Mr. Speaker, I move—

Mr. Speaker, as hon. members will remember, we opposed this Bill at Second Reading. We also objected to a number of clauses during the Committee Stage, and I wish to inform the hon. the Minister that we will also be opposing the Third Reading of this Bill.

The outcome is obviously very largely in the hands of the hon. the Minister himself in that he is taking unto himself, in terms of this Bill, very large powers in respect of levying amounts from employers for the transportation of their employees. Obviously we hope that these powers will not be abused, either by this hon. the Minister or by any of his successors. I think we will have to watch very carefully what the outcome of this measure is going to be, because it is quite apparent that this Bill can be used as an instrument to further the plans which the hon. the Prime Minister announced at the Good Hope conference regarding decentralization and de-concentration of industries. It can be utilized as a means of creating disincentives in respect of investments in metropolitan areas. We hope that it will not be used for this particular purpose.

The amount of the levy that the hon. the Minister is going to impose, obviously after consultation, is still a question-mark. During the Committee Stage we were given an indication by the hon. the Minister that the levy would perhaps be between R3 and R4. For organizations with vast numbers of employees even an addition of R2 to R3 obviously can mean a substantial increase, thousands of rand that will be added to their costs. We hope therefore that the hon. the Minister will be very moderate in the imposition of this particular levy.

Finally, I think we should bear in mind that any additional costs that have to be met by industrialists in terms of this Bill will raise the costs of their production, which will in turn be passed on to the wholesalers, the retailers, and ultimately to the buying public. Therefore we would urge the hon. the Minister again to be moderate.

For the reasons I have just mentioned, we in these benches regret that we cannot support the Third Reading of this Bill.

Mr. Speaker, we have been debating this measure now for quite a long time, and I have been amazed at the arguments raised by the hon. member for Port Elizabeth Central, as well as by the hon. member for Berea. They have repeated the same arguments over and over again in an almost parrot-like manner. They remind me of a singer who cannot change his tune on account of the fact that he has not written the words nor composed the music. [Interjections.]

*It is useless for us to debate this matter, over and over again, which we have already proved with hon. members of the Opposition. Since it is quite clear that those hon. members are not open to persuasion, it is simply not worthwhile to try to pursue the matter any further. For this reason I prefer to turn briefly to the hon. the Minister and ask him to ensure in future, when this legislation is administered by him and his department, that the tariff adjustments which are made from time to time will be of such a nature that tariffs will never again fall as far behind as is clearly the case at present. It is not only in the interests of industrialists because they can plan and budget more effectively, but also in the interests of the Department of Transport to ensure that its own balance sheet is satisfactory every year.

I should also like to express the hope that this additional tariff increase will not be passed on to the consumer in the form of increased prices which will only increase inflation. We believe that all too frequently an increase of this nature is used as an excuse to increase the prices which the general public have to pay.

With these few words I express my support for the Third Reading of this Bill.

Mr. Speaker, it is quite clear that anyone who is opposed to the principle of this legislation has ulterior motives. No one can object to an employer having to pay for the transportation of his employees between their residences and places of work. If the PFP accept the principle that the workers should pay they should say so, and if they want the employers to pay they should also say so. My point of departure is that in a large urban complex like Johannesburg where transport can create major problems, the employer should see to it that his employees get to work. He must either convey his employees himself or he must pay to have them conveyed. We cannot allow subsidies to be paid to convey people to places where they have no business to be in any case. The Government’s decentralization programme has failed over the years because the State destroyed that programme itself by paying subsidies to people who should not have received them. We cannot allow pensioners and others to pay the transport costs of people they have nothing to do with. The increase in the price of commodities which this levy for transport costs may bring about, ought not to be taken into consideration at all. A levy of R4 is nothing in comparison with what the conveyance of people actually costs the State.

We must also accept that transportation has become an expensive item. If one calculates it over a period of ten years, it is more expensive today to convey a worker to his place of work than to shift his place of work.

The great economist!

Yes, I am a great economist. I acknowledge that you know something about it. The hon. member is quite right. In fact, I think it is the first time that he has said something really positive in this House. Thank you very much, Sir.

*It is important that we note what the transportation problem is going to be in future and I want to refer yet again to the Ben-rose Complex and other similar complexes in Johannesburg, and to the staggering transport costs. Possibly the energy crisis is only now really beginning. The commuter from Soweto must travel 46 km from where he works to where he sleeps. A great deal of working time is lost as a result, and if one accepts that 55% of the residents of Soweto are economically active this means that with the money spent over four or five years on subsidies, land could be bought on which factories could be established. These factories could then be moved closer to Soweto and be adapted to keep pace with the natural growth in the population there. This is another way in which decentralization could be promoted.

In my opinion it is wrong to keep a Minister or a department in check. In any case we believe that the hon. the Minister will act fairly as far as this levy is concerned because there is no reason why he should not do so, and for this reason we support this legislation.

Mr. Speaker, we in the NRP will be opposing the Third Reading of this Bill for the same reason that I gave during the Second Reading and the Committee Stage. That is because it goes against a principle that has been laid down over many, many decades as far as parliamentary controls are concerned. I refer to the fact that any taxation or levies applied by the Government should be approved by this Parliament. The hon. the Minister during the Second Reading and also in the Committee Stage asked me why I should object to the powers he is asking for now while the hon. the Minister of Finance has the power to increase the loan levy and the general sales tax without having it first approved by Parliament. I should like to point out to the hon. the Minister that while the hon. the Minister of Finance has those powers, he has to come back to this House at a later stage to have his decisions ratified. This, however, is not what this hon. Minister is asking for. He is asking for a carte blanche power to increase the levies as he sees fit, and we believe that this could lead to undesirable situations developing. During the past ten years we have already found that the State had to carry an ever increasing and unfair burden of the subsidies paid to the users of bus services. We feel that if in future the hon. the Minister does not have to come to Parliament to raise these levies, it could lead to similar abuses. For example, one may find in the future that bus passengers may have their fares subsidized to an unreasonable extent, and that the major portion of this subsidy would be paid by a particular group of employers. This could also result in many people who use those buses not even being employed by those particular employers who are paying the levy, and thus they will be obtaining their bus travel at a very low rate at someone else’s expense.

Finally I just want to repeat what I have said before, that there are three contributors to the cost of operating these buses, namely the employer through the levy, the State through a subsidy and also the bus user through the fare which he pays. We on these benches ask the hon. the Minister once again to be very careful not to instil into people an attitude of mind which makes them think that it is their right to obtain bus travel at a highly subsidized level. I do not think that is a right an individual can claim. I think we should encourage in this country an attitude of mind amongst our people that they must pay their way in life and that one does not get anything for nothing in life. We will concede that in certain circumstances, like those which we find in South Africa in the present time, there are certain people who need to be subsidized for a wide variety of reasons. But I should like to think that as our economy develops we should propagate the thought amongst our working people that they must pay their way. I would hate to see this type of legislation being placed in the hands of the Department of Transport Affairs never to come back to this House to enable us to re-examine or rethink to see whether we have our values correctly orientated in terms of bus travel. The fact that the hon. the Minister is asking for power to enable him to increase the levy imposed on employers without reference to Parliament, we believe goes against the long-term parliamentary principle of Parliament deciding on taxation. For this reason we oppose the Third Reading of the Bill.

Mr. Speaker, the hon. member for Port Elizabeth Central repeated what had already been said, namely that the cost of production would increase as a result of this. I have already replied to that argument.

*The hon. member for Roodeplaat asked us to ensure that tariffs do not fall so far behind again. I agree with the hon. member. The tariffs have fallen behind completely and this is precisely why we have come to this House with this amending Bill.

I want to tell the hon. member for Langlaagte that taxpayers, and even pensioners, will now have to pay the subsidy of R140 million which we will need next year.

†The hon. member for Amanzimtoti made a big mistake. The Minister of Finance is allowed to increase the sales tax on bread in July and report to Parliament in February the next year only to explain why he did it. He has full powers to increase sales tax on a commodity such as bread. All I am trying to do is to close the gap. At the moment the commuter pays approximately 50%, the employer ±13% and the remaining 37% is paid by way of subsidy. I merely want to close this gap to the extent that an employer pays at least R3 or R4 per month. I shall give employers 12 months’ notice after the first fixing but we shall find in Parliament next year that the whole matter will again be raised with me and with the hon. the Minister of Finance. Hon. members will be given ample time to raise this matter.

*That argument of the hon. member means sweet blow-all.

Question agreed to (Official Opposition and New Republic Party dissenting).

Bill read a Third Time.

Mr. Speaker, I move—

I move that it be approved without discussion!

Mr.Speaker, for precisely the same reasons that we opposed the Third Reading of the previous Bill we shall oppose the Third Reading of this Bill.

Mr. Speaker, we on these benches also oppose the Third Reading of this Bill for the same reasons which we advanced for opposing the previous Bill. Let me tell the hon. the Minister that his attitude that what we say means “sweet blow-all” is the very reason why we believe in the principle that financial matters such as these should come to Parliament. I believe that the attitude which the hon. the Minister expressed when he said that emphasizes the need that these matters should come back to this House. Once that sort of attitude creeps in amongst Ministers or departments, we are then heading towards a situation where the executive does as it likes. For that reason we oppose this Bill.

Mr. Speaker, I support the Third Reading of this Bill, but I should just like to comment on two matters. In the first place, I want to comment on the ridiculous proposal made by the hon. member for Port Elizabeth Central yesterday when he said that the amount should be R1,60. We discussed that ridiculous proposal during the Second Reading of this Bill, when we pointed out that since the last change in this amount, the normal inflation rate has justified the amount being increased from R1 to R3. Then the hon. member for Port Elizabeth Central made the ridiculous proposal that the amount be increased by 50%. I do not know whether he has taken inflation into account…

Mr. Speaker, on a point of order: The hon. member is discussing a point relative to the last Bill. He is talking about an increase which I proposed during the Committee Stage of the Black Transport Services Amendment Bill, viz. that the amount be increased from R1 to R2. I draw your attention to the fact that we are now dealing with the Transport Services for Colored Persons and Indians Amendment Bill, while the hon. member is talking on the previous Bill.

I am sorry to have to say this, but the hon. member does not know what he is talking about. That is how confused he is. Yesterday he suggested an amount of R2, after which he suggested an amount of 40 cents for this legislation. Forty cents times four weeks is R1,60. If the hon. member is so confused, he should rather keep quiet in this House. Yesterday, when we discussed the Black Transport Services Amendment Bill, he mentioned R2. I think the hon. member must first find out what he is talking about. I have said before that the hon. member talks through the back of his neck. I think it is time that the PFP found out what these subsidies are all about. On a previous occasion I told him quite clearly that the politics they were trying to drag into this issue would not work. Overseas countries also subsidize transport. It is not only the poor overseas countries which do so; the richest overseas countries actually have the highest subsidies. This was spelt out quite clearly during the Second Reading.

I should also like to know from the hon. member for Amanzimtoti why he is not supporting the Bill. If one reads through his speeches, one finds that he has consistently supported the principle. Unfortunately there is one principle he cannot support, namely that the Minister must determine the amount. I sympathize with the hon. member, but I just want to point out to him that there are more cases where there have to be intervals of 12 months between increases. The NTC collects information, including information from the hon. member for Amanzimtoti, when it has to determine the future amount and then gives notice that the amount will be changed after a period of 12 months. But during that period there will be a discussion on the Transport Vote here in this House, and then this information is already known. I therefore think there is sufficient time for them to question the Minister if they feel that the amount is unacceptable.

The problem in connection with domestic servants which was raised by the hon. member for Langlaagte has already been dealt with by the hon. the Minister. He spelt out quite clearly how he will deal with this matter. I want to repeat that provision has been made for exemptions. This has already been done in the case of the Transport Services for Colored Persons and Indians Act, in section 3(4) of Act No. 27 of 1972. Hon. members opposite should read this amendment in conjunction with the original Act, and then half the criticism they have voiced here will fall away.

Sir, I take pleasure in supporting the Third Reading of the Bill.

Mr. Speaker, I have respect for the hon. member for Port Elizabeth Central, because to be consistent, he has to oppose this Bill as well.

†I referred to the hon. member for Amanzimtoti’s argument when he compared the hon. the Minister of Finance with the hon. the Minister of Transport Affairs, as being worth “sweet blow-all”. I was referring to the weight of his argument; not to his reason for opposing this measure.

*The hon. member should not now become so excited about something which he wants to take completely out of context. I think we understand each other. I do not want to belittle the Opposition; it is not in my nature. What would this place be like if there were no Opposition? I also want to thank the hon. member Dr. Welgemoed for his level-headed approach to this matter.

Question agreed to (Official Opposition and New Republic Party dissenting).

Bill read a Third Time.

