House of Assembly: Vol108 - WEDNESDAY 10 MAY 1961
Mr. SCHOLTZ, as Chairman, brought up the Report of the Select Committee on Pensions.
Report to be considered in Committee of the Whole House on 15 May.
First Order read: Third reading,—Diplomatic Mission in United Kingdom Service Bill.
Bill read a third time.
Second Order read: House to go into Committee on General Law Amendment Bill.
House in Committee:
On Clause 4,
We on this side of the House object to this clause and will vote against it. We first of all regard this clause as thoroughly bad. We think the requirements of this clause which will enable a person to be arrested and held if the Attorney-General so desires on the grounds set out, for a period of 12 days, without allowing bail, is a power which is far in excess of the requirements of our laws. I would like to draw the attention of the hon. the Minister to some of the decisions with regard to the question of bail, because our laws contemplate the discretion of the Attorney-General with regard to the general question of granting bail. I want to refer him for instance to a portion of the judgment of Mr. Watermeyer as Acting Judge-President in the case of Heller and Another v. the Attorney-General in 1932—
In another case of McCarthy v. Rex in 1906 (Transvaal Supreme Court), Innes, Chief Justice, said the following—
Then we have another expression of opinion in 1947 with regard to the weight of the Attorney-General’s views expressed in the case of Rex v. Fourie (Vol. 2, South African Law Reports, at page 576) where Justice Fisher, the Judge-President, said—
There are innumerable cases which support the fact that the discretion has always been in the hands of the Attorney-General and that the Supreme Court which has the inherent right of jurisdiction in these matters (a statement which one will also find in various law reports), has always paid considerable regard to the viewpoint of the Attorney-General and the informants from whom he receives his information. Therefore it is our opinion that the necessity for extending this period to 12 days, even contemplating a suggestion of a further extension of time, without permitting, as the rest of the clause provides, any appeal to the Supreme Court, or the interference of any court of law in the reasonable exercise of this discretion, or the justice of the exercise of this discretion, is entirely unwarranted. We have over many, many years maintained a standard in our courts which has always enabled the powers of the Attorney-General to be exercised fairly and reasonably, but, Sir, we jealously guard the right of our Supreme Court, which is the inherent court of justice in the country, to be able to deal with any appeal or any plea that may be made before it in the interests of the subject. For that reason we regard this clause as unreasonable and one that is not necessary to place on the Statute Book of our country. Then, as has already been referred to on another occasion, there is one term here in paragraph (1) which the hon. the Minister, I feel, must explain to this House. Clause 4 includes in line 8 the words “ such a person shall not be released on bail or otherwise Attention was drawn to these words “ or otherwise ” by my hon. leader in the course of his address on the second reading of the Bill but I do not think the hon. the Minister has explained clearly to this House what those words mean …
I said we could discuss the matter in Committee.
Yes, and that is why I draw the attention of the hon. Minister to it now and I hope he will give us a very full explanation as to what is inferred by the term “ or otherwise ”. I say that the Minister should take cognizance of the many decided cases which have left at all times in the hands of the Attorney-General this discretion but has not taken away from the Supreme Court its inherent right of listening to the pleas of the accused, of the person who has been arrested and charged, so that ultimately justice would prevail in all circumstances. That I think is the intrinsic value of the legal system in our country. We believe that this clause makes an undue interference with the liberties of the subject and imposes an undue burden …
What do you say to the argument that the Attorney-General may have information which the court cannot have?
That is correct. The cases I have quoted show that the courts have taken due cognizance of the rights of the Attorney-General not to disclose certain information to them. The courts have exercised their discretion in this connection and have conceded the Attorney-General’s right in many cases referred to, to ask that bail be not granted. The cases I have quoted make it clear that he is being regarded by the courts as the most responsible officer of the courts in these prosecutions. These powers, Sir, are powers which I think should remain in our country; they have been established by law and by tradition over many years, and they should so remain. I believe, Sir, that this clause makes an artificial interference with that inherent right of the Supreme Court. We on this side of the House will vote against this clause.
The hon. member for Bezuidenhout (Mr. Miller) has given us a lecture on the attitude that the courts adopt towards the granting of bail. We know it; we have heard it before. The other day the hon. the Minister of Justice also told us, if I may remind you, Sir, that bail was only granted when it was expected that something might go wrong with the administration of justice if the person was released; or rather, bail was refused when there was a suspicion that the person might interfere with the witnesses and in that way thwart the law, or because he would not appear. But what about it? We know that that is the position, don’t we? We know that these rules were introduced when crime was of a more personal nature, that is to say, when it was committed by one individual against another individual. But what is the position with which we are dealing here? Here we are dealing with a crime that a person commits against the entire community and it is necessary that the net of the law be cast much wider than previously. What does our law say in the first instance? The law says that anybody who is being detained should be advised as soon as possible with what he is being charged. That is the law—as soon as possible. The expression “ as soon as possible ” has been explained by the courts. “ As soon as possible ” means “ as soon as possible in the circumstances ”. What are the circumstances? The circumstances are that a crime has been committed against the whole community, and as I said on a previous occasion, the entire community covers a much wider field than the individual. That is why you require so much more time to prepare your case. Furthermore, if you state under oath in the court why the Attorney-General should refuse bail, all kinds of information will have to be made public under oath—because fortunately our law is administered in public—and you will thwart the very object that you are trying to achieve. That is the position. Because the particular crime with which this particular clause deals, covers a much wider field than merely a crime by one person against another, we are now limiting the authority of the court to release anybody on bail whatsoever, that is where it concerns a matter where it is in the interests of public safety and in the interests of the maintenance of public order. There is nothing wrong with that. It has always been the position that where an individual enjoys certain rights, and those rights clash with other rights, the two have to be reconciled. The rights of the organized community and law and order in the State are much more important than the incidental rights of the individual. I am not preaching heresy when I say this. That is generally accepted.
But there are other reasons as well. You know, Sir, that all the evidence available to the police and to the Attorney-General is not always admissible, no matter how damning it may be as far as the accused is concerned. Because an injustice may be committed in that way. But it may also be evidence that may make the Attorney-General decide to detain the man longer. If that evidence is divulged in court it may have an influence on the trial of the accused. That would be wrong. Furthermore, it may be evidence that should not be divulged at all if the police want to attain their objective. For the rest it is a question of an effective trial. A large number of people are usually involved when the safety of the State and law and order are threatened. Assume you have arrested a hundred people, how long do you think will it take to try each one and to decide whether or not bail should be allowed? That is simply impossible. This is a step to prevent the process of the law from being abused, and we are compelled to take it. It is one of the most difficult things to prevent the process of the law from being abused. The hon. member for Bezuidenhout knows that as well as I do. It is being done daily by various legal practitioners. They may do it but they ought not to do it. Here we have a case where the processes of the law are ineffective for the problem which faces us, and here we are offering the solution, namely, that when the Attorney-General, who is a responsible official, has data at his disposal which may make him come to the reasonable decision that the person should be detained in the interest of public order and safety, he can be so detained. If hon. members have a better suggestion to offer, a suggestion which will not affect the individual so harshly, that will be as effective and that will not do anybody an injustice, we shall obviously consider it. But we have not had such a suggestion. All we have had from the Opposition both during the second reading and to-day, has been condemnatory speeches damning this suggestion.
Neither can I see what objection the hon. member for Bezuidenhout and other hon. members can have against the provision contained in Section 108bis (2)—“ or otherwise release ”. Do hon. members not know that a person can only be detained against an order of the court and that an order may perhaps be obtained under the interdictum de libro homino exhibendo, that is under the old Habeas Corpus Act? The “ or otherwise ” refers to that. It cannot refer to anything else. The Minister has not got some or other mean trick up his sleeve: he does not contemplate any underhand business. It is merely a provision to the effect that nobody can be released when the Attorney-General has decided that he should be detained for 12 days—that he should not be released in any circumstances.
May I ask the hon. member a question? Does the hon. member agree that there are many precedents in history of serious and more serious crimes, and that it has never been necessary to change the law in this respect?
I am surprised at the hon. member for asking such a question. [Time limit.]
The hon. member who has just sat down (Dr. Coertze) made an allegation that he should not have made. He said that we were actuated by the wish to condemn rather than to assist. Sir, we are concerned with the due administration of justice and that is the reason for us opposing this undesirable clause. The hon. member for Bezuidenhout (Mr. Miller) quoted some cases which illustrated the regard which the Courts have to the point of view of Attorneys-General when they put before them applications for bail. I want to refer the House to another case, viz. that of Rex v. Kaspersen, 1909—Transvaal Supreme Court, 639, in which the application for bail— it was a murder case—was refused by the Court after an objection was taken by the Attorney-General. The Court put it in this way—
Here due regard was taken of the point that was put by the Attorney-General and for this reason we say that this clause is absolutely unnecessary.
Sir, listening to the speeches during the second reading debate, I have come to the conclusion that hon. members on the Government benches do not appreciate the consequences of Clause 4 of this Bill. What we have here, Sir, is another interference by the Government with the discretion of our courts whose duty it is to adjudicate between the prosecution on the one hand, and the prisoner on the other, without fear, favour or prejudice. We are proud to think that the courts have always stood as an independent bulwark against any injustice which may be committed against a prisoner, by arbitrary action either of the police or of the prosecutor. This clause constitutes another threat to the liberties of the subject and a derogation of the functions of our courts. It is, moreover, in direct conflict with Section 27 of the Criminal Procedure Act of 1955 which requires that a person arrested without warrant, should as soon as possible be brought before a judicial officer upon a charge or offence, but may not in any case be detained for longer than 48 hours unless a warrant for his further detention has been granted by the court. That section goes on to state that nothing therein contained shall be construed as modifying the provisions of Chapter VII of the Act whereby a person under detention may be released on bail.
Does that not affect the liberties of the subject?
Under that chapter, the granting or the refusal of an application for bail is in the discretion of the magistrate, subject to an appeal to the Supreme Court in the case of refusal. The magistrate, in granting bail, may impose such conditions as he may deem advisable in the interests of justice—for instance, requiring the accused to report at a police station at stated intervals, or limiting the places where he is forbidden to go and prohibiting him from communicating with witnesses for the prosecution, and in respect of any other matter relating to the accused’s conduct. These provisions, Sir, I say provide a sufficient safeguard and the magistrate is the proper officer to deal with the matter, and not the Attorney-General who sees only one side of the case. The magistrate is on the spot and knows the circumstances of his district: he has the accused before him and hears both sides of the case. Under this clause, Sir, the Attorney-General will have to depend entirely on police reports. I do not want to cast any aspersions on the police but the fact remains that the Attorney-General will only hear one side of the case and a grave injustice may be done. This detention of people without trial, and the whole procedure under this clause, which gives the Attorney-General the right to forbid the release of a prisoner on bail, is contrary to the fundamental principle that a man whose rights are adversely affected is entitled to be heard. I would like to ask the Minister whether persons who are detained under Clause 4 for 12 days would have the right to consult their legal advisers? In the Transkei under the emergency regulations, that right was being denied and can only be exercised with the approval of the Minister of Bantu Administration and Development. Sir, this is all part and parcel of the Government’s Gestapo methods which have been a feature of the administration of justice during the past 18 months, and which, Sir, have been responsible for the imprisonment for long periods of over 500 persons without trial under the emergency regulations in operation in the Transkei. This is where we are getting to and that is why we oppose this clause.
The hon. member who has just sat down talked about the administration of justice being injured by this Bill and he said that we did not appreciate the consequences of this clause. Now, I want to tell him that this clause does not leave it to the discretion of the Courts. He has not read his law. He should read sub-section (3) of the proposed Section 108bis, which reads—
This means that the Attorney-General has the right to release anyone arrested under this Act even within a shorter period of 48 hours under bail. But our hon. friend does not want to see this. He thinks of one thing only and that is of Gestapo methods. It is a pity that a person who was a senior member of the Public Service and who is now a Member of Parliament should act like this. He should be ashamed of himself.
Look who is talking!
