendations on the family courts have a very, very long way to go before being accepted by that standing committee.

Do not take it too far.

I will take it as far as that, Sir. Accordingly, Sir, the hon the Minister should perhaps give consideration to integrating the divorce courts without waiting for a decision relating to family courts, which decision may in fact never be forthcoming.

With these few words, Sir, we in these benches support the Bill as it is before us, and hope it will have a speedy passage through this House.

Mr Chairman, special courts for Blacks are actually a relic from the colonial era. Today we have reached the point where we accept the principle that all citizens of the Republic of South Africa are entitled to be tried by the same courts. I think that is a positive step. It is a step that ought to be welcomed by everyone. In fact, the hon member for Sandton rightly remarked that in the standing committee—with one possible exception—there was overall agreement in support of this Bill. In all fairness to the hon member Mr Theunissen I must say that in the standing committee he abstained because he was unsure of his caucus’s standpoint on this measure. The hon member, however, did not vote against it. I can therefore rightly say that with that one possible exception, there was overall agreement on this measure.

As the hon member for Sandton also rightly said, this measure follows in the footsteps of the recommendations and guidelines laid down by the Hoexter Commission.

There is one of the hon member for Sand-ton’s statements, however, about which I cannot agree with him. For the rest his presentation of the implications of the measure was quite correct. I hold it against the hon member, however—but I do not think it was his intention to put it like that.

†He said that only if we repealed all apartheid laws would the system of justice accorded in respect by all sections of the community. Surely the hon member for Sandton should distinguish between the system of justice and a political assessment of the laws passed by this House. Unfortunately, this attitude to which the hon member for Sandton has given expression is all too common in our society today.

*In season and out of season our administration of justice and our courts are criticised because, from a political point of view, people are dissatisfied with the laws that our judiciary has to implement. If our laws are to be criticised, it should be done here. If there is anyone at whom the criticism should be levelled, it is at Parliament. I do not think it is at all fair to criticise our courts on the grounds of the laws they have to implement.

Why not?

I was not criticising the courts.

If words have any meaning …

They have meaning.

Then surely what the hon member for Sandton has just said can have only one implication. He said that only if we repealed all apartheid laws would the system of justice be accorded respect by all sections of the community.

That is quite right.

I reject that for the reasons I have just enunciated. It is unfair to criticise the administration of justice and the system of justice on the grounds of one’s having some objection to specific legislation that that system has to implement.

Mr Chairman, may I ask the hon member whether he agrees with that learned professor from Stellenbosch, Prof Erasmus, about apartheid and discrimination within South Africa’s legal system?

Mr Chairman, that is precisely what I am trying to emphasise in my argument. There is a definite difference between the legislation placed on the Statute Book by the legislator, and therefore having to be implemented by the courts of law, and the quality of the administration of justice itself.

You therefore disagree with him?

Let the hon member draw his own conclusions about differences between Prof Erasmus and myself. I do not want to become involved in an academic debate with the learned professor now. Surely I am making my view clear to the hon member. What I am saying is that there is a definite difference between the laws placed on the Statute Book by Parliament, laws about which, politically speaking, one could agree or disagree ad nauseam, and their implementation by the courts of law. It is unfair, however, to criticise a court of law which implements those laws in accordance with all the rules of law and of justice.

Mr Chairman, may I ask the hon member if he would not concede that the laws which are administered by the courts together with the courts form part of the system?

The laws form part of the system as laws. What the hon member for Sandton does not seem to realise, however, is that one should distinguish between the fact of the laws being on the Statute Book, and forming part of the judicial system, and the political contents of the laws to which he objects.

If the hon member wishes to object to the contents of the laws then he should do so on a political platform or in this House but he should not hold it against the courts which have no option but to apply those laws.

Mr Chairman, may I ask the hon member if he would be prepared to comment on a case which was elicited by way of a question to the relevant Minister some years ago? In one of these special courts for Blacks a member of the department acted both as the judicial officer and as prosecutor in the same case. How can the hon member justify that?

Of course it cannot be justified. That, is inter alia, why we are doing away with the special courts for Blacks. [Interjections.] I have not argued that point, so I do not know why the hon member put that question to me. That was not part of my argument. Apparently the hon member for Groote Schuur does not understand Afrikaans all that well.

One cannot separate the laws and the system.