Mr. Speaker, we in these benches shall support this Bill. The Bill contains a few short clauses which attempt to improve the definition of certain matters, such as clause 1(a) which replaces the definition of “decentralized industry”. I think it is quite acceptable that in the spirit of decentralization only those industries which actively participate and therefore make use of the benefits of decentralization will also receive the transport concession. I do not think that the objective in the first place was to benefit industries which happened to find themselves in a decentralized area. I do think, however, that at a later stage we may have to reconsider this, for after decentralized industries have established themselves in that area they may subsequently become more competitive than other industries which have never enjoyed these benefits. But I feel that in the initial stages we must accept that this is a good definition.

With regard to clause 1(b), we now have the new provision by means of which the load which may be transported is increased from 8 tons to 14 tons, which gives a gross vehicle mass of 26 tons. We accept the reason why we are now going to use the expression “gross vehicle mass” instead of the concept “carrying capacity” because it makes it easier to apply the Act. Of course there are a few questions one could ask in this connection. In the first place, I want to ask why there should be a mass provision at all. If we accept the principle that a decentralized industry may convey its own goods in only one vehicle, one could say that that is enough of a restriction, because one cannot after all treat everyone alike. It goes without saying that people will decide on the size of that single vehicle they may possess on the basis of economic considerations. In the second place, if one does have a restriction, why must it be 14 tons of goods which may be conveyed, or a gross vehicle mass of 26 tons? What would happen if an industry had to convey its own power generator weighing 14.2 tons, for example, for if it did so it would be contravening the provisions of this legislation? Perhaps in this regard we can do away with this mass restriction.

I only did what Assocom asked. This is precisely what they asked for.

I should like to hear what the hon. the Minister has to say in this connection.

In general one can also ask why there is any form of restriction in respect of either the number of vehicles or the load which may be conveyed and particularly in respect of decentralized industries because it goes without saying that these decentralized industries are worse off as far as transport is concerned, both with regard to infrastructure and distances. One would therefore have expected that fewer rather than more regulations would be made applicable to them. I think roads are one of the first infrastructural components with regard to transport which should in fact be available to decentralized industries simply to give access to those industries. By placing restrictions on road transport, one could, for example, artificially stimulate the need for rail transport, whereas, as far as transport in general is concerned, particularly in a smaller area, it could for a very long time be provided on an economic basis by road transport.

The aim of the amendment proposed in clause 1(c) is the promulgation of regulations to put an end to malpractices as far as certain containerized transport is concerned. As long as one believes that provisions are necessary for the exemption of goods, the legislation must be of such a nature that it can in fact be implemented. We on this side accept that it is in fact necessary for there to be control over the type of goods which may be conveyed. We believe that such control will be in the interests of the overall transport economy. Consequently we support this provision and the rest of the legislation as well.

Mr. Speaker, I cannot understand why one has to talk for such a long time if one is supporting an amending Bill. Fortunately I could not hear what the hon. member for Greytown was saying.

I did not intend to take part in this debate; I am still feeling rather shaky and not quite firm on my feet yet. [Interjections.] We are discussing such a lively industry with such a lively Minister at the helm, though, that I feel compelled to support the Bill. As usual the hon. the Minister explained the Bill so well that there is not much that I can add.

In my opinion the proposed amendments again provide clear evidence of a Government which not only talks but which, in addition, is prepared always to do something constructive. I am now referring to the greater benefits industrialists in decentralized areas will receive in that they will in future be able to convey 14 tons instead of 8 tons anywhere in the country without having to obtain a permit. That is how a good Government works: Things are made easier for the public and a great deal of red tape is eliminated.

The only difficulty I foresee with more and larger trucks is the build-up of traffic we are going to get in our mountain passes. I am referring in particular to the Dutoitskloof pass. I frequently use that pass and often find myself behind a truck. Then one ends up cursing inwardly. I do not know in whose book the black marks are put. The hon. the Minister’s people are, however, building the tunnel. I am extremely grateful for this. I just hope it is finished before we have too many black marks against our name. [Interjections.]

I notice that the hon. the Minister wants to substitute the words “gross vehicle mass” for the expression “carrying capacity”. This is all very well but these difficult words confuse us. Why not simply refer to an 8-ton lorry or a 14-ton truck? Then we ordinary people will also understand.

If clause 1(c) is accepted, the hon. the Minister intends by means of regulation to determine that exempted goods may not be conveyed in certain containers. The truth of the matter is that no matter how stupid a person may look, when it comes to being dishonest, everyone is clever. All this means is that certain goods are being concealed in these containers and the sooner people doing this are apprehended the better.

I hereby support this amending Bill as well as those which are to follow. [Interjections.]

Mr. Speaker, I must agree with the hon. member for Worcester that people must be able to understand the meaning of words and here I am thinking of words like “consociation”, ‘su-pra-ethnic”, etc. [Interjections.] Even I do not understand these concepts. [Interjections.] To say nothing of “segmental autonomy”! [Interjections.] The hon. member made an interesting point when he asked why we do not simply speak of an 8-ton lorry.

I must say I was absolutely disillusioned by the way in which transport people behaved. A year or two ago they asked us to allow them to convey parts for vehicles which had broken down on a one-ton pickup truck. The former chairman of our group, Mr. Van Breda, and all of us agreed to this and worked hard to get the provisions amended so that a one-ton pick-up truck could be used. But what happened then? [Interjections.] Those people then changed the loading space in the one-ton pick-up truck in such a way that there was enough space to convey 50 television sets in it. This alteration to the pick-up trucks was a complete circumvention of the Act. That is why a provision now has to be introduced in connection with the mass of the truck and reference is no longer simply made to its carrying capacity. I think this is a great improvement in the legislation. It is indeed a concession. I am pleased about the amendment because an 8-ton vehicle is inadequate for the purposes of decentralization. Let us take as an example a person who has moved his business from East London to a place like Berlin. He has exactly the same transport problems as the person loading a truck in Johannesburg. There is therefore a tremendous advantage in the fact that the mass has been increased to 14 tons.

We should therefore like to support this legislation. We feel that the hon. the Minister and the department have really accommodated transport contractors in recent years.

Mr. Speaker, the hon. the Minister and other hon. members who have spoken have given the reasons why this hon. House should approve and accept the measure before us, and I want to tell the hon. the Minister that we shall be supporting these provisions. [Interjections.] There is no doubt that the definition of a decentralized industry has to be up-dated in the light of recent developments, and I agree that the actual load-carrying capacity of a vehicle exempt from carrying a permit should also have been increased in the light of developments that have taken place. One has to realize that economy of scale is needed today in order to combat inflation and that a lorry with a carrying capacity of eight tons is simply not big enough to carry out the work that is required in a lot of the industrial development that is taking place today. I therefore think that these are very wise provisions.

This brings me to the comment made by the hon. member for Langlaagte about the one-ton bakkie being used for purposes that we in the commission had not envisaged. I just want to say that that is the sort of initiative that one finds in the private sector! It is this sort of thing that builds up industry and builds a nation. [Interjections.] They seem to be one step ahead of the Legislature.

Be that as it may, we are supporting the hon. the Minister as far as these proposals are concerned.

Mr. Speaker, the hon. member for Greytown asked a few questions. In the first place he said that when we spoke about decentralization and the protection of small business undertakings, there were a number of small business undertakings which were going to get hurt as a result of this amendment. In the past the industrialist could not convey more than eight tons at a time and there was a local firm which had a transport permit to undertake transport work for the industrialist. It therefore cuts both ways. Now an industrialist in a decentralized area can freely convey 14 tons anywhere in the country.

There is another reason why we did not make it more than 14 tons. The provinces brought up the matter of road maintenance. The hon. member said we made it 14 tons because we wanted to protect the railways. Where these industries are situated there are not always railway lines. Today 47% of the transport is being conveyed by the railways and 53% by private carriers. There is therefore no question of anyone being benefitted. We cannot make it unrestricted because this creates problems in connection with road maintenance and because we must take these people who have bought trucks to undertake transport work into consideration.

I want to welcome the hon. member for Worcester back in this House after a long illness. I just want to tell him that we should have cancelled the Du Toits Kloof tunnel but as a result of his constant badgering I came to an agreement with the Cabinet—the hon. member for Paarl asked me for this and the hon. member for Worcester has already taken me there twice—to get the necessary money to complete the tunnel. The hon. member will no longer have to drive behind those 14-ton trucks when he goes over the mountain.

The hon. member for Langlaagte said this was a good concession. I am glad that he mentioned that we accommodated people. The hon. member for Amanzimtoti also referred to this. I think this is a very positive piece of legislation.

Question agreed to.

Bill read a Second Time.

Bill not committed.

Bill read a Third Time.

Mr. Speaker, I move—

The final accounts of the S.A. Transport Services for the 1980-’81 financial year, as certified by the Auditor-General, show that expenditure total R4 576 351,95 was incurred during that financial year which has not yet been appropriated by this House.

As hon. members know, this expenditure has already been reported to this House by the Select Committee on the Accounts of the South African Transport Services with the recommendation that it be appropriated by Parliament.

I should like to furnish the following particulars: The excess of R2 603 078,69 over the parliamentary appropriation under column 1 of Revenue Services is in respect of the aviation fuel account. Prices of aviation fuel are fixed in dollars. As a result of the greater devaluation of the rand against the dollar than was expected, the prices in terms of rands increased.

During 1980-’81, in terms of section 7(1) of Act 48 of 1977, I granted authority for the payment of amounts of R20 000 and R15 000 to the Universities of the Wit-watersrand and Stellenbosch, respectively. According to section 7(2) of the said Act these amounts, as Column 2 items, should have been specifically identified in the Railways and Harbours Additional Appropriation Act, 1981, as having been so authorized. These amounts were accounted for against head No. 19 (Net Revenue Account) and head No. 26 (Miscellaneous Expenditure), respectively. Since the total amounts appropriated under these heads were sufficient to cover this expenditure, it was not specifically indicated and appropriated as required by the Act.

†Provision was made in the capital budget for 1980-’81 for an amount of R7,5 million in respect of the elimination of level crossings. Owing to higher escalation and faster physical progress with the work, the Vote was exceeded by R1 938 273,26. As this expenditure was still regarded as a Column 2 item during the financial year under review, virement could not be applied in terms of section 6 of the said Act.

Mr. Speaker, the hon. the Minister can rely on our support of this Bill. We appreciate the fact that this matter has been brought to Parliament. It is one of our important responsibilities to monitor Government expenditure. This amount is, however, as a percentage of the total budget of the S.A. Transport Services an infinitesimal amount, and we on the Select Committee are satisfied that it is a reasonable and legitimate amount of money to be spent.

Therefore we will be supporting the Second Reading of this Bill.

Mr. Speaker, we appreciate the support of the hon. member for Pietermaritzburg North on behalf of the official Opposition for this measure. The hon. the Minister has already explained that this is a matter which was before the Select Committee on the Accounts of the S.A. Transport Services, and that we are also satisfied that these amounts—totalling a little more than R4,5 million—should be notified in this way by this House. Furthermore, we are also satisfied with the replies given to us by the General Manager of the S.A. Transport Services, and the opinion of the Office of the Auditor-General.

However, what I find particularly interesting is that from next year onwards—the 1981-’82 financial year—an amount such as this, an amount of R1,9 million, for the elimination of level crossing will never again occur, owing of course to the fact that it will no longer appear as a column 2 item. Only if the fund becomes depleted will attention have to be given to the matter by Parliament and the Select Committee. This is definitely the last occasion we shall have to vote an additional amount of R1,9 million, representing unauthorized expenditure with regard to level crossings.

With regard to the amounts of R20 000 and R15 000, which will be given to the University of the Witwatersrand and the University of Stellenbosch, respectively, I want to point out that they are intended for important research work that is being done at those two universities. In the case of the University of the Witwatersrand research work is being done on the wheels of rolling stock. This research is already in progress. It has happened in the past that engineering problems were solved by valuable research work done at universities. Because we realize what benefits the S.A. Transport Services can derive from research of this nature, we think this amount of R20 000 is money well spent.

The department of mechanical engineering at the University of Stellenbosch is receiving an amount of R15 000 with a view to providing an extended course in mechanical and marine electrical engineering. In this case it is also of importance that the transport sector in South Africa should acquire the benefits of research work of this nature.

For these reasons we support the legislation under discussion, because we believe that all the sums of money involved will be spent properly.

Mr. Speaker, we also support this legislation, mainly because all our questions were replied to on the Select Committee.

Mr. Speaker, we in the NRP too are satisfied with the replies given to us in the Select Committee, and we will therefore support this Bill at Second Reading.

There is only one comment I should like to make. One thing arising from the debate, both here and in the Select Committee, is the fact that aviation fuel costs were overspent by R2,6 million owing to, as the hon. the Minister says, the increase in the rand value of fuel. We, do of course, pay for our fuel in dollars. This is, I believe, an indication of the effect of the devaluation of the rand in respect of the dollar, and of what it has done to one particular aspect of the operations of the S.A. Transport Services. As far as the capital budget is concerned, we see that the over-spending on the Vote was due to the elimination of level crossings. The reasons given for this is escalation of costs and faster physical progress with the work. Here again we have the effect of inflation, and for this reason I am pleased that the hon. member for De Kuilen referred to the need for research when he referred to the contributions towards research at the University of Stellenbosch and Witwatersrand University, and I should like to make the point that perhaps the hon. the Minister could give greater consideration to research into ways and means of reducing costs in the light of the escalation of costs resulting from inflation. We are often told that to fight inflation one must increase productivity, but in many cases productivity increases are not the result of the physical effort of the man involved in the workplace being increased, but rather a result of improved management and technological techniques.