Under ordinary circumstances a man can be arrested for any crime and can be released within 48 hours if sufficient bail is provided; under other circumstances and under our own laws, he cannot be released until he has been brought to trial. That, Sir, they do not realize and do not want to realize. My hon. friend, the member for Bezuidenhout (Mr. Miller) has also put up an appeal against this Bill, against this clause. His case, Sir, is very weak. He has missed the whole object of this Bill. I want to ask him what advantage there is in allowing bail to agitators so as to allow them to slip over our borders and go to other countries to make further propaganda injurious to the existence of the State in South Africa. But I suppose he does not worry about that, Mr. Chairman; it makes no appeal to him; he does not love his fatherland; he does not want to see that we protect our own families, our own women and children, in this respect, because he wants bail to be given to an agitator who came into the country to start trouble, within 48 hours. The result is that the man then goes to court. Now, as the Minister has illustrated by the three cases he quoted yesterday, bail was granted after the accused concerned had been retained after 48 hours, on the grounds that the court could not withhold bail because there was no law preventing bail being granted. But there are other cases—cases like murder, etc.—where you cannot get bail and have to remain in gaol until such time as you can be tried. In this case we are following a middle road—we are trying to close the gap in the law as it is to-day in order to give the law a chance to tackle the accused good and solid. But these hon. members, Sir, do not want to know anything of it. This law is being enacted against agitators, against people who act subversively and who want to undermine our Government and State, but yet these hon. members do not want such people to be arrested and held for a period of longer than 48 hours. Why? Because they know that if such a person gets bail within 48 hours, he will go and do exactly the same thing again. He will be arrested again and detained for 48 hours, released on bail and proceed to do exactly the same thing again. The hon. member for Durban (Point) (Mr. Raw)—this “ pampoen ”—laughs, Mr. Chairman.
Order! The hon. member must withdraw the word “ pampoen ”.
Call his a “ kafferwaat-lemoen ”.
I withdraw the word “ pampoen ”, Sir. It is a pity that members have not made a study of this Bill and that they have no fathom of love for their own country. They create a foolish situation about the whole Bill. They do not want to see a thing as we see it; they do not want to help the Government and they do not want to help anybody—as long as they can oppose everything it makes no difference to them whose interests are at stake. Here they come with arguments that are baseless. We know that in ordinary circumstances a law will not be amended but will remain as it is. When there are special circumstances, however, they must stand with us because they will get into the same difficulties as we would get into— whether they or us rule the country, the position will be the same. When there is internal trouble and you have to arrest 300 or 400 people, it is impossible to bring them to trial immediately. You have your Police Force trying to calm people down and to do other things so that there is not time enough to bring these arrested people to trial. Now those hon. members want these people who have created trouble to get out and to go and do further damage. I think they should rather say that 12 days is too short and that the period should be increased to 30 days or more. But where we are trying to create a benefit for the safeguard of our public, they are opposing it. I think it is time that the public of the country should know what is actually happening with this Opposition. We grant them the right not to support us in the matter—they need not vote with us as a National Party but they should realize that we are trying to create protection for the law-abiding citizen of South Africa—whether European or non-European but yet they make it difficult for those who have to act to maintain that position. * [Time limit.]
I do not propose to deal with the speech of the hon. member who has just sat down but I want to suggest that the point he touched upon in his closing remarks, had absolutely nothing to do with the matter which is under discussion.
That is for the Chairman to decide.
I would also say to that hon. member that on a day which members opposite have said is a great day in the history of Afrikanerdom, I am amazed to find three hon. members there behaving in a manner, Sir, which is entirely unworthy of a member of this House.
It is obvious to me, Sir, that the hon. member for Vereeniging (Mr. B. Coetzee) has a guilty conscience.
On a point of order, Mr. Chairman. Is the hon. member entitled to say that hon. members here behave in a way unworthy of this House? …
That is nothing unusual!
Order! The hon. member cannot refer to hon. members of this House as being unworthy.
I withdraw that unhesitatingly, Sir, but I want to say that their conduct was certainly unseemly in my eyes and I believe also in the eyes of other members on this as well as on that side of the House. I would like to return to the clause and to say immediately that hon. members on the Government side clearly have not appreciated what the effects are of this clause. This clause is placing arbitrary power in the hands of the Attorney-General and, through him, in the hands of the Minister. But we know that in these matters whether a person is detained, or whether he is given bail, that is in general a decision which is taken on advice of the police. In matters of this sort it will be on information furnished by the Security Branch …
What do you say to the argument that this clause makes provision for special cases and for a limited period?
That is quite right. It deals with special cases and a limited period, but I would like to submit to the Minister that arbitrary power should not be granted in cases even of this nature, because it is an inroad on one of the greatest bases of the freedom we have enjoyed in this country. I say it is quite wrong to cross the Rubicon and to give arbitrary power even for a limited period. The position would be quite different if the Minister had come to the House with a carefully thought-out amendment which dealt with problems which have arisen under the law. The Minister said that public safety was not one of the factors which the court could take into account. I am not going to suggest what the amendment should be, but if the law needs tightening up, I think we would be prepared to consider a proposal to amend it on its merits, and I suggest that the wrong remedy is being chosen. It is utterly wrong to give arbitrary powers. It is the sort of thing which brings South Africa into disrepute with the outside world, and I believe it shakes confidence within. I realize that this applies to a limited number of cases. The hon. member for Edenvale says that we are taking the part of the non-Whites. Nothing of the sort. What we are seeking to do is to see to it that only sound law goes on to the statute book. I say it is utterly wrong that there should be this arbitrary power. The Attorney-General will obviously have difficulties. The hon. member for Standerton says we must remember that there will be hundreds of cases to be dealt with. Obviously an Attorney-General will not be able to examine in careful detail all those cases, and he will inevitably have to rely on the opinion of the prosecution and the police. We say that that is not the sort of power that should be taken in a democratic country, and we say that the Minister should consider this matter very carefully indeed. Provisions of this sort do not solve anything. If the Minister can make out a case for the amendment of the law to deal with cases where new circumstances have arisen in the light of changes which have taken place, then I think this House will be prepared to grant the necessary powers. But I believe that we are starting on a slippery slope once you start giving arbitrary power of this nature, although I concede that it is only in a limited class of cases. The point I want to get to the Minister is that the Attorney-General cannot sit as a judicial officer. He must act on the information given to him by the police. I believe that it is wrong that a provision of this sort should become part of the law of this country. The Minister himself concedes that, because he has provided that this power will be granted for a period of one year, and then it may be extended by Parliament. I ask the Minister to reconsider the whole question. I am sure it will be possible to meet the real problems. One or two cases have been mentioned, but I do not think that most of the cases mentioned by hon. members opposite are valid. But if the Minister feels it is essential to deal with this particular class of case, I think it is possible for special considerations to be taken into account by the courts. But it is one of the bases of democracy that a man’s personal freedom should in the last resort be in the hands of the court. It is different in times of emergency when the safety of the State is at stake. In support of what I am saying, I would draw attention to the charge which has repeatedly been made by hon. Members opposite that during the war, when South Africa was fighting for her life, persons were locked up by the previous Minister of Justice without having recourse to the courts. The point they always made was that even if it was in wartime, the incarceration of those persons was not based on a decision by the courts. Therefore they themselves recognize the principle for which the Opposition is pleading, viz. that in time of peace persons should not be kept in gaol except for a limited time and except on the authority of the court. I again suggest to the Minister that he reconsider the whole question. It is said that it is only for 12 days, but I do not think either the Minister or I would like any Attorney-General to have the right to put us inside for 12 days. I say that is a power which properly belongs to the court, and this side of the House is standing up for what is one of our hardly gained freedoms. I hope that, instead of seeking to accuse the Opposition of being untrue to South Africa, they will realize that in fact it is the name of South Africa which we are seeking to protect by our opposition.
I think the fact that the Minister has placed this legislation before the House, and the fact that it has a specific purpose to meet specific circumstances, prove that the Minister and everybody on this side of the House agree fully that in normal circumstances this matter should be left in the hands of the court. That is why we are amending the law in such a way that, in cases where bail is not granted, the period is not automatically lengthened to 12 days, but that it can only happen after the Attorney-General has issued such an order under specific circumstances, and because the case is of a specific nature. Hon. members complain and say that, instead of this, we should rather amend the law so that these specific cases will be covered by law, but my very objection to such an amendment is that, if such an amendment is placed on the Statute Book, it will mean that we amend the law in such a way that the position will also be more difficult for the normal case in normal circumstances, and that it will then be automatic because it is laid down by law.
But it is in the hands of the court to-day.
Yes, but then you have to give the courts more power, in which case it will be harder on the ordinary man and in the ordinary case. Let me give an example. Assume you decide to impose heavier sentences. We have complaints continually that the penalties are being made too severe. But say, for instance, that is one of the methods to cover these specific cases. The problem then is that the sentences will be heavier in the case of normal cases where it is unnecessary. That is why I am not in favour of it that the law be changed in such a way, because it is evident from this clause that the Minister and this side of the House are in complete agreement with the hon. member for Springs as far as ordinary circumstances are concerned, but this clause makes provision for specific cases. That is also the reason why a time limit is imposed which cannot be extended unless this House extends it, a limitation which also embraces this, that this House will from time to time have the opportunity of calling the Minister to account, so that he does not abuse the position, which he will not do. That is why I feel that we should accept this clause, which is limited, for the simple reason that I agree 100 per cent that in ordinary circumstances we should leave the power in the hands of the court. But take the specific case for which provision is being made here, and I want to repeat that all of us on both sides of the House know what we are talking about when we talk about these specific cases. Say, for instance, that, under these specific circumstances, a person is arrested and this measure is not at our disposal, then, in the first place, the problem is this: In order to prevent his release on bail, you sometimes have to make certain things public in court which are not in the public interest or in the interests of the safety of the State to do. In the second place this man has now been arrested. You are collecting evidence to place before the court, but you cannot do so within the 48 hours which you have as the law stands at the moment in order to convince the court. You can get the evidence, but not within 48 hours. Because you cannot lay the evidence before the court, the court has no option but to discharge the person. Say, for instance, he is discharged after 48 hours and, within 72 hours, the police produce the necessary evidence, then it is too late; then that person has already been released on bail and he could already have done injury to the State or jeopardized the safety of the individual, something which this measure is trying to prevent. That is the reason why I feel that we should accept this clause as it stands. I do not think we should say too much about powers that are being placed in the hands of the Government in times of peace in a democratic country, because we have the evidence of what is happening in the world to-day. Throughout the world anti-democratic forces are using the very rights of democracy to destroy democracy. For the very reason that we on this side of the House are jealous of the freedoms and the rights of the individual, we want to ensure that the enemies of democracy do not abuse the rights and privileges which they enjoy under the democratic system in order to destroy that democracy—that is why we want this power. That is one of the most valid reasons why I feel we should accept this clause, because it gives the Government the power to prevent those rights and privileges from being abused. This clause makes provision for certain cases. There is a time limit attached to it which eliminates abuse in this democratic State of ours. It protects democracy, but it does not go so far as to assume a permanent place in our legislation, and that is why I support the clause.
The hon. member who has just sat down had a very reasonable approach, very different from that of the hon. member for Edenvale, who showed as much distrust in the court as he misunderstood the objections to this Bill, and particularly this clause. We made it perfectly clear from this side of the House that this clause is an instance where the functions of the courts are being usurped by the Executive. The Minister has relied on the decision of a single Judge, which indicated that the court was not justified in refusing bail on the grounds that the public safety might be endangered. That is apparently the only judgment which stands on record. This Government, of course, has very seldom accepted judgments of that nature when it did not suit them. There is lots of evidence of that on record. But no answer has yet been given by the Minister to the very reasonable approach made both by the Leader of the Opposition and others on this side, namely, to the suggestion that if that single decision is in fact good law, why not make provision which empowers the court to refuse bail if it is satisfied that there is danger to the public safety or to public order.
Your point is that the court may then still refuse?
The court will then have the power to refuse to grant bail.
Yes, but according to your suggestion, the court may still refuse.
If you made out a good case, the court would refuse.
That is the difficulty under special circumstances.
That is the main ground of our objection, that this is an unwarranted invasion by the Executive of the functions of the court. That is precisely why you have courts.
We are trying to deal with times of difficulty.
But this is not a time of difficulty. This provision will go into effect the day after this Bill becomes law. Those are normal circumstances. If this clause provided that in a state of emergency this position would arise, that would be different, but we are dealing with the situation which obtains the day after this Bill becomes law. That is when it will be applied. Both the hon. Member for Smithfield and the Minister accept that the granting of bail should be a judicial function.
On a point of order, is the hon. member for Wynberg entitled to read a book while the debate is in progress?
Surely it depends on the book.
May I draw your attention to Rule 61 (2), which says that a member may not talk loudly in the House and during the debate he may not read any book, newspaper or document. I make the accusation that the book the hon. member is reading has nothing to do with this debate.
