Order! I have to inform this House that Mr Speaker is unavoidably absent as he had to open the session of the Legislative Assembly of KwaZulu at Ulundi, and that in terms of section 58(4)(a) of the Constitution of the Republic of South Africa, 1983, he has designated me as Acting Speaker to perform his functions during his absence.

announced that in terms of Rule 23(4) Mr Speaker had referred the following draft Bill which had been submitted to him, together with the memorandum thereon, to the Standing Committee on Private Members’ Draft Bills:

Mr Chairman, yesterday I referred briefly to the standpoint the hon member for Randburg adopted in regard to the essential fact that the knowledge of Black experts would be necessary for the maintenance and extension of customary law, and this applies to the future too. I want to agree with the hon member, but in this connection I would nevertheless like to put a few questions, specifically to the hon the Minister.

With the Black courts now disappearing from the scene, with the functions being taken over completely by the present magistrates’ courts, we should like to know from the hon the Minister whether he is now going to ensure administratively that Blacks receive the training that is normally necessary for someone who wants to become a magistrate, i.e. by first acting, in the normal course of events, as prosecutors in the magistrates’ courts of South Africa. Is he going to place Blacks on the Bench in an administrative capacity, not only to try cases between Black litigants, but also between Black, White, Coloured—just name them—litigants?

Yes, of course!

There we have an hon member of the PFP saying “yes, of course”.

What do the new Progs say?

I take it the hon member for Randburg does, of course, also say yes; perhaps even a large number of another hon members on that side too! We would, however, specifically like to know from the hon the Minister whether he in his department, has made provision—in accordance with the fact that the hon the Minister of Defence indicated yesterday that in his department and in the Defence Force a Black man could go as far as his competence permitted …

Blacks can now become officers in the Defence Force, if I am not mistaken.

Is it also the standpoint of the hon the Minister of Justice of South Africa that in future there will be full and absolute equality between Whites, Blacks and Coloureds in the adjudication of disputes too? If that is not his standpoint, how is he going to deal with the problem? I want to contend that the legislation in question—legislation in terms of which special courts for Blacks are to be abolished—not only does a disservice to the Black peoples and to the rightful development of Black customary law in South Africa, but will also create tremendous problems, not only for the hon the Minister—and I do not, of course, begrudge the National Party any possible problems they may have—but also in the sphere of relations between the various peoples and groups in South Africa. Unless the hon the Minister intends to tell us openly and frankly that he is now going to appoint Black magistrates on an equal basis to that of White magistrates, and with equal status, this applying equally to the White area of South Africa—I do not know whether he is prepared to do so …

He is really a very cautious little fellow.

But he allows Indians into the Free State.

… we shall draw our own conclusions.

I want to conclude by saying that the arguments advanced by the NP remind me so very much of all the arguments we previously heard from the PFP. The NP also refers to the “stigma” attaching to the Black commissioners’ courts owing to the task entrusted to them, that of implementing laws relating to influx control and so on. That may be so, but if that is the reason—it is apparently the chief reason advanced by the Government for the abolition of those courts—it could surely have been an easy matter to arrange for that specific function of the Black courts, to which objections were advanced, to be taken from those courts and transferred to the ordinary magistrates’ courts. Then the adjudication of disputes between Blacks could, with the utmost safety, be left to courts existing specially for the Black peoples.

This is again a measure introduced by the new Nationalists who, in the end, want to turn South African society into a multiracial society.

Mr Chairman, like the hon CP members who spoke before him, the hon member for Barberton tried to bring this measure into the ideological arena. That is a great pity, because the more we combine politics, jurisprudence and the administration of justice, the more difficulties we are going to experience. My request is that we try to argue clearly about that issue.

Two arguments have been advanced, and the hon member Mr Theunissen also mentioned the fact. The first argument is that this proposal was supposedly contrary to ethnic policy and the fact of the existence of separate peoples. The argument is that because there are separate peoples there should also be separate courts. The implication is that the present system accords with ethnic policy.

In his speech the hon member for Barberton said, amongst other things, that it was unfair to expect judges of our Appellate Division also to be experts in customary law. What is the present situation? Which court is the court of highest authority, also in regard to the Commissioners’ Courts and the Appeal Court for Commissioners’ Courts? The Appellate Division of the Supreme Court is the court of highest authority. Section 18 of the Black Administration Act states at present that that court is the court of highest authority.

Moreover, section 14 of that Act provides that the Minister may submit a question of law to that court. In the event of the Appellate Division of the Supreme Court having given a decision on that question of law, this should then serve to guide the Commissioners’ Courts. If that is the present dispensation, what objection can there be to this also being extended to the other civil courts in South Africa? If hon members have any ideological objections to the abolition of special courts for Blacks, they must object to the present system on ideological grounds because the Appellate Division is the highest court of authority as far as Commissioners’ Courts are concerned.

Specifically because of the fact that our Appellate Division of the Supreme Court is also the court of highest authority as far as the Commissioners’ Courts are concerned, this legislation is not, in my view, as great a deviation as is now being contended.

Another argument that was advanced was that it would detrimentally affect the administration in regard to Black people. The hon member Mr Theunissen also mentioned this, referring to certain evidence presented to the Hoexter Commission. As far as that matter is concerned, let me just say that justice and administration should also be kept in separate compartments. The more we do so, the purer will the administration of justice be.

The hon member Mr Theunissen also said that the preservation of customary law was not an effective process. He said these courts were instituted—now I am using his exact words—“to ensure that indigenous law did not disappear.” The present situation is such that the choice of making use of this law or not rests with the Black man himself. There is no change as far as that is concerned. This law cannot, after all, be forced on people; nor do I think that is what the hon member wants.

I very positively want to contend that this change presents a further opportunity for the development of customary law. Now it will also be implemented in the civil courts, in the magistrates’ courts and in the Supreme Court, which was not previously the case. So people who want to practice in these courts will have to have some knowledge of customary law. I want to express the hope that as a result of this change, customary law will be introduced as a compulsory course for an LLB degree.

A further obvious benefit of this system is that now customary law will be able to develop a proper, familiar and ordered system of precedence because matters heard in those courts will become well known owing to the fact that they appear in well-known reports. The fact simply remains that no court or forum can ensure that a certain aspect of common law will not die out. If, however, a certain court is perceived to be inferior, regardless of whether that is the case or not, the use of that law can be adversely affected.

Further arguments that have been raised are that there would be a diminution of knowledge in regard to the implementation of customary law. At this stage we have approximately 300 Commissioners’ Courts. In 200 of these courts it is a magistrate who, in both situations, administers justice. He administers justice in his capacity as a magistrate, but also in his capacity as a commissioner. The envisaged arrangements are therefore, to a very large extent, already being implemented in practice. The same expertise that is being used at present will continued to be used. It is merely possible that that expertise will be extended further because the necessity for that exists.

I should also like to support this measure because it will promote rationalisation as far as our administration of justice is concerned. I feel we have far too many courts altogether. We must not even think of extending our courts further. I feel that if we continued along these lines and were able to introduce further rationalisation, in the long term this would give us a more effective and hopefully cheaper judicial administration. That is why I am very doubtful about our introducing family courts.

I should like to support this new dispensation because it grants recognition to customary law in all our civil courts and also creates the possibility of that customary law being expanded further.

Mr Chairman, the hon member Mr Schutte reproached the hon member for Barberton for having talked politics. We find ourselves in the strange position that the NP wants us to stop talking politics in this Parliament. One simply may no longer talk politics.

Because they are politically bankrupt. [Interjections.]

If one is talking about agriculture in Parliament, they say one is mixing politics with agriculture. If we speak about education, they say we are dragging politics into education. There is not a single facet of life we can still talk about. [Interjections.] The only reason I can advance for that is that those hon members have become so fearful of politics …

[Inaudible.]

The hon the Minister of Law and Order does not even want us to talk politics when it comes to law and order. [Interjections.]

Let me tell the hon member Mr Schutte that the CP will deal with politics and will talk politics, because that is what our country’s problems are all about. Every party must clearly state its principles and policy. [Interjections.]

The key to the NP’s thinking on the unravelling of this Bill lies in the opening words of the speech by the hon member for Mossel Bay. Let me just refresh the hon member’s memory, and the memories of other hon members in the House, about this. He began by saying:

Superficial readers and superficial thinkers will simply allow these few sentences to pass them by. [Interjections.] Critical readers, critical thinkers, yes, deep thinkers such as those of us on the right, see much more in those words than are apparent here. After all, at the beginning of the year we listened to the great presidential address here. What, amongst other things, did we hear that day? Let me refresh the hon member’s memory. The State President said the following (Hansard: House of Assembly 1986, col 14):

That is how I have come to know the NP during the past few years. [Interjections.] The major portion of the NP caucus—I am speaking of the major portion—have simply become political hand-clappers. The leader-in-chief of the NP sounds a note, and then the old chorus just sings along. [Interjections.] The hon the Minister of Justice and the hon member for Mossel Bay are typical members of that chorus. [Interjections.]

In political debates during the next few months, here in the House and outside the House, hon members will be hearing, in a variety of scenarios and tonal variations, and in various ways, of this question of paternalism. [Interjections.] For the conservative members of the public the bass voices in the NP chorus will sing of “the outdated colonial system of paternalism”. For the liberals, such as the Progs here in the House, the tenors in the chorus will sing that passage the hon member for Mossel Bay mentioned in his introductory words, ie “as well as the outdated concept of apartheid”. That is what it is all about as far as this Bill is concerned. A la carte—á la Huntington is the way in which it is approached.

Now I want to express a few ideas about part V of the Hoexter report. That is the portion dealing with special courts for Blacks. I want to express my great appreciation to the hon Mr Justice Hoexter and those who assisted him.

At the end of the month the 1966 generation sitting here in the House will have been in Parliament for 20 years. I want to say that it is particularly in recent years that I have become increasingly sceptical of the way in which the NP approaches politics in South Africa. It governs by way of commissions and appointments.

When are you coming to the Bill?

I am coming to the Bill. The hon member is afraid that I shall take a long time in coming to the point, because he does not want us to discuss these matters. [Interjections.] The hon member is afraid of politics.

The Government proverbially governs “by commission and by appointment”. I want to say that we are too ready to accept the reports of commissions as papal decrees. I also want to say frankly today that if I have to allocate marks to the commissions we have had in the past few decades in South Africa, I would be careful, first ascertaining who gave evidence, how it was processed and what arguments were adopted prior to the findings and recommendations. I state that as a categorical standpoint.

I have a certain number of critical questions to ask about Part V of the Hoexter report. Accepting the contents of the Hoexter report, on which the hon the Minister’s Bill is based, as being correct on the face of it, we nevertheless have a few tricky questions about which I want to say a few things. I quote from Part V, subparagraph 4.3.7:

As far as this aspect is concerned, firstly I cannot simply agree with the use of the term “Black law”. In Southern Africa we do not simply have a legal system for a lot of individuals who jointly form a specific group on the basis of pigmentation. That is not all we are dealing with, and that is why I cannot agree with that use of the term “Black law”.

The use of that term fails to recognise, and gives the cold shoulder to, the ethnic diversity prevalent amongst the population groups indigenous to Southern Africa. “Black law” is an incorrect term. In South Africa, with its multiplicity of peoples, one can speak of “Zulu law” or “Venda law”. If one compared the respective legal systems with each other, one would find many similarities, but they are distinguishable legal systems of the respective Black peoples in South Africa. The legal system of a people is an integral part of a specific cultural organism. One cannot simply divorce oneself from it. So simply talking about Black law in this way is, in my view, incorrect.