The particular vote before us involves a sum of R4,5 million, and most of it is due to financial aspects such as inflation, etc., while only R35 000 is attributed to research. Perhaps we should put a greater emphasis on research in future, and maybe we will get a bigger pay-back in the form of greater efficiency in the operations of the S.A. Transport Services. We will, however, support this Bill.

Mr. Speaker, in reply to the hon. member for Amanzimtoti, I must point out that we do not only spend R35 000 on research. This amount appears here merely because it was not sanctioned by Parliament. We have, however, at the moment also a research programme in regard to efficiency; so we are paying attention to that aspect. The hon. member is perfectly right. When there is an imbalance between the dollar and the rand, the man who exports is in a much better position than the one who imports. That is indeed one of our problems, because we have to import oil.

*I should like to convey my sincere thanks to the members of the Select Committee, including the chairman, the hon. member for De Kuilen, hon. members of the Opposition and members of this side of the House who served on the committee, for the work they have done over the past year, and for the way in which they have drawn my attention to problems. I greatly appreciate that.

Question agreed to.

Bill read a Second Time.

Bill not committed.

Bill read a Third Time.

Mr. Chairman, I move the amendments printed in my name on the Order Paper, as follows—

1. (1) On page 3, in lines 13 and 14, to omit subparagraph (ii);
2. (2) on page 5, in line 35, to omit all the words after “(7)” up to and including “and” in line 38.

In the spirit of co-operation which was displayed by all sides of the House we have accepted the principle of this Bill. We have, however, accepted it on the basis that we are balancing on a fine line between the rights of the individual citizen and the security of the State. We are now taking a look at the Bill in the Committee Stage to ensure, as far as we can, that the rights of the individual will not be weighed down by the weight of the security of the State. We endorse the idea that the rights of the individual must be very jealously guarded and protected.

It is in the light of this approach that I have moved the above amendments and I should like to explain very briefly that the first of my amendments is really the substance of what I am asking for. The rest of it is merely consequential on the first part. If we accept my first amendment on this clause, my second amendment of clause 1 and both amendments on the title will be consequential. If, however, we do not accept my first amendment on clause 1, we need not consider the rest because they are consequential on the acceptance of the first. We have reached the stage where we are all satisfied that the applicant will be a person delegated by the State Security Council who will be either the Chief of Defence, the head of National Intelligence or the head of the Security Police. I have no problem as far as the applicant is concerned. However, where the problem comes in is with the functionary to whom the application is to be made in terms of section 118A. In terms of this section the grounds for the application, the relevant telephone and the period have to be set out in writing. The amending legislation before us is an improvement, as we have already mentioned. This legislation, of course, arises from the report by Mr. Justice Van der Walt and from the report of the Commission on Internal Security under the chairmanship of Mr. Justice Rabie. We are guided in particular by paragraph 8.6, on page 7, of Mr. Justice Van der Walt’s findings and recommendation. Paragraph 8.6 reads—

*Mr. Chairman, allow me, at this stage, to tell the hon. member for Overvaal that I listened to his speech the other day, and I want to assure him that I would be the last one on earth who would want to be an intercessor for the HNP. The hon. member might as well accept that.

You sounded like an intercessor.

Having now established that it is the functionary who has to exercise a second control, we want to ensure that that second control is in fact exercised as such. The Rabie Commission’s report has become the bible of all security legislation that has been placed before us. Sometimes we use the Bible to give effect while at other times when it suits us we do not need the Bible. Let me explain my difficulty in this regard.

What I am trying to establish is, firstly, that we should not have a state of affairs where an applicant applies to his own Minister as the functionary. That is too much of a domestic sort of set-up, and we do not want that. We are happy with the recommendation that the Minister of Posts and Telecommunications must be advised. In the Rabie report the word “verwittig” is used. Paragraph 13.2.28, on page 208, of the Rabie Report states—

These three Ministers in concurrence with— we now use the word “concurrence” and not just “verwittig”—the hon. the Minister of Posts and Telecommunications act as the functionaries who have to make the decisions on the applications. That is fine up to there. However, the Ministers have no power of delegation. In this regard the Rabie Commission says in paragraph 13.2.30—

The Rabie Commission is here referring to when a Minister is not available. That we can well understand. However, on this basis nowhere in this Bill and nowhere in the Act is there any power for any of the four Ministers to delegate their powers. They are stuck with this responsibility, which is a good thing. I should like to see that at least two Ministers exercise their function because this is the second application which is made and for that one needs a separate control. If we do not amend this clause, we shall be left with the present wording of the Bill, which, in paragraph (i) of the proposed new subsection (1), refers to the word “or”, after which follows “the Minister or an officer authorized thereto by the Minister.” This means that the applicant can now go directly, not to the three Ministers mentioned in paragraph (i), but to the hon. the Minister of Posts and Telecommunications himself or directly to the Postmaster-General or to anyone who falls under him, being in rank not less than a Deputy Postmaster-General. The difficulty which I have is that the findings of the Rabie Commission, as set out in paragraph 14.13 on page 219 of its report, say exactly the opposite. Paragraph 14.13 states—

But that is exactly what we are doing. Therefore the purpose of my amendment is to implement the findings of the Rabie Commission and to leave the decision of the functionary to the hon. the Minister with whom he has to concur so that he will at all times know what is happening. The Ministers who are involved in the three security departments are the ones who have to give the decision.

Therefore the only problem that remains is if a case is urgent and a decision has to be made. But I do not think that it can be said that one would not be able to get a decision from any of the three Ministers who are involved and who are responsible for it. We accept the fact that it is necessary to have somebody in the Department of Posts and Telecommunications who will be monitoring the actual interception, because their equipment is suitable for this purpose, but when it comes to the exercising of the second function, I want to know what the guidelines laid down by the hon. the Minister are. Is the Government prepared to follow the evidence given before the Rabie Commission? Guidelines are actually laid down in paragraph 13.2.17 on page 207 of the Rabie Commission report. I want to state what these guidelines are and I want to ask the hon. the Minister whether these guidelines will be taken into consideration. These guidelines are—

1. (a) there must be a major subversive terrorist or espionage activity that is likely to injure the national interest;
2. (b) the material likely to be obtained by interception must be of direct use in compiling the information that is necessary to the Security Service in carrying out the tasks laid upon it, and
3. (c) normal methods of investigation must have been tried and failed, or must, from the nature of things, be unlikely to succeed if tried.

If a member of the Department of Posts and Telecommunications, or the hon. the Minister alone, is capable of exercising this, not because of his mental capacity, ability, etc., but because of his experience especially in being able to evaluate sensitive information and evidence that are required to fit into a test that is being applied, I would be happy, but because there is such a test it needs the concurrence of two people. [Time expired.]

Mr. Chairman, I do not wish to be unkind to the hon. member for Hillbrow, but I find that the amendment he has moved, is totally in conflict with what he said during the Second Reading debate yesterday. Moreover, what he said at the outset of that speech contradicts what he said at the end. Listening to the hon. member, I realized that he was confused, since the amendment he has moved will certainly not achieve the object he has in mind. Looking at the speech he made yesterday, I could illustrate my point by quoting the following (Hansard 24 May 1982)—

He had this to say at the end of his speech—

In the same breath the hon. member welcomed the fact that powers were being delegated to an official occupying a post of a grading not lower than that of Deputy Postmaster-General and then maintained that it was unfair to burden these officials with those delegated powers. Yesterday he welcomed the fact that the powers could be delegated to these senior officials, but today he proposed an amendment in which provision is made that the powers should by no means by delegated to them. The hon. member’s amendment as he has phrased it, means that the security of the State will be subject to the availability 24 hours a day of the Minister himself. He may not go on holiday, he may not be on an aircraft anywhere, he may not be hunting somewhere in the bush, he dare not even die! In terms of this amendment, State Security dare not even implement the principles of this legislation without this Minister’s permission. If State Security wishes to intercept a certain telephone call, the Minister will have to be available 24 hours a day. Surely it is not in the interests of South Africa that the security of this country should be dependent on the availability of one person.

I said that I did not wish to be unkind to the hon. member, since I am just as grateful as the hon. member is that yesterday we had the breakthrough of unanimous approval for the Second Reading of this legislation. I still think that by way of the amendment he has moved the hon. member is marring the fine tradition which came into being yesterday. In my opinion, this clause confirms the promise which the hon. the Prime Minister made when he assumed office. You will recall that on that occasion he promised that he would see orderly and honest government established and maintained in South Africa. When one is dealing with sensitive principles such as the security of the State and the individual’s right to privacy, one has no choice but to have this kind of decision-making take place at the highest level. When allegations were made by the English-language Press and the HNP concerning the integrity of the Government in respect of its handling of the privacy of the Post Office, the hon. the Prime Minister challenged Mr. Jaap Marais to allow the Advocate-General to investigate his allegation. The Advocate-General found no substantiation for these malicious allegations, but he made certain recommendations to protect the Government from unfair criticism while acting in the interests of the security of the State. True to his word, the hon. the Prime Minister placed those recommendations before the Rabie Commission and the Rabie Commission confirmed that these decisions should be taken at only the highest level. The Rabie Commission pointed out that it would be impracticable for the Minister of Posts and Telecommunications alone to give permission and that he should rather delegate that power to his senior officials as well. This is precisely what this clause envisages. It implements the findings of both the Advocate-General and the Rabie Commission, and I wish to quote only one of the paragraphs of the Rabie Commission report to confirm this. The hon. member also quoted part of it, but I think we should read the entire paragraph. Paragraph 13.2.30 on page 209 of the report reads as follows—

Mr. Chairman, I should like to say to the hon. member for Hillbrow that I am certainly not questioning the motives behind his amendment. Indeed, I know that the hon. member has the best of intentions as regards wording the measure to make it as effective as possible, and it is specifically with that in mind that he moved his amendment. However, I regret that I am unable to accept the amendment, for reasons which the hon. member for Boksburg has just expounded very clearlyPerhaps, in view of the sensitivity of the matter, and for the sake of background, I should point out to the hon. member certain relevant points. I perceive that the hon. member feels that in order to provide the best possible measure, at least two Ministers ought to be responsible so that the one can evaluate the other. Then, too, he also feels that there should be an outside body involved.

†The hon. member said yesterday—

I must inform the hon. member that this is what really will happen. In the Rabie report there is the suggestion that the three Ministers concerned should act on receipt of an application. The application can only come from one of the most senior officials in one of their departments. The hon. member went on to say yesterday—

*I do not wish to find fault with the hon. member’s argument because I believe that he is striving to establish the best possible measure. However, I must point out to the hon. member that the Rabie Commission itself considered proposals to the effect that an evaluation should also be carried out by outside bodies. There were even proposals before the Rabie Commission—I hope the hon. member took cognizance of them—to the effect that the opinion of a judge should be called for in the effort to evaluate. After due consideration the Rabie Commission rejected such proposals. The Rabie Commission itself came forward with the proposal that the three Ministers responsible for the security departments should be able to issue the directions on application. However, the application can only come from a senior official of their own department. This, too, is therefore in accordance with the recommendations of the Rabie Commission and it cannot be done in any other way.

Yesterday I spelt out clearly that the measure I submitted was an effort to obtain the best, after very thorough consultation from all quarters, from the recommendations of the Rabie Commission and the Advocate-General. The hon. member who spoke just before me pointed out to the hon. member that in the report of the Advocate-General, Mr. Justice Van der Walt, recommended in paragraph 13, in very outspoken terms, that the Post Office Act should be amended to define the word “functionary” to include only the Postmaster-General and his deputies as far as the Post Office was concerned. Mr. Justice Van der Walt had no fault to find with that dispensation. The Rabie Commission—I just want to correct the hon. member—did not issue a finding. However, in paragraph 13.2.28 of the report the following is said—

I do not want to condemn the Rabie Commission for having said that this appeared to be the case, but in practice it is true that over the past 10 years this function has in the normal course been carried out very effectively by the Postmaster-General or one of his delegates. Their function was not to evaluate a security situation. Their function was to evaluate whether the data conveyed to them verbally or in writing was in the interests of the security of the State. However, for the edification of the hon. member, I wish to further elucidate the problems involved and our effort to reach a compromise between the best in the report of the Advocate-General and the Rabie report. In paragraph 13.2.30 of the Rabie report the following is said—

The report continues—

Accordingly, this is problematical for the Rabie Commission as well. In certain circumstances one of the Ministers in question may delegate powers to someone. In the paragraph I have just quoted, however, there is a reference to the situation in Israel, a situation which is very relevant here. The following is stated in a footnote—

We see, therefore, that specific practical problems are indeed experienced as regards the proposal of the Rabie Commission. In my speech yesterday I tried to sketch how we sought to resolve this.