May I first of all say that the hon. member does not know what book I am reading. Its title is “ The Just and the Unjust ”, and it deals with different kinds of trials, with or without juries.
Does the book deal with the subject of the debate?
It may become the subject of debate.
The hon. member said last night that he was reading this book in order to make a speech, but he never made his speech.
Order! The hon. member may continue.
I was saying that the granting of bail is a judicial decision and one which no court would take until both sides had stated their case. The application for bail comes from the person who has been arrested. He must make out a case for the granting of bail and the courts will always have great regard for the views of the Attorney-General. The courts will never demand the full disclosure of information if there are good grounds for not disclosing it at that stage, but it does want an answer to the case made out by the applicant that bail should be granted. I personally do not know of any instance where the court cannot grant bail with conditions which will ensure that the public safety will be maintained and that there should be no breach of the public peace. It is not a final decision. The court makes a decision in regard to bail and it can lay down conditions and those conditions can be such that there can be no danger involved to the State. If there is danger to the State there will be a re-arrest, because the conditions of bail have been breached. Therefore it seems quite clear as regards the members who spoke in support of this clause that their argument merely confirms what we suggest is the position, that this legislation is here merely as a substitute for the exercise of emergency powers granted to the Minister in terms of other legislation. It is quite obvious that without hearing the applicant no fair decision can be given by the court, and it is equally impossible for the Attorney-General to give a fair decision. His decision will obviously have to be one based on ex parte statements, that is after hearing only one side of the case. It is true that the type of case is limited to where the Attorney-General considers it necessary in the interests of the safety of the public or the maintenance of public order that he should exercise this right, but that is beside the point. That is merely an indication again that the person concerned will be unable to make any allegation to rebut the allegations of the Attorney-General. It remains entirely a matter of dealing with the case on one-sided ex part statements, which, of course, might be biased. [Time limit.]
I rise merely to deal with the point touched upon by the hon. member for Johannesburg (North) (Mr. Plewman). It seems to me that we see eye to eye as far as normal circumstances are concerned. The hon. member quite rightly says that if this Bill goes through and is promulgated it immediately becomes the law in these normal circumstances. I agree that that will then be law, but I want to put this question to him: Throughout the world and in our neighbour states there is unrest and disturbances and trouble. We have organizations and people in our own country who hold meetings and pass resolutions and issue threats to be carried out at a specific time in the near future in our own country. The point I want to make is this: Can we regard these as normal times? In that respect we differ on the question of “ normal times ”. I maintain that it is not normal to issue threats for a specific time, and for that reason it is necessary to take powers in these abnormal circumstances to deal with abnormal cases. The hon. member also said that if a person is released on bail and misconducts himself he can immediately be rearrested. That is so, but the point is this that these people for whom we are providing here could, before they are re-arrested, have done irreparable harm not only to property but to the lives of the people of South Africa and we have to make provision for that. The point I am making therefore is that we are not dealing here with normal circumstances, and that is why we have to make provision and ensure that a person is not set free in some way or another and thus be placed in a position to do damage.
Furthermore, the hon. member for Johannesburg (North) says that in any case the Attorney-General has to act on ex parte statements, but the point is this that after having acted and issued an order, the Attorney-General finds that there is no evidence, this clause makes provision for him to rescind that order. In other words all that can happen is that in these circumstances the person may possibly remain in gaol for a longer period than ordinarily, but it cannot be a long period because the maximum is 12 days, and the Attorney-General may rescind the order before then. I do not think this is too high a price to pay in these circumstances. Let a person rather be kept in gaol for a slightly too long a period than that irreparable harm be done to the country by a person who is not innocent.
I think it is just as well that I reply now to a few points that have been raised. I find it peculiar that the official Opposition refuses to accept co-responsibility in this case. With what are we really dealing? This clause is the crux of the Bill. It means that special circumstances have arisen that have to be met, and that is why we are introducing a measure—a temporary measure—so that we can meet those special circumstances. We can choose one of two. It is common knowledge what can be expected; there may be contraventions of the law in the form of strikes or otherwise; that may take place on a large or a small scale, but we all know that we are entering a period where that may happen. What does the Opposition want the Government to do? They want the Government to leave the law as it is at the moment. What does that mean? It means that in times of acute unrest the police will have to arrest certain people. It is obvious that the police will have to do so irrespective of which Government is in power. You now arrest a person and he appears in court within 48 hours unless he himself applies for bail. In terms of the judgment which I quoted here on Friday, the court regards the freedom of the individual as such that he must get the benefit of the doubt and the court, therefore, releases the person on bail simply for him to do the very thing that the police are trying to prevent. A responsibility rests on the shoulders of the Opposition to-day. Certain contingencies have to be met, contingencies that the hon. Member for Smithfield (Mr. J. J. Fouché) has also mentioned, and I do not know why the Opposition refuse to assist the police in this case, because there is no alternative. Or is the alternative perhaps what the hon. member for Johannesburg (North) (Mr. Plewman) has suggested, namely that in that case we should declare a state of emergency; abrogate all the laws and let the Government govern? I do not know why the hon. member has suggested that. I know what the world outside thinks about a country that declares a state of emergency in times of unrest. They immediately come to the conclusion that there is something wrong in that country. It does a country no good. To declare a state of emergency is the last step that you wish to resort to, Sir. I do not want to repeat what I said last night, namely, that the position is of such a nature to-day that I do not think it will be necessary to declare a state of emergency, but in that case we have to have this legislation on the Statute Book so that certain people will be placed behind lock and key. With due respect, we cannot leave it to the decision of the courts. We may have to deal with very dangerous people within the following few weeks. Had I known last year what I know to-day, I would have come forward with a measure such as this last year already. Why? Because we would then have been able to bring before the court people who are to-day beyond the borders of the country, beyond the borders of Africa. Some hon. members opposite view the situation in as serious a light as we do and I appeal to them to shoulder the responsibility with us. They say that we are asking them to place a great deal of power in the hands of the Attorneys-General. But is that really the position? The Attorneys-General in South Africa are people with a great sense of responsibility, people with vast experience, people for whom I have always had the greatest respect; I can think of nobody in South Africa who carries greater responsibility than they do; in most cases greater than that of the courts. [Interjections.] Yes, I say that deliberately for this reason: the Attorney-General is the person who has to decide whether or not there should be a prosecution and only then can the court try the case.
And yet you rely on the judgment of a single Judge.
Well. I quoted it to the House. Let us use our own arguments if the hon. member does not accept that judgment. Let us consider the position of the Attorneys-General as it is. I say that the Attorney-General has more power than the courts, because the courts can only try a case after the Attorney-General has decided to prosecute. There are cases where millions of pounds are involved and where the Attorney-General has to decide whether or not to prosecute. That is a vast power in the hands of the Attorney-General. A person may be charged with a crime for which the penalty is death and the Attorney-General is the person to decide whether that person should be charged or discharged. He has powers therefore which the courts do not have.
Is it not a discretion and not a power?
Call it what you may. The fact remains that he has to decide whether or not a case should go to court. The hon. member wants to shelter behind the term “ discretion ”, but when the bells toll discretion will not help him.
Particularly not in his case.
I say it is very good to have certain powers in times of unrest. These are powers that are just short of the powers you have in a state of emergency. Let us assist each other in South Africa in placing the necessary power in the hands of the Attorneys-General. I think the country will be grateful to the Opposition if they help us, because I think the country is worried at the moment; I think the business world is worried; I think the industrialists are worried. I do not think there is a family in the country who is not alarmed. This is something that every country in southern or Central Africa is experiencing; it is nothing new.
If it is nothing new, why should we have these additional powers?
I say it is nothing new for people to feel alarmed. That is to be understood, it is human for families to be alarmed when they read the newspapers and when they hear what may happen, when they hear what the plans are of people who are still walking about to-day. Everybody is nervous. Nobody wants to have his property destroyed. Must the Government sit powerless and accept the principle that when a man is brought before court and he applies for bail it has to be granted? As the law stands at the moment the court is compelled to let the man go. If the hon. member for Johannesburg (North) should be on the bench in two or three weeks’ time and he has to try one of the most dangerous persons, to judge from his speech here this afternoon, it seems to me that not only will he use his discretion to grant bail but that he will even take it further. I am disappointed in the hon. member. Perhaps I misunderstood him, I do not wish to do him an injustice, but I think he went very far, I think he was somewhat thoughtless. In any case, not to do him an injustice, I merely want to say that my impression was that like the courts, he will grant bail. I repeat that we are living in abnormal circumstances in which powers have to be taken for a certain period. Let us place the dangerous people behind lock and key and then they can appear before the courts and the courts can discharge them if they want to or release them on bail, because after 12 days the ordinary law again comes into force. I want to appeal to one of the most righteous members on that side of the House, namely the hon. member for Springs (Mr. Tucker). He is the leader of the Justice group on that side and I want to appeal to him this afternoon that we should show a united front to those people who want to harm South Africa—harm it seriously. Is it really such a terrible thing in the eyes of the world what we are asking for? You are not depriving an individual of his freedom for two days but for a longer period. According to hon. members opposite, if you deprive a person of his freedom for 48 hours, there is nothing wrong with the principle; in that case it is still the “ rule of law ”, but imagine Sir, if you make those two days three days, then the principle falls away completely; then it is no longer the “ rule of law ”.
I wish to thank hon. members on this side of the House for having advanced every argument that they possibly could and I trust that in this case, where the eyes of the whole of South Africa are focused on us, the Opposition will not leave the country in the lurch.
This particular clause is one of the provisions of the Bill which makes the measure as a whole unacceptable to us. The hon. the Minister has just said that this clause was the crux of the Bill. I believe that is right. This particular clause symbolizes what to hon. members on this side of the House is unacceptable. He has made an appeal; he has suggested that we are having abnormal circumstances. He suggests that what is happening in other parts of the Continent of Africa is rife in South Africa. I certainly do not agree with that wide statement. I certainly do not believe that the position in the Union of South Africa, the future republic, is comparable with the position of other multi-racial states on the Continent of Africa. We have a White population of over 3,000,000 people.
You are doing your best.
I am not concerned with the interjections of the hon. the Deputy Minister; I am concerned with the safety of South Africa. I assume that the Minister is also, but we differ in our approach. I am not prepared to accept that our position is comparable. I say that our White population, relative to our non-White population, is larger than in any other part of the African Continent; we have a far greater number of non-Whites who through their training understand law and order and who would like to see law and order preserved. I do not believe that it is beyond the capacity of our Police Force, if necessary augmented by the Defence Force, to maintain internal security in this country. The hon. gentleman put the specific question to us: What does the Opposition want the Government to do? I ask him what he is going to achieve by this provision? He is asking that bail should be refused. I am not at all satisfied that in appropriate cases the courts will not refuse to deny bail to accused persons.
We were rather unfortunate last year.
That may have been due to insufficient evidence having been adduced; or it may have been due to the fact that some of the officials may have taken on more than they could deal with, because it is perfectly clear to me that a very large number of persons were incarcerated last year who were no danger whatsoever to the state. I am thinking of some of the women who were detained for long periods, and nobody in this House is going to convince me that all the bother that was taken over them was necessary and that they were any form of danger to the state. Sir, this legislation is designed to curb activities and not to eliminate the reason for those activities. The Minister tells us this afternoon that we must share the responsibility. Of course we deplore violence. Let me say that clearly this afternoon. So far from inciting violence, I say that the subversion of law and order is contrary to the interests of the state and contrary to good government. It is contrary to the interests of the individual and I deplore it. The Minister seems to expect violence. Does he?
We must be prepared for eventualities.
There may be violence, there may be strikes, legal or illegal. There may be demonstrations. There may be peaceful demonstrations.
And there may be illegal demonstrations.
… and there may be illegal demonstrations. The Minister is asking for these wide powers to be vested in the Attorneys-General and not in the courts. I repeat that in terms of the law as it stands at the present time, there is adequate provision for keeping a person in custody for a sufficient time for police investigations. I do not believe that if a person is arrested, against whom there is prima facie evidence of attempts to subvert the state in one way or another, the court would grant bail if the Attorney-General asks that bail shall not be granted. But with this provision the way is opened to abuse. I do not say it is going to be deliberately abused. But once by a stroke of the pen an administrative official can say that A, B, and C, or 600 people, should be locked up for 12 days, it is perfectly easy to do so, and in doing so …
In your experience as Minister of Justice you must have found cases too where you had information which could not be divulged.