It is also said that Black law is rapidly waning. About that I want to say two things. It is a cause of concern to me if it is true that Black law is simply in the process of waning in South Africa. Perhaps it is then true that the Whites have not evidenced sufficient respect for so-called Black law. The other possibility is that it is specifically the paternalism, which hon members supposedly want to get away from, which has caused a so-called waning of the legal systems of the Black peoples to take place.

The White liberals do not have the time, nor can they make room, for what is traditional.

How do you know? [Interjections.]

It is interesting that the moment I start tackling the NP, the PFP reacts. [Interjections.] We are now talking here of the new liberals and not the old liberals. [Interjections.]

Is it an actual fact that Black law is in the process of waning? Has it been ascertained that there is no vitality left in Black law in South Africa, and has the functioning of the legal systems of Black peoples really been tested? Are these observations really correct? When reading this report, I had my doubts about this, because understandably I did not have all the evidence available to me.

Thirdly I want to ask whether the abolition of the courts is not specifically a further onslaught on the legal systems of the Black peoples in Southern Africa. That is a question that comes very seriously to the fore.

Justice is justice. [Interjections.]

The hon members for Houghton and Sandton are now reacting here to what I am saying, but I just want to ask them to give me a chance to talk to the new Progs. [Interjections.] Shortly, in about a year or two, there will be a normal division between the liberals and the conservatives. I shall then be able to have a nice conversation with hon members, and then we shall again be able to conduct more fundamental discussions on these matters.

Helen could probably be Minister of Justice by then.

Leave the Minister to me.

I read the evidence given by Mr A M Moleko, and also that given by Adv P N Langa. From my knowledge of the history of South Africa I have learned that there have also been White liberals in various social spheres. Yesterday the hon member for Sasolburg very adeptly referred to the relationship between the so-called Afrikaans and English strains in the legal system.

Is he a liberal?

No, of course he is not a liberal. He is a friend of mine. I helped him get to this House.

I also accept the fact that there are Black people, particularly those who have had a fair amount of contact with White legal men from Wits, Ikeys, a few from Stellenbosch and so on, who also say they want nothing to do with the so-called Black law, regarding it as being inferior. They think that everything which is traditional and which is a part of one’s own heritage is inferior. In the history of our own people we have had Afrikaners who have said: No fear, what the Afrikaners have brought forth is not worth anything. I also want to add that in my own mind I have doubts about the degree to which this report really did carry out an investigation on the basis of evidence on a much broader and deeper basis in regard to what really was in the hearts of individual members of the various Black peoples.

This is not the time to debate the legal systems of the various indigenous peoples. I merely want to state that the attitude of this Government is a cold and indifferent one. What we in South Africa have, and what has been the reason behind many political debates over many decades, is specifically the situation of a diversity of peoples in Southern Africa who have come into contact with one another. They have come into contact with one another as peoples with differing cultural patterns. The legal system was part of that particular ethnic organism. Those were, broadly speaking, the problems we had in South Africa. We therefore had a case of overall conflict or acculturation.

To hon members opposite I just want to quote a few remarks which, generally speaking, underlie acculturation in South Africa and which have also, in fact, influenced the legal system. I quote from a book entitled Kultuurbeïnvloeding tussen Blankes en Ban-toe in Suid-Afrika edited by Prof Geoff Cronjé. This relates to an article by Prof P J Coertse. In his concluding remarks in this chapter Prof Coertse says the following:

So what we have had in South Africa is a situation in terms of which the advent of the Whites, with a kind of elevated culture, if one can describe it in those terms, had a specific influence on the cultural patterns of the indigenous population groups, and its depth, and the events surrounding it, we have not yet truly been able to fathom in the present-day political set-up in Africa and South Africa. That is why we have this superficial approach on the part of the Government.

The NP, as a neo-liberal institution, is today making the same mistake as its philosophic contemporaries sitting here to the right and left of me, and also the same mistake made by their philosophic predecessors as far as other facets of life are concerned, and here I am speaking of religion and the fact that Christians were brought here in a specific manner which did not recognise the cultural heritage of these peoples. The same applies to politics, as if we think that in political acculturation those people simply become the same kind of democrats that we are or, as far as language is concerned, as if in the modern world the Black man’s language is not equal to describing its nature.

Yesterday evening on TV4 I watched a boxing match between Sakkie Horn and someone else. I listened to the commentary in Zulu. I found it interesting to see how the Zulu commentator could describe that boxing match in his own language, now and then using an English word such as “uppercut”, something we have given the NP a great deal of recently. We find the same sort of thing in education, and I have some experience of that.

In his argument the hon member for Mossel Bay displayed the typical characteristics of an eighteenth century liberal. This foundation of the Department of Co-operation and Development, which has become a large, powerful and mighty department which has in fact, in the most unsullied terms, examined the diversity of the ethnic set-up in South Africa, is systematically being dismantled by the Government. In the dismantling of the old Department of Co-operation and Development, apartheid or separate development is also being dismantled, and the new giant that is now being set up is the integrationist department of the hon the Minister of Constitutional Development and Planning. That is the process we have sat watching here during the past few years.

Hon members must again read what the hon member for Mossel Bay said. That is precisely what I am now going to quote from in order to refresh his memory. The hon member obtained a doctorate at Lijden, if I remember correctly, or somewhere overseas. I cannot understand how the hon member can attach so little importance to customary law. I am not a legal man, but my three colleagues who spoke before me are actually our experts on these matters. I am simply speaking as an ordinary man.

Even the foundations of our law, which must deal with all up-to-the minute situations, reaches far, far back through the centuries.

Daan, I could give you a few lessons on that.

I would be very glad to learn, if I could learn anything from the hon member, because he knows nothing about politics. If there is one person who changes his principles completely, it is that hon member.

The hon member says that the special courts for Blacks are actually a relic from the old colonial era. Surely it is not factually correct to simply say that. All the things we now have here today are relics of the colonial era—including this building and even the system we adopt too.

And even you!

Yes, quite probably. I must say the Van der Merwes have been in the country longer than the Niemanns. [Interjections.] Then he also says that we have today reached the point of accepting the principle that all citizens of the Republic of South Africa ought to be entitled to be tried by the same courts. I now want to ask the hon member whether, by way of this statement, he is alledging that the Black people of South Africa have never really been given the opportunity, by the South African courts, to present their cases and have them tried. Surely those few sentences used by the hon member for Mossel Bay are an accusation levelled at the hon member’s own predecessors. The liberalistic and hostile world has always said we are not giving the Black groups and the other groups of colour in South Africa an equal chance before the courts. Here, in his own speech, the hon member has repeated that very accusation. The hon member for Mossel Bay again …

Man, I never said anything of the kind!

Now, the hon member contends that he never said anything of the kind. He should again go and read his speech in Hansard. The hon member is again passing sentence on his own party’s history.

Of course, he seldom knows what he is talking about. [Interjections.]

Mr Chairman, it is nevertheless interesting to note—in this debate again too—how the PFP and the National Party speak the same language. [Interjections.]

Order!

The hon member prof Olivier could probably not be here today. In his speech yesterday, however, there was a great deal more compassion for, and gratitude towards, the officials, of the relevant courts which are now to be abolished, for the work they have done, than there was sympathy or gratitude or compassion forthcoming from the ranks of the National Party. That is why I believe that there is a great deal more objectivity inherent in true liberals than in neo-liberals. [Interjections.]

We must also remember that these specific courts are being abolished within a dispensation in which the National Party believes in one nation, one country and one government—a view which makes their belief in the so-called diversity of peoples nothing more than lip-service, simply reducing groups to minorities in South Africa.

I am telling the NP today that in the political system they want for South Africa, a system very closely intertwined with its legal system, both the hon member for Randburg and the hon the Minister of Foreign Affairs have said that in specific circumstances a Black could become this country’s head of state. I am therefore telling hon members of the House that, politically speaking, South Africa could end up with a Third-World situation.

Get back to the Bill.

The hon member is very nervous. If I were in his position, I would also be nervous. [Interjections.]

The level of civilisation reached by our people is also embodied in its legal system. That is very important. If we adopt the political course which those hon members want to adopt, we shall be adopting a course that will lead to a Third-World legal system in our country.

I therefore want to conclude by saying that with the abolition of these courts, which may actually be a small and unimportant matter, the Government is not addressing the problem of the ethnic situation in South Africa. Only a right-wing Government would be able to address such a problem. The present Government is unapproachable and indifferent when it comes to the Black people and their culture. I am therefore saying that only a right-wing Government can address the problem of the diversity of peoples in South Africa because we see the realities of the situation in the historical context and because we can, on that basis, make true projections.

The CP’s policy is to grant recognition to the diversity of peoples and their various legal systems. The legal system of any people that wants to survive has a built-in dynamic element so that it can adapt to the dictates of the most modern society. What I am therefore saying is that the CP adheres to the legal system on which we have historically based our way of life. We shall accommodate the non-Whites in White courts, but we shall not detract from the legal systems of the Black peoples. We shall certainly give them an opportunity to develop what we might call their primitive or elementary legal system, if you will, in a world in which they can also address other countries on the question of their legal system.

Mr Chairman, this debate could actually have been short but it evolved into one in which various speakers advocated various standpoints. The merits of this debate were that there was hardly a speaker from Opposition parties whose arguments were not dealt with by speakers on this side of the House; in addition it was done most effectively. This actually facilitates my task as I can now deal with a broad canvas without concentrating on each speaker specifically. My thanks therefore to the hon members of the NP for their thorough preparation and debating.

There were also cases in which hon Opposition members replied to one another. The hon member for Sandton, for example, was very eager to reply to other hon Opposition members. Perhaps he may pursue this during the discussion of my Vote.

He took up the cudgels on your behalf!

Oh!

This debate ranged far afield and touched upon many facets but I think we should reduce it to essentials. In the first place—I am not referring to total amendments to the Bill now—the debate dealt with the abolition of Commissioner’s Courts and the transfer of specific functions to magistrates’ courts. This process was preceded by an administrative step taken in September 1984 when the Department of Justice launched specific actions in taking over the administration of the Commissioners’ Courts, the Divorce Courts and the Appeal Courts.

The hon member Mr Theunissen specifically made a great issue of this and said we were in contempt of Parliament by taking this step before first coming to this body. I do not agree with the hon member. The South Africa Act of 1909 clearly laid down that the administration of justice in South Africa should fall under the control of the Minister of Justice. The Minister of the State was designated as the special person for this at the time. The 1961 Constitution took this a step further and provided specifically that all dispensation of justice should be placed under the control of the Minister of Justice. The 1983 Constitution contains the same provision and hon members on that side of the House who served on the Committee on the Constitution surely ratified that provision. As regards the dispensation of justice, therefore, the principle is in line with the Constitution of South Africa that the judicature fall under the administration of the Minister of Justice.

This is precisely what took place in September 1984. At the time those courts were placed under the control of the Minister of Justice. This is also the current situation unless under Parliamentary edict an amendment is passed, namely the abolition of Commissioners’ Courts, their attendant powers of jurisdiction and all powers they had in terms of Act 38 of 1927. How can contempt of Parliament emerge from this? [Interjections.] Consequently the hon member’s argument is without substance and I cannot accept it.

The crux of the question before us today is the following: Was this serious interference in the administration of justice as far as it affects Black people? Are we dealing here with a total dispensation on the point of collapse and to be totally nullified? No, Sir. What are the facts of the matter?

We are talking about 303 Commissioners’ Courts in South Africa. In the case of 253 of these Commissioners’ Courts the functions allocated to commissioners are carried out by certain officials. By whom are they carried out? If the hon members over there who were so verbose on this matter would listen, they could learn something.

They are not interested.