†I want to quote the following from the speech I made yesterday—

The following is very important—

It cannot be done by another Minister—

So it is for that particular reason, which I have explained once again now, that that particular provision is made. Further on I said—

*I therefore believe that the utmost effort is truly being made here to establish, for practical reasons, a procedure which has worked well in practice over the past 10 years. Provision is now being made for additional checks. Although I know that the hon. member’s amendment was moved with the best intentions, I regret that I cannot accept it.

Mr. Chairman, firstly, in reply to the hon. member for Boksburg, I want to say, with great respect, that in so far as the person applying this is concerned, I welcome the recommendation that it should not be someone of lower rank than the deputy head of the department. As regards the functionary, I could not have referred to anyone else, because the Ministers are not allowed to delegate this power, as was mentioned.

As regards the amendment, the hon. the Minister pointed out certain difficulties. I can understand his having one difficulty, viz. how an urgent case is to be treated when the Minister is not available at the time. That is the only difficulty I can understand. I do not think that the Government are themselves entirely sure how to handle this situation and whether they should accept or reject some of Judge Rabie’s recommendations or some of Judge Van der Walt’s. With great respect, Judge Van der Walt says in paragraph 14 of his report—

For that reason he then refers the matter to the Rabie Commission. On page 219, in paragraph 14.13, of the Rabie Commission’s report we have not a discussion of the matter, but a finding on it. The paragraph begins with the words “die kommissie bevind dat …”. As regards urgent cases the commission goes on to recommend—

The commission actually says that. That is the part the Government have decided not to accept, viz. that the Minister can then delegate his powers in this regard.

One therefore wants an amendment which will ensure that this will be kept tight and that there will be a second functionary to exercise control so that we will not fall into the same difficulty we had with the HNP case. I only use that to illustrate my point. In consequence I thought at one stage that we should leave the word “or” and just add “an officer authorized thereto by the Minister”. That would have let the Minister off the hook to the extent that, if he was not available, the Postmaster General could have acted. However, then one would still have had the situation where possibly the Minister, the deputy and the head of the department had been talking to each other. That perhaps would not have been desirable because I agree with the principle stated here that the functionary should in fact be of a higher rank than that of Deputy Postmaster-General. I believe this should be so if we want to give credence to the way in which this measure is executed. I wonder whether the hon. the Minister should not go along with the recommendations of the Rabie Commission in this respect. The State Security Council consists of a rather extensive number of senior Ministers, officers of the Defence Force, high-ranking officials from the Department of Foreign Affairs, the Department of Justice, of the S.A. Police Force and Directors-General of the various State departments. I wonder nevertheless whether, apart from these members of the State Security Council, the three Cabinet Ministers mentioned in this measure should not have alternates who are also members of the State Security Council. Just as directors of companies can have alternates, Cabinet Ministers should have alternates so that there can always be someone available to administer this legislation. This would also in effect mean that the different approaches by two Cabinet Ministers could be discussed between them, that they could consider the application together, thus ensuring the best possible administration of this measure.

What are we actually trying to achieve here? We are only trying to ensure that this legislation is correctly and properly executed. If the case of the HNP had never come to light no one would ever have known that section 118A of the Post Office Act was being abused. No one would ever have known that a functionary could grant an application …

How can you say the Act was being abused? It was not being abused according to the findings of the Advocate-General.

All right, I withdraw the word “abused” then, and substitute the word “ignored” in its place. In that case, however, the people concerned failed to comply with subsection (2)(a) of section 118 of the Post Office Act in that they did not set out in writing the reason for their actions. All they stated in that case was that the interception had been carried out in the interests of the security of the State. On that ground the functionary in question granted the application. Who would have known that this was being done, that this procedure was being followed, and that the Act was being ignored, if the incident had not come into the open virtually by accident. It only came to light because someone complained of their phone being intercepted that should not have been intercepted. As soon as this was revealed, the interception was stopped immediately. That is why I say that this measure should be applied with the utmost circumspection. I hope the hon. the Minister will call for a report on how this measure is executed on an almost weekly basis. If an interception should take place without the hon. the Minister’s being directly involved, I submit, he should indeed be advised as soon as such interception is carried out. He should monitor what is happening in order to ensure that what is done is done properly and in accordance with legal requirements.

The only difficulty experienced by hon. members on both sides of the House is in respect of the question of urgency. I firmly believe that whoever the other Cabinet Minister who is involved, the hon. the Minister of Posts and Telecommunications should at all times be kept informed of what is being done, and no interception should ever take place without his concurrence. He should fulfil the role of second functionary, as it were. Under these circumstances I regret that the hon. the Minister has seen fit to reject my amendment.

There is one other aspect which I want to draw to the attention of the hon. the Minister. It is an aspect which does not directly arise from the Bill now before the House. What I want to refer to is a finding by Mr. Justice Van der Walt in connection with the HNP case. I refer the hon. the Minister to page 11 of the report by Mr. Justice Van der Walt. In paragraph 13.3 he states as follows—

That means that if the sort of accident that took place in the case of the HNP, something which involves the change of a telephone number or of a post-box number, should occur again, this should be recorded. I should like therefore to ask the hon. the Minister how he intends to eliminate this particular problem to which Mr. Justice Van der Walt refers here in his report.

Mr. Chairman, I take pleasure in replying to the questions put by the hon. member. I shall commence with the final aspect. Yesterday I gained the impression that the hon. member did not quite recall what happened there. Authorization was requested and granted, and the Advocate-General found that the authorization granted was not technically correct, in the sense that there was no lengthy written request. It was simply a brief and concise “in the interests of the security of the State”.

In terms of the provisions of the law.

Yes, but that was all that was involved. However, a particular telephone number was involved, and in the course of the year other people were also served by this number, the HNP amongst others. I trust that the hon. member now understands the background. These are, therefore, unusual circumstances. If, with the aid of the best law advisers, I could avoid a repetition of such an extraordinary case by way of legislation, I should very much like to do so. After all, how often does it happen that the numbers of two bodies or persons are integrated within one year, and that one of them happens to be the subject of a matter of this nature? However, I invite the hon. member to make suggestions as to how to provide for something like this in legislation. This is therefore a practical aspect. But I can assure the hon. member that we are giving this matter our undivided attention. Perhaps the hon. member will now also realize just why it is the senior staff of the Department of Posts and Telecommunications who have to deal with this kind of authorization. Supposing one of my colleagues, in the normal course of affairs, issues an authorization and discloses a number which has changed in the meanwhile and now belongs to someone else. Does the hon. member realize what kind of problem we are dealing with? Therefore there has to be a safety valve on the part of the Post Office to determine whether such a number still belongs to the person concerned. The hon. member would do well to obtain legal advice from the hon. member next to him, and if he thinks it is possible to introduce legislation in terms of which such a case could be covered, in which a safety valve is built in, he is most welcome to suggest this.

I regret that I cannot accept the hon. member’s amendment. I have explained to him that we decided on this solution after doing everything in our power. There is the problem that on the one hand, we have a proposal by the Advocate-General, and on the other, the recommendations of the Rabie Commission. As I have just said, the Rabie Commission suggested authorization by someone else, but they did not state who this would be or what office that person should occupy. I think the Commission itself realized that this was a problem. Israeli legislation was referred to, but according to that legislation, authorization may be given by the official in charge of the security department in such circumstances. In view of the argument put forward by the hon. member, it would, however, be still less acceptable if the applicant himself were to decide on the authorization, and this is what happened in Israel in these particular circumstances. I therefore believe that the system which is being retained here and which has been tried and tested over the past ten years, has proved to be the best.

Mr. Chairman, I think the hon. the Minister and I will have to agree to disagree on this. I should, however, like to raise one further aspect. In so far as the interception of a letter is concerned, is it the intention that copies be made of it and thereafter be forwarded to the addressee? Or is that letter going to be stopped altogether from being delivered?

Secondly, in regard to telephone calls being intercepted, according to the Van der Walt Commission’s report a tape is connected, and then there is a permanent recording of whatever is said on a certain line. I should like to know from the hon. the Minister for how long that recording is kept on record, what happens to the actual recording, and whether it can be used as evidence at any stage. I should like to know at what stage the hon. the Minister can step in and say: “The application has been granted for a period of six months, but after one month I feel that we are wasting our time. We should therefore discontinue it”. In other words, the matter should be reviewed from time to time.

Mr. Chairman, the hon. member is making me impatient , since he is asking me about things which appear in the Act. It is general knowledge. I quote this to him from section 118A, subsection (6) of the Post Office Act. This refers to any person referred to in subsection (2) with reference to whose request a direction has been issued in terms of this section—

These are provisions in the Act. As to the functions in which the Department of Posts and Telecommunications is not involved, unfortunately cannot reply to the hon. member across the floor of this House. He should ask my colleagues. Unfortunately, their Votes have already been discussed, but he will probably have the opportunity of asking them at a later stage. Those functions are not performed by officials of the Department of Posts and Telecommunications, and accordingly I cannot give the hon. member any information concerning tape recordings of telephone calls. In terms of the amended section 118A of the Post Office Act, authorization can be valid for a maximum period of six months. If so requested and approved, it can, however, be valid for shorter periods. The extension of the period must also be specified, but the duration may not be longer than six months.

Amendment (1) negatived and amendment (2) dropped.

Clause agreed to.

House Resumed:

Bill reported.

Bill read a Third Time.

Mr. Chairman, in his reply to the discussions on the Second Reading of this Bill last night, the hon. the Minister made somewhat of an attack on me, although he said that thus far we had discussed this Bill calmly. I am not sure whether I understand him correctly when I say that he argues that the Bill before us at present cannot be used to cover up matters which would be an embarrassment to the Government, and secondly, that in fact, there have been no legal proceedings in terms of existing legislation to indicate that the Government would be prepared to do so. For this very reason, I think I should just reiterate what I said yesterday and clarify the point. I said that this legislation could be used to cover up improper conduct on the part of the Government, and to save the Government political embarrassment. I state this simply as a point of law. Then the hon. the Minister tried to indicate that this was not possible by quoting a court finding, one in which it was stated that the mere assertion that a Government may find itself in an embarrassing situation as a result of the publication of certain information, is irrelevant, and that it would not help the prosecution in the case. I concede that. However, the fact is that even if it is a high-ranking official who wishes to save his Government or his Minister embarrassment, this is not the kind of assertion he would make, since he knows that this is legally irrelevant. He would make assertions which would amount to changing his tactics, assertions which would indeed be relevant in terms of this legislation. In this regard, one could refer to the case of the Information scandal. It is generally known that as far as the Information scandal was concerned, it all revolved around the Department of Defence …

Which clause are you dealing with?

The hon. member must just listen for a while. It all revolved around the Department of Defence, from which the money had to come, and it also concerned the Department of Information. For this very reason it could easily be said that some of those revelations did, in fact, harm the interests of South Africa, as defined in the Bill. It could even be in a security interest. However, I think that it was more to the detriment of a particular in formation campaign of the Government. I think that the Government recognizes that many of its information projects were harmed in the process, but it was not necessary. It was unavoidable in order to uncover a more deep-seated evil and mess and to set it right. It is for this reason that I said that it would have been easy to use the legislation before us at present in that regard. This legislation could have been abused in those circumstances.

The second point made by the hon. the Minister—and he was very angry with me about this—was when he asked me whether any legal proceedings had been instituted as a result of information divulged during the revelations in connection with the Information scandal. No, no legal proceedings were instituted. It is to the credit of the Government that this did not happen, although I believe that legally speaking, it ought to have been possible to take action in certain cases in terms of the existing Official Secrets Act. Admittedly, there were efforts to suppress some of the information. We are all aware of the pressure that was exerted on Mr. Justice Mostert at that time, and so on. However, the fact that legal proceedings were not instituted is, I concede, to the credit of the Government. The point remains that we are dealing here with legislation, and in order to adopt a standpoint on this legislation, we must satisfy ourselves as to whether the legislation could be abused and whether the legislation could be more strictly formulated in order to eliminate any possibility of abuse by any Minister or any Government. This is the basis on which we on this side of the House believe that we should assess legislation. If we had to rely on the bona fides of the Government, if we could trust the Government with any matter of this nature or any other nature, legislation would, in fact, be of little importance. Then we could sit here drawing up legislation day and night, giving the Government all kinds of powers. I do not believe that this is the function of hon. members in this House, certainly not the members of any Opposition party.

To summarize, I wish to say that we believe that this legislation, even in so far as it places the old Official Secrets Act on the Statute Book once more, and even as far as certain of its provisions are concerned, even in the identical form, is a Bill which is altogether too broadly framed, which is unnecessarily broadly framed, and that it could therefore make matters illegal which ought not really to be illegal. I just wish to single out one aspect in this regard because it appears in clause 1, the definition clause. It concerns the National Intelligence Service. I just wish to point out that any matter dealt with by the National Intelligence Service will automatically enjoy the protection of this legislation. As far as we are concerned, this legislation in point of fact gives that service a blank cheque to do what it likes, since that service will enjoy that protection in terms of this legislation. This is unacceptable to us. We do not believe that one State department or one service within the governmental structure of South Africa would be less inclined than other departments or services to make mistakes, and that it would be less inclined to maladministration. These possibilities always exist, and to tell the truth, our suspicions in this regard are, in fact, very often confirmed by certain things which take place. The recollection of some of these is fairly recent, and some are unfortunately not allowed to be discussed at this stage because of the sub judice rule. It is mainly for these reasons that we oppose this Bill and we will, in fact, be opposing this clause, more strenuously, perhaps, than some of the other clauses, since this clause contains a number of definitions which are dangerously broadly framed and which, in our opinion, are not necessary for the protection of information in the Republic. We believe that it would be very easy to frame these definitions more narrowly and in a way which could have no harmful effects on our political dispensation.