We certainly had information and we had, alas, to resort to the system of internment. That was the basis of internment, because we had information which could not always be put before the courts, either for security or other reasons. That was in a state of war; and although hon. members still consider that there is no distinction, there is a clear-cut distinction between the circumstances which existed then and those existing to-day. The hon. gentleman says “ Are we asking for such a terrible thing?” What the Minister is asking for this afternoon cannot be isolated from what is asked for in other parts of this Bill and what has been asked for in the course of the last ten or 12 years; it cannot be isolated from the pattern of legislation which has become tougher and tougher in order to try to keep down and prevent the expression of opinion, rather than allowing the free ventilation of opinion in this country. The Minister says that he wants the Opposition to share the responsibility with the Government. He is asking us to share responsibility for being driven into a sort of Berlin Bunker, where we are going to give up hope and say that these things are inevitable and therefore we must all go down together. That is a responsibility that I am not prepared to share with the Minister. I say that if you have a Government in power …
Order! The hon. member must confine himself to the clause.
Sir, I am referring to the evils the clause is alleged to aim at. The Minister has talked about abnormal circumstances and the possibility of violence and of strikes. Why is that? There is that potential danger because while there is a desire on the part of a very large number of people, the vast majority of the people in this country, to be drawn into the scheme of things, to be regarded as fellow South African citizens, to be given an opportunity of viewing this country as a common fatherland, that desire is being rejected by the granite-wall policy of apartheid. I say that so long as that inflexible attitude is maintained by those who govern the country to-day, they must not ask us in the Opposition to share with them the responsibility for the consequences of that fatal policy. That in essence is what we are being asked to do. We are being asked to share the responsibility for having to employ tough, strong-arm methods to face a situation which need not arise. For that reason we in this corner are going to vote against this clause. [Time limit.]
If I understand the hon. member for Salt River (Mr. Lawrence) correctly he says that he is concerned about the interests of South Africa. I am very glad to hear that. Then we at least have common ground. Then he continues to say that we are living in a time of peace and that this is not quite the same as a time of war; that the rules in wartime are different from those in peacetime. I accept that also. I shall not go into his allegations in regard to the causes for this state of affairs and the fact that he does not want to help to bear the responsibility for it; it was a second reading speech which had nothing to do with the clause. But I should like to join issue with him in regard to the first, and at the same time I want to reply to the question put by the hon. Member for Bezuidenhout (Mr. Miller) and also to revert to the remarks of the hon. Member for Johannesburg (North) (Mr. Plewman). The rule applying to peacetime is that the courts should have the discretion whether to allow bail or not.
Yes. Their great grievance is that they are now being deprived of this discretion. But let me tell the Committee that this much vaunted discretion of the courts, which hon. members regard so highly now, has simply been rejected by the courts themselves. That is the practice in our country, and I just want to mention three decisions, firstly the decision of the Privy Council in ex parte D. F. Marais, a judgment given just at the turn of the present century, in 1900; another is Dednam v. Minister of Defence given in 1914 and the other is that of Trumpelman & du Toit v. Minister of Defence, given in 1939. In regard to the first the Privy Council decided as follows—
In other words, when the military authorities do something the courts have no jurisdiction. Note the words “ when actual war is raging ”. They distinguish between the theatre of war and the belligerent territory. They caught this Mr. Marais in Paarl which was belligerent territory and took him to Beaufort West, which was the theatre of war. Then there was the case of Dednam in 1914 and then the court said—
But they did not distinguish between the theatre of war and belligerent territory; to them belligerent territory was synonymous with theatre of war, and they said that they wanted to have nothing to do with it. Mr. Justice Greenberg developed this pattern in the case of Trumpelman & du Toit and said: “All we ask is whether there was war, and if the Government Gazette advertising the war is exhibited we throw in our hands.” Then they will not accept any responsibility at all. In other words, when it is wartime they do not want to exercise that discretion; then the Union of South Africa, in terms of that decision by Judge Greenberg, can declare war against the Republic of Haiti, something we can probably do without danger to ourselves, and then we can kill anybody, including the hon. member for Bezuidenhout, and it would not matter. [Interjections.] Yes, it would be a pity. In terms of the law the courts would not intervene. When we look at this clause, we have a parallel with the case where there is war. It is the public interest, the safety of the public and the maintenance of order which are at stake. Under those circumstances the courts themselves did not want to have jurisdiction. We do not have war as yet but a situation approximating to war. The hon. member for Salt River says that the Police and the Defence Force are enough. When we invoke those forces we would already have suffered so much damage that we should try o avoid it as being most undesirable. When once we reach that stage we might as well have declared war against Haiti without these laws. Then it would not have been necessary to pass these laws. But it is just because we do not want to adopt these war measures, because we do not want to use a sledge hammer to kill a fly, that we are passing this Act. We pass it for the same considerations which counted with the court in ex parte D. F. Marais & Dednam and Trumpelman & du Toit against the Minister of Defence.
The hon. member for Salt River asks why we do not go to court in the usual way. In reply to that the Minister says that we were very unfortunate last year. The reply of the hon. member for Salt River to that is there was not enough evidence otherwise the court would have helped the Minister. But why was there insufficient evidence? Is it not because there was not enough time to prepare the case so that the courts could be fully informed as to the reasons why accused persons should be detained for longer than 48 hours? That is the reason, and it is a reasonable one. But I cannot get away from the idea that hon. members are now trying to take shelter behind this much vaunted discretion of the courts, which we are not restricting. They are eagerly expecting us within the near future perhaps to have more Sharpevilles in this country. The hon. member for Springs (Mr. Tucker) shakes his head. I really believe that he is honest when he shakes his head and says it is not true, because he is, as the Minister has said, one of the most sincere people on that side of the House. But does he realize that a Sharpeville may be a probable consequence if we are not prepared for these matters. And what is happening in our country? It is not the ordinary man in the street who is dissatisfied. There are a few, a little group of people, who incite others and when we arrest those inciters and lock them up for a while they will cool off, and there will be no riots at all. If one charge of birdshot is fired into the reeds those finches will be quiet for a long time. That is what the object of this Bill is, and there is nothing wrong with it, because I have already stated that the Attorneys-General are responsible men. They themselves are limited to cases affecting the safety of the State and peace and order. What is more, this is a temporary measure. Next year, if necessary, hon. members can come along and raise the same arguments again, and then the hon. member for Salt River can again state his views as against those of the Minister of Justice, with all the information available to both of them. He thinks he has more information than the Minister of Justice; he believes that it is the information he has which makes him conclude that this legislation is unnecessary. He thinks his views are the panacea which will cure everything. He should really not blame us if we weigh up his views and his information against those of the Minister and if we do not prefer his.
I do not intend to follow the argument of the last speaker. I would like to deal with the clause and to ask the Minister certain questions and to try to obtain certain assurances from the Minister. The first point I want to raise though is that the wording of this clause is really a blank cheque. It says “ if a man is arrested for any offence ”. Now, that is extremely wide. It does not matter what type of offence it is. You do not limit the offences in relation to the act, but you say “ for any offence ”. The hon. the Minister would be the first to admit that people may be arrested for an offence completely outside the scope of this Act, perhaps in country districts, and then you have to await instructions from the Attorney-General, and this man may be kept in gaol. I think that is far too wide. I think the Minister should consider a schedule. If he intends to have this Act for a specific purpose, then I do not think it is beyond the powers of his legal advisers to draw up a schedule. The second point I wish to raise is that if we pass the Bill as printed in my humble opinion, the Attorney-General’s decision should be made within 48 hours. My point is that under the ordinary law, which is not superseded, a man who is arrested must be charged within 48 hours. Now if the Attorney-General’s order is not given within 48 hours, then as of right he can demand that he be released. That is the law to-day. Within 48 hours he must be charged and if he is not charged, he must be released, and immediately he is charged within the 48 hours, he has the right to apply for bail. Therefore I submit that the Attorney-General cannot be tardy in his decision by waiting five, six or seven days before the man is refused or given bail, or the charge formulated. I think the hon. the Minister will see the point: You are not superseding the present law, although the intention is that the Attorney-General should have certain rights over and above the law as it is to-day. I submit that it will be a fatal weakness in this Bill if the Attorney-General’s instruction is not given within 48 hours after the arrest of that man.
He has many cases to deal with at once.
I appreciate the difficulties. I try to be constructive in this matter. I appreciate the difficulty of the Attorney-General. He may have 500 or 600 or 800 cases, and he has to decide whether a man can be granted bail or not. Surely he can’t wait until the eleventh day to give that instruction, causing a man to wait all that time. Surely there must be a limited time within which he must decide. I think the hon. the Minister will see the weakness of the Bill as framed now, and my own view is that if this Bill goes unamended, any man who is in gaol on the third day could apply to be released on bail before the Attorney-General has given his decision.
But the assurance I want from the hon. the Minister, and I hope he is going to give me that assurance, is in regard to the treatment of these prisoners, the awaiting-trial prisoners. Are they going to be treated like ordinary awaiting-trial prisoners? Will they have the same facilities? Will their families be allowed to visit them, will they be able to get food, cigarettes, will they be able to write to their families? Hon. members opposite seem to be surprised at the questions. But we know what happened in the past. Mr. Chairman, these people are in the eyes of our law innocent until convicted, and I want the hon. The Minister to tell me whether these people will disappear from the scene or whether they will be kept in the area in which they reside. Are they to be moved away? Will their families be able to keep contact with them? Will they receive the same treatment as ordinary awaiting-trial prisoners? I have in mind the possibility that the hon. the Minister may regard these people as dangerous political prisoners, and within the 12 days they may be shipped to Robben Island. [Laughter.] Hon. members laugh, but I am trying to get the assurance from the hon. the Minister.
I will set your mind at rest straight away. They are awaiting-trial prisoners, and will be treated as such.
I thank the hon. the Minister because that will relieve a lot of people if they know that if such men are arrested, they will be treated, as the hon. Minister now says as ordinary awaiting-trial prisoners, and they will have all the facilities as awaiting-trial prisoners.
The hon. the Minister made a request, namely that in the circumstances which the Minister outlined, we should try and find common cause in regard to this clause. I would say this to the hon. the Minister: When I spoke earlier I put the point, and it is a standpoint from which I am not prepared to depart; except when there is an emergency, the decision in my view should be in the hands of the courts. I did indicate that it may be possible to design a method of dealing with this special type of case, but the important thing in the end result in my view is that the decision should be in the hands of the courts and not in the hands of an official, even a highly placed official like the Attorney-General, who, as we know, is subject to the Minister’s direction, although I am sure the Minister would not be irresponsible in regard to directions given. But this clause is a serious inroad into the normal rule of our law. I would stress what has just been said by the hon. member for Boland (Mr. Barnett), that it says that if a person is arrested on any offence whatsoever, then if the question of public safety comes in, such a person can be held for 12 days. I said to the hon. the Minister that if a clause were devised which met his problem but left the decision in the hands of the court, I for one, would do my utmost to try and help him to frame such a clause, but it appears clear (the Minister can tell me if it is not so) that he believes that this arbitrary power is necessary. If that is so, I regret that I and those of us on these benches cannot support this clause. We would be prepared to try and help, and I believe it would be in the interest of this country, if we could devise a clause which provided for certain circumstances, but nevertheless left the final decision in the hands of the courts. I would just say that especially where arrest on any offence whatsoever can have these consequences, this is really a very serious inroad. I am not suggesting that it is going to be abused, but I must say that I believe that it is not sound that we should put legislation in this form on the Statute Book.