Surely these 303 courts had a presiding officer. Who acted as presiding officers? Who dealt with the entire dispensation of justice in terms of Act 38 of 1927 which maintained Commissioners’ Courts? Who did this? In the case of 253 of them this was done by magistrates. Such a presiding officer acts as a magistrate one moment, in whatever capacity he is administering the Magistrates’ Courts Act, and the next moment—and I say this to the hon member for Rissik if he wishes to listen—he acts as a commissioner. It would appear my arithmetic has been slightly influenced by the hon member for Rissik who did not pay sufficient attention when he should have received his in-service training. There is a total of 305 and not 303. Nevertheless we had separate Commissioners’ Courts in the case of only 52 of these. As regards the administrative facet, therefore, the hon members’ argument deals with only 52 offices. It affects 52 offices. This means that for years there have been 253 centres where magistrates have dispensed justice where necessary in terms of Act 38 of 1927.

The recommendation of the Hoexter Commission was therefore actually only to transfer officials involved at 52 offices to the Department of Justice. It was the case at only 52 offices but not at 253 others. Why do CP members therefore have such great objections whereas one may say that actually one sixth of the offices were manned by commissioners in the true sense of the word; the rest have been manned by magistrates for years. Where on earth did hon members of the CP and the hon member for Sasolburg come by …

Why the change then?

Only a great jurist like S P Barnard would put such a question.

I now reach a few facets which all hon members have supported and wish to support. These include the requirement for properly planned training of jurists in South Africa and that there be proper access to courts in South Africa. All those hon members could support the concept that it should be as cheap as possible and that there should in truth be confidence in the judicature as being one applicable to all people in South Africa. Or do the hon members wish to argue that the judicature in South Africa should differentiate? If that is the hon members’ point of departure, they do not support the legal system which supposedly originated in South Africa and which some of the hon members are attempting to hold up as a unique legal system in saying it should not apply to Black people. Consequently it remains a fact that, if hon members support the concept that all are equal before the law and that all should have access to it and that above all everyone should have confidence in the South African legal system, there is only one way to put this into practice which is to develop the model and establish the perception that all are equal before the law in South Africa and will enjoy a just legal dispensation. What does this imply? It implies that judicial officers should receive the same training as far as possible and apply the same standards regardless of race or colour. Hon members cannot fault this idea. If hon members want to contest it and attempt condoning the exclusion of Black people, they are not proponents of a civilised legal system. In consequence a very good case may be made out for the creation of a dispensation by which those judicial officers dealing with Black people—in their particular lives, their particular circumstances and backgrounds—should have the same training as other judicial officers in South Africa. This is the principle of the matter I am discussing—hon members cannot fault it.

Consequently training should be available to all where feasible. The special training for prosecutors offered by the Department of Justice will be available to all as all require the same high degree of expertise in our courts. We are striving to have judicial officers with the same high degree of qualifications on the Bench in the course of time.

There is a further aspect on which hon members of all Opposition parties supported us which is that we should strive to separate the dispensation of justice from the administrative functions carried out at magistrates’ and commissioners’ courts. Hon members all agreed on this. The implication of this, however, is that certain administrative functions will remain with the Department of Co-operation and Development which is now the Department of Development Aid and that where possible legal functions will be dealt with by judicial officers. We are in the process of developing the dispensation which hon members supported—including the hon member Mr Theunissen.

If we retain Commissioners’ Courts in their present form, the question arises whether administrative functions as regards births, deaths and even sometimes pensions should be retained. Surely it cannot be true that this is the hon member’s argument. He would be advocating separation in the case of Whites.

That was in accordance with the old NP ethnic policy.

The hon member is a proponent of separation in magistrates’ courts; then why not in Commissioners’ Courts? Consequently the hon member’s arguments are altogether unacceptable to us.

Except for the leg of the debate I have now dealt with regarding the administration and judicature, the other leg dealt with what law should be applied. Hon members of the other side, especially those of the CP and the hon member for Sasolburg, confused the concept of administration and the dispensation of justice with the legal system applied. They argued as if the system we call customary law were being threatened by amendments discussed today. Surely that is not right; it is actually a distorted misrepresentation which has been disseminated—it has no leg to stand on whatever. What actually took place? The Hoexter Commission did not propose the abolition of customary law in recommending that inter alia Commissioners’ Courts be abolished. Hon members should point this out to me in the report. On the contrary, they were very clear that, as regards customary law, provisions of section 11 of Act 38 of 1927 which regulates Commissioners’ Courts should be retained.

The abolition of the courts does not promote customary law.

We shall get to that now.

In other words, the Hoexter Commission did not say customary law should be abolished. What did we reply to this? We reacted to this after the House of Assembly had debated the matter properly. In 1984 the hon member Prof Olivier and the hon member for Barberton argued very effectively for the retention of customary law and that we should ensure it did not suffer damage in the process. The hon member for Barberton was actually so effective that I complimented him and told him I would definitely read his speech—which I did. What is more, Mr Peter Mopp, the hon member for Border in the House of Representatives, last year argued very strongly for the retention of customary law.

The position is that in terms of section 11 of the Black Administration Act a judicial officer can take cognisance of customary law. In a different court, if customary or any other law is involved, the court may decide first to lead evidence. Then it is not regarded as part of the Roman-Dutch legal system or a system recognised equally in South Africa. That is the current position. It is clear that in terms of section 11 this may well happen.

Arising from the fact that case law had to rectify the matter, after reviewing these debates I concluded that in the transfer of jurisdiction from Commissioners’ Courts to magistrates’ courts we should ensure that customary law did not suffer damage. The Aunt Sally raised by the hon member over there is specious so I have brought about an amendment to section 11 of the Black Administration Act. I inserted the following words—other than as appearing in section 11:

I wish to say to the hon member for Rissik—I should be glad of his attention …

I am looking you straight in the eye!

I wish to say to the hon member for Rissik and his party that they did not understand the Bill because, if they had, they would not have argued for hours and attempted to create the impression that knowingly and with ulterior motives we were attempting to scuttle customary law.

Naturally! I know you and your party only too well.

I therefore say to you now—after listening to hon members and especially to the hon member for Barberton who argued far better than the hon member for Rissik—we said we would ensure that customary law would suffer no damage. What did we say? We said that a judicial officer could take legal cognisance of it—other than as appeared in the old Act. This means that in consequence of having established that a certain set of legal principles are involved here, a judicial officer may say he will refer to text books on this and apply the law. He can do this from own knowledge or consult text books; he may also examine legal principles contained in judgments; he does not have to call evidence to state what Venda law has to say on this or that point.

That is what we are saying in this; we are taking it much further.

If the hon member had been listening, he would have heard the hon member Prof Olivier thanking the Minister of Justice for having made this special insertion to ensure that customary law did not suffer damage.

I can understand his thanking you; your politics are the same.

But the hon member for Rissik said a short while ago the hon member Prof Olivier had made such a good speech. He had thanked officials who had done such good service over the years. Naturally he did this but he also thanked the Minister because he had ensured that customary law would not suffer. That is what is written here.

What about the damage in consequence of deviation from the NP ethnic policy?

When did you discover that? [Interjections.]

Order! The hon member Mr Theunissen must control himself.

I also have to refer obliquely to the hon member for Sasolburg. I think that hon member has influenced the standpoint of that party and I find it very interesting that he has become the head of that party in such a short time. [Interjections.] I find it very interesting that he has become the head of that party. If one examines the speech the hon member for Barberton made in 1984 and previous absolutely balanced and objective arguments and standpoints of the hon member Mr Theunissen who made outstanding speeches in the past and one sees how they described a 360° about turn in this debate to come to a stop at 90°, I say the hon member has accomplished a great deal in a short while. [Interjections.] He has influenced them to incline from a very sound standpoint to a very unsound one. I think that an achievement.

While I am dealing with the hon member for Sasolburg, I wish to say he went so far as to collect evidence to prove that the system of Commissioners’ Courts was generally acceptable. As regards that, he said Mr Nelson Mandela had appeared in a court case of which he had heard and had not objected to the system. This argument is naturally very strong and wonderful but am I to deduce from it that, because Mr Nelson Mandela has never condemned HNP policy, he approves of it? [Interjections.] Surely that cannot be true! Consequently I regret saying this scrap of evidence from the hon member has not furthered our debate. [Interjections.]

I think the debate as regards customary law was valuable as it proved that all four parties in this House were of like mind that customary law was not a system replaced by Roman-Dutch law. It is not a system which is recognised on an equal footing with Roman Dutch law; neither is it a system to be treated like a foreign legal system. In order to maintain and promote the rich cultural flavour of customary law we should therefore accord it a special place in our legal system. How do we do this? We do it by enabling judicial officers, in the light of their experience and skill, to apply that law based on previous judgments and theory in text books without hearing evidence as would have been the case if we had had to decide for instance on a marital dispute under specific circumstances in which Greek law was involved. Evidence has to be led in such cases.

In this respect we therefore really have a message to disseminate in conjunction with the other two Houses of Parliament and that is our appreciation and understanding of customary law in South Africa and that we are taking pains to retain it. This standpoint is totally in accord with the development we are experiencing at our universities where there is increasing interest in customary law. The universities of our neighbouring states, for example the university in Bophuthatswana, are taking enormous pains in codifying customary law. This Government will go out of its way to …

They have to do it in their own fatherland. Surely Bophuthatswana is an independent state.

Oh, the hon member’s ignorance is showing.

No, but surely that is a fact! Bophuthatswana is an independent state. [Interjections.]

The fact is that they adopted Roman-Dutch law.

To what degree? [Interjections.]

Good gracious, Sir, a shoemaker should really stick to his last! [Interjections.]

†The hon member for Sandton asked why we do not abolish the divorce court forthwith in view of the fact that there is a delay with regard to the finalisation of the recommendations of the Hoexter Commission on these issues. What would happen if we did that? We would deprive certain couples of the right to get divorced within a shorter period of time and perhaps of the right to obtain a less expensive divorce. Furthermore, we would be exposing them to a system in our Supreme Court which is, in fact, criticised by the Hoexter Commission. That is why they have recommended the change. In other words, we must improve the situation and, if we abolish the divorce courts now, it will not be an improvement of the existing situation. Therefore, I cannot accept the hon member’s suggestion at this stage.

In response to the speech of hon member for King William’s Town, I want to point out that the trials which he has in mind are now divided among far more courts. However, apart from that, statistics show that there has been a vast decrease in the number of cases of that nature. As a matter of fact, I can recall captions such as “No more prosecutions” and “Vast reduction”. That signifies a change in the application of that particular Act.

In conclusion I want to say that it has been a very fruitful debate. It has been a debate in which especially the CP has been exposed as a party that has changed its attitudes to its own detriment.

Question put,

Upon which the House divided.

As fewer than fifteen members (viz Messrs S P Barnard, J H Hoon, Mrs E M Scholtz, Dr W J Snyman, Messrs L, F Stofberg, L M Theunissen, H D K van der Merwe, J H van der Merwe, W L van der Merwe, R F van Heerden, Dr F A H van Staden and Mr J J B van Zyl) appeared on one side,

Question declared agreed to.

Bill read a second time.

Mr Chairman, I move:

Basically the Criminal Procedure Amendment Bill has a threefold purpose, namely (a) the increase of penalty provisions, (b) the amendment of certain provisions in order to limit the detention of accused and (c) the amendment of certain cumbersome and time-consuming procedural provisions. At the same time some deficiencies in the Act are rectified.

During 1985 penalty provisions in the Magistrate’s Courts Act and the Supreme Court Act were increased threefold due to the depreciation of the monetary unit. For the same reason it is essential that penalty provisions in the Criminal Procedure Act be adjusted. It is consequently proposed in clauses 2, 3, 4, 5(a) and (c), 7(e), 8, 12 to 15 and 24, that the penalty provisions in the Act also be increased threefold.