Mr. Chairman, the hon. member for Green Point did reply to last night’s debate. All I expect of him, is to give me credit for the standpoint I adopted, viz. that even with reference to the information situation, the Government did not ever implement this legislation as it stood then and as it stands today, although the hon. member may have been correct when he said that the Act lent itself to this. The whole intention of the investigation of the Bragg Commission in England was precisely to identify that kind of information which ought not to be protected and to identify the information either with regard to particular security matters or with regard to particular interests of the State which should, in fact, be made a criminal offence if it were to be disclosed; in other words, if espionage or other punishable actions should take place. This was the whole intention. I also pointed out to the hon. member last night that the Rabie Commission had gone out of its way in its handling of the legislation in question in following up a standpoint of the Steyn Report, to draw a distinction between ordinary information and information which ought to be protected, in respect of which it would be a criminal offence to disclose it, precisely to ensure that there would be a normal and healthy flow of information to the newspaper reader and to the outside world.

I also refer to the earlier standpoint adopted by the hon. the Prime Minister when dealing with the Steyn report. He accepted some of the criticism in the Steyn report and he intimated that measures in this regard would be adopted in order to bring about a free flow of information. In his statement the hon. the Minister referred, inter alia, to the arrangement between the Press Union and the Department of Defence. There are also other departments with which they have a similar arrangement. Furthermore, there are other departments which strive to ensure the same flow of information, so that what is published can be made known to the public, and what should be made known to the Opposition and all other circles, will, in fact, not be inhibited.

The hon. member is aware that the Opposition Press have criticized this side of the House from time to time because we have not divulged certain information. However, the hon. member is also aware that in the process, we inform the chief spokesmen on the Opposition side about particular facets which have not been made public elsewhere. The hon. member must not, therefore try to cast suspicion on this legislation. I understand that it is not his intention to do so; rather, his intention is to issue a warning in this regard.

The hon. member did not deal with the main recommendation in the Rabie report in this regard. The intention is that clause 4 should be amended by the insertion of “the secrecy of which sketch the person concerned knows or reasonably should know to be required by the security or the other interests of the Republic”. If, therefore, it does not require secrecy, it ought not to be protected.

One could also refer to this in another connection. For example, in the case of Marais, the court expressly adopted the standpoint that what is already known, is not punishable, and therefore also not worth protecting.

Therefore I can accept the hon. member’s explanation, as well as the fact that he gave credit. I believe that we have laid a firm foundation for further discussions.

As far as the hon. member’s reference to the definition of “security matter” is concerned, and the concomitant reference to the National Intelligence Service, I wish to point out to him that nowhere in the Bill is there an enabling provision giving any department executive authority in this regard. The issue here is the protection of information on sensitive material, the protection of a prohibited place, and so on. Therefore the hon. member is not at all correct in trying to imply that by definition, executive powers are granted to some or other department.

That is not what I said.

Very well, that is not what the hon. member said. May I regard his argument as cancelled then?

No.

But surely the hon. member does concede that nowhere is an executive power granted?

No.

Then that is not correct either. The hon. member must then decide what is correct.

Nevertheless, I accept the hon. member’s explanation. I also accept his standpoint that they oppose clause 1 as a whole. I think there will be an opportunity of debating further facets when the other clauses are considered.

Mr. Chairman, I move the amendment printed in the name of the hon. member for Sandton on the Order Paper, as follows—

This amendment seeks the substitution of the word “employed” by the word “used” in the definition “agent”. In the Afrikaans version the operative words are “gebruik word”. It seems to me that “employed” should be substituted by “used”. In the first place it would be consistent with the Afrikaans version. In any event, “used” more clearly indicates what one is trying to achieve, because the person might be employed in a capacity other than that of agent. I therefore suggest that the word “used” is far better than “employed”.

I am also concerned about this clause, which is the definitions clause. I say this because the definitions are very wide.

The hon. member for Green Point pointed to the definition of “security matter”, which is not really any definition at all. It is not any definition at all to say that something “includes” this or that. That does not define a matter at all, because one does not know what else is encompassed. So in a Bill about security matters, the term “security matter” is not defined at all. One only has to look, too, at the definition of “prohibited place”. The Bill states—

Then there is a long list of things such as arsenals, military establishments, dockyards, camps, ships, vessels or aircraft, telegraph, telephone, radio or signal stations or offices, etc. This definition is so wide that one does not really know what a prohibited place is. One must also bear in mind that later in the Bill one finds that even approaching a prohibited place is regarded as a crime …

With a certain purpose.

I shall be coming to that when we get to that clause. That purpose is, in fact, presumed in terms of the presumptions against the accused. When one realizes that that could earn one 20 years’ imprisonment, one realizes that it is very important to know what a “prohibited place” is.

I therefore want to suggest to the hon. the Minister that throughout this definitions clause the definitions do not, in fact, properly define the terms and make them understandable to the man in the street. It seems to me that in this Bill the Government is adopting an attitude that it so often adopts these days by casting the net far too wide. Then the Government simply comes along and says: Well, we shall choose whom we are going to prosecute. That is really what happens if one does not define terms properly.

Mr. Chairman, I take it that the hon. member will be dealing with the interjection about “purpose” when we come to discuss clause 2 in detail. I think I should just indicate to him at this stage that the amendment printed in the name of the hon. member for Sandton is perfectly acceptable to me because it is indeed an improvement, and I do not think one need say more about that at this stage.

This brings me, however, to the hon. member’s comments about the definition of “prohibited place”. In this connection I should like to refer the hon. member to the fact that the Official Secrets Act of 1911 contains a provision defining a “prohibited place” in equally wide terms. It defines a “prohibited place”—and I merely select various aspects at random—as being any work of defence, arsenal, railway or air force establishment, telephone, wireless or signal establishment, or any place not belonging to His Majesty where any munitions of war, sketches, plans, documents, etc., are kept, any place belonging to or used for the purposes of His Majesty which at the time has been declared by the Secretary of State to be a prohibited place, any railway, road, way, channel or other means of communication by land or water, etc. that are made, repaired or restored on behalf of His Majesty and is for the time being declared to be a prohibited place, etc. That definition is therefore as wide as the definition in this Bill, if not wider.

It does not, however, say “including”.

It does not say “including”, but what it does state is what a prohibited place might be, which virtually accords with the definition we have in the existing Act and which we are now re-enacting in this piece of legislation. It does not take it any further if we add “with the inclusion of” or in Afrikaans “met inbegrip van”. I think we are defining “armaments” and other words much more accurately and that these are definitions that are already accepted by the House. I therefore cannot accept the objections to “prohibited place” as defined here, unless of course the hon. member comes forward with an amendment to the definition.

Amendment agreed to.

Clause, as amended, agreed to (Official Opposition dissenting).

Clause 2:

Mr. Chairman, I move the amendments printed in the name of the hon. member for Sandton on the Order Paper, as follows—

1. (1) On page 5, in line 33, to omit “or interests”;
2. (2) on page 5, in line 35, to omit “20” and to substitute “15”.

This is the clause that was referred to by the hon. member Mr. Schutte. It is worth looking at it. This clause creates an offence, viz. that of any person approaching any prohibited place for a purpose prejudicial to the security of the Republic. That will be an offence, as the hon. member pointed out. I must just point out, however, that that prejudicial purpose is presumed in clause 10 which contains the words “if … it appears that his purpose was a purpose prejudicial …”. Now what does that mean?

That is a rebuttable presumption.

That is on a balance of probability.

Yes, but what is meant by “apparent”? Does it mean that that must have been proved to the court, must it merely appear prima facie, or what is meant by it “appearing” to be prejudicial to the State? How does a person’s approach become apparently prejudicial? It is a vague phrase. The point I want to make is that it is such a vague phrase that it is difficult to know when the presumtpion will apply. If the court in a given case holds that the presumption applies, then one has the position that the State simply has to prove the elements of “approach” and “prohibited place”. Now, “prohibited place”, as defined in the definitions clause, is not very clear.

The State must also prove the circumstances on which the presumption is based.

I am assuming for the moment that that has already been proved. Assuming that the presumption has come into operation by virtue of some proof, one has left the elements of “approach” and “prohibited place”. Now, what is “approach”? Has one “approached” a prohibited place when one is 25 miles away, or when one is five miles away, or when one is 15 yards away from it? It is not defined in the legislation. Yet, a very serious penalty can be imposed for such an offence, namely imprisonment for 20 years. The offence also applies if one “passes over” a prohibited place. At what height must one pass over a prohibited place for it to be an offence? If a SAA aeroplane passes over a prohibited place, will that be a criminal offence? What I am saying is that the terms are very vague for a criminal offence to be created on the strength of them.

Clause 2 further contains the words “any prohibited place for any purpose prejudicial to the security or interests of the Republic”. I can understand the words “prejudicial to the security of the Republic”, although even that may be difficult to determine. What is, however, prejudicial to the “interests” of the Republic?

The same thing.

The hon. member says it is the same thing. If the hon. the Minister agrees with that, we can take the words “or interests” out because they will then be tautological. I hope the hon. the Minister agrees with that.

That covers the first amendment I have moved. The second is to reduce the period of imprisonment to 15 years as it was under the previous Act.

Mr. Chairman, at Second Reading extensive arguments were already advanced here with regard to the words “interests of the Republic of South Africa”. I therefore do not want to elaborate on them in detail. Nevertheless I do wish to bring the following aspects to the attention of the House. They are, firstly, that this wording was taken over almost word for word from the Official Secrets Act of 1911. This wording is therefore tried and tested and numerous judgments have been passed about it. Up till now I have not come across any judgment in which it is said that it is a vague wording or that it is too widely framed.

Reference has also been made to the Appeal Court verdict by judge of appeal Mr. Justice Corbett in the case of the State vs. Du Plessis 1981 (3), in which the question of what these words really mean was gone into in detail, namely that it provides both an objective and a subjective test. It is a subjective test in the sense that the question is asked as to what the man’s intention is, and an objective test in the sense that the question of the reasonable man, viz. whether it is contrary to the interests of the State, should be answered. I wish to suggest that it is impossible to explain the interests of the State by quoting a long list of specific cases. There are so many ways in which the Republic can be adversely affected that it is impossible to draw up a list of limited cases. Furthermore I wish to suggest that the interests of the State change from time to time. Everthing depends on the circumstances. When South Africa is faced with an arms boycott, or when it is threatened with an oil boycott, it will be in the interests of the Republic not to reveal matters relating to that. Everything depends on the circumstances. Therefore, when a specific list is now drawn up, that list can of course become outdated. Consequently it can happen that the list bears no relation to existing circumstances at any given moment. I therefore feel that it is not important to have such a list compiled. Then too, I just wish to point out again that hon. members of the official Opposition always want to have a case referred to court. In this case it is indeed referred to the court. The court will apply the test of the reasonable man and decide whether the reasonable man would in all circumstances have believed that his actions would be contrary to the interests of the State. I believe that it is fair in all circumstances.

With regard to the presumptions, I want to suggest that when it seems that a presumption exists, it seems so on the preponderance of probabilities. The preponderance of probabilities which the court has to have regard for, is then based on the circumstances or the behaviour of the person concerned. Consequently I believe that a very good example is that when somebody is caught in a prohibited place with, for example, a micro-camera or micro transmitter or anything of that nature in his possession, prima facie evidence exists that that man is present in that prohibited place for some hostile purpose. Then it is only fair that the burden to disprove that presumption should rest with him.

At this point there are also a few things I wish to say about the penalties. When the security or the interests of the State are involved, what are really at issue are the interests and the security of every inhabitant of the state in question. This also affects the security and the protection of the rights of every inhabitant of that State. Accordingly, because this is an important matter, the penalty imposed for such an offence should also be considerable.

Mr. Chairman, the hon. member Mr. Schutte said he had read a number of judgments relating to this type of legislation and that he had found them to be above criticism. What I should like to know, however, is how many such judgments there are. One should look at these matters in a relative light, and the mere fact that no problems have arisen in interpreting the legislation until now, is no indication that it will not happen in future. It is absolutely clear that the wording is vague. In fact, I think the hon. member has highlighted the kind of difficulty that we have and has supported our reading of the situation by pointing out that the interests of the State may change from time to time. This surely is an intolerable situation to allow in our law because the term “interests of the State” may change from time to time and thus allow the description or the definition of a particular offence to change. How on earth are members of the public supposed to keep track of just what is allowed and what is not allowed? Surely one cannot tolerate a situation where particularly legislation of a prohibitive nature becomes vague to that extent, especially where fairly heavy penalties are prescribed for contravention of those provisions.