Clause put and the Committee divided:
Ayes—82: Bekker, G. F. H.; Bekker, H. T. van G.; Bekker, M. J. H.; Bootha, L. J. C.; Botha, M. C.; Botha, P. W.; Coertze, L. 1.; Coetzee, P. J.; de Villiers, C. V.; de Villiers, J. D.; de Wet, C.; Donges, T. E.; du Pisanie, J.; du Piessis, H. R. H.; du Piessis, P. W.; Erasmus, F. C.; Fouché, J. J. (Sr.); Grobier, M. S. F.; Hertzog, A.; Heystek, J.; Hiemstra, E. C. A.; Jonker, A. H.; Jurgens, J. C.; Keyter, H. C. A.; Knobel, G. J.; Kotze, G. P.; Kotzé, S. F.; Labuschagne. J. S.; le Riche, R.; le Roux, P. M. K.; Luttig, H. G.; Malan, W. C.; Marais, J. A.; Maree. W. A.; Martins, H. E.; Meyer, T.; Mostert, D. J.J.; Muller, S. L.; Nel. J. A. F.; Nel, M. D. C. de W.; Otto, J. C.; Pelser, P. C.; Rall, J. J.; Rall, J. W.; Sadie, N. C. Van R.; Sauer, P. O.; Schlebusch, J. A.; Schoeman, B. J.; Scholtz, D. J.; Schoon-bee, J. F.; Serfontein, J. J.; Smit, H. H.; Stander, A. H.; Steyn, F. S.; Steyn, J. H.; 6278 Strydom, G. H. F.; Treurnicht, N. F.; Uys, D. C. H.; van den Berg, G. P.; van den Berg, M. J.; van den Heever, D. J. G.; van der Ahee, H. H.; van der Merwe, J. A.; van der Merwe, P. S.; van der Walt, B. J.; van der Wath, J. G. H.; van Eeden, F. J.; van Niekerk, G. L. H.; van Nie-kerk, M. C.; van Rensburg, M. C. G. J.; van Staden, J. W.; Venter, M. J. de la R.; Venter, W. L. D. M.; Verwoerd, H. F.; Viljoen, M.; von Moltke, J. von S.; Vor-ster, B. J.; Vosloo, A. H.; Webster, A.; Wentzel, J. J.
Tellers: W. H. Faurie and J. J. Fouché.
Noes—32: Barnett, C.; Bloomberg, A.; Bowker, T. B.; Butcher, R. R.; Connan, J. M.; Cronje, F. J. C.; de Kock, H. C.; Fourie, I. S.; Gorshel, A.; Graaff, de V.; Henwood, B. H.; Holland, M. W.; Hopewell, A.; Horak, J. L.; Lawrence, H. G.; Lewis, J.; Malan, E. G.; Miller, H.; Moore, P. A.; Plewman, R. P.; Raw, W. V.; Ross, D. G.; Smit, D. L.; Steenkamp, L. S.; Steyn, S. J. M.; Swart, H. G.; Tucker, H.; van Ryneveld, C. B.; Warren, C. M.; Williams, T. O.
Tellers: N. G. Eaton and T. G. Hughes.
Clause accordingly agreed to.
On Clause 5,
I wish to move the following amendment—
Mr. Chairman, a copy of that amendment was served on the Minister, but the hon. Minister has intimated that he is not prepared to accept it. We hope that after he has heard the arguments of this side of the House, he will reconsider his decision and accept this amendment.
This clause, Sir, gives the hon. the Minister of Justice the right to order that an accused charged with murder or arson shall be tried by a Judge without a jury in terms of Section 111 read with Section 109 of the Criminal Procedure Act of 1955, in which event the Judge may in his discretion try the case alone or he may summon to his assistance two assessors qualified to serve. Sir, this amendment will confine the issue of an order to cases such as those referred to by the Minister during the second reading debate in Pondoland where cases of murder and arson have occurred during the course of a campaign against certain provisions of the law, and trial by jury is consequently not desirable. But we have two objections to the clause as it stands: In the first place, it may deprive a man charged with murder or arson arising out of circumstances that have no connection whatever with any riotous disorder or other disturbance, of his right to elect to be tried by a jury—a right that has been preserved to him by Section 113 of the Criminal Procedure Act of 1955, and, Sir, I say that it is another attempt to whittle away the jury system, which many of us regard as an important instrument in the administration of justice.
The second objection we have, arises in cases such as I have mentioned, cases which are not connected with any disturbance, from the fact that the Judge may, in his discretion, sit alone without the assistance of assessors, and my objection also applies to cases which will be tried in connection with these disturbances.
That has been requested by the Supreme Court.
We think that in cases of this character, particularly where the death penalty may be imposed, such an eventuality should be avoided at all cost. Under Section 109 of the Criminal Procedure Act and also under earlier criminal procedure Acts, the presiding Judge, where there was to be no jury, was empowered to summon to his assistance two persons experienced in the administration of justice or skill in any matter which might have to be considered at the trial. There followed the following proviso—
And the requirement was imperative. It was not left to the discretion of the Judge.
By Section 5 of Act No. 75 of 1959, this important proviso was deleted, and so to-day, there is no obligation upon the Judge to summon assessors to his assistance in any nonjury trial, even where the charge is one of murder, and the accused’s wish to be tried by jury may be over-ridden by the Minister of Justice.
Here I wish to draw attention to a recent case in the Appellate Division of the Supreme Court that illustrates the danger to which I have directed attention. I refer to the case of Regina v. Mati & Others (1960 S.A. Law Reports, page 304). In that case a Judge tried three accused Natives on a number of capital offences without summoning assessors to his assistance and he proceeded to sentence two of the prisoners to death. On appeal to the Appellate Division the convictions and sentences were set aside, and Mr. Justice Schreiner said this, in dealing with this question of assessors—
As a result of that decision we have the position to-day that assessors are called in.
In this case there were no asssessors.
I say that as a result of Judge Schreiner’s decision, that is the position.
As I say, this procedure under Section 109 creates a very serious danger which is accentuated by this clause, and I hope the hon. the Minister will accept a further amendment that is on the Order Paper in the name of the hon. member for East London (North) (Mr. van Ryneveld) which is designed to meet the objection.
Sir, the Minister said that he intends taking steps to ensure that in future the Judges will sit with assessors. But I draw attention to the fact that when the Criminal Law Amendment Bill was before the House and the Minister of Justice under that Bill deleted the proviso requiring that a Judge in murder cases or in cases in which the death penalty could be imposed, should have the assistance of assessors, I moved an amendment (in 1959) to restore that provision, but the predecessor of the hon. the Minister of Justice refused to accept that, and he said—
That motion has been very seriously criticized by the Appellate Division and the Minister tells us that he is going to give effect to the decision of the Appellate Division. I would like to ask the hon. the Minister whether he is going to do that. Is he going to introduce legislation restoring the old position or not? I think it is his duty to do so in the interests of the accused and in the interest of justice.
I cannot really understand the force of the amendment moved by the hon. member for East London (City) (Dr.D. L. Smit), but possibly it means that he wants to confine this limitation introduced by the Minister merely to certain contraventions which he mentioned. I am rather surprised at the hon. member for East London (City). I take it he is speaking on behalf of his whole party. A moment ago under the previous clause they treated us to a dissertation on the much-vaunted discretion of the court, and there was nothing better than the discretion of the Judge. What do we now have in the present circumstances? After the 1959 Act we have the position that the Minister can give instructions that a jury will not be used, and then the presiding Judge has the choice either of sitting alone—that is his discretion—or of appointing two assessors—and that is also in his discretion. If the discretion of the Judge was good in the one instance, why is it bad in this? Moreover, there is the instruction, so to speak, of the Appeal Court, from Judge Schreiner, which was read by the hon. member, viz. that in cases of murder and such cases Judges ought never to sit alone. As I know the Judiciary (and I have some knowledge of it), the instruction of the Appeal Court is practically an order to the other courts. It is inconceivable that they will not obey it. In other words, the Judge is already prejudiced in favour of taking two assessors. In other words, the discretion of the Judge is already being used in the direction desired by the hon. member for East London (City). Now he comes along with an amendment which will probably make this provision of the Minister useless. I cannot say precisely what is contained in the amendment; I would have liked to study it and I do not know why it was not printed on the Order Paper, because there was sufficient opportunity to do so. But my first reaction is that the present legal position is quite favourable enough to the accused, viz. he does not get a jury, but the presiding Judge has the discretion as to whether to appoint assessors or not, and there is the instruction from the Appeal Court that he should have assessors.
That brings me to the general point made by the hon. member for East London (City), namely that this is another way of “ whittling away the liberties of the subject ”. Allow me to tell the hon. member that there are people in this country who are not as fond of the jury system as he is. My personal opinion is that there really is no room for the jury system in our legal system. If I were guilty of a crime, I would elect to be tried by a jury because then I would have a fair chance of getting away with it. If I were innocent I would never choose a jury, because with a jury I would have a fair chance of being found guilty. When we have a Judge and two assessors, they are people who are experienced in weighing evidence, and there is a much greater chance that the evidence will be evaluated properly, particularly if the assessors are advocates or ex-magistrates. They have spent all their lives, and that is their background, dealing with people who tell them their side of the case, and who often violate the truth. Advocates and magistrates are much better able to assess the value of evidence than the ordinary man in the street or the ordinary juryman. They are also much better able to weigh the facts and to let justice prevail.
Let me tell the hon. member for East London (City) further that when he speaks here as an oracle and talks about “ whittling away one of those essential freedoms ”, he does not impress me at all. And while I am dealing with him, I want to say that he is no longer a child. He is an old man. He is a grey-head, to the extent that he still has hair. He should please conduct himself in a way befitting to an old man so that we may retain our respect for him.
I do not need your advice.
But when he gets up here and reads the speech which he sat thinking out in the library, with all the words of vilification he can find, he cannot expect us to have the respect for him which we really ought to have.
Order! May I ask the hon. member not to be so personal.
Sir, if I have contravened the rules I am sorry. But I said it in all sincerity because I would like to be able to show the necessary respect to a colleague of the status and age of that hon. member, but he makes it very difficult for me.
Mr. Chairman, to come back to this clause, I want to say that all that is being done here is that we are putting the crimes of murder and arson on a equal footing with the other crimes mentioned in Section 109 of the Criminal Procedure Act, in connection with which the Minister may order that a jury shall not be employed. But apart from the efficiency of a jury trial, we must have this provision because, as we said in the second reading, we cannot get jurymen to sit on the jury-bench for weeks, to the neglect of their own businesses, at the compensation—even though their services are highly appreciated—paid to a juryman. The other alternative is to pay them the same salary as the Judge. Then they would sit there, but not otherwise. That is the only alternative.
I wish to move the amendment standing in my name on page 613 of the Order Paper, as follows—
To add at the end of the clause ” and by the addition of the following proviso at the end of the said section:
That will be a reversal of the 1959 decision.
No, not exactly. The difference is this, that in 1959 assessors were compulsory in all murder cases, while what we are now asking for is that in cases where the Minister exercises his right in terms of Section 111 …
Must he then be the Judge to decide that?
I do not appreciate the effect of what the Minister is saying. The difference between the 1959 position and the position which this amendment would give effect to, is that in 1959 Section 109 provided that where trial was not by jury, but by Judge without jury, then “ in all cases of treason, murder, rape or sedition or in any case in which the Minister has given a direction under Section 111, the Judge shall summon to his assistance two assessors ”. That was in all cases of murder. That applied up to 1959, not only where the accused chose trial by Judge without jury, but also in cases where the Minister exercised his discretion in terms of Section 111. In 1959 the hon. Minister came with the argument that there were cases, even cases of murder, where the issues were not complicated and where it was unnecessary to have a trial with a Judge and assessors, particularly in outlying districts where it might be difficult to get assessors. For instance, a person might be charged with murder, but it might be quite clear that the charge would be reduced at the trial to one of culpable homicide or even to something less than that. In those cases, the Minister said, it was undesirable to make two assessors compulsory. Now, what I am asking for to-day is not that in all cases of murder two assessors should be necessary—although I would like that provision to be in our law—but that in those cases which are serious and because of their serious nature the hon. Minister decides that they should be tried by a Judge without a jury, two assessors should be compulsory.
That is what Judge Schreiner said in the Mati case, namely that there should be two assessors in serious cases and that is being followed in practice.
I agree fully with that and would like it to be written into the Act, particularly in respect of serious cases of the kind which the hon. Minister has in mind. I am not going to the full length of asking for assessors in all murder cases—I cannot do so at this stage because we are not dealing with the relevant clause. But that is not what I am asking. I am only asking that in those cases where the Minister feels that because of the complicated nature of the evidence, because of the number of accused involved, or because the offence has been committed by way of a protest of a political nature …
Would it not be better to leave that discretion to the Judge himself? Why take it away from him?
My answer to that and also to the hon. member for Standerton (Dr. Coertze) who said that on the last clause we were pleading for discretion to be granted to the Judge while here we were pleading in the opposite direction, is that the principle involved is not the same. What we were asking for on the last clause was that where there must be a discretion, then that discretion should rest with the court and not with an official. Here we say that there should not be a discretion at all. There is, therefore, an essential difference between the two points.
Somebody has to decide!
We want Parliament to decide that in cases where there is a charge of murder and where it is of a serious nature …
Who must judge whether it is serious or not?