Of course one can separate the laws and the system as far as the contents of the laws are concerned. One cannot do it in so far as the fact of the law being on the Statute Book is concerned. However, what the hon member for Sandton objected to was not the factual situation but the contents of the laws. There is a distinct difference between the two and that is why I take exception to the hon member having made that point. However, he does not seem to realise the implications of what he said, and may therefore, be pardoned for doing so.

*I thank the Official Opposition for their support of the measure and for their support in the Standing Committee on Justice. It goes without saying that we on this side of the House gladly support the Bill.

Mr Chairman, the hon the Minister of Justice indicated in his Second Reading speech that this Bill would give effect to certain recommendations of the Hoexter Commission, namely that certain of the courts for Blacks be abolished.

The hon the Minister of Justice went further and said amongst other things that the policy of separate courts for Blacks was obsolete. His words were as follows (Hansard, House of Delegates, 12 February 1986, col 427):

The CP does not agree with the steps the Government has taken. We do not agree with them and therefore we shall not support this legislation.

We do not agree with it because the abolition of Black courts as envisaged in the Bill is in conflict with our party’s ethnic policy.

We are of the opinion that the abolition of Commissioner’s courts and other Black courts would not be conducive to the maintenance of indigenous Black law and customs. I am grateful to the hon member for Mossel Bay for having indicated that I abstained from voting on the standing committee. He will also confirm that I adopted that standpoint because at that stage, when we had to consider the legislation, there had not been an opportunity to discuss this matter in principle with our caucus.

It is without doubt one of the most serious shortcomings in the standing committee system which has come to light so far. Especially during the recess we receive legislation which we would like to discuss and clarify with our caucus. By the very nature of things we attend standing committee meetings because we undoubtedly participate in the standing committee; but we refrained from voting for the reason I have already mentioned.

Later, however, we had the opportunity of discussing this matter with each other in the caucus and it was considered from various angles.

As a lawyer I personally am a great supporter of Roman Dutch law. I can understand that from an administrative point of view it would perhaps be easier for the Department of Justice to deal with this matter, which previously was dealt with by the Commissioner Courts. Having said that, I also want to say that I wholeheartedly support the ethnic policy of our party.

Mr Chairman, would the hon member Mr Theunissen concede the point that we had every opportunity on the standing committee to discuss these points he is now mentioning? [Interjections.] In arguing these prints, is he expressing his own view or the view of his caucus?

We are not Pik Botha. [Interjections.]

Mr Chairman, I do not think I need reply to that question of the hon member for Mossel Bay. I always put the standpoint of my party to this House. [Interjections.]

We say that we are not in agreement with the actions of the Government in abolishing these Black courts; that is, the Black courts they are now planning to abolish. [Interjections.] To tell the truth, I personally—perhaps it is due to a lack of knowledge on my part—think it is a pity that these steps were already taken in September 1984, while this whole matter should have been cleared up in this House. We should have voted on this legislation, but this Government had already gone ahead with it. I do not want to say that it borders, in my opinion, on contempt, but I will say that the way in which it was done does not conform to the requirements of democracy in our system, namely that we should first have discussed this matter and voted on it and only then have made it operative. [Interjections.] The NP, however, saw fit in this case to disregard the authority of this Parliament in advance. [Interjections.]

Mr Chairman, if the hon member’s standpoint is that the Department of Justice should in fact have taken over the administration of these courts, how can he disapprove of this having occurred in September 1984? I repeat: If the hon member’s argument is that the Department of Justice should have taken over the administration of these courts—in other words that he would have liked them to remain the way they are—does he disapprove of this having been done in September 1984, without the knowledge of Parliament?

That is without doubt the point I am making.

I think it a pity because I feel that those steps could have been held in obeyance. I think the hon the Minister will agree with me. He might perhaps tell me it was desirable from an administrative point of view. It does mean, though, that the authority of this Parliament was being extensively anticipated. That is what we do not agree with. Interjections.]

Although the Hoexter Commission indicated in its report that an investigation into the maintenance, or lack thereof, of the Black legal system did not form part of its terms of reference, I should like to suggest with all due respect that the evidence to which the Hoexter Commission reacted and which influenced their recommendations revolved to a great extent around the continued existence, or not, of indigenous law as a legal system for the Black people. For many decades it was the policy of the old National Party that machinery should be created to ensure that indigenous law and the culture of several million Black peoples continued to exist. [Interjections.]