The question has been raised by the hon. member for Pinetown and reacted to by the hon. member Mr. Schutte in regard to the presumptions that are created that one only needs to find on a balance of probabilities that those presumptions should be rejected or accepted. I fear, however, that that does not satisfy our objections in any way whatsoever because it still means that the degree of proof that is normally required in a criminal matter has been reduced to the level that is required in a civil matter. That, in my view, makes things even worse.

We have objected time and again to the fact that so many of the provisions of this Bill and also of this clause are vague and that they are too widely worded. I would say that as an absolute bottom line, at least the actions on the one hand or the intent attributed to the accused should be adequately and accurately circumscribed, otherwise it can lead to a miscarriage of justice. When one looks at clause 2 in this regard, one may well ask what “to approach” means. One can approach an institution or a place in any number of ways. One can pass over an institution or a place in any number of ways. One can, for example, be in the neighbourhood, but what does that mean? Being in the neighbourhood is surely as wide a term as one can possibly write into the definition of a criminal offence. In view of the fact that these physical actions are widely circumscribed, one should at least require that the intent of the accused should be described very accurately. The intent required here once again includes the question of “or the interests of the Republic”, and this is what the amendment of the hon. member for Pinetown has in view—that it is for any purpose prejudicial to the security of the State. I would say that the definition “for a purpose prejudicial to the security of the State” is the kind of definition of an intent that I would be perfectly happy to hand over to a court of law and say: “Surely a court of law will be able to give sensible substance to a definition or a description like that”. However, the moment we add a term such as “or the interests” it becomes impossibly wide.

One can think of any number of descriptions, but I should like to mention just one example that may amount to criminal behaviour. Say, for instance, that somebody who intends to steal approaches a military store in which no more important things than mattresses and blankets for use by the South African troops are stored. This is an intent which is prejudicial to the financial interests of the State. This person approaches this place or he may be in the neighbourhood. This is very clearly a criminal act. There is an intent to steal. Such a person can be found guilty in terms of the common law but he can also be found guilty in terms of this Bill. Although that is a criminal act, surely the hon. member Mr. Schutte would not want to suggest that one should punish a man like that with a term of imprisonment of up to 20 years. Surely this is a ridiculous situation. That is simply an indication of the kind of difficulty in which one finds oneself when both the actions in a particular definition and the intent that has to be attributed to an accused are too widely defined. This is the kind of thing which creates difficulties for us and for that reason I want to support the amendment of the hon. member for Pinetown.

Mr. Chairman, the attitude of the PFP this afternoon really reminds one of someone who is scared to walk through the cemetery and therefore walks along whistling. That is what they are doing now. To me the interpretation of the Rabie Commission in regard to the allegedly wide interpretation of, for example, the interests of the State, is enough. Surely the commission’s finding was clearly that in the final analysis, the court will determine what the interests of the State are. I really cannot see why those hon. members should now raise the most impossible arguments here in an effort to belittle the interests of the State. I think it is sufficient that in the final analysis, the court has to decide what is and what is not in the interests of the State.

Mr. Chairman, in the Second Reading debate the hon. nominated member Mr. Theunissen raised the very important argument that the case should be left to the courts to interpret on the basis of experience in this connection. The official Opposition never replied to that point. I find it a pity that the PFP, which is forever reproaching us for not also leaving preventive security measures entirely to the courts, is not inclined to entrust this measure to the courts. I find it strange. I find it particularly strange because this specific clause is the same as a section of the British Official Secrets Act of 1911. That section reads, inter alia—

Section 1(b) and (c) was at a later stage incorporated into our legislation as section 2(b) and (c) which, in turn, were incorporated into the present clause 3, which we could colloquially call the “spy clause”. With regard to clause 2 of the British Act and clause 2 of our legislation, we have the very important Chandler decision. I find it equally strange that not one of the two hon. members of the PFP, members who are both lawyers, dealt with the Chandler decision in detail. Surely one could have expected the hon. member for Groote Schuur, who was at one time at least a lawyer of renown, to have provided his hon. colleagues with the necessary guidance. I am saying this with great circumspection, but if their opposition to the measure had been bona fide it would have had to fall away if they had taken cognizance of this decision.

I find it just as much of a pity that the hon. member for Green Point did not, after last night’s debate, take the trouble to reply to us on the various references in connection with the meaning of “the interests of the State”. In the present context the interests of the State may be far wider than mere security interests that have to be protected. We pointed out to the hon. member that there was a specific textbook on what had been designated as targets in the USA by the KGB. We must not think that this cannot happen to us. We must not think that we are exempt from this. Very recently we had the Loginof affair, and a few weeks ago we released a spy. We had the case of a Miss X—I cannot mention her name in this House because she has returned to South Africa— who is alleged to have infiltrated our Embassy while she was working for Cuba. Consequently we are not exempt from this. When we speak of interests, I find it strange that the hon. member does not want to look any further than mere security interests in so far as defence matters, diplomatic matters etc., are concerned. What about foreign exchange matters? What about contractual matters? What about matters dealing with planning which, if they were to be divulged at the wrong stage, could lead to the personal enrichment of individuals? I am referring to matters in general now; I am not referring only to clause 2. Since the concept “or interests” occurs in clause 2, and also in clauses 3 and 4, it would be a good thing if we discussed it in general. When we discuss the following clauses, the hon. member must tell us why they are shying away from them. What is their reason for doing so? What is their solution in this respect? They want to limit it simply to the mere concept of security interests, while the hon. member knows that strategists who have made a study of revolutionary techniques which are being applied on a world-wide basis today and which are being planned from the Kremlin, are aimed at every power base in the country. And those power bases include the political, economic and social structures. Why did hon. members not deal with these matters as well?

I shall now return to the Chandler decision. In the first place the hon. member, as well as the hon. member for Pinetown, asked whether this clause was not too wide. They asked: “How close to a prohibited place must a person approach”? Somewhere in a newspaper I saw this question being asked: At what height above a prohibited place must such a person move in order to be punishable, and so on? The hon. member Mr. Schutte gave those hon. members the answer by way of an interjection. The question he asked was: What is the purpose? While we are dealing with this, I want to point out that the action has to be proved by the State before the presumption comes into operation. In other words, a whole number of elements have to be proved by the State before it comes into operation at all. With regard then to the purpose for which this is being done, surely it is very clear according to the Chandler case that it must be “a purpose prejudicial”. I think we should, for the sake of the record, quote here what Lord Devlin said. He said—

In other words, a person ought probably to know, when it is his purpose to approach a specific place, to commit a specific act, that various objects may be implicit in that act. Lord Devlin went on to say—

Not to prejudice the State, but to make money—

However, it may still be prejudicial to the State even though he would be earning money for himself. I quote further—

Without burdening hon. members further with this, I just wish to mention that in the Marais case, Mr. Justice Wessels held to the same standpoint. This happened in our own Appeal Court. I want to ask hon. members why they did not deal with this. If they say that its scope is too wide and that the onus is now being placed on the accused, which is unfair and unjust, then we have the answer in that case as well. I do not now wish to quote from Phipson or Hoffman. However, I want to say that the hon. member will realize that the onus does in fact rest upon the accused to adduce evidence in order to disprove certain facts or conclusions.

However, I do want to refer the hon. member to the Niesland case. I should like us to settle this matter amicably, because there are quite a number of amendments in this connection which are based on the same point. In the case of Niesland, which was quoted with leave in our courts, the Chief Justice of Rhodesia said—

In each of these cases which the hon. member mentioned, the onus will therefore in the normal course of events rest on the State to prove an action on the part of the accused. The Chief Justice went on to say—

Therefore, it is merely a temporary onus. I think that I have with this replied to a great extent to the arguments of hon. members and in conclusion I just wish to deal with one aspect which the hon. member for Sea Point raised.

The hon. member asked who determines the interests and how the interests are going to be determined. They will be determined by the court by means of evidence that has to be adduced before the court. I wish to refer the hon. member again to the verdict of Lord Devlin in the Chandler case. I know it is technical and at this stage it may sound excessive to hon. members, but I should like to have the co-operation of hon. members and if I am able to persuade them, I should like to do so. Lord Devlin said—

Consequently it must be predominantly in the interests of what the court accepts are the interests of the State or the community. This can be established by means of evidence. This is the position which will apply in respect of each of these clauses. The accusation which was raised in this legislation is consequently not vague. It is simply a question of evidence. Therefore I cannot accept the amendment of the hon. members in respect of this point.

As regards the amendment in respect of the sentence, I want to point out to hon. members that we are dealing here with a very serious crime. It is very clear that clause 2 covers sabotage. Although spying may be associated with treason which is a capital crime, I think it is fitting that we give the court an indication of how serious we consider the crime to be. As a result of these links and the association with treason, as a result too of the fact that it includes sabotage and as a result of our having stipulated a penalty of 20 years in legislation which has just been passed in Parliament, I unfortunately cannot accept that suggestion.

Mr. Chairman, I just want to make one point. When the hon. the Minister says—this applies to a lot of the amendments with which we shall deal later— that the hon. member Mr. Schutte gives the answer in saying that one determines what is approaching or what is passing over by the intention, that, of course, is the classic mistake. It is the absolute classic mistake in any criminal matter. Let us take a very simple example. The elements of the crime of murder are kill and intent. One cannot determine killing by the intent; one has to prove each fact, and the two together make murder. If there is killing due to neglect the crime is culpable homicide. One cannot ask: “Was the person killed?” and then look at the intent to decide whether that person was killed. The two elements of the crime must each be proved.

How does one determine the intent unless one refers to the act?

One looks at that, but each must finally be determined as a fact. That is what the court has to do. Let me put it as follows: In the crime with which we are dealing, the elements of the crime are to approach a prohibited place—that is the first element—and with a particular prejudicial intent, the second element. If one has a prejudicial intent on its own and without any act, clearly that cannot be an offence. If I sit in my room with a prejudicial intent in my mind, they cannot react because there cannot be a criminal act.

There must be an act.

The hon. the Minister says there must be an act.

According to the hon. member Mr. Schutte there can be any act.

The hon. Mr. Schutte says that in order to determine what the act is, whether it is a passing over or whether it is approaching in terms of this clause, one must simply look at the intent.

I did not say that.

Well, that is what the hon. the Minister understood the hon. member to say and that is what he puts forward as the answer to the matter. That clearly is quite wrong.

What we must be able to do in these matters, is to determine the act is that constitutes an offence. We know from the definition clause what intention is required for an offence to be committed. There are many different acts, like being in the neighbourhood. Now, what is the radius of a neighbourhood? Can any hon. member tell me? It could be 50 metres, it could be 500 km.

It depends on the nature of the place.

That is exactly the point; it depends on all sorts of facts.

The hon. the Minister says that the interests of the State must be determined by the courts, but the point is that a crime must be so defined that the public can know what is a crime and what is not. The public must know what behaviour is permissible and what behaviour is not permissible.

Mr. Chairman, the hon. Minister says that the courts will define the interests of the State. The courts will therefore determine what constitutes the interests of the State. If in this regard one can rely on a long list of decided case, either by way of findings of the court in decided cases or by way of the wording of the legislation, it would help. However, the position is that it will not help the general public who is subject to certain prohibitions contained in legislation if the court will decide on it when the case is heard, because then the person concerned will already be in the dock. In a case like this the person involved will only know if he had acted contrary to the interests of the State after the court has passed judgment, but then it is too late. The provisions in the legislation are then of no use to the person involved. One cannot formulate legislation and then expect the courts to determine to that extent what the interests of the State are.

The hon. member also made the classic remark that the interests of the State change from time to time. Once again this creates or promotes an element of vagueness, and this creates more problems for the general public. Suppose a judge, a court, is appointed to interpret this matter and decide what the interests of the State are. Suppose it is not an unusual case. Suppose there are a number of borderline cases before the court. If the court has to be asked to interpret whether or not something is in the interests of the State, I am convinced that one will get a wide variety of interpretations or pronouncements by various judges or courts. This is the type of thing which we are trying to avoid here.

You have not read the judgments.

The hon. the Minister says that we have not read the judgments. However, the hon. the Minister talks as if there is complete clarity about this matter. However, this is not the case. The fact that he has quoted a few judgments to us—some of which were, with respect, irrelevant in the light of our argument—surely does not mean that the matter has been completely cleared up. With all respect, the definitions of this are extremely widely framed, and if prosecutions are instituted in terms of this legislation, the hon. the Minister will undoubtedly have to act on a selective basis in future, perhaps precisely because there is a clause in this legislation which provides that no prosecution may be instituted without the authority of the Attorney-General. It is exactly for that reason that it will be necessary to take selective action.

All right, you have made your point.