Well, the hon. Minister has in any case to decide whether he is going to exercise his discretion in terms of Section 111 and he will only do that if it is of a serious nature—if there is a political flavour to the offence which has been committed and the Minister feels that because of that the jurors might be under pressure, or where there is a mass trial, or the evidence is very complicated. These are types of cases where the Minister is going to exercise his discretion and say that there will not be a trial by a Judge and a jury but by a Judge who he hopes will sit with assessors. We believe that that should be written into the law, namely that the Judge shall then sit with two assessors. I do not wish to take the matter any further because the case has already been argued by the hon. member for East London (City). I therefore leave it at that.
I rise to support the amendment moved by the hon. member for East London (City) (Dr. D. L. Smit) and I want to ask the Minister to give more serious consideration to this amendment and that even though he may not be prepared to accept it now, he should give us an assurance that he would consider it. The hon. Minister in the second reading debate last night, said that he wanted this provision—Clause 5—because of what had happened in Pondoland. Now, when the Minister first mentioned the Pondoland cases I understood him to mean that that was because of the difficulty of having mass trials where it might be difficult for juries to consider the evidence and which might last for a considerable period making it difficult to get juries to sit for such long periods. Then afterwards the Minister mentioned something else: He mentioned cases of intimidation. Now, if it is only a question of mass trials, then the Minister should amend the law so as to deal with mass trials—the same as we had in the treason trial, but if it is a question of fear of intimidation of jurymen by the Pondos—and that is quite possible; I grant the Minister that —then I ask him to accept this amendment, because this amendment by the hon. member for East London (City) specially deals with the Pondoland cases. There is a number of accused now waiting trial for murder and arson but there have been some accused who have already been dealt with and who have been charged merely with arson, with assault and other minor offences which were committed in furtherance of a campaign against a law, namely the Bantu Authorities Act. The hon. Minister knows that these accused in Pondoland were charged under the 1953 Act. The charges which are now being preferred against the accused in the mass trial at Kokstad are more serious. I agree that you cannot charge those people under the 1953 Act but if you apply the test of the 1953 Act as to why these offences were committed, then I submit those cases will be covered which the Minister wishes to cover. Now, the Minister may ask me, like he has asked the hon. member for East London (North) (Mr. van Ryneveld) just now, who has to make the decision and why he should have to make the decision as to whether the act of murder or arson was committed in furtherance of a resistance campaign, but then I say that the Minister has to make up his mind in any event. The Minister has to use his discretion in any event because in terms of Section 111 of the 1955 Act, it is the Minister who says whether there will be a Judge and jury or not. So the Minister has to apply his mind to the matter in any event because I take it that he is not going to say that all murder cases or arson cases are to be tried by a Judge alone in future. I do not think that that is his intention.
That is not the Schreiner decision in the Appellate Division.
I am dealing with the question of whether there is to be a Judge alone or a Judge with a jury and I say that the Minister would have to consider the matter, unless as I said he is going to say that in future all murder trials and all arson trials must be tried by a Judge alone. That is not, I think, the intention of the Minister and I did not conclude from his second reading speech that that was his intention. The Minister, as I said, will have to apply his mind in any event to these cases and he will then have to decide whether an accused is going to have the advantage of a trial by a jury or by a Judge alone. Now, under the circumstances is he going to decide to have a trial by a Judge alone? I submit it will be in the circumstances which now prevail in Pondoland and that is why the hon. member for East London (City) has moved this particular amendment—because it covers the Pondoland cases. Suppose the accused ask for a trial by a jury, then they can have such a trial unless the Minister says “ no ”. The court would not have to bring its mind to bear on the question, but the Minister would have …
In capital cases.
And arson if this Bill is passed. In any event it is the Minister who would have to bring his mind to bear on the matter and I submit he will only do it when the case has some political repercussions as in Pondoland. I say that as he has to bring his mind to bear on the evidence of the case which his Department places before him, as he has to do that in any event, I submit that he should accept the amendment of the member for East London (City) so that he will only do it in cases covered by the Act of 1953.
I want to repeat that the amendment of the hon. member for East London (City) (Dr. D. L. Smit)—I do not know whether the Minister is going to accept it— in my opinion cannot be accepted, because it is quite clear that if it is, the usefulness of this section for the purpose for which it is intended will be limited to such an extent that it will be almost completely useless. Because the words he uses—I have not got them all here— such as the administration of the law are words and expressions for which there are no definitions. We shall have to consult a dictionary and there will be unnecessary litigation in regard to the meaning of the section. Because of its many possible meanings, it becomes meaningless.
In regard to the amendment moved by the hon. member for East London (North) (Mr. van Ryneveld), I just want to say that when once he has accepted the principle that the Judge has a discretion also in regard to the cases referred to him by the Minister, he should be satisfied. He cannot say: I accept half of it and the other half I reject, because he then wants to have his cake and eat it. If I understood the hon. member for East London (North) correctly, he says this. If the accused asks for a jury, he gets a jury, irrespective of the provisions of Section 109 of the Criminal Procedure Act. If he asks for a Judge alone he can get assessors. That is within the discretion of the Judge. When the Minister has ordered that he cannot have a jury, the present position is that he can have an assessor, and that is within the discretion of the Judge. Now the hon. member for East London (City) says that when the Minister has given instructions the Judge will have no discretion at all. If he had considered his amendment, he would have noticed that as it stands now it is not possible for the Minister to appoint a special court consisting of three Judges, as is the case at present in the Supreme Court. Because there is not a jury. He must consider his amendment so that he can cover those other cases also. For that reason the amendment is of no use. There is a second reason. If he accepts that the Judge has a discretion but is subject to the instruction of the Appeal Court which was given by Judge Schreiner, then he accepts one part but not the other. These cases cover only murder and arson and attempts to commit those crimes, and the other provisions of Section 109. Why should the discretion of the Judge now be limited? He says that he does not want the Judge to have a discretion at all. But then he should move the deletion of the section and the restoration of the status quo of 1959. I cannot support him because he is partly selling the pass and partly not. I like to listen to him, but he must forgive me for saying that I cannot follow him.
I too rise to support the amendment moved by the hon. member for East London (City). I actually also support the amendment moved by the hon. member for East London (North) but I will deal with that amendment a little later. Now, Mr. Chairman, the objection to the clause as it stands is twofold: It takes from the accused person the right to elect whether he would be tried by a jury or not; and it places arbitrary powers in the hands of the Minister. During the second-reading debate we indicated from this side of the House that the Minister had made out a case where you have to deal with trials which are going to last for a very long time—a type of trial which has now almost become routine, that is mass trials. We did not have these mass trials before, nor have we previously had trials which lasted for such interminable periods. But, in so far as that is happening to-day, the Minister has made out a case and the object of the amendment moved by the hon. member for East London (City) is to place limitations on the arbitrary power of the Minister. Surely that is the correct way in which Parliament should handle the matter. No one is to be trusted with arbitrary powers—not this Minister nor anyone else. There must be some limitations and the Minister tells us that there will be such limitations in practice and that he will impose such limitations upon himself. He tells us—and I accept it—that not every murder trial and not every arson case is going to be dealt with in terms of this provision, and so he is going to exercise some sort of check and some sort of discretion and limitation on his own arbitrary powers. That is exactly what the amendment is aimed at to do, namely, to give guidance to the Minister as to those things he should have regard to when coming to a decision. I can see nothing better and no greater safeguard than that Parliament itself should determine what the considerations are which are to be taken into account when the Minister comes to a decision. The limitations which are proposed in this connection, are those which are already applicable to other forms of legislation and it seems to me, therefore, that the hon. Minister should reconsider this matter and should ensure that Parliament itself lays down what considerations should be taken into account when the hon. Minister exercises his discretion, which he has to do inevitably.
It is on the same ground that I support the amendment of the hon. member for East London (North). The hon. Minister, in an interjection, asked who would have to decide. The answer to that, of course, is that Parliament should decide. The law itself should make it abundantly clear that in these circumstances the trial shall not be before a Judge alone, but before a Judge assisted by assessors. I think the legislation which was passed in 1959, and which gave the Judge the discretion as to whether he should or should not have assessors, has already been proved to be unworkable in practice because no longer will the position be that he will decide to act alone without the assistance of assessors. It was, strictly, an unreasonable amendment which was put into the law at the time and if my memory serves me correctly, the Minister was warned at the time that it was an unreasonable onus to place on the Judges.
The Appellate Division seemed to be satisfied at the time and it is still satisfied—only it says that it must be done in serious cases.
But all murder cases are serious cases! Can the Minister tell me of any murder case which is not so?
It is only at the preparatory examination when the evidence is led, when that can be decided.
A man’s life is at stake because somebody else’s life has been taken and surely that is a serious matter! I say that the law has in practice now become obsolete because no Judge will consider that this is a discretion which he should fairly take on himself. He will rather follow the judgment quoted here and take assessors to assist him. Now, what the hon. member for East London (North) is trying to avoid with his amendment is that the Judge should be placed in that invidious position, and to ensure that the decision should be made for him by Parliament. That is a safeguard which Parliament itself should put into the legislation.
But Parliament itself decided otherwise in 1959!
And the Judges say, in effect, that that was a discretion which should never have been placed on them.
My information is that the Judges wanted the 1959 legislation.
If the hon. Minister says that the courts wanted it, I accept it but I have no knowledge of it. But I do know that the Minister has now said that, in practice, assessors will almost always be appointed.
In serious cases, as in the Mati judgment.
And I ask the hon. Minister whether murder is not always a serious case.
No, because you can only say at the preparatory examination whether it is serious or not.
Now the hon. Minister makes the case for which we are asking. Since the preparatory examination will indicate whether the case is one where limitations should be placed on the exercise of this discretion, the Minister has made out a case for the acceptance of the amendment of the hon. member for East London (City), as well as for the acceptance of the amendment by the hon. member for East London (North).
I want to meet hon. members when they move amendments, but I am sorry I cannot accept these two amendments. I think the history of this case is known to most people. It was not so long ago—in 1959—when my honoured predecessor dealt with this matter. My information is that it was really at the request of the courts that the change was made. Prior to 1959, a judge had to sit in any case, with assessors, as hon. members know. Subsequently—in 1959—this House passed amending legislation to the effect that judges could use their discretion. I see nothing wrong in judges using their discretion. Subsequently, the Appeal Court gave guidance to the courts of the country and said that in serious cases assessors should sit as well. As far as the administration of my Department is concerned, we shall see to it that that is done and that the wishes of the Appeal Court are carried out.
How can the Department give instructions to a judge?
I do not think the hon. member is following what I mean. In the Mati case to which the hon. member has just referred the Appeal Court found, or rather issued the injunction, that in a serious case the courts should appoint a judge with two assessors. As far as I am concerned, I am quite satisfied with that position, and that is what is happening to-day. What the hon. member for East London (City) wants in effect, is that the Minister should perform the function of the judge. He must decide on the seriousness or otherwise of the case. I would prefer to leave it to the judge to decide. A Minister has many more matters to attend to than merely to decide on such cases. But I want to go further. What we are suggesting here is that, in addition to the seven instances laid down by law where it is for the Minister to decide whether a jury or assessors should assist the judge, there should be two further instances, namely, arson and murder. My information is that the Attorneys-General have been consulted and that they are in complete agreement with the change. I do not want to drag them into the debate, but I think we should pay attention to the opinion of officials of such high standing. Some of these points are debating points, and we can argue about them for hours, but, as far as I am concerned, there is a decisive factor why we should add arson and murder to the cases where the Minister can say that only a judge and assessors shall sit and not a jury. It is to cover the cases in Pondoland to which I have referred, but it is also wider than that. If hon. members agree with me that it is necessary in the case of Pondoland because intimidation takes place there in such a frightening manner that it is practically impossible to get a jury, then, apart from all the other reasons that I have mentioned, I also believe that in other parts of the country as well that weapon will be used more and more to undermine law and order, depending on the extent to which the communists, whose strongest weapon is intimidation, get a grip on the country and the extent to which they infiltrate. That is happening all over the world. That is the position in Africa and also in South Africa. We have seen that during the past years since Communism has started to infiltrate, and it is increasing. Hon. members want me to limit it, but I am making it applicable to the whole of South Africa, because the day will probably arrive, as hon. members opposite have already admitted it has arrived in Pondoland, that we will not be able to get a jury. What has happened in Pondoland may happen in the rest of South Africa one day, namely, that people are intimidated to such an extent that they are unwilling to serve on a jury, and that to me is the decisive factor; the Minister should be able to use his discretion and to say that in certain cases of murder and arson the case should be heard by a judge and assessors, because, in that area, you cannot get a jury. Hon. members who are connected with the courts have most probably seen how intimidation works in practice. Some of them may have been concerned with the cases in Pondoland. The hon. member for Transkeian Territories (Mr. Hughes) probably knows more about it than we do, because he represents that area. I take it that the hon. member is aware of the fact that it is better in Pondoland to-day for a judge and assessors to hear the pending cases of arson and murder, because you cannot get people to serve on a jury there on account of intimidation, and we must consider the fact that what has happened there may also happen in other parts of the country, and that is why I think we are taking a wise step to vest the Minister with the discretion to decide whether there should be a jury or a judge and assessors in certain cases. I am sorry, therefore, that I cannot accept the two amendments.