A very positive and singular feature of the Bill is embodied in those amendments which aim at: (a) reducing the period of detention of persons awaiting trial and (b) either restricting the term of imprisonment or creating the possibility of suspended imprisonment. The beneficial effect of these amendments is primarily the least possible exposure of awaiting trialists and convicted first offenders to a tough criminal milieu.

In terms of section 72 of the Act—I am giving a number of examples now—a court may release an accused from detention on warning. In clause 7(a) to (e) it is proposed that provision be made for a court to couple any conditions similar to bail conditions under section 62 to a release on warning. We have, for instance, in mind the place where a person is to confine himself to, the time when and how often he has to report, and the address which will be designated for the receipt of certain processes.

This amendment ought to have the result that the accused may be released on warning for a much wider range of offences. A second example in terms of section 292 of the principal Act is:

1. (1) When a court may sentence a person to a whipping, the whipping may be imposed in addition to or in substitution of any other punishment to which such person may otherwise be sentenced: Provided that a whipping shall not be imposed in addition to any sentence of imprisonment, with or without the option of a fine, unless the whole or part of that imprisonment is suspended.

Such a provision ought to reflect our policy clearly and disapproval of a sentence of long-term imprisonment coupled with corporal punishment. It will furthermore leave our courts free to deal with a more flexible set of penal principles.

If a person who has been sentenced to corporal punishment is not released on bail, he must be detained in terms of section 308 of the Act. Clause 23 proposes that such a sentenced person may also be released on warning.

In addition to the aforesaid proposed amendments—this is now the fourth example—to the provisions regarding corporal punishment, the opportunity is being used to amend sections 293 and 294 of the principal Act in order to bring corporal punishment, as an optional sentence, in line with our courts views in this regard. At the same time certain practical difficulties which have been identified by interested parties, are being addressed. It is proposed for example in clause 18 that the offences of arson, malicious injury to property, public violence, sedition and murder, where the sentence of death is not imposed, be added to the list of offences for which corporal punishment can be imposed. These are offences involving violence or offences which need to be combatted on account of their high prevalence.

The offences of bestiality and a grave indecent act committed by a male with another male, crimes normally indicating a personality disorder, are deleted from the list of offences while culpable homicide is retained but limited to cases which involve violence.

Section 294 of the principal Act allows the imposition of a moderate correction of a whipping in lieu of any other punishment in case of juvenile offenders. Clause 19 proposes that the relevant section be amended in such a manner that males in the age group of 17 to 21 may be sentenced to a moderate correction of a whipping in addition to any other punishment except imprisonment. The amendment ought to also have the effect that the imposition of actual imprisonment is limited.

Under section 297 of the principle Act, the court may, after an accused has been convicted, postpone the passing of sentence for a period not exceeding five years or suspend the operation of a sentence and release the accused on condition that he, for example, renders community service. In order to make the application of such community service viable as an alternative for short-term imprisonment, provision is made in clause 20 for section 297 to be amended. A clearer definition of community service has been inserted amongst other things; the minimum and maximum periods of 50 and 500 hours respectively, as well as a minimum age limit of 15 years for the performance of community service is fixed.

May I at this point in time, indicate that when replying to the debate just now I used the opportunity to indicate why I am considering deleting from the Bill before the House, the maximum period of 500 hours as stipulated in the Bill. I will elaborate on my approach in this regard when I reply. Furthermore, a clearer definition of various concepts is inserted, as well as the concept of liability of the State for patrimonial loss arising from the performance of community service. This is perhaps one of the more important provisions clarifying a previous stumbling block in the way of imposition of community service sentences. In addition, certain provisions of the Act were identified as prescribing cumbersome procedures which are time-consuming and could possibly result in awaiting-trial prisoners being kept in custody for too long before their cases are finally disposed of.

Examples of such provisions proposed to be amended are the following: Clauses 5 and 6 propose that sections 55 and 57 of the Act be amended respectively so that it no longer will be necessary in all cases for an accused to present a copy of his summons when he pays the admission of guilt fine and to make provision for the fact that an accused may, on a warrant endorsed to the effect that an admission of guilt fine may be paid, pay such a fine.

Clause 9 proposes that section 75(l)(c) of the Act be amended so that any person authorised thereto by the Attorney-General, and not only the Attorney-General himself as at present, may designate a court for a summary trial.

Thirdly, when an accused is found to be mentally ill or mentally defective after he has been convicted, the conviction may at present be set aside only by means of an appeal or review, whereafter the case has to be referred back to the trial court for disposal. Clauses 10 and 11 propose that this cumbersome procedure be eliminated by granting to the court the power to set aside its own conviction in such cases.

As already mentioned, the opportunity has also been used to rectify a few defects in the Act. For example, in order to protect the arrested person as well as the person making the arrest, clause 1 proposes that the person making the arrest be authorised to remove any dangerous object which is in the possession of the arrested person and to place it in safe custody.

Mr Chairman, this Bill is multipurposed in nature, and in some respects introduces reforms and changes which are to be welcomed. Some of the minor improvements include the granting of power to an arresting officer to confiscate dangerous objects. Another not insignificant improvement relates to the power granted to the court to set aside, in proper circumstances, its own conviction.

Several of the clauses of the Bill relate to increases in financial penalties. These proposed increases are not exorbitant, and in most cases barely keep up with inflation. This category of amendments covers a whole range of offences and, I believe, cannot be opposed. One of the provisions to be welcomed is contained in clause 7 of the Bill. In order to limit the detention of awaiting trial prisoners, the courts are to be granted the rights to release prisoners on warning subject to certain conditions being set at the discretion of the court. This is a new power which is being given to the court and, I believe, must be welcomed.

Another clause which is useful relates to clearer definition being given to the concept of community service, and to the court’s powers in this regard.

Then there appears a series of provisions relating to corporal punishment. Some of these provisions bring relief, and should pass without opposition. The present situation, in terms of section 292 of the Criminal Procedure Act is that a whipping can be imposed in addition to any other sentence being passed. In the period July 1984 to June 1985 some 650 persons were whipped in South Africa while at the same time being handed a prison sentence which was not suspended. Clause 17 of the Bill provides that corporal punishment may only be imposed in addition to another sentence, when that other sentence is either wholly or partially suspended. This, I believe, is an enlightened improvement.

Clause 18 of the Bill reshuffles the crimes for which corporal punishment might be imposed. Deleted are bestiality and indecency between males, and added as crimes for which corporal punishment might be imposed are murder where the death sentence is not imposed, arson, public violence and culpable homicide involving an assault. The hon member for Berea and I moved the deletion of clause 18 during the deliberations of the Standing Committee on Justice but were defeated on a vote. Accordingly this amendment—the deletion of that particular clause—cannot be moved again, and this Bill must therefore be judged in its entirety. I must say, Sir, that I was surprised that in the standing committee the majority Labour Party in the House of Representatives and the majority Indian National Peoples Party, both supported the extension of flogging as a principle. I wonder what their communities think about that.

During the period 1 July 1984 to 30 June 1985 the following revealing statistics tell the story in connection with the imposition of whippings in South Africa. During that period 1 730 Whites, 656 Indians, 14 016 Coloureds and 23 886 Blacks were whipped. This adds up to a total of 40 288 people who were sentenced to be flogged during the said period. This figure, however, does not relate to the number of strokes inflicted. To obtain the number of strokes inflicted during that period one should multiply that 40 288 by approximately four. That gives an average of 160 000 strokes administered during that period.

Sir, perhaps today is the day that, as legislators, we should take a look at our penal system and ask ourselves whether in these modern times our legislation is keeping up to date with current Western philosophy and modern standards of judicial morality. Except in the Islamic countries, whipping as a form of punishment has virtually vanished from the legal systems of the world. It survives nowhere in the United Kingdom, nowhere in Europe, nor in the USA. In the USA, since 1968, it has been held that corporal punishment is in conflict with the constitutional protection against “cruel and unusual punishments”.

Now, Sir, our benighted Republic, as usual, being the only country in the world to be in step, instead of following the international free world trend, in this legislation signifies that it wishes to entrench and to extend physical violence as a punishment for crime. Secondly, there is, in my view, no convincing evidence that whipping is an effective deterrent, or that it cuts down crime at all. As early as 1938 the Departmental Committee on Corporal Punishment—the Cadogan Committee—found that of 574 youngsters who had been whipped in two English juvenile court jurisdictions, 75% were reconvicted within two years. In 1960 the British Advisory Council on the Treatment of Offenders stated that:

The claim therefore that whipping would deter people from intended or future criminal activity would seem at best not to have been proven. Indeed, there is considerable evidence that flogging actually increases violence in a society. Most professional psychologists are agreed that a relationship exists between physical punishment received and later incidence of anti-social aggression. In short, it is my view that violence begets violence. I strongly believe that whipping brutalises not only the recipients but also those who administer this archaic form of punishment.

In the case of the State vs Kumalo and others, SA Law Reports, 1965 (4) page 575, Mr Justice Fannin had the following to say:

This last point was echoed in the sentiments expressed by the judge in the case of the State vs Maisa, SA Law Reports, 1968 (1), page 271, when he said:

This view was confirmed in a more recent case, that of the State vs Seeland, SA Law Reports, 1982 (4), page 472 …

They do not get old with a necklace anyway.

I think that is a very uncalled-for comment.

It is true. When they put a necklace around a person he does not get old.

That was a typical remark coming from the CP. I think they would probably wish to introduce hanging for stock theft and any minor offence involving non-Whites.

They should even hang you.

Let me continue without the benefit of the wisdom of that hon member.

Mr Chairman, on a point of order: The hon member said: “They should even hang you.” Surely he cannot say that in this House to another member?

It is manner of speech.

Order! Under the circumstances I do not think the hon member meant it in a derogatory sense. Therefore the hon member for Sandton may proceed.

In the case of the Stale vs Seeland Mr Justice Steenkamp in his minority judgement said the following:

The courts have, however, cited certain grounds on which the imposition of corporal punishment might be justified. Mr Justice Fannin put the matter very succinctly as follows:

When one is dealing with an offender who already displays strongly aggressive or antisocial behaviour or character traits, a case might be made—following Mr Justice Fannin’s argument—that a whipping might not make the character any worse.

However, this Bill seeks to extend the ambit of corporal punishment also to offences which, while they might be violent in expression, are more likely to be the result of political or social dissatisfactions rather than of an aggressive personality.

This Bill makes it possible for every youngster who has thrown a stone during this unhappy period of political unrest to be flogged for his indiscretion. I believe this Bill will quadruple the statistics in regard to corporal punishment and, while not contributing to bringing peace to our land, it will further enhance the status of violence among our population.

In terms of the procedures of Parliament now in working, the Committee Stage of legislation is seldom invoked and, in any event, I am disallowed by the rules from moving the amendment that I moved unsuccessfully in the standing committee. Accordingly we are asked to take a view on the whole Bill as it stands before us, unabridged, unamended and as it is.

While readily conceding that the Bill contains certain improvements which we support—I have mentioned some of them—it is our view that the provisions extending flogging as a punishment taint this whole legislation, and do damage to a system of enlightened and modern justice. It should therefore be opposed. In these circumstances we in the Official Opposition will divide against this Bill.

Mr Chairman, the hon member for Sandton has just conceded that this Bill contains numerous improvements, but nevertheless, merely because of its standpoint in connection with the provision involving corporal punishment, the Official Opposition will be opposing this measure.

That is quite a normal procedure.

What does the measure under consideration actually entail? Basically there are four things involved.