When I say many millions, I am referring specifically to the millions of Black people who live in the urban and rural areas of the Republic of South Africa. I also have in mind the Blacks who live outside the borders of South Africa. In the 1980 census it was ascertained that more than 10 million such persons were living there.

It was part of a long-term ethnic policy of the old NP and in order to implement that policy it was necessary to charge a specific department with the responsibility for the protection, conservation and maintenance of this part of the Black culture, namely Black indigenous law. The former Department of Co-operation and Development was established inter alia for that reason. It was the task of that department to keep channels of communication open between the Black people inside the RSA and the Black people in the various national states as well as, later, the Black people in the independent states. It was a very important function of the old Department of Co-operation and Development.

How important this was clearly apparent from the evidence which submitted to the Hoexter Commission in this regard. It was never doubted that the administration of justice by the commissioners played a very important part in this function of the Department of Co-operation and Development. Equally important was the fact that the Department of Co-operation and Development had to implement various aspects of Government policy in terms of Blacks living in the RSA as well as those living in the national states. The judicial officers of the Department of Co-operation and Development who had to ensure the maintenance of the indigenous law of the Black people, had to be experts in that field. In other words they had to be experts in indigenous Black law.

Not only did indigenous Black law have to be maintained in one specific area and among the Blacks in the RSA, but indigenous law also had to be maintained amongst the Blacks in areas outside the RSA. There had to be a clear channel of communication between the Black people, between those in areas outside the RSA and those within the RSA, in order to ensure that the indigenous law and culture of the Black peoples would not wither away but would instead be maintained to that it could grow dynamically. These commissioners formed the liaison mechanism because they were experts in the field of the indigenous law of the Blacks.

In support of the statements which I have just made concerning the role and the position of the Department of Co-operation and Development and its commissioners I would like to refer to the testimony submitted to the Hoexter Commission by the Department of Co-operation and Development, which read as follows: (Hoexter Report, part V, page 390):

1. “(a) Die persoon wat die administrasie moet behartig, sal spoedig ’n verlies van gesag ervaar en probleme ondervind om die beleid uit te voer.
2. (b) Die persoon wat regsprekende gesag oor Swartes moet uitoefen sal op sy beurt ’n uiters moeilike taak hê sonder die begrip wat administratiewe gemoeidheid met Swartes vir hom meebring.”

A little further on it is stated:

Far more than the hon member for Mossel Bay!

You do not know what you are talking about.

You left your legal knowledge in Holland and your politics in Mossel Bay. [Interjections.]

That was the evidence given by the Department of Co-operation and Development before to the Hoexter Commission. Unfortunately the Hoexter Commission, when it had to make its recommendation concerning the abolition of Black courts, allowed itself to be influenced more strongly by a more liberal element prevalent amongst the witnesses who testified. When one reads this testimony one has the impression that these witnesses were often Black people who in practice were apparently far removed from the way of life of millions of Black people—from people who still had far closer ties with the reality of their indigenous law and culture.

The Black lawyers who gave evidence before the commission were obviously in no way upholders of Black indigenous law. I respectfully submit that the Hoexter Commission erred when it allowed itself to be led by the evidence of these Black lawyers who inter alia made the following statements:

Can you not read the Bill!

The hon the Minister is becoming very excited now. It seems that I am presenting him with a very good case. [Interjections.] I repeat:

I want to tell the hon the Minister that that is the language of a renegade. [Interjections.] Does he agree with me? A Black lawyer addressing us in that way! It is also said: “Black law is rapidly waning”. That is definitely the evidence of Black people who have become detribalised and who are no longer proud of what is their own. [Interjections.] We also know of a lot of Whites who adopt the same attitude. [Interjections.]

The simplistic statements by Black lawyers (regsgeleerdes)—or as my colleague the hon member for Barberton often says, “linksgeleerdes”—who are members of the Black establishment do not outweigh the standpoints of many other experts on indigenous law in the RSA. In this regard people such as Prof Willem Olivier from UOVS and Prof Prinsloo from RAU come to mind, and I shall refer to them in a moment. [Interjections.] These Black lawyers are in fact far removed from the millions of Black people inside and outside the Republic of South Africa, whose pride in, attachment to and sentiments concerning their indigenous law and culture are still very, very strong.