The main argument used by the hon. the Minister against the acceptance of the amendment moved by the hon. member for East London (City) (Dr. D. L. Smit) is that this law must be applied to the whole country. I do not suggest that it should only be applied to Pondoland, but the argument used by the Minister in support of the Bill was the circumstances prevailing in Pondoland. Now, if the Minister accepts our amendment, this law will apply to the whole country, but with this reservation, that it will only be in these certain circumstances where the crimes are committed for political reasons, such as resistance against the law or a campaign against the law. I do not think the Minister has dealt fully with our amendment, and I do think it deserves more consideration than the Minister has given it.
Amendment proposed by Dr. D. L. Smit put and the Committee divided:
Ayes—32: Barnett, C.; Bowker, T. B.;Butcher, R. R.; Connan. J. M; Cronje, F. J. C.; de Kock, H. C.; Gorshel, A.; Graaff, de V.; Henwood, B. H.; Holland, M. W.; Horak, J. L.; Hughes, T. G.; Lawrence, H. G.; Lewis, H.; Lewis, J.; Malan, E. G.; Miller, H.; Moore, P. A.; Plewman, R. P.; Raw, W. V.; Ross, D. G.; Shearer, O. L.; Smit, D. L.; Steenkamp, L. S.; Steyn, S. J. M.; Swart, H. G.; Tucker, H.; van Ryneveld, C. B.; Warren. C. M.; Williams, T. O.
Tellers: N. G. Eaton and A Hopewell.
Noes—83: Badenhorst, F. H.; Bekker, G. F. H.; Bekker, H. T. van G.; Bekker, M. J. H.; Bootha, L. J. C.; Botha, M. C.; Botha, P. W.; Botha, S. P.; Coertze, L. I.; Coetzee, B.; Coetzee, P. J.; de Villiers, C. V.; de Villiers, J. D.; de Wet, C.; Diederichs, N.; Donges, T. E.; du Pisanie, J.; du Plessis, H. R. H.; Erasmus, F. C.; Fouché, J. J. (Sr.); Grobier, M. S. F.; Hertzog, A.; Hey-stek, J.; Hiemstra, E. C. A.; Jonker, A. H.; Jurgens, J. C.; Keyter, H. C. A.; Knobel, G. J.; Kotze, G. P.; Kotzé, S. F.; Labus-chagne, J. S.; le Riche, R.; le Roux, P. M. K.; Luttig, H. G.; Malan, A. L; Malan, W. C.; Marais, J. A.; Maree, W. A.; Martins, H. E.; Meyer, T.; Mostert, D. J. J.; Mulder, C. P.; Muller, S. L.; Nel. J. A. F.; Nel, M. D. C. de W.; Otto, J. C.; Pelser, P. C.; Rall, J. J.; Rall, J. W.; Sadie, N. C. van R.; Sauer, P. O.; Schoeman, B. J.; Schoeman, J. C. B.; Schoonbee, J. F.; Serfontein. J. J.; Smit, H. H.; Stander, A. H.; Steyn, F. S.; Uys, D. C. H.; van den Berg, G. P.; van den Berg, M. J.; van den Heever, D. J. G.; van der Ahee, H. H.; van der Merwe, J. A.; van der Merwe, P. S.; van der Walt, B. J.; van der Wath, J. G. H.; van Eeden, F. J.; van Niekerk, G. L. H.; van Niekerk, M. C.; van Rens-burg, M. C. G. J.; van Staden. J. W.; Venter, M. J. de la R.; Venter, W. L. D. M.; Verwoerd, H. F.; Viljoen, M.; von Moltke, J. von S.; Vorster, B. J.; Vosloo, A. H.;Webster, A.; Wentzel, J. J.
Tellers: W. H. Faurie and J. J. Fouché.
Amendment accordingly negatived.
Amendment proposed by Mr. van Ryneveld put and the Committee divided:
Ayes—32: Barnett, C.; Bowker, T. B.; Con-nan, J. M.; Cronje, F. J. C.; de Kock, H.C.; Eaton. N. G.; Gorshel, A.; Graaff, de V.; Henwood. B. H.; Holland, M. W.; Hopewell, A.; Horak, J. L.; Hughes, T. G.; Lawrence, H. G.; Lewis, H.; Lewis, J.; Malan, E. G.; Miller, H.; Moore, P.A.; Plewman, R. P.; Raw, W. V.; Ross, D. G.; Shearer, O. L.; Smit, D. L.; Steenkamp, L. S.; Steyn, S. J. M.; Swart, H. G.; Tucker, H.; van Ryneveld, C. B.; Warren, C. M.
Tellers: R. R. Butcher and T. O. Williams.
Noes—85: Badenhorst, F. H.; Bekker, G. F.H.; Bekker, H. T. van G.; Bekker, M. J.H.; Bootha, L. J. C.; Botha, M. C.; Botha, P. W.; Botha, S. P.; Coertze, L. L; Coetzee, B.; Coetzee, P. J.; de Villiers, C. V.; de Villiers, J. D.; de Wet, C.; Diederichs, N.; Donges, T. E.; du Pisanie, J.; du Plessis, H. R. H.; du Plessis, P. W.; Erasmus, F. C.; Fouché, J. J. (Sr.); Grobier, M. S.F.; Hertzog, A.; Heystek, J.; Hiemstra, E. C. A.; Jonker, A. H.; Jurgens, J. C.; Keyter, H. C. A.; Knobel, G. J.; Kotze, G. P.; Kotzé, S. F.; Labuschagne, J. S.; le Riche, R.; le Roux. P. M. K.; Luttig, H. G.; Malan, A. I.; Malan, W. C.; Marais, J. A.; Maree, W. A.; Martins, H.E.; Meyer, T.; Mostert, D. J. J; Mulder, C. P.; Muller, S. L.; Nel, J. A. F.; Nel, M. D. C. de W.; Otto, J. C.; Pelser. P. C.; Rall, J. J.; Rall, J. W.; Sadie, N. C. van R.; Sauer, P. O.; Schoeman, B. J.; Schoeman, J. C. B.; Schoonbee, J. F.; Serfontein, J. J.; Smit, H. H.; Stander, A. H.; Steyn, F. S.; Uys, D. C. H.; van den Berg. G. P.; van den Berg, M. J.; van den Heever, D. J. G.; van der Ahee, H. H.; van der Merwe, J. A.; van der Merwe, P. S.; van der Walt, B. J.; van der Wath, J. G. H.; van Eeden, F. J.; van Niekerk, G. L. H.; van Niekerk, M. C.; van Rensburg, M. C. G. J.; van Staden, J. W.; van Wyk, G. H.; Venter, M. J. de la R.; Venter, W. L. D. M.; Verwoerd, H. F.; Viljoen, M.; von Moltke, J. von S.; Vorster, B. J.; Vosloo, A. H.; Webster, A.; Wentzel, J. J.
Tellers: W. H. Faurie and J. J. Fouché.
Amendment accordingly negatived.
Clause, as printed, put and the Committee divided:
Ayes—83: Badenhorst, F. H.; Bekker, G. F.H.; Bekker, H. T. van G.; Bekker, M. J. H.; Bootha, L. J. C.; Botha, M. C.; Botha, P. W.; Botha, S. P.; Coertze, L. I.; Coetzee, B.; Coetzee, P. J.; de Villiers, C. V.; de Villiers, J. D.; de Wet, C.; Diederichs, N.; Donges, T. E.; du Pisanie, J.; du Plessis, H. R. H.; du Plessis, P. W.; Erasmus, F.C.; Fouché, J. J. (Sr.); Grobier, M. S. F.; Hertzog, A.; Heystek, J.; Hiemstra, E. C. A.; Jonker, A. H.; Jurgens, J. C.; Keyter, H. C. A.; Knobel, G. J.; Kotze, G. P.; Kotzé, S. F.; Labuschagne, J. S.; le Riche, R.; le Roux, P. M. K.; Luttig, H. G.; Malan, A. I.; Malan, W. C.; Marais, J. A.; Maree, W. A.; Martins, H. E.; Meyer, T.; Mostert, D. J. J.; Mulder, C. P.; Muller, S. L.; Nel, J. A. F.; Nel, M. D. C. de W.; Otto, J. C.; Pelser, P. C.; Rall, J. J.; Rall. J. W.; Sadie, N. C. van R.; Sauer, P. O.; Schoeman, B. J.; Schoeman, J. C. B.; Schoonbee, J. F.; Serfontein, J. J.; Smit, H. H.; Steyn, F. S.; Uys, D. C. H.; van den Berg, G. P.; van den Berg, M. J.; van den Heever, D. J. G.; van der Ahee, H. H.; van der Merwe, J. A.; van der Merwe, P. S.; van der Walt, B. J.; van der Wath, J. G. H.; van Eeden, F. J.; van Niekerk, M. C.; van Rensburg, M. C. G. J.; van Staden, J. W.; van Wyk, G. H.; Venter, M. J. de la R.; Venter, W. L. D. M.; Verwoerd, H. F.; Viljoen, M.; von Moltke, J. von S.; Vorster, B. J.; Vosloo. A. H.; Webster, A.; Wentzel, J. J.
Tellers: W. H. Faurie and J. J. Fouché.
Noes—32: Barnett, C.; Bowker, T. B.; Butcher, R. R.; Connan, J. M.; Cronje, F. J. C.; de Kock, H. C.; Gorshel, A.; Graaff, de V.; Henwood, B. H.; Holland, M. W.; Horak, J. L.; Hughes, T. G.; Lawrence, H. G.; Lewis, H.; Lewis, J.; Malan, E. G.; Miller, H.; Moore, P. A.; Plewman, R. P.; Raw, W. V.; Ross, D. G.; Shearer. O. L.; Smit. D. L.; Steenkamp, L. S.; Steyn, S. J. M.; Swart, H. G.; Tucker, H.; van Ryneveld, C. B.; Warren, C. M.: Williams. T. O.
Tellers: N. G. Eaton and A. Hopewell.
Clause, as printed, accordingly agreed to.
On Clause 6.
I move the amendment standing in my name—
Section 2 of the Riotous Assemblies Act of 1956 gives power to a magistrate and the Minister of Justice to prohibit public gatherings in public places and the attendance of persons at such gatherings, and sub-section (4) makes it an offence for any person to convene, preside at or address any prohibited assembly or, secondly, to advertise or publish notices convening such a gathering. For the first of these offences, that of convening, the penalty is imprisonment not exceeding three months` for the first conviction and six months for the second conviction. For the offence of advertising or publishing notices the penalty is a fine of £50 or six months. The penalty of three months’ imprisonment is to be increased under this clause to 12 months and the penalty of six months, wherever it occurs to two years. In other words, the penalties of imprisonment are increased fourfold. As was stated by the hon. member for Springs (Mr. Tucker) during the second reading debate we are opposed to any increase of penalties in these cases. We think the existing penalties are adequate and should not be disturbed. Our Statute Book has already been over-loaded with measures to maintain the security of the State at the expense of individual liberty, and we do not think that increased penalties will have any effect one way or the other. The Government has immense powers under various statutes to deal with any subversive movement without going any further. The Government seems to be under the impression that the only way to maintain law and order is to create new offences and to increase penalties. That is a fallacy that will achieve nothing. The imposition of the death penalty for robbery and house-breaking in cases where there are aggravating circumstances, has had no effect whatsoever in the reduction of crimes of violence, which have greatly increased ever since that procedure was introduced, and so it will be here. The increased penalties will afford no additional deterrent.