Firstly there is the increase of the fines. It is in fact necessary, from time to time, to increase fines in order to keep pace with the depreciation in the value of money as a result of inflation. Such adjustments were also made last year to fines imposed in terms of the Magistrates’ Courts Act—Act no 32 of 1944—and the Supreme Court Act—Act no 59 of 1959. It was also done two days ago in connection with the Stock Theft Amendment Bill. I cannot therefore imagine anyone having any objection to the adjustment of these fines. The hon member for Sandton has also indicated that he has no objection to that, in fact as he indicated, too, in the Standing Committee.

Secondly this measure embodies a reduction of, or restriction in, the period of detention of accused and the elimination of unnecessarily long-drawn-out and time-consuming procedures. Apart from being in the interests of the accused, it is also in the interest of witnesses and others involved in the trial. There could hardly be any objection to this provision either, and in the standing committee there was likewise no objection to it.

Thirdly the Bill embodies the curtailment of the period of imprisonment for first offenders. It is generally accepted that it is undesirable to expose first offenders, for an unnecessarily long period, to imprisonment and to contact or association with hardened criminals. In the Standing Committee general consensus was also reached on this aspect.

Fourthly the Bill makes provision for corporal punishment as a competent or alternative sentence in specific cases. All the Bill is actually doing, in this connection, is giving our courts greater flexibility or adaptability and more elbow room when it comes to imposing sentences. How the courts implement this enabling provision in specific cases is still a matter of their own discretion.

We on this side of the House are not sadists. We take no pleasure in embodying corporal punishment as a competent sentence in legislation. Clause 17 of the Bill does in fact provide—the hon member for Sandton has conceded that this is an improvement—that corporal punishment should not be linked to long-term imprisonment. This clearly reflects the approach of this side of the House to corporal punishment linked to imprisonment. The Government, and therefore this side of the House, does not dare to close its eyes, however, to the realities for which the legislation—here the Criminal Procedure Act—must make provision. In this connection let me remind the hon member for Sandton of something—I would be glad to have his attention.

†I remind the hon member for Sandton of the reaction of those hon members of the House of Representatives who served on the Standing Committee when the hon member for Sandton opposed clause 18 of the Bill.

*The hon members of the House of Representatives who served on the committee specifically put it to the hon member for Sandton that he and his hon colleagues should not ensconce themselves in exclusive White residential areas and then come along and oppose this measure. They specifically told him he did not know what he was talking about.

†The hon member should go and live in the townships and subject himself to the violence and intimidation carried out by the gangs operating in the townships, and then he can talk on a measure such as this. [Interjections.]

*That was the standpoint of the hon members of the House of Representatives who served on the committee. That was their reaction to the opposition to clause 18 by the hon member for Sandton and the hon member for Berea. I associate myself with those words when I hear these hon members making a sanctimonious fuss here about the “degrading effect of corporal punishment”. [Interjections.]

Do you not agree?

If we now want to become philosophical or semantic, we can speak about the “degrading effect of corporal punishment”.

Has the hon member ever witnessed a flogging?

Yes, I have.

By a policeman?

I have.

And the hon member still speaks like this?

Order! The hon member for Mossel Bay may proceed.

Mr Chairman, I can tell the hon Chief Whip of the Official Opposition that I have been flogged myself in my day and the flogging did not do me any harm. [Interjections.] In fact, Sir, if some of those hon members had received more floggings in their time, it might have had a salutary effect on them.

*The fact is, Sir, that the hon members of the House of Representatives, who themselves feel the physical effects of the increasing violence being committed by gangs in the residential areas where those hon members and their people live, enthusiastically supported this measure on the Standing Committee.

That is a barbaric argument.

That is no barbaric argument; it is a fact. The hon member for Green Point must not talk about things he knows nothing about. He was not there. I put it to him as a fact that the members of the House of Representatives—the hon member for Sandton was there and he will agree that I am right—supported it with enthusiasm because they knew this was the only way one could check the crimes of violence committed by youths there. [Interjections.] They will not be checked by imprisonment or fines. There is only one way to check such crimes and that is by way of corporal punishment. [Interjections.] To make a sanctimonious fuss here … [Interjections.]

Order! There are hon members who apparently think they can keep on making interjections. That is not the case. The hon member may proceed.

Thank you, Mr Chairman. Making a sanctimonious fuss here about the brutality of corporal punishment and “the degrading effect of corporal punishment” is merely a question of scoring nice debating points.

But the judges said so.

The hon Chief Whip of the Official Opposition says: “The judges said so”. That is correct. The hon member for Sandton quoted certain judges’ remarks. However, he also quoted judges who said that in suitable circumstances, corporal punishment would be a proper sentence. He also quoted that. However, the hon the Chief Whip of the Official Opposition chooses to ignore that.

In very restricted circumstances.

Yes, but it will still be at the discretion of the same judges who made those remarks. Those same judges will have the discretion to impose the corporal punishment that is provided for in this Bill.

Mainly magistrates.

Yes, now the hon member for Sandton says that magistrates will also have that discretion. The judgments of the magistrates will, however, be reviewed by the judges.

When they have already been beaten.

The same judges who expressed an opinion about this, are the people to whose discretion we are relegating these powers. So there is no reason to assume that there is now going to be a large-scale increase in corporal punishment. In fact, as the hon member for Sandton has rightly indicated, there are also offences that have been delisted. [Interjections.]

The hon member for Sandton let the cat out of the bag when he referred to the unrest situation. I take it amiss of hon members of the Official Opposition that their opposition to this clause of the Bill is motivated by a fear that the little friends of their little friends will be affected.

Don’t talk rubbish now.

I am not talking rubbish as the hon member for Houghton suggests. She knows that it is perfectly true that they can foresee—as the hon member for Sandton has just remarked—an escalation in corporal punishment. Why? Why does he anticipate that? Why does he foresee that?

Because of the additional proposals.

Because of the unrest situation and the violence which is being perpetrated by gangs under the influence of the UDF and the ANC. Therefore, I repeat that those hon members are afraid that the friends of their friends will be the victims of this measure. [Interjections.]

Is there no other punishment?

You should be ashamed of yourself.

I am not ashamed of myself when I am speaking the truth.

You should be.

I will never be ashamed of the truth. [Interjections.]

*The hon member for Sandton also conveniently forgets that apart from the judges he quoted as having expressed their doubts about corporal punishment and its supposedly being so “degrading”, there were also numerous other judges, in fact chief justices, who expressed themselves in favour of corporal punishment.

Who is that?

Numerous other judges have, on occasion, expressed themselves in favour of corporal punishment. I do not have the decisions before me. [Interjections.]

Which jurist are you quoting now? [Interjections.]

Order! Hon members cannot go on interrupting the hon member like this.

Mr Chairman, may I ask the hon member a question? [Interjections.]

No, wait a moment, I want to finish. [Interjections.]

Order! The hon member is not prepared to take a question.

I do not, at the moment, have the decisions here before me, Mr Chairman. I could give them to the hon member in due course. [Interjections.] I did not go and look for decisions as the hon member for Sandton did. It is, of course, the easiest thing in the world to quote a few sentences dealing with corporal punishment in general. If, however, one were to investigate the numerous cases quoted by the hon member for Sandton, in order to determine in how many cases judges, at their own discretion, imposed corporal punishment when it was optional, one would see that there is overwhelming evidence that the judges are also in favour of imposing corporal punishment as a sentence. Otherwise they would surely not have imposed those sentences, or does the hon member for Sandton want to allege that judges would impose corporal punishment as a sentence when they themselves believe that it is not a fitting form of punishment? The statistics which the hon member for Sandton quoted and which he wanted to use as damning evidence of the extent to which corporal punishment is imposed, is specifically the most convincing proof imaginable that judges have expressed themselves in favour of corporal punishment!

I want to reiterate that here we are not advocating a large-scale increase in corporal punishment. What we are saying, however, is that there are in fact circumstances that have to be addressed. There is an increase in the number of offences involving violence committed by youth gangs, and this situation can only be combated successfully by giving the courts the discretion to impose corporal punishment, in suitable cases, when such offences are committed. That is why the objection to this clause by the hon member for Sandton and his party is not acceptable at all.

In the light of all the benefits embodied in this amending Bill, a fact the hon member for Sandton has conceded, I suggest that it is nothing short of recklessness on the part of the Official Opposition to oppose this measure, with all its benefits, merely on the grounds of an argument as dubious as the one the hon member for Sandton advanced in connection with clause 18 of the Bill.

On behalf of hon members on this side of the House I should like to support this legislation.

Mr Chairman, to begin with I should like to say that the CP supports the proposals, amendments and adjustments in all the clauses of the amending Bill here before us.

Before I proceed with my speech I should like to say that I wholeheartedly agree with the standpoints of the hon member for Mossel Bay, especially his standpoints on corporal punishment.

Good company to be in!

I do want to add from the outset that there are many points of view concerning the question of corporal punishment. We are indeed called upon to listen to all those standpoints. That was also the standpoint of our courts, to which I shall refer in due course.

At a later stage of my speech I shall come back to the subject of corporal punishment but I think that, in association with what the hon member for Mossel Bay said, I should like to confirm what the hon members of the House of Representatives and the House of Delegates said on the standing committee. I testify that what he said was indeed true.

I should like to continue by quoting what the Law Societies of South Africa had to say concerning this amendment. It is important that it be said right at the beginning and I am afraid that I may forget to mention it later. I quote as follows from Beeld of 28 October 1985:

This has also been our experience in practice. Indeed there are also some of my hon colleagues who may perhaps hold different standpoints on the question of corporal punishment; I readily concede that they may differ with me on this.

The statement reads as follows according to the newspaper report:

That is the standpoint of the Association of Law Societies of South Africa.

That is what I want to point out at the outset, and apropos of the hon member for Mossel Bay, as regards the question of corporal punishment.

The amendments and adjustments which are about to be made can, as the hon member has indicated, be divided into three categories. Firstly there are a number of clauses in the Bill in which a threefold increase in fines is being effected. It is clear that these adjustments are due to the depreciation of the rand. We were informed that these fines were last adjusted in 1977.

If the NP remains in power for much longer then all fines would soon have to be increased tenfold. I say this because the shocking depreciation of the rand, in addition to many other factors, can to a great extent be attributed to the inefficient manner in which the country is being run and administered by the NP. It is so bad in fact that one could almost say that nowadays even criminals and contraveners of the law also have to suffer under the weak NP Government. [Interjections.]

Secondly, there are a number of clauses dealing with procedural activities and which are designed to do away with cumbersomeness, as the hon member for Mossel Bay pointed out. These procedural amendments promote more rapid and efficient administration of justice and therefore we support the clauses which fall into this category.

Thirdly, there are quite a number of clauses relating to corporal punishment and community service punishment. As regards the clause which is concerned with the adjustments to community service punishment as an alternative to short-term imprisonment, we support the proposed amendment and amplification of the relevant existing articles of the principal Act.

I should like to make the following observations on the envisaged amendments contained in clauses 17, 18, 19 and 23 which relate to sections 292, 293, 294 and 308 of the Criminal Procedure Act. These sections of the principal Act to which I have just referred pertain to corporal punishment. It amounts to the court’s discretion having to be limited in some measure as far as the meting out of corporal punishment is concerned. In this regard I am referring in particular to the proposed amendment in clause 17. Corporal punishment and its application are also being extended, as the hon member for Mossel Bay pointed out, to other criminal offences such as arson, wilful damage to property, public violence and sedition. Corporal punishment is in fact being abolished in offences which do not involve any violence or assault.

It is nevertheless remarkable how sensitive an issue the inflicting of corporal punishment, or failure to do so, still is today—perhaps far more than was previously the case. Hardly had it become known that amendments were going to be effected to the Criminal Procedure Act, and specifically amendments dealing with corporal punishment, when suddenly from many quarters there was a lively reaction to this matter. I think it is necessary that we look at some of those reactions.