From the following standpoints expressed by Prof Willemse in a memorandum which he drew up on 17 August 1983 it is evident exactly how important it is that indigenous law and culture of the Black peoples be preserved, upheld and applied:

An expert on indigenous law in Africa, A H Allot, put it as follows:

The CP believes that every independent Black state such as the Transkei, Bophuthatswana, Venda, Ciskei and now kwaNdebele, and national states such as kwaZulu, Lebowa, etc must all maintain their own legal systems. Over the years their indigenous law will of course be influenced by Roman Dutch law, but it must still be an indigenous legal system modeled on the indigenous law of each nation.

I believe, as does Prof Willemse, that not only can this be accomplished but it would also be unfair to deprive a people of its legal system; on the contrary, everything possible must be done to promote it. Black people, inside or outside the Republic of South Africa, must be given the maximum opportunity to have continual contact with their own indigenous law. Therefore a special means of communication must exist between Blacks inside and outside the Republic of South Africa so that they may experience and practise their indigenous legal system.

This role was previously fulfilled by the commissioners. The disappearance of the office and the duties of the commissioners as judicial officials was a serious retrograde step, and was detrimental to the maintenance of the indigenous law of the Black people.

I know that reference will now be made to the retention of certain parts of section 11 of the Black Administration Act, 1927 and for the insertion of a new section 54(A) of the Magistrates’ Courts Act. Although one is grateful that provision has been made in such a manner by means of legislation for justiciaries on our benches to take cognisance of indigenous law, the CP says that it will not be nearly adequate or effective enough. Initially it might still go well as long as the old guard of commissioners, who, it seems, have all been accommodated by the Department of Justice at the magistrates’ courts, are still presiding. It will not be long, however—only a decade and a half—before an ever diminishing number of experts will be presiding on our benches who have sufficient knowledge of indigenous Black law. Consequently there will be too few experts to ensure that the indigenous law of the Black man will not disappear. It is our conviction that it will ultimately be Black indigenous law that will be the loser in the new constitution. This is so because the abolition of the office of commissioner as legal officer and the disappearance of the other Black courts, as has been proposed and recommended by the Hoexter Commission, will cause the mechanism which was established under the old NP’s ethnic policy to ensure that the indigenous legal system of the Black peoples did not disappear, to collapse. It could have been different if the Government had not allowed the old Department of Cooperation and Development to be fragmented for the sake of its new political ideology, according to which they want to make South Africa an open society. The abolition of Black courts is but one of the many steps so frequently taken by the Government which has been responsible for a further deterioration and abandonment of the policy of separate development.

We are not questioning in any way at all the competence and the ability of the officials of the Department of Justice, but we do say it was a mistake to do away with the old Department of Co-operation and Development and deprive it of its special functions. It served inter alia as a channel and a conduit between the Blacks and the RSA and those outside, especially as far as the maintenance of Black indigenous law and customs were concerned. The old commissioners’ courts were one of the important components of the old Department of Cooperation and Development which ensured the continued existence of indigenous law.

For that reason we say that the abolition of Black courts is in conflict with the CP’s ethnic policy which in that respect is in line with the old NP’s ethnic policy. But that was before the NP wanted to create an open society for South Africa according to its new ideology and no longer wanted to preserve the special courts for Blacks for and in the interest of the maintenance of Black indigenous law.

Mr Chairman, I have been listening attentively to the long argument of the hon member Mr Theunissen. With all due respect, I must tell him that I have come to the conclusion that either he does not understand the legislation or he lives entirely in a world of his own, because not one of his arguments is valid. There is no justification whatsoever for his forebodings about the disappearance of Black law.

I want to refer to a few of the few aspects which he mentioned. Firstly he said that the abolition of these Black courts was contrary to his party’s ethnic policy and that it would gradually lead to the scaling down and eventual disappearance of Black indigenous law. At present the position is that commissioners’ courts have the choice of applying either indigenous law or civil law, as the case may be.

He decides on the basis of whether the parties before him lead their lives according to civil or indigenous law.

For how long?

I shall come to that.

If we take the hon member’s argument further it means that they want to force all Black people to adopt indigenous law regardless of whether it is applicable to them or not.

You do not understand the situation.

Daan, one can see you are not an attorney.

The courts of the headmen are being retained; the courts of the chiefs are being retained; the system as such is being retained. The only difference is that a case can now be heard in another court, namely the magistrate’s court. This type of contempt for Black law—which was clearly implicit in the hon member’s speech—is something which this side of the House will not allow. [Interjections.]