That hon. member, of course, will not have the faintest idea what I am talking about. His judgment in this regard is not tremendously relevant. Precisely because of this wide definition we also have a problem with the penalty, and I want to concede immediately that if we are confronted with the extreme case of someone approaching a place or caught in a place, and it is very apparent that he is indulging in espionage activities, he will of course be liable to the type of penalties which are prescribed in the legislation, but precisely because the definition is so wide, we have a problem with the penalties as such. There can be no doubt about it that people with relatively innocent intentions can indeed run foul of this legislation. The hon. member Mr. Theunissen said that the court had to interpret a question such as that of the interests of the State, and I shall come back to this again later. However, a court can interpret an Act or the provisions of an Act, but “the interests of the State,” is an enormously wide definition. It is almost not susceptible to interpretation. If for example the hon. member Mr. Theunissen and I were to have to sit around a table to establish whether specific interests or matters were “in the interests of the State”, I am sure that there will be few cases about which we would agree. This is exactly the dilemma which we are placing in the hands of the courts. I do not think it is the function of the legislator to create vague legislation for the courts and to then expect the courts to make sense of it.

For these reasons we stand by the amendments we have moved.

Mr. Chairman, the hon. member for Green Point advanced the argument that because the interests of the State can change, the ordinary man can be caught unawares by accident. However, what is the test for the “interests of the State” and when will the interests of the State change? The reply is: When the ordinary man thinks that it should change, because in order to establish that, the court is going to resort to the concept of the ordinary man and apply an objective test. It is going to consider what the ordinary man thinks, and if the ordinary man thinks that it is in the interests of the State that, for example, information about petroleum reserves should not be blurted out, then this will be regarded as being in the interests of the Republic. The ordinary man can therefore not be caught, because he himself is going to be the criterion to establish what is in the interests of the State of such interests change. [Interjections.] Consequently that argument does not hold water.

This brings me to the question of a person who approaches, inspects or passes over a prohibited place. Here it is a question of the intent. The intent of the person will indeed limit this in the sense that it will not be just anyone that is apprehended. If one flies over it in an SAA aircraft and has no such intention, one cannot be guilty. I contend that it will be absolutely ridiculous to narrow the scope of this clause or to define it in detail, for example by saying that the person involved must be 10 yards or 100 yards from the prohibited place or that he must fly lower than 1 000 feet or 2 000. It is impossible to establish that. I want to suggest that the obvious thing to do is what we are doing in this case, namely putting it before the court and leaving it to the court to attach an interpretation to it. The court will attach a reasonable interpretation to it.

Mr. Chairman, I am now rising for the last time in connection with this clause. The hon. member Mr. Theunissen stated the matter correctly. What is at issue here is not the degree of guilt, or anything of that kind, but the purpose with which a place is approached. The question is with what purpose flights are undertaken over a specific place. Is someone flying over that place to take photographs? Were they moving over a place with the intention to see what is going on inside. Was the person concerned warned, for example, that he was at a forbidden height or in a forbidden area, and was he nevertheless found there afterwards? These are all factors which are going to become relevant. Hon. members correctly pointed out that the Attorney-General in specific circumstances still has the power to decide whether or not to institute a prosecution, in order to prevent absurdities from occurring.

You therefore concede that absurdities are possible in terms of the Bill.

We have sufficient judgments which afford the necessary protection to prevent absurd prosecutions. The judgment of Judge of Appeal Mr. Justice Wessels in the case of Marais is a striking example of this. Judge of Appeal, Mr. Justice Wessels, one of our senior judges, stated very clearly in that case—

It will not merely be a question of a purpose prejudicial; the indictment will state: “in that he did this or that”. This must then be proved by way of evidence. In the Chandler case it was very clear that the court adopted the standpoint that evidence had to be obtained from senior officials who could testify to what the interests were at that juncture.

Sir, I am beginning to become suspicious. I suspect that the hon. member is looking for an opportunity—I am putting this very mildly now—for people to act in such a way that, when their actions are in conflict with the security interests of the State, it cannot be said that those actions are in conflict with these interests. I hope my deduction is wrong. There may be groups which do not agree with the policy of the day formulated with a view to the best interests of the State and its inhabitants. When they are then charged, we will not be able to pin them down in terms of the Bill. Once again, according to the decision in the Chandler case, it was not relevant whether the persons concerned intended, by occupying the airport, to influence England’s participation in the atomic age in any way at all. It may have been a meritorious, moral and sound motivation, but it was not in the interests of the State. Consequently I cannot accept the arguments of the hon. member that this is too vague and too wide. It is a matter which we must leave to our courts. At this stage there are enough decisions to convince this side of the House that guidelines have been laid down. The expectation is—in fact, this was stated in the Rabie report—that the Chandler decision, for example, will be followed. I have an idea that Prof. Mathews also thinks so.

Amendments negatived (Official Opposition dissenting).

Clause put and the Committe divided:

Mr. Chairman, I move the amendments printed in the name of the hon. member for Durban Central on the Order Paper, as follows—

1. (1) On page 5, in line 36, after “who” to insert:
   for any purpose prejudicial to the security of the Republic, and who
2. (2) on page 5, in line 56, to omit “or the other interests”;
3. (3) on page 5, in lines 59 and 60, to omit “the penalty prescribed in section 2” and to substitute:
   imprisonment for a period not exceeding 15 years

This is the espionage clause and is therefore of great importance. In terms of this clause a term of imprisonment of 20 years can be imposed for committing the crimes stipulated. There are two points that I wish to raise with the hon. the Minister. Firstly, in this clause espionage is not confined to sensitive information or to security or defence matters.

Is that your first point?

Yes, there are only two points in regard to this clause that we object to. That is the first point. I shall deal with the amendments later. The second point is that the clause does not provide that guilt should be dependent upon intention; in other words, the offence does not require intention to be an element of the offence. Those are the two main objections that we have.

If the wording of the first amendment I have moved is inserted in the clause, it will read as follows—

In other words, we wish to insert the words “for any purpose prejudicial to the security of the Republic” which will then import into the clause an intention to prejudice South Africa. That will meet our one criticism, namely that no intention is required by this clause; no intention is required to be an element of this offence. It will also to a considerable extent meet the other problem that we have because we believe that this clause should aim at covering security matters or sensitive information.

We also have a problem with the words “or the other interests of the Republic” in line 56. What is the crime that is being perpetrated here? It is as follows—I am leaving out the unnecessary parts and mentioning only the essential parts: If, for purposes of disclosure, a person obtains information relating to matters which he should know may directly or indirectly be of use to any foreign State and which, for considerations of the other interests of the Republic, should not be disclosed, he shall be guilty of an offence. What does that mean? The words “other interests of the Republic”, I believe, are absolutely incomprehensible. I do not think one can attach any comprehensible meaning to those words and I do not know how a court could attach any meaning to them. I could understand it if it provided “which may directly or indirectly be of use to any foreign State and which, for considerations of the security of the Republic”. However, if one adds “the other interests of the Republic” then the definition becomes extraordinarily vague and it has, with respect, no legal clarity whatsoever. It also has no clarity for the public. Because it is not confined to sensitive matters this clause turns into private matters matters which should really be public matters. It creates an official secret out of matters that ought to be public matters. What we want in South Africa is an informed public unless the information relates to security matters. We do not want to be hampered by a sort of secrecy syndrome where everything is shrouded in legislative secrecy. It should be confined to security matters.

I have now dealt with the first two amendments. My third amendment simply deals with the question of sentence. We are of the view that the sentence proposed is too severe and that it should be reduced to a period of imprisonment not exceeding 15 years.

Order! I regret I am unable to accept amendment (2) as it is inconsistent with a previous decision of the Committee.

Mr. Chairman, if the first amendment of the hon. member for Pinetown were accepted, it would mean that the intention to act in a way which is prejudicial to the security of the Republic would be of overriding importance. It would mean that if, for example, a person made designs of armaments or aircraft manufactured in this country available to a foreign State, not for the purpose of endangering the security of our country, but for the purpose, for example, of enabling the foreign State to manufacture such armaments itself, such a person could go unpunished. This certainly cannot be allowed, because our security would be endangered in the sense that other countries could obtain the designs of the armaments and neutralize our defence actions. I would suggest that we should be extremely careful when it comes to the possession of the documents referred to in clause 3(a) and (b), such as a secret official code, password, or a document which relates to any prohibited place, or armaments, or documents relating to the defence of the Republic of any security matter, or any document relating to the promotion of terrorism. When such a person has the further intention of disclosing the documents to a foreign State, inter alia, he certainly should not go unpunished.

As far as clause 3(b)(iii) is concerned, it should be said at once that its amendment is a further narrowing of the present legislation with regard to matters that have not been specified here, as in clause 3(b)(i) and (ii). In that case one must at least have the presumption that it may not be in the interests of the security of the State.

Mr. Chairman, the first amendment moved by the hon. member for Pinetown really tells just about the whole story why we on this side of the House have difficulty with clause 3 of the Bill. Once again, clause 3 is defined in language which is very wide indeed. In a certain sense I suppose one can understand why it is so, but in other senses I certainly cannot understand it. The point is that if no intent is really required to be ascribed to an accused for purposes of convicting him in terms of this clause, then it aggravates the fact that the description of the actions in terms of clause 3 is wide and very generally phrased. I think the hon. member Mr. Schutte will understand what I mean because, during the discussion of an earlier clause, I said that intent was relevant in determining what kind of meaning one should give to a particular physical action by an accused.

Mr. Chairman, may I ask the hon. member whether there is no need to prove intent to prove the element “for the purposes of disclosure to a foreign State”, contained in the Bill?

Obviously for the purpose of determining the actus rea of this clause it is not necessary to define the intent any more than to say that it is for the purpose of disclosure to another State. But the point I am making is that unless one can also ascribe some form of mala fides, some evil intent, on the part of an accused, surely that does not necessarily make it morally wrong or unacceptable? Surely the mere fact that one discloses certain information to, for instance, a foreign newspaper which may be friendly disposed towards South Africa, cannot in itself be an offence? Surely one should add to it that there should be some kind of evil intent? I believe that this is just what the first amendment of the hon. member for Pinetown does by adding the words “for any purpose prejudicial to the security of the Republic”. That makes a lot of difference to the substance of this clause. In fact I can go so far as to say that it changes the whole nature of the clause. It limits the language of the clause very substantially and it makes it so much easier for one to come to a sensible conclusion and interpretation of the terms and wording of the clause. Let us just test this by way of a number of examples. Say, for instance, an estate agent in Cape Town should prepare a report for submission to a potential foreign investor, a man who wishes to buy property in this country either for hiring purposes—it may be a couple of blocks of flats—or for industrial or business purposes, and, depending obviously on which city in South Africa this report is being prepared, he feels that it is necessary to refer to the fact that there are military installations at certain points. He does not have to give any detail; he makes only a superficial reference to the fact that there is a fairly large military installation just next to this particular area where the investor is considering starting a new housing estate. This is relevant. It is most certainly relevant for the purposes of that potential investor or the potential buyer of that property. However, this is the sort of thing that can get such a person into trouble. He is not required to have an evil intent. He is not required to have an intent prejudicial to the security of the State. All he does is to refer to the fact that there is one or a number of military installations or any other installation prescribed in this clause, and this is the kind of thing that can get him into trouble.

Let me take another example of an ecologist who prepares a report on Robben Island. As we all know, there is a fairly large prison on Robben Island and there is also a military presence there. I doubt very much whether any report prepared on Robben Island would not make reference to that sort of thing. Therefore, quite innocently, a person preparing such a report may refer to some detail to which he may be privy in the normal course of events and not because he has any particular insight into sensitive military matters. Because of this, he may find himself in difficulty in terms of this clause when he prepares such a report. This is surely the kind of thing that one would wish to avoid. Once again, if the first amendment of the hon. member for Pinetown is accepted, I think it will cover this position very well because that kind of situation cannot then arise. When one talks about the “other interests of the Republic” …

Order! I have ruled the second amendment of the hon. member for Pinetown out of order. The hon. member cannot debate that now.

Yes, Sir. I am not referring to the second amendment. I am referring to these words as they are contained in the clause. Once again, to indicate our difficulty in this regard let me say that if an oceanographer or some scientist or other prepares a report about the fishing resources of this country and it appears in a foreign newspaper, this is the kind of thing that can lead to difficulties. In fact, I do not think it is unreasonable to say that clause 3 as it is presently worded is a minefield for journalists, particularly journalists reporting for foreign newspapers or foreign media. I say this because they may be had up on any number of charges in terms of this clause for reporting on matters which are totally innocent but which in terms of the wording of the clause may fall within the prohibitive effect of the clause.

As I say, we are most unhappy about this clause. For that reason we have moved our amendments and they have my full support.

Mr. Chairman, the Rabie Commission actually sought to remove the minefield referred to by the hon. member for Green Point by dealing with this very problem and, in fact, by narrowing the field. I am referring here to the application of these two clauses which were formerly sections 2(b) and (c). As the commission pointed out, there have not been any prosecutions in this connection up to the present and perhaps the vagueness of the wording may have accounted for this. The hon. member for Green Point should at least have dealt with the efforts on the part of the Rabie Commission to remove that minefield. I submit that they succeeded in removing that minefield in respect of this clause as they succeeded in doing in respect of clause 4 as well.