A certain clergymen said in some column or other in one of the Afrikaans dailies, that he was struggling with the issue of corporal punishment. He asked whether corporal punishment could be justified in terms of Christian ethics. I should like to say that I have never found it necessary to wrestle with my conscience on this issue because I have always believed that a good hiding at the right time and the right place can only be a good thing. Indeed I think that people who struggle so often with this sort of question did not receive enough hidings in their younger days. As far as corporal punishment is concerned, as prescribed by the Criminal Procedure Act and applied according to the guidelines determined by our courts—to which I shall refer in a moment—I do not think one need have any qualms of conscience. As I said, however, and as the Association of Law Societies has indicated, there are people who have other standpoints.

The clergyman to whom I am referring, wrote in his column that the hon the Minister of Justice was about to introduce legislation to make provision for the application on a larger scale of corporal punishment as a means of punishment in order to reduce the necessity of sending people to prison. The clergyman quoted a whole series of figures to show how full South Africa’s prisons were. He wrote inter alia as follows:

In how many cases was corporal punishment applied? In the above mentioned report the figures relating to Whites, Coloureds, Asians and Blacks who were subjected to corporal punishment were mentioned. I have not in the meantime ascertained whether these figures have decreased or increased but I presume that the hon member for Sandton knows more about this because he is a very worried man as far as these matters are concerned.

The clergyman to whom I referred says furthermore in the same column:

He is, however, still struggling with the ethics of the matter. Should it be done or not? In order to throw some light on the problem with which he was struggling he turned to the standpoints of professors in criminal law and to those of theologians. He quoted inter alia what a professor in criminal law at Unisa had had to say in this regard:

That is a question which this professor put. He went on to say:

It is a good thing that these standpoints are being aired. I personally am of the opinion that the statements of this professor in criminal law are a bit far-fetched. As I have already said, the various law societies in South Africa did not react in the same way as the professor in criminal law, even though they had investigated the matter thoroughly.

The clergyman to whom I referred previously, also made use of the opinion of a professor in theology. He quoted what this professor in theology said, as follows:

But the implication is far more serious. He says further:

That is what this professor in theology said. In all fairness, the clergyman who wrote that article also considered the standpoints of other people in this regard. Amongst other things he referred in his column to senior Cabinet Ministers and high-ranking officials of the SA Prison Services who held other opinions on this matter. He quoted, but did not indicate whether these were the opinions of Cabinet Ministers or of the officials. Nonetheless it is worthwhile listening to it. This standpoint is:

These are either the words of high-ranking officials of the SA Prison Services or those of Cabinet Ministers with whom he spoke. This clergyman likes to look at the question of corporal punishment from many angles. He also quoted other sources. When I read that part of his column I told myself that he paid a visit to the liberal theologians of Unisa. Those theologians say:

When someone refers to this kind of legislation as confusing and insignificant then I must say it sounds too much like one of those Prog theologians which one finds at Unisa, and I am thinking for example of Prof D Bosch. This could possibly be his standpoint.

He is not a liberal.

That is that member’s standpoint. I am not certain.

There are many points of view concerning the question of corporal punishment. One of many is that held by a correspondent from whom I received a letter. I have several letters in front of me—six or seven—from people who reacted to this question. I should like to quote a correspondent from the Transvaal:

When he saw that it was a Bill, the correspondent thought it would never become a reality. That is why he said that he had hoped it would happen:

The correspondent states further:

Sir, I have now read out this rather long letter. I believe it to be a resumé of many people’s standpoints on the question of corporal punishment. I quoted the above mentioned standpoints because I think that we as legislature the Department of Justice and the hon the Minister of Justice and all his officials as well as the officials of the Directorate of Prison Services constantly have to bring about reforms, adjustments and adaptations to laws in order to stay abreast of the requirements, namely that we continually consider all facets of the Criminal Procedure Act so that, as far as corporal punishment is concerned, we can all follow the guidelines which were laid down inter alia by Mr Justice Hiemstra in the Transvaal case of the State vs Maisa in 1968, to which the hon member for Sandton also referred.

In the aforesaid case Mr Justice Hiemstra also laid down guidelines concerning the discretion with which corporal punishment should be imposed. Mr Justice Hiemstra said in that case—and I am quoting what the judge said in that case—that corporal punishment was a means which should only be applied in exceptional cases. It may be suitable for someone in the early twenties because it enables the court to keep the offender out of jail, but there is also something else which has to be borne in mind—and this is what the hon member for Sandton also referred to—and that is that a person’s personal dignity is one of his most precious possessions. The older a person becomes the more grievously it is affected by corporal punishment. Corporal punishment for a man 45 years of age is a bitter humiliation, and the courts should reflect carefully on this before imposing it. A person who has committed an act of cruel violence against another person and who seems to be a hardened criminal on the basis of previous convictions, qualifies for corporal punishment. The crime of theft for example is one in which violence plays a role, and cuts can more reasonably be inflicted. It is not desirable to compile a complete list of factors, but practically speaking there are three guidelines which can be followed. In this regard Mr Justice Hiemstra says that among the factors that must never be disregarded are, in the first place, the age of the accused and secondly, possible mitigating circumstances pertaining to the offence and thirdly, the previous convictions of the accused.

Furthermore it is good to know that it is not only the Criminal Procedure Act which keeps a watchful eye on corporal punishment and its consequences. The Prisons Act also keeps a watchful eye on it. I believe that it is worthwhile taking a look at a few sections of the Prisons Act. Section 36 of the Prisons Act, 1959 states inter alia:

Another subsection of section 36 states:

We see then that a comprehensive arrangement has been made concerning the practical implementation of the punishment which is being inflicted. I quote further from section 36(8):

Regulation 100(3) of the Prisons Regulations read in conjunction with section 292 of the Criminal Procedure Act, 1977, determines what kind of cane must be used. I think it is interesting to make mention of it:

If punishment is inflicted on a juvenile it shall as nearly as possible be one metre long and nine millimetres in diameter.

Having listened to the preceding correspondence and legislation I think—and I think this applies to all of us—we should have a more balanced idea and understanding of what corporal punishment is all about and how it should be inflicted.

Mr Chairman, it is very clear that the hon member Mr Theunissen has made a thorough study of this subject. I really do not think there is much more that we can say on the subject. I shall try to comment on certain aspects which he mentioned, without repeating what he has said already. The only aspect on which I do in some small measure want to cross swords with him, it is not serious, is the fact that I never heard him speak about the depreciation of money during all the years in which he was a member of the NP. Since he left the party, however, he has been trying to make political capital out of it.

Mr Chairman, firstly I should like to pay tribute to you as chairman, also of this standing committee, for the way in which you dealt with these and other measures during the sittings of the standing committee. We would like to thank you for the very balanced way in which you dealt with this situation.

Secondly I should like to refer briefly to the speech made by the hon member for Sandton. What surprises me about the hon members of the PFP is that in their arguments, they always want to create the impression that we are living in a perfect world and are continually able to apply moral principles. It is therefore not necessary to address the aspects of the imperfect world in which we live in any other way. Unfortunately that is really not the situation. Although it is a pity that measures such as corporal punishment are necessary, I do not think we can do anything else in the imperfect world in which we find ourselves. Those who have more to do with this practical reality, such as the hon members of the House of Delegates and of the Labour Party—indeed the entire House of Representatives—and who served on the standing committee, were unanimously of the opinion that owing to the circumstances in which they find themselves, these measures were absolutely necessary.

The hon member also referred to a number of judgements. I am not saying that the references he quoted were purely selective but he did quote in part only. I think one can do whatever one likes with judgements, just as one can with statistics. One must indeed be very careful in that regard.

I also want to tell the hon member for Groote Schuur that I have not found that the moral and psychological approach is valid in all cases, or that it has in fact been very successful. My experience up to now has been that a good hiding at the right time is a good thing, as the hon member Mr Theunissen also said.

Mr Chairman, may I ask the hon member if he does not concede that South Africa is the only country in the Western World where corporal punishment still applies? Does he not think that we are out of step with the rest of the world?

I shall deal with this matter more fully and I shall also refer to the other countries concerned, as well as to their judgments in this regard. I have no problems in this connection.

Furthermore I should like to tell the hon member for Sandton that in looking at other countries I do not know what his norm of civilisation is. I do not know whether he considers such offences as murder and arson to be really civilised. Does he always expect civilised behaviour towards those people? Fundamentally, does he only want what is purely moral and beautiful? He probably wants one to speak to those people in dulcet tones. It is very clear that there are widely divergent opinions on this topic; there is no doubt about that.

I should like to come back briefly to one other aspect. The hon member for Sandton very conveniently referred to the bench and said that all chief justices were opposed to corporal punishment, but he conveniently omitted to mention that evidence was gathered concerning all the amendments in this Bill. Evidence was collected from the Chief Justice, the Judge President, the Attorney General, regional court presidents, magistrates, the Association of Law Societies of the RSA, the General Bar Council of South Africa, the United Municipal Executive of South Africa, the South African Police and provincial secretaries. The bulk of the evidence and the submissions was such that we felt ourselves at liberty to proceed with this legislation.

Views on punishment and forms of punishment are closely allied with one’s individual views and value judgments. Therefore I respect what the hon member for Sandton said but it does remain a personal opinion. Just as in the case of the death penalty, I do not think that all people will be able to agree unanimously on corporal punishment. Today more than ever before, corporal punishment is seen as cruel and primitive. I concede that. Judgments in countries such as England and Germany as well as requests in many countries in the world as well as in South Africa, have indicated that corporal punishment should be abolished.

Let us take a look at the South African courts. Let us try to look in a balanced fashion at the judgments which have been given in this connection over many years. In the case of The State vs Kumalo the judgment stated that corporal punishment was a “severe and brutal” kind of punishment. That is indeed so. The Viljoen Commission in fact conceded that corporal punishment remained a very controversial matter.

In certain cases, however, it is judicially and morally justifiable, as indicated in the case of The State vs Mapatse, which we can read about in the SA Law Reports of 1976, on page 721 of volume 4 of the Afrikaans version. Further particulars are given on page 725, paragraph C to paragraph E, in which Judge Rumpff clearly stated that this form of punishment must not be seized upon too easily as a solution in the case of juveniles. Where it is clearly of no use, such juveniles must rather be removed from society. In appropriate cases it does help to keep juveniles out of prison in order to avoid contact with hardened criminals.

The general principles concerning corporal punishment have clearly crystallised from decided cases, and are well summarised on page 330 of Du Toit’s book dealing with penalties.

On page 329 in fact he quotes extensive legal authority concerning some of our judges’ support for this matter of corporal punishment. A few principles which relate to what the hon member Mr Theunissen has already said are those which appear on page 330 of this book:

The hon member Mr Theunissen referred very generally to all the safety valves which are built into both the Criminal Procedure Act and the Prisons Act in order to ensure that no unnecessary mistakes are made in the application of corporal punishment.

Respectfully I would like to suggest that the PFP—especially the hon member for Sandton—are unfortunately in the dilemma of being completely opposed to corporal punishment. I should like to tell the hon member for Sandton that if he were to find himself in the same position in which many sectors of our society in South Africa in fact find themselves, and not being able to find security in the exclusive and safe nest of a Sandton, he would also concede that steps of this kind are very appropriate.

The legislation before the House is indeed of a de-restricting nature. It is also an improvement in this sense that it ensures that corporal punishment will only be employed in cases where it is really necessary. I do not want to refer in great detail to all the particular provisions since both the chairman of the standing committee as well as the hon member Mr Theunissen have referred to them in full. I gladly support this measure.