The hon member also made the following statement, namely that the Department of Education and Development Aid—and specifically the commissioner—was the channel between the Government and the Black peoples. That is still the case. That department has not disappeared. The only difference is that the administration of justice is going to take place in another court. [Interjections.]

The hon member argued further that the authority of the whole department depended to a large extent on the authority of the commissioner. With all due respect, Sir, it is surely not the duty of the courts to give authority to the policy, of a government. That is something which has to be done by other structures, but it certainly does not behove the court to become part of a State structure in order to force people to adopt a particular policy.

The hon member also said that the expertise as regards indigenous law was also going to disappear. At the same time he complained that the administrative arrangements have already been made according to which that very expertise can be maintained in as much as a large number of the people who previously applied the rules have been transferred to the Department of Justice. [Interjections.]

Again I want to state that it is in any case not the task of the court to impose a policy. The courts are and must remain independent. They must occupy themselves solely with their existing function of the administration of justice.

Probably also true to the nature of that party, the hon member has now discerned liberal tendencies in the Hoexter Commission … [Interjections.]

Did you read the report…?

I read the whole report. Only the hon member could have detected a trace of insidious liberalism in the structure of the courts. How one can do that, only those hon members would know. [Interjections.] The present situation is that indigenous law is only applied when it suits the parties concerned. Therefore it is not going to disappear. It remains as it is.

The hon member further argued that only section 11 is being partially retained. That is the position at present. The overall position concerning the material rights of Black people is not being addressed in this debate. It stays exactly as it is. The only thing that is going to happen is that it is going to be applied by another court.

The hon member’s argument was that as the old commissioners disappeared, the new magistrates would pay no heed whatsoever to indigenous law. In doing so that hon member fails to appreciate the whole contribution of the legal profession. The hon member also denies the fact that we have a system based on precedent, which binds courts to previous judgments. The hon member should know that a whole structure of precedents has been built up around of Black indigenous law, which is also recognised by our Appeal Court. The Appeal Court has for a long time been hearing appeals from special appeal courts for Blacks. [interjections.] I cannot but come to the conclusion that the hon member is merely trying to turn this legislation into a political issue. As a lawyer this does not do him any credit. One thing we cannot afford is for our courts to be drawn into a political controversy. That is not the way it ought to be. The hon member is doing the courts a disservice by trying to make this legislation appear suspect, as if that were indeed the case.

Contrary to what the hon member argued, this legislation has two important objectives. While it wishes to establish uniformity of legal structures for all our people, it also makes provision for the application of Black indigenous law in appropriate cases. I believe that such uniformity is of the utmost importance for the sake of the security and the trust which are thus created. On the other hand the different indigenous legal systems are, and remain the prevailing law according to which millions of people direct their daily lives. This is a fact, and the denial of this law would be a serious infringement of the rights of the Black people.

With the initial settlement of the Cape, these legal rules were not recognised and it led to a multitude of problems, to such an extent that the matter became, at an early stage already, the subject of legislation. The first legislation dealing with Black rights was the so-called Bantu Succession Act of 1864. In Natal and Transvaal as well, these rights were speedily recognised and separate courts were established quite early, especially with remote areas in mind where this legal system had to function. With the Black Administration Act of 1927 uniformity in the application of indigenous law was obtained by giving the presiding officer the discretion to apply it in appropriate cases. That is precisely what is being done in this legislation. The commissioners’ courts played a tremendously positive role in giving Black indigenous law its rightful place in our legal system. With the discretionary power which still applies, it will still be possible for the appropriate rules to be recognised and applied by the courts. With the administrative arrangements which preceded this change-over, it has also been ensured that the necessary expertise would remain available and that the change-over would occur smoothly. The retention of skilled presiding officers in particular is of cardinal importance.

In a previous debate I pointed out that a real danger existed that a civil law content was sometimes given to indigenous laws, thus wrenching them completely out of context. The civil law concept of absolute property rights has for example been added to the concept succession in Black indigenous law. Thus the oldest son as heir, acquires full property rights over the entire estate of his deceased father. According to Black indigenous law he also acquire that proprietary right, but with retention of a duty of maintenance towards the rest of the family. As regards the development concerning land tenure, I believe that the various interpretations can, with care, be reconciled and would probably have to be adjusted by means of legislation.