In regard to the examples mentioned by the hon. member for Green Point, I should like to say that the answer lies in clause 3(b)(iii) which provides, inter alia—

In other words, if a man is not sure, he must make inquiries as to whether it may be to the advantage of the country but more specifically to ascertain whether it may not be detrimental to the interests of the State. I think, therefore, that this is an argument which the hon. member for Green Point failed to deal with. However, he also complained about the scope, the application of the legislation and again he brought in a wider application than merely the security situation. I should like to refer him to paragraph 12.9.8 of the Rabie Report where it is stated that espionage is not confined to the acquisition of military information any more. In the report of the Canadian Royal Commission on Security it was for example pointed out that—

The Candian Royal Commission accordingly recommended that the provisions of the Canadian Official Secrets Act should be extended to information which, although not classified, could be of use to a foreign State or which could prejudice the interests of the State should it be disclosed.

*So the Canadians greatly extended the scope of the legislation. Now the hon. member blames us for doing the same under the present circumstances. I cannot understand this argument at all.

Furthermore, the hon. member for Pinetown maintained that there was absolutely no element of guilt associated with this. After all, an element of guilt is contained in the provision that a person becomes liable to punishment only when he has committed certain acts, i.e. when he has received a secret official code and so on. He must have obtained or received a document. We are not talking about ordinary documentation. We are not talking about ordinary models. Nor are we talking about ordinary articles or notes. We are talking about matters which affect the Republic’s interests. Only when a person has done this does the rest of the clause, and subsequently the presumptions provisions as well, come into operation.

The important point is the reply which I want to give the hon. member with regard to his amendment. I infer from his argument that he is satisfied that we should no longer debate the concept of “or the other interests”. It seems to me that the Chandler ruling has convinced him of this, and I should like to record my appreciation for this. He has therefore given up that point and is now debating the first and third amendments.

As far as the first amendment is concerned, this would have the effect of emasculating the whole clause. We are concerned here with the articles to which I have just referred, and we proceed from the standpoint that information about these articles merits protection in itself. It would be quite absurd to maintain that we should first prove that it would be prejudicial to the Republic or that it would benefit a hostile State or whatever.

What is important is the purpose for which it is used.

That is absurd, too. If anyone gets involved in those matters, this in itself should make him liable to punishment. That is our standpoint, and we will not deviate from it. Therefore the amendment cannot be accepted.

In the course of our discussion on a previous clause, we heard the motivation for the amendment with regard to the question of the penalty. We are dealing here with a very serious offence. We are dealing with espionage which in certain cases actually borders on high treason. The decision as to what the penalty should be is a matter which we want to leave to the discretion of the courts. By providing a term of imprisonment for 20 years, we are indicating in what a serious light the offence is viewed by the legislature.

Mr. Chairman, in reacting to what I had to say, the hon. the Minister quoted from clause 3(b)(iii) as follows—

He then made the point that if a person wishes to prepare a report or write an article on something, and is in any doubt about the facts, he should make enquiries about what might, directly or indirectly be of use to a foreign State or any hostile organization and consider the security and other interests of the Republic. Let me say once again that because these things are defined in very general terms, anybody who wished to make those inquiries would have a very hard time indeed obtaining an unequivocal and clear interpretation of the extent to which his proposed revelations in a proposed article, report or document would, in fact, affect the interests of the State or the extent to which they might be of use to any foreign State or any hostile organization. I do not believe that telling a journalist that he must make inquiries—and I say “a journalist”, in particular—would help him very much, because somebody has to interpret the law, and if the law is unclear the interpretation is not likely to be clear and various interpretations are likely to vary greatly.

This brings me to a further point about the hon. the Minister’s reaction to clause 3(b)(iii). I just want to point out that that really has nothing to do with the rest of the clause. It is actually a separate provision. So the difficulties that an estate agent might have in reporting the presence of a military installation in a proposed township development are not alleviated because there is no reference to such a situation in clause 3(b)(i). There even the mere reference to any military matter shall make him guilty of an offence, because if he prepares a report or renders any information relating to the defence of the Republic or any military matter whatsoever he is contravening the law. That creates a difficulty.

In clause 3(b)(ii) reference is made to the question of “any security matter”. In the discussion of clause 1 earlier on it was mentioned that any matter dealt with by the national security service would, in fact, automatically be considered to be a security matter. Once again, if anyone wished to write a report about the involvement of the National Intelligence Service in some activity or other, or a report on the involvement of a particular individual in the National Intelligence Service, he could land up in grave difficulties.

Then there is the question of international military journals. Hon. members know these journals very well, because the other side of the House very often quotes statements and articles on international military matters. There are such journals in which reference is made to the relative military power and preparedness of different countries. Some of them have dealt in very complimentary terms with the South African Defence Force, stating that the South African Defence Force appears to be the most powerful one on the African continent. I do not believe that those journals deal with any information that is of a highly sensitive nature. I think that the information is fairly superficial, because I think it would be extremely difficult for them to obtain anything but superficial information from the countries concerned. I have not yet heard of any great conflict between the military heads of any country and the journalists responsible for compiling that kind of information. In terms of this clause a journal of that nature can simply not report on that. Certainly, a person found in South Africa preparing a report for such a journal would find himself in difficulties. Without any doubt, he deals with military matters and defence matters. A person may, for church purposes, prepare a report for publication in an international journal on the whole question of conscientious objection. He may do so for comparative purposes, comparing the difficulties South Africa may have with the difficulties other countries may have. Once again, such a report may cause its author to find himself in grave difficulties in terms of this clause. For that reason, once again, I urge the hon. the Minister to consider accepting particularly the first amendment of the hon. member for Pinetown, because it removes that difficulty virtually completely in our view.

Mr. Chairman, I shall not try to reply to all the tortuous arguments advanced by the hon. member. However, I want to state categorically that this clause is not directed against bona fide journalism. If the hon. member is trying to create that impression with regard to bona fide research, I want to tell him that this is very definitely not the intention of this clause. He really must not convey these misconceptions to the outside world. Here it is ex facie the document which is a document that has to be protected. It is ex facie the model. It is ex facie the article. That is what it is about. It is ex facie the photograph of a prohibited place. These are the matters that are at issue. The hon. member does not seem to understand this.

Now he refers to research which may be done in connection with conscientious objectors, for example. He refers me to a variety of matters such as these. It is said that when one quotes one author, it is plagiarism, and when one quotes a whole group, it is research. If certain information does not merit protection, if its publication will not be prejudicial to the Republic, and, what is more, if this information is already known— this criterion is laid down in another connection—it will not fall under this provision at all. I think, with all due respect, that the hon. member’s arguments would be more relevant under clause 4. At the moment, I think, he is on the wrong track entirely, for here it is ex facie the protection of the product, the item, the document, which is in the interests of the security of the State or otherwise in the interests of the State—we have already debated this, and in this respect the hon. members realize that their arguments were wrong, for which I thank them. The Chandler ruling put them on the right track. Therefore I cannot accept the hon. member’s amendments.

Mr. Chairman, the hon. the Minister keeps telling us on this side of the House what the clause is directed against. The problem is that his assurance in this House about what the clause is directed against is worth nothing in a court of law. I say this with all due respect. It would not be worth a thing. It would be of no use. What is relevant to the court which has to decide whether an accused is guilty in terms of this clause is the words in the Bill itself when it has been enacted. That is our problem. As I have said before, our problem is that the net has been cast extremely wide, that selective action will be taken within the ambit of this provision and that for this very reason, perhaps, the Attorney-General will have to give instructions not to prosecute bona fide journalists who find themselves on the wrong side of this prohibition. The point is that this kind of situation in the legal process makes it extremely open to abuse, because the original motives which the hon. the Minister disclosed and explained to us will not necessarily apply. The fact is that if the question of whether a person should be prosecuted in terms of a specific prohibition has to be decided by a discretionary power, it means that it is being left to the discretion of one person or of one committee. These are things which we should try to avoid in our law as far as possible. Before any person commits an offence, it must be clear to him whether his action or proposed action constitutes an offence or not. It must also be clear to him what he should do in order to avoid committing an offence. These are the problems with which we have to contend. This is also the reason for our problems with this clause. It will not avail us, therefore, to know what the provision in this clause is directed against, if the wording of the clause actually includes all kinds of things that may be done quite innocently. I believe that the hon. the Minister should admit that we are right when we maintain that possibilities such as those that I have already indicated do exist in terms of this clause.

Reference is made, for example, to “any military matter’” This indicates that no intention is required on the part of the accused. Furthermore, the clause merely mentions the disclosure of certain information to any outsider. I am referring to the following words—

This refers, therefore, to information of any nature which is connected with any military matter. Conscientious objections are also a military matter.

Order! I want to point out that the hon. member for Green Point has already advanced these same arguments during the Committee Stage. Therefore he is merely repeating his previous arguments, and I cannot allow him to go on doing so.

Mr. Chairman, allow me, then, to put it to the hon. the Minister by way of a question. After all, a military matter includes all kinds of things. It includes the decision as to where a military installation may be situated, even if it is a military installation which is not at all of a sensitive nature. All these matters are of military importance, and every report written about them, every report relating to them, is being prohibited in terms of this clause.

Nonsense!

No, it is not nonsense. It is true. The hon. the Minister must please try to understand what I mean. This is what it says in clause 3—

Surely any matter relating to the defence of the Republic, such as conscientious objections and their effect of the defence of the country, has a bearing on military matters. These are obviously military matters, and the clause specifically refers to any military matter. [Interjections.] It is problems of this nature that we have to contend with. [Interjections.]

Surely the hon. the Minister cannot deny that these things are covered by the description of a military matter, or even by the description of any matter relating to the defence of South Africa. I am not suggesting that the hon. the Minister intends to lock up every person who writes an article about the defence of this country. What I am saying is that technically speaking, these things are covered by the prohibition created in this clause. This is the kind of thing to which we object, and therefore we should very much like to correct it by means of the first amendment moved by the hon. member for Pinetown, in which it is made very clear that it must be possible to attribute an evil intent to the accused before he can be convicted in terms of this provision.

Mr. Chairman, I am going to reply only one more time to these arguments of the hon. member for Green Point. If we accepted the amendment to which he has just referred, this clause would become meaningless. Furthermore, I want to know for what earthly reason anyone would convey any information, model, document or article to any foreign State …

Or to any foreign newspaper.

Yes, for what earthly reason? If it is open information—allow me to use a technical term—information which is generally known, the person who conveys it cannot be prosecuted at all. In this respect, after all, we have the ruling in the case of the State vs. Marais, a ruling in which the circumstances relating to military documents are very clearly set out. We have, for example, the White Paper on military affairs, which is more or less generally known, and with which all hon. members in this House are acquainted. There are also military force orders. There are force orders that are discussed by women’s clubs, where people are lectured on civil defence. Surely this is also well-known. Articles about this would not give rise to any problems.

Furthermore, we have not introduced any system of classification in terms of the measure. All we have done is merely to bring about the protection ex facie of certain documents. From this it is quite clear, after all, that we are concerned here with documents that have to be protected because of their nature and contents. The fact that someone may obtain such documents with a view to disclosing them—and the onus of disproving this will be on him—requires us to provide the best possible protection in this respect. That is exactly what we are trying to do here. However, I want to ask the hon. member for Green Point one favour. That is that he must get away from the idea that every document merits protection.

Mr. Chairman, may I ask the hon. the Minister a question? The hon. the Minister mentioned that when certain information was widely known, it did not merit protection, in terms of the Chandler ruling. If certain information of a military nature is not widely known, but there is no obvious reason—no reason relating to the security of the State— why it should not be made public, is that not in itself a reason for trying to limit the scope of this clause to some extent? Is there any reason why the disclosure of such information should be prohibited?

Mr. Chairman, that will be a matter for the courts to decide.

Amendments (1) and (3) put and the Committee divided:

Mr. Chairman, this clause provides for the prohibition of disclosure of certain information. But the information which is not to be disclosed is not even sensitive information. It need not necessarily even be security information. It can be information which is connected only with the other interests of the Republic of South Africa. Moreover, this clause does not require an intention to prejudice the security of the Republic of South Africa. There is no criminal intention required by this clause at all. It seems to me that this clause has been inserted in order to meet the situation covered by the case of the State v Jaap Marais, 1971, in which Mr. Justice Wessels, who gave the judgment in the Appellate Division, and the other members of the court, held the view that it had not been proved that the fact that Mr. Jaap Marais had told a journalist of the existence of a branch of the Security Police called the Republikeinse Intelligensiediens was prejudicial to the security of the State. In other words, the court found that there was no intention to prejudice the State when Mr. Jaap Marais disclosed that information. Clause 4 does not require there to be any intention to prejudice the security of the State. It is true that at the beginning of the clause it is provided—

I am quite happy that that sort of thing should be covered by this clause. But then the clause refers to the possession of all sorts of other information.

Business interrupted in accordance with Standing Order No. 22.

House Resumed:

Progress reported and leave granted to sit again.