Mr Chairman, we have no problem with this legislation; we support it in full. The question of corporal punishment has been thoroughly debated. People either favour the non-use of corporal punishment or they support the use of it. There are no in-betweens and no grey areas. I must say, Sir, that if one accepts the concept that the law of a country stems from its community, from its people as a whole, and that if one were to go to the people as a whole in this country of ours and gather the opinions of every Black tribe, every White person and every person of mixed descent, one would, I am quite certain, find that there is a predominant and overwhelming view in favour of the laid down maximum of seven cuts, although this punishment would obviously have to be administered with discretion.

On the other hand, though, the possibility of an ideal world in which high moral principles can be applied—I refer now to the points just made by the hon member who has just sat down—is extremely remote from this country of ours. One sometimes gains the impression that the hon members of the PFP live in a vacuum.

Like the rest of the world?

Yes, well, when one tries to apply strictly Western principles as the hon member for Sandton did when he suggested, as it were, that we are the only country in the Western World which …

We are.

Well, one can debate that issue as well—at least, as far as this particular aspect is concerned—and link it with the rest of Africa. [Interjections.] We can link it to some of our own states. [Interjections.] We can compare ourselves with some of the inhabitants of our own country.

I have a bit more pride than that.

Oh well, now the hon member is saying that the inhabitants of his own country are people for whom he has no regard.

Are you comparing us with Venda now?

They can compare themselves with the Blacks within our own country and with the people of mixed descent in this country and they will find that those people have a very high regard for the use of this form of punishment in certain instances. There is no getting away from it. [Interjections.] To a degree, there is a certain measure of fairness in that one tends to consider the punishment of the criminal that little bit more. It merely imparts the idea of a country’s concern for its system of law. I must say, however, that it is overdone by that particular party. There is never any concern for the unfortunate victim.

What happens to the victim? What is the psychological impact of this on his life? The wounds which will remain with him for ever are always a minor consideration. We have no hesitation whatsoever in supporting this legislation and I might add that I think I have made the shortest speech so far in connection with this Bill.

Mr Chairman, it is a pleasure for me to thank the hon member for King William’s Town for pledging his support to this measure. He has indicated that a need for it exists in our circumstances and in our society. It is in fact true that there are certain societies which simply do not have any respect for authority unless a strong deterrent is incorporated into our criminal law.

I do not want to drag politics into this issue, especially since I spoke out against it during the previous debate. It is nevertheless very difficult for me to resist the temptation, because in the previous debate members on this side of the House were accused by hon members of the CP—and especially by the hon member for Rissik—of being a liberal party, of being the new Prog party, and goodness knows what else. [Interjections.] Suddenly this so-called liberal, new Prog party comes along with a rather conservative extension of corporal punishment. [Interjections.] That is I must say very difficult to understand.

You are a “left-right” party! [Interjections.]

That is the CP mentality.

It is truly surprising. I gladly support this measure. It is an extension of corporal punishment. I want to suggest that the principle of corporal punishment is a very good principle and that certain circumstances require it, especially when young people and an element of violence are involved in the offence and when one would rather keep the accused from going to prison. In this regard I can testify from practical experience that a need exists for this measure. It is simply a fact that many cases occur, of which I have personal knowledge, in which the accused himself prefers to undergo corporal punishment rather than to pay a big fine or receive a prison sentence.

It is also simply the case that it seldom happens that a young person who undergoes corporal punishment again appears in court soon afterwards in connection with any subsequent offence. This is an important aspect. [Interjections.]

Is that a fact?

It is a fact.

Where has it been proven?

I shall show you later.

It is not a proven fact. It is just your imagination.

I shall concede the point to the hon member. He is probably an expert in the field.

The hon member Mr Theunissen referred to the ethics of the situation. In this regard he referred to a clergyman. I should like to quote a few passages which he could convey to the clergyman. I want to refer to Proverbs 20 verse 30 where it is said:

In that case we should give all the CPs a good hiding. [Interjections.]

Proverbs 22, verse 15, says:

There is also another reason why I support this measure and that is because more discretion can be exercised on the part of the person who metes out punishment. It gives him a greater degree of discretion and more possibilities, which is a good thing. I gladly support the measure.

Mr Chairman, a number of hon members have been using arguments which of course are not supported in any way by any of the commissions of inquiry which have gone into the whole question of corporal punishment as a deterrent to violent crime. My friend the hon member for Sandton has already quoted from the Cadogan Committee and from the British commission which also inquired into the whole question of offences and penalties for crimes of this nature. It is all very well for hon members to stand up and say that the Coloured members in the House of Representatives and the Indian members in the House of Delegates supported this legislation when it came before the standing committee. They too are obviously under the misapprehension that if only more people were subjected to corporal punishment, that sort of violence would be reduced. Those hon members have been the victims of a good deal of violence. Everybody here not only acknowledges that but of course regrets it. However, there is no evidence whatsoever throughout the years in every country where this very thorny subject has been examined that corporal punishment will deter violence.

As the hon member for Sandton has said, there are a number of non-contentious clauses in this Bill, and obviously, in opposing this measure, we are not in any way opposing those non-contentious clauses. The hon member for Mossel Bay said it was quite surprising that, in view of the fact that most of the clauses were non-contentious and only perhaps one or two that related to corporal punishment were contentious, we should be opposing it at all.

It is not surprising. It is irresponsible.

Now he says it is irresponsible! I am surprised to hear him say that, because he is a fairly longstanding member of this House and he should know that when one is discussing a Bill, if there are a couple of clauses in the Bill that are offensive, one always opposes the Bill at the Second Reading.

With vigour!

Yes, with vigour! Let me give him an example …

Technically you are right but not in substance.

I am always right! [Interjections.] I am certainly right on procedure, because heaven knows, I have had enough experience. Let me give the hon member one very relevant example.

Let us take the General Law Amendment Bill of 1963. I do not think the hon member was in this House then. Well, I was. That Bill had about 20 clauses of which only two were objectionable. One of them was the infamous Sobukwe clause which enabled the Government to keep people locked up after they had served their prison sentences, and the other was the 90-day detention clause. That is all. Everything else in the Bill was totally unobnoxious and did not cause any problems. A dozen different pieces of legislation were being amended. However, I opposed that Bill at Second Reading and I am very glad I did because at least one member in the House of Assembly is on record as having opposed detention without trial when it was introduced in this country.

Now we come to this Bill, which I call the Whipping Bill because it increases the number of offences for which corporal punishment can be imposed.

It is flogging.

If you like. It used to be called flogging.

Yes, but it sounds better in the Press.

The hon member can use the word if he prefers it.

Where’s your cat o’nine tails?

The point is that a number of sections are to be removed from the principal Act. There is the section mentioned by my hon friend which deals with bestiality or an obscene act committed by one male on another. There is another improvement which makes culpable homicide only punishable by flogging if it is accompanied by violence.

By an assault.

Yes, by an assault, which is violence. Another improvement is the fact that in certain cases a whipping can only be imposed alone and not in addition to any other sentence of imprisonment unless that imprisonment is suspended in part or in toto. We welcome these improvements very much indeed.

Apart from the additions which the hon the Minister has made to section 293 of the principal Act, I wonder why, while he was at it, he did not go further and distinguish between an offence of violence against property and one of violence against persons as recommended by the Viljoen Commission? He could have done that, and that would have been an improvement which we would have welcomed. [Interjections.]

We leave it to the judge now.

The hon the Minister leaves it to the judge now.

To a hundred judges!

Yes, and they all have different views about this. Then there is the other thing he could have done—he could have removed the other non-violent subsections of section 293. For goodness’ sake, theft of a car now carries the penalty of whipping. It is an offence, but it is not a violent offence. So, why allow whipping for theft of a car? It is not mandatory, obviously; that was removed in 1965—for which I think every judge was duly thankful. Nobody enjoyed having to impose a whipping which, of course, had to be done in this country between 1952 and 1965. [Interjections.] What is the matter?

That is history.

Oh, it is history?

Well, it is your history, it is your Government. [Interjections.]

We are going back to a few other things too. [Interjections.] Therefore, subsections (ii) and (iii) of section 293 should also have been removed. They are not related to violence at all. The one is theft of a car, as I have mentioned, and the other is receiving stolen property knowing it to be stolen property. There is nothing violent about that, so why impose corporal punishment which is a violent form of punishment? Surely, nobody can deny that it is a violent form of punishment.

The hon member for Sandton, quoted Mr Justice Fannin who made some very strong comments on the whole subject of corporal punishment. He did not, admittedly, recommend that it be abolished, but he did say that it should only be used with the greatest care and in cases where there was real brutality involved in the offence. Therefore, what I am suggesting now is absolutely in line with what Mr Justice Fannin had to say, I think in the famous Kumalo case.

I have here another very interesting comment from another judge which is much more recent than that of Mr Justice Fannin. In 1984, in the Natal Provincial Division, Mr Justice Didcott and Mr Justice Freedman had the following to say about a case where corporal punishment had been imposed by a regional magistrate in Vryheid on a person convicted of a minor robbery where there was some violence involved:

He was referring to corporal punishment:

This applies only to adults—

Now listen to this:

[Interjections.] The learned judges, Mr Justice Freedman concurring, excised corporal punishment from the sentence which had been imposed and left imprisonment.

Hon members say one cannot compare South Africa with other countries in the Western World. Well, there are many other countries in the Western World where there is an enormous amount of violence. Take the United States of America as an example, where there is a great deal of violence. There is mugging, there is murder, there is rape, there are all the violent crimes, but the USA abolished corporal punishment in 1968. In Britain if my memory serves me correctly it was abolished in 1948, even earlier. In 1978 the European Court on Human Rights ruled that whipping constituted a degrading punishment and contravened the European Convention on Human Rights.

I might say when Britain abolished corporal punishment, a different form of punishment was introduced, particularly for juveniles, because it was on juveniles that corporal punishment was always inflicted. They introduced what was known as the “short sharp shock”. Not electric shock—I already see some hon members smiling happily at the thought that we could have electric shock instead. We have it anyway, but not legally. [Interjections.] A “short sharp shock” really involved a type of paramilitary training, very disciplined, lots of hard physical work for a short term, generally for three weeks and up to three months; sometimes, in the case of really violent crimes, for a longer period.

That is an alternative, because what I am trying to get across at this moment is that the hon member for Sandton and the rest of us on these benches, are not pleading for no punishment at all for criminal acts. We are pleading for punishment other than the brutalising punishment of corporal punishment, of whipping. In this country anybody under the age of 21 can in fact be subjected to what is known as a mild form of correction with a light cane, for any offence whatsoever. I do not know if any of the hon members here have seen the results of that “mild” correction? The hon member for King William’s Town nods his head. I was shown a photograph of a young boy to whom this “mild” correction had been administered by a large policeman wielding this cane, cutting the boy’s buttocks open.

It is a very stiff punishment indeed and it is a form of assault. If hon members think that that is going to turn these young people into law-abiding citizens they have no knowledge of human psychology—none whatever—because this brutalising form of punishment not only brutalises the person who inflicts the punishment but it also brutalises the person who receives the punishment. [Interjections.] That is being recognised by every civilised country in the world which has abolished corporal punishment.

The hon member for Sandton mentioned the horrific number of 40 000 strokes which had been given over the past year …

40 000 people.

Is the hon member sure it was 40 000 people? That is unbelievable! We do not keep statistics of juvenile whippings. Statistics are not available to this House because the courts do not keep statistics of juvenile whippings. Just imagine that!

They are not kept separately.

No, they are not kept at all. I have put that question over and over again in this House and I think that the hon the Minister will concur that those statistics are not available. My feeling is that they are not available because they are so horrendous that even this retributive House might quail at the idea of the number of young people whipped. Does the hon the Minister have those figures?

I have given them to you.

No, the hon Minister has never given the figures for juvenile whippings. I am talking of juvenile whippings now.