There is another aspect which I believe should also receive some attention. As I understand it now the Supreme Court, as court of the first instance—in other words when legal proceedings are instituted directly there and do not arise from an appeal—then no judicial cognisance is taken of Black indigenous law. It must be proven to the court. Seeing that the usual limit of magistrate’s court jurisdiction is now applicable, cases which override it would be referred directly to the Supreme Court for hearing. This will probably occur often, especially when dealing with the law of succession. The difference between the position of appeals and legal proceedings which are instituted in the Supreme Court as court of the first instance is, I respectfully submit, not logical. I understand, however, that the Law Commission is already giving attention to this.

This amending Bill is a very important and welcome development in our legal system which will lead to the better and quicker administration of justice for all our people. This side of the House gladly supports it.

Mr Chairman, the hon member for East London City obviously has a considerable knowledge of the subject, and I must say I agree entirely with the remark he made about the basic premise upon which the hon member Mr Theunissen based his approach. I think his party has done him a terrible disservice because I know him from committee work as a person who is very interested in the law, very fair and very proud of his profession. He now finds himself dumped by his party and having to get up and base his arguments on this extract from page 390 of Part B of the Hoexter Commission:

If ever I have heard a case which indicts itself whereby the man performing administrative functions for somebody also has the right to sit in judgment on him, this is it.

That was the function of the commissioners at the time.

Surely, in law, that is the very antithesis of having access to an independent court.

It is very much like the old British law.

Let us get that over with. We started this session by blaming the British for apartheid. Then the churches were blamed, and now it is the British again, but the NP never comes into the picture. The NP did nothing. [Interjections.] The whole basic premise of the argument of the hon member Mr Theunissen is completely flawed because the whole aim of this Bill is to get away from the weakness of commissioners being able to sit in judgment on their own administration. It is a ludicrous situation. If the hon member and his party had the good sense to …

What do you do about polygamy?

Order!

Mr Chairman, may I put a question to the hon member, if he is suggesting that…

But you must put your Christmas present down! [Interjections.]

Very well. If the suggestion by the hon member for King William’s Town means that it will fall entirely under the Act, will it be possible, then, to provide that African law does not apply here, viz that the provision that a man may not have two or three wives, will apply? [Interjections.]

Sir, this aspect was fully covered by the hon member for East London City. [Interjections.] The fact of the matter is this is merely a transfer of the courts; nothing is changed in the legal system as such. The indigenous law is still applicable, as are all the other existing laws. [Interjections.] Therefore nothing changes, except that the courts are being transferred.

You can never trust the Nats; I can tell you that! [Interjections.]

That sounds like an old SAP phrase, Sir. [Interjections.]

Order! I think the hon member for King William’s Town must now be given the opportunity to make his speech. The hon member may proceed.

I was saying that it would have been a good thing if the hon member and the party to which he belonged formerly had had the good sense to listen to the words of the Secretary on page 386 of the report of the Commission of Inquiry into the Structure and Functions of the Courts, which read as follows:

Then he wrote again in 1949, when the NP was beginning to get things all screwed up again and said:

This points out very clearly the separation of the administrative and judicial functions and makes out a strong case for them not to have jurisdiction where criminal law is concerned. It is interesting to note that earlier the Governor-General had the right to give that jurisdiction to certain commissioners, and there are various references to that in the commission’s report.

The other point made by the hon member related to the administrative action taken by the hon the Minister in 1984 in respect of the staff members. Really, I say again, his party put him right up the creek because the only thing that happened there was that personnel went from the control of one department to another.

You did not follow my argument.

It has nothing to do with coming to this House. It is purely an administrative process. That whole little exercise by my good friend here was one in which his basic premises were incorrect.

I would also like to ask the hon the Minister whether now, since the functions of those Commissioners’ Courts are carried out by magistrates’ courts, the stigma attached to the commissioners’ courts in respect of the exercising of the statutory law, particularly in connection with section 10(l)(a), (b) and (c) of the Black Administration Act is not going to be transferred to the magistrates’ courts. It appears to me to be a great pity that there was not some co-ordination in respect of this because nothing has been said in this debate thus far about the negative side. The hon member for East London City mentioned here that they had done a great deal of very laudable work in the days gone by in respect of the administration and especially in far-flung places with respect to the observance of customary law and assisting generally with the upliftment of those people in maintaining stable administration.