I believe that an inordinate number of young people are whipped in this country. I want to give the hon the Minister a bit of evidence about this. There was a recent study made by Nicro—which the hon the Minister respects, I am sure, as indeed I do because it is a very good organisation—at the Athlone juvenile court and at the Cape Town juvenile court on sentences passed on first offenders in 1984. Of 577 first offenders who were found guilty of different crimes—stealing a bicycle or whatever—326 or 56,6% were sentenced by magistrates to corporal punishment. That is an enormous percentage of young people receiving corporal punishment.

Did the hon the Minister know that?

No, he is just smiling.

Did the hon the Minister know that?

No, I am sure the hon the Minister is not smiling at the thought of that.

I have just received a chocolate from somebody. The hon Chief Whip of the Official Opposition looks very sour. [Interjections.]

This is a very serious subject, do you know that?

Now look, I was talking about juveniles. I wish the two of you would stop your little conversation. [Interjections.]

The hon the Minister is being very provocative.

I was talking about juvenile punishment and I now want to talk about adult punishment because that is what these additional offences apply to. They are murder where the death sentence is not imposed; arson or malicious injury to property; and public violence or sedition.

I have no doubt that the idea behind all this is to keep people out of jail because the jails are so overcrowded. I have no doubt too that these additional offences are the result of the investigation made by the departmental committee—the Working Committee—which went into the whole question of the overcrowding of jails.

I want to point out that in a recent paper the Department of Criminology of the University of Cape Town stated that there was no evidence that the increased use of whipping would provide anything but a very short-term solution to the problem of prison overcrowding, neither was there any evidence that whipping reduced the number of future prison inhabitants. Surely that is what we ought to be worried about.

Shouldn’t there be another study on this matter?

Yes, I think another study should be done. To summarise, …

Mr Chairman, before the hon member starts her summary, I would like her to tell the House what kind of punishment she would like to see as the basis of her own philosophy.

Of course I do not like to see any punishment, but I certainly agree that punishment is necessary when people commit crimes. First of all I feel we ought to have proper reform schools for juvenile delinquents instead of sending them to jail. For others, one can have community services, quite tough ones. One can make people work in hospitals or municipal areas. They can help to clean the streets if you like; I do not care what they are made to do. The State can make them do any of these things if they want to keep them out of jail—which, I presume, is what they want to do. After all, the alternative is jail; and in some instances we have no option but to send people to jail. Even juveniles have to go to jail if they are a danger to society. Everybody knows that.

There are, however, alternative sentences. Britain uses the short, sharp, shock; America has special reform schools; and, in fact, all over the world they have reform schools for young people. However, community service is becoming increasingly popular as an alternative to sending people to jail. That is my answer to the hon member for Rissik. [Interjections.]

We are going in exactly the opposite direction from the rest of the civilised world. Despite what was said by the hon member Mr Schutte and other hon members, I still like to consider South Africa as part of the Western and civilised world. I prefer to do that; and I think we all do.

Despite the efforts of the Government.

Yes, despite the efforts of the Government.

We are going in exactly the opposite direction. We are asking for tougher and tougher punishment. That is what we are doing. I am thinking here too of all the new offences for which whipping can be administered to adults. Presumably, whipping could always be imposed on juveniles. There is no limitation to the offences for which juveniles can be subjected to this moderate correction with a light cane. These new penalties have clearly been designed to deal with persons involved in the unrest pervading the country at the present time. I think the hon member for Mossel Bay will concede that. Public violence, arson, and other similar offences are obviously all related to the unrest which we are presently experiencing in South Africa.

That was the perception of the hon member for Sandton.

Well, he may well be right; I agree thoroughly with him. One has to draw conclusions from this. After all, while everyone else is busy abolishing corporal punishment, we are adding to the offences. So the Government is doing its usual thing. Instead of tackling the causes of the unrest, instead of addressing the reason for all this arson and public violence, the Government increases the offences and creates more and more methods of retribution. It now resorts to brutal physical punishment which, as we have said, has been discarded by the rest of the civilised world. I am afraid that once again, the South African Government is showing its defiance of the social norms and the human rights criteria which have been adopted by the rest of the Western World.

I should like to ask the hon the Minister a direct question. He probably knows—as indeed I know because it was the year I came to Parliament and it was a very important issue—that in 1953 the Government introduced whipping in order to break the defiance campaign of those days. Does the hon the Minister remember that? Defiance of apartheid laws was punishable by whipping.

I was too young to remember it.

He was too young to remember it. Well, then, take my word for it. Believe me, it was so. Moreover, I want to tell the hon the Minister that it succeeded. It did break the defiance campaign of those days. Does the Government really think that would work today, however? I want to tell the hon the Minister in all seriousness that he sadly misjudges the spirit abroad today, particularly among young Blacks, in their determination to continue to oppose the policies of the égime, even by violent means. Today they are not only prepared to be whipped. They are prepared to die. We have seen that time and again in the townships throughout the length and breadth of this country. They face up to the Casspirs, to the Police and to the Army. They are prepared to die. Whipping will not in any way break the defiance of those people, those young adults, who were say twelve years of age in 1976 when the Soweto riots broke out.

Although the prison cells and the police cells will echo with the cries of people—and this will happen—as they receive this so-called moderate punishment—and not so moderate punishment in the case of adults over the age of 21—I can tell the hon the Minister that thereafter they will be on the streets again, marching, parading and singing their liberation songs. Now, however, I believe they will be consumed by anger and hatred because of the degrading and brutal punishment that has been administered to them. I believe, if anything, it is going to make those Black people more committed than ever to what they call the revolution.

Mr Chairman, while the hon members for Sandton and Houghton tried to give us lectures, all I want to do in this late stage of the debate is, within the space of a few minutes is to humbly present them with two authorities. I am sure that having read them through and studied them, they would see things in a different light.

The one authority I should like to quote is Dr James Dobson, whose book has been translated into Afrikaans. He is associate professor in clinical child psychology at the Medical School of the University of Southern California. A total of 650 000 copies of his book Wie die Roede Spaar (Dare to Discipline) have been sold. As a dedicated Christian and father of two children his family is his main priority. This book is available in the Parliamentary library and is published by Tafelberg Uitgewers. Hon members would do well to read it.

The second authority I should like to quote is also a scientific study, made at the University of the Orange Free State by Drs C L Bester and A Weyers. The article appeared in Die Vrystaatse Onderwyser (November 1981, p 9 et seq). The title of the article is “Die verband tussen persoonlikheid en houding ten opsigte van lyfstraf by matriekseuns”. The writer says that there are two schools of thought on this very relevant question, with very divergent standpoints. They did research with a certain category of child. About it they said the following:

I quickly want to quote further from this source:

Only Afrikaans-speaking pupils and only pupils with total IQ stanines of 5 to 9 were involved in the research in order to make it more homogeneous. What was the result of this research? I quote as follows:

A further result is the following:

In other words, when they are more mature.

My second last quotation is as follows:

In conclusion, I read the following:

I think if the two hon members who spoke on behalf of the PFP were to study these two articles they would arrive at a far deeper insight.

In conclusion, what is surprising to me is that the PFP did not refer to a very important amendment, namely community service as a punishment which can serve as an alternative for short-term imprisonment. In paragraph 9 of the memorandum attached to the amendment it is stated very clearly, as follows:

1. (a) a clearer definition of community service;
2. (b) the minimum and maximum period, as well as the minimum age limit, for the performance of community service;
3. (c) the cancellation of such an order of postponement or suspension;
4. (d) the service on the accused of a notice ordering him to report for community service, and the creation of certain offences in this connection; and
5. (e) the liability of the State for patrimonial loss arising from the performance of community service.

This is a vast improvement and I would like to hear them give their considered opinion on this.

Mr Chairman, the debate certainly did not reach the same heights as the debate on the previous Bill.

The hon member for Bloemfontein East put his finger on the pulse of this legislation by pointing out that this measure also dealt with those facets of community service as a punitive measure, which were problematical. This is now being ironed out and laid down in this new Bill. The provisions to which the hon member referred are in fact monumental provisions in this sense that they could usher in a new era as far as the meting out of a punishment that could serve as an alternative to imprisonment. In that regard the hon member for Bloemfontein East has done us a favour in that he has given me the opportunity to react to what he said.

Order! If hon members continue to speak so loudly, they will compel me to call them by name.

Mr Chairman, if the hon members knew what I am about to tell them about Sandy Bay they would probably be more interested. The fact remains that community service as a punitive measure has now been made possible in that the existing obstacles have been removed.

This Bill must therefore not merely be considered as an extension of corporal punishment and the application of corporal punishment to other categories of criminal acts. Such a view of it would be narrow, limiting and ultra-conservative. In this regard the PFP was ultra-conservative in their assessment of this Bill. In fact they have developed claustrophobia as far as the provisions of this Bill on corporal punishment are concerned. It was by no means the intention to present corporal punishment here as the best and most desirable form of punishment to strive for; on the contrary hon members remained oblivious of the package which we are creating in order to enable those meting out punishment to exercise a choice as to which form of punishment they are going to mete out to young offenders who appear before them.

As far as community punishment is concerned, I often mention the example—it was always possible, but there were other considerations as well—that when a person imposing a punishment has to sentence someone whom he has found guilty of excessive exposure at Sandy Bay, he can sentence him to teach Sunday school for six months in some congregation or other. That is probably the finest example of community service we could mention.

In practice there have been other examples. The man who started a fire on Table Mountain a year or two ago was sentenced to community service. He had to go and work at Kirstenbosch. There are other examples of people having been sentenced to work in the emergency ward in a hospital after they were convicted of culpable homicide.

However, certain problems emerged in regard to this situation. Take for example the case of the man who had to work in the casualty ward of the hospital after having been found guilty of reckless and negligent driving. Besides the motor car which he damaged, he may have harmed someone in another way. Obviously the person imposing the punishment will view the person in front of him as someone who is inclined to drive recklessly and as someone who tends to drive too fast. One can imagine why the person imposing the punishment hesitated to send the accused to the casualty ward of the hospital because what would happen if for example, he were to push a wheeled stretcher upon which someone was lying immediately after having undergone an emergency operation, but pushed it too fast; it falls over and the patient is injured further. Who pays for those damages? Hitherto that has been an open question. The State does not have to pay for the damages. The hospital does not want to pay it, and it could eventually be charged to the magistrate or the judge. This is the kind of problem which we have now ironed out because the State now undertakes to bear the responsibility for certain damages which may have occurred as a result of the conduct of such a person, on whom an alternative sentence may be imposed, such as the performance of community service.

We said several good things about that.

We do not oppose that.

The hon members do not oppose it, but the point is that they consider imprisonment to be the only perfect punitive measure. We say, however, that that is not the case; a package must be made available for the person who imposes the punishment. This package consists of imprisonment, but it may also take the form of corporal punishment or community service. Hon members have completely disregarded the role of corporal punishment as an alternative to imprisonment. They have completely overlooked the positive conduct of this Government in wanting to put together a package for the person who imposes the punishment. The fact of the matter is that it suited them to blazon a distorted image abroad, namely that all we are interested in is to inflict corporal punishment. That is not the truth.

As regards the imposition of community service as a punitive measure, we are not only in step with the rest of the world, but our committee travelled all over the world in order to determine how we could operate on an equal level in regard to punitive systems. We went to find out how we can deal with the imposition of community service as a punitive measure in such a way as to make it acceptable for everyone in this country, but which at the same time gives us a place in the punitive systems of the rest of the world. That is what we did, and I will discuss it again tomorrow. Corporal punishment must therefore be seen in this context and not in the context of the extension of a cruel form of punishment.

It is just that, whether you say so or not!