I do not think the hon. the Minister should consider accepting this amendment. The position is that this clause deals with very serious offences. This clause deals with the committing of crimes which endanger the security of the State and of persons. It deals further with the advertising of prohibited meetings and I think this is a very serious matter. When an hon. Minister or a Government finds it necessary in a democratic state to ban a gathering it is a very serious matter and the hon. the Minister will only take such action when it is absolutely necessary for the security of the State. If persons or bodies go ahead and break that ban in spite of the hon. the Minister’s order then those people or instances should be punished as severely as is humanly possible. In other words, the penalties provided must be of such a nature as to serve as a deterrent to those who intend breaking the ban, and for that reason I cannot support the amendment of the hon. member for East London (City) (Dr. D. L. Smit).
I want to indicate that we shall oppose this clause. We are not only opposed to the increased penalties but to other extensions contained in the clause, for instance, the one in paragraph (c) which now adds the words “ or advertises or in any other manner makes known the proposed assembly of”
Do you think that should continue?
Sir, our opposition is on this ground: I can understand that in the situation which exists at present the hon. the Minister has difficulties, but our point of view is that there are other remedies for the present situation, and that to go on increasing the penalties and extending the powers is not going to cure the present situation. We want the Government to adopt a completely new approach to the present situation. If one is committed to governing without consent, to governing by increasing compulsion, then these powers are not going to be sufficient and even greater powers are going to be necessary, and so it will go on but the situation will not be cured. Increasing powers will be taken until the stage is reached where government collapses. That is what we wish to indicate by opposing the extensions in this section. We object both to the increased penalties and also to the other extensions which are designed to close loopholes. We wish to bring it to the Government’s notice that we are totally opposed to the present direction of Nationalist policy. If that policy is to continue then increasing powers will have to be taken every year but without effect. We oppose this clause.
I am very sorry that I have to disappoint the hon. member but I cannot accept his amendment for the simple reason that South Africa is one of the countries where the penalties for serious offences of this nature are the lightest. Our penalties are very light. Our neighbouring states impose severe penalties. At present the penalty is only three months for the first offence and it is now being increased to one year; for the second offence it was six months and it is now being increased to two years. I think this is a reasonable penalty. Mr. Chairman, at these gatherings the people are very brave. They simply laugh at the police. They refuse to leave the meeting because the penalty is so light. If it becomes necessary in a country to have the right to order people to leave a gathering then one must also provide for penalties which are not so ridiculously light as those which we have now, namely three months for the first offence. The person appears before the court and under the circumstances the court fines him £10 or sentences him to ten days’ imprisonment, as happened only yesterday. No, once we have accepted the principle that we can prohibit gatherings in the country, that we can prohibit people from attending those meetings, that we can order them to leave such a meeting and they do not comply with the instruction, then they ought to be punished in such a way that they or others will not do it again. It should be a deterrent to others.
Don’t you think that three months’ imprisonment is enough?
That depends on the kind of offence one commits. There are many ordinary offences for which three months are perhaps quite sufficient. Let the hon. member now tell me what should happen in a State when people in times of unrest organize meetings which have been prohibited. The country expects the police then to order those people to leave the meeting. What happens now? They refuse to leave. They appear before the courts and a light sentence is imposed because the courts cannot impose any other sentence because that is what the Act provides for. That is no deterrent and to-morrow or the next day they do it again. Let us make an attempt now to see if a more severe penalty will not bring the people to their senses. We want to maintain the law and order which we have in South Africa, but what the hon. member is proposing here will only encourage unrest because these people are no longer afraid of three months’ imprisonment.
Amendments put and negatived.
Clause, as printed, put and the Committee divided:
Ayes—82: Badenhorst, F. H.; Bekker, G. F. H.; Bekker, H. T. van G.; Bekker, M. J. H.; Bootha, L. J. C.; Botha, M. C.; Botha, P. W.; Botha, S. P.; Coertze, L. L; Coetzee, B.; Coetzee, P. J.; de Villiers, C. V.; de Villiers, J. D.; de Wet. C.; Diederichs, N.; Donges, T. E.; du Pisanie, J.; du Piessis, H. R. H.; du Piessis, P. W.; Erasmus, F. C.; Fouché, J. J. (Sr.); Grobler, M. S. F.; Hertzog, A.; Hiemstra. E. C. A.; Jonker, A. H.; Jurgens, J. C.; Keyter, H. C. A.; Knobel, G. J.; Kotze, G. P.; Kotzé, S. F.; Labuschagne, J. S.; le Riche, R.; le Roux, P. M. K.; Louw, E. H.; Luttig, H. G.; Malan, W. C.; Marais, J. A.; Maree, W. A.; Martins, H. E.; Meyer, T.; Mostert, D. J. J.; Mulder, C. P.; Muller, S. L.; Nel. J. A. F.; Nel, M. D. C. de W.; Otto, J. C.; Pelser, P. C.; Rall, J. J.; Rall, J. W.; Sadie, N. C. van R.; Sauer, P. O.; Schoeman, B. J.; Schoeman, J. C. B.; Scholtz, D. J.; Schoonbee, J. F.; Serfontein, J. J.; Smit, H. H.; Steyn, F. S.; Uys, D. C. H.; van den Berg, G. P.; van den Berg, M. J.; van den Heever, D. J. G.; van der Ahee, H. H.; van der Merwe, J. A.; van der Merwe, P. S.; van der Walt, B. J.; van der Wath, J. G. H.; van Eeden, F. J.; van Niekerk, M. C.; van Rensburg, M. C. G. J.; van Staden, J. W.; van Wyk, G. H.; Venter, M. J. de la R.; Venter, W. L. D. M.; Verwoerd, H. F.; von Moltke, J. von S.; Vorster, B. J.; Vosloo, A. H.; Webster, A.; Wentzel, J. J.
Tellers: W. H. Faurie and J. J. Fouché.
Noes—30: Barnett, C.; Bowker, T. B.; Butcher, R. R.; Connan, J. M.; Cronje, F. J. C.; Gorshel, A.; Graaff, de V.; Henwood, B. H.; Holland, M. W.; Horak, J. L.; Hughes, T. G.; Lewis, H.; Lewis, J.; Malan, E. G.; Miller, H.; Moore, P. A.; Plewman, R. P.; Raw, W. V.; Ross, D. G.; Shearer, O. L.; Smit, D. L.; Steenkamp, L. S.; Steyn, S. J. M.; Swart, H. G.; Tucker, H.; van Ryneveld, C. B.; Warren, C. M.; Williams, T. O.
Tellers: N. G. Eaton and A. Hopewell.
Clause, as printed, accordingly agreed to.
On Clause 7,
I move the amendment standing in my name—
Sir, I put our objection generally to the increase of penalties when Clause 6 was discussed, but the circumstances under Clause 7 are different and merit further consideration. The increased penalties provided under this clause are out of proportion to the offence created by Section 7 of the Riotous Assemblies Act of 1956. That section provides for the dispersal of a prohibited or riotous assembly and gives a police officer of or above the rank of inspector or captain authority to call upon persons assembled at such a gathering to disperse, and, in a loud voice, to depart forthwith from the place of assembly, and to inform them that if within a time specified they do not depart, force will be used. And he must repeat that order three times, and any person who fails to depart immediately after the order has been given and repeated is liable to a fine of £25 or three months’ imprisonment. Under paragraph (a) of this clause the power to order dispersal is extended to a police officer of or above the rank of head constable. We have no objection to this authority being given to a head constable. As a rule a head constable is a warrant officer of long service and experience and in the nature of things he may be the only officer available in an emergency. But paragraph (b) which increases the penalty for failing to depart from £25 or three months to £200 or one year, is excessive, and we are not prepared to support it. Sir, in most of these gatherings there are inevitably numbers of innocent people who have come either out of curiosity or because they have been forced to attend by threats of violence by the organizers of the demonstration …
They can always leave when they are asked to leave.
… and in a big gathering of several thousand people it is often impossible for them to hear the order or, if they do hear it, to understand what is said unless it is translated into a Native language that is commonly used in the neighbourhood. We had a good illustration of that at Sharpeville where it is very doubtful indeed whether the people gathered together either heard the order to depart or whether the order was properly given. But be that as it may, in such cases a penalty of £200 or a year would be unconscionable. The agitators who are responsible can be severely dealt with under other Statutes such as the Criminal Law Amendment Act, No. 8 of 1953, which provides for a penalty of £500 or five years and a whipping of ten strokes or such imprisonment without the option of a fine for inciting or organizing a protest campaign against the law. But an innocent bystander should not be subjected to the possibility of such a heavy penalty as may be imposed under this clause. It is perfectly true that the magistrate has a discretion in fixing the amount of the penalty, but the fact that the Legislature has increased the penalty to the extent that is contemplated here, is often taken by a judicial officer as a guide, and results very often in heavier penalties being imposed than are justified by the circumstances of the case.
I do not think that the case which the hon. member for East London (City) (Dr. D. L. Smit) has just mentioned corresponds with what this clause aims at. I think the case which the hon. member mentioned is covered by Section 2 of the Criminal Law Amendment Bill of 1953 and it deals with someone who in any way whatsoever generally advises, encourages, incites, orders, assists or persuades a person or persons or who uses any words or commits any action or incites them in this direction. But this clause deals with persons who have already been ordered by a police official of the rank of head constable or higher to leave a gathering and who then do not leave it—a prohibited gathering—but not just any gathering; it must be a gathering where he has an idea that a person has been murdered or seriously injured or that property is being destroyed and damaged or where he learns that it is threatening. It is such cases for which this clause provides. I suggest that it differs completely from the cases aimed at in Clause 2 because Clause 2 forbids people to do these things. But this clause in this Bill deals with people who refuse to leave a gathering after having been ordered to do so under these aggravated circumstances. Therefore I do not think that the penalties provided for here are too severe in these particularly aggravating cases. I suggest that there are aggravating circumstances in these specific cases. The hon. member for East London (City) is correct in saying that there may be many innocent people there as a result of intimidation but when the police, the arm of the law, are present at such a gathering and order people to leave the gathering, then under those conditions those innocent people present can avail themselves of the excuse of the instruction of the police officer in order to leave the gathering. In other words, this measure concerns the people who are not present innocently and I do not think that the penalties provided for here are too severe under these aggravating circumstances.
I wish to indicate that for the same reasons as those that we advanced in relation to the last clause, we are opposed to this clause. If the Minister is committed to his present policy, it may be that in to-day’s situation he can make out a case for giving these powers to a head constable. But, Sir, these powers will not be sufficient, and I prophesy that next year the Minister will ask for the same powers to be given to a lower rank, and the following year he will again have to come before this House and ask for these powers to be given to constables. We are opposed to the whole approach of the hon. the Minister in regard to government without consent and therefore, as already indicated in relation to previous clauses, we are opposed to this clause.
I can hardly add anything to what the hon. member for Smithfield (Mr. J. J. Fouché) has already said in dealing with this matter. It is a matter of approach. We on this side of the House think that there has developed in South Africa what has also developed in other parts of the world, namely an attitude of defiance to the law. People are asked to leave a prohibited gathering and they simply refuse to do so. In the case of the meeting which was held at the top end of Adderley Street the police requested the people to leave and my information is that a number of those persons adopted a defiant attitude; they would not disperse. What respect can people have for the law when they are ordered to leave a meeting and refuse to do so and are then arrested and only a light sentence is imposed? A light sentence is no deterrent. What do people want at a meeting that has been prohibited? I think that the sentences for these offences were far too light and therefore we want to correct it now. The hon. member for East London (North) (Mr. van Ryneveld) predicts that we will come along every year and propose a lowering in the rank of the police officials who will be empowered to order people to leave a gathering, and also an increase in the penalties. Mr. Chairman, a Parliament acts according to circumstances. I do not know whether it will end at this or whether it will again be necessary to decrease or increase penalties in five or ten years’ time. I cannot see so far into the future. All that I am concerned about is that peace and order should be maintained here in South Africa and it is the duty of this Government to ask for legislation which will enable it to maintain the law.
Amendment put and negatived.
Clause, as printed, put and the Committee divided:
Ayes—80: Badenhorst, F. H.; Bekker, G. F. H.; Bekker, H. T. van G.; Bekker, M. J. H.; Bootha, L. J. C.; Botha, M. C.; Botha, P. W.; Botha, S. P.; Coertze, L. L; Coetzee, B.; Coetzee, P. J.; de Villiers, C. V.; de Villiers, J. D.; de Wet, C.; Diederichs, N.; Donges, T. E.; du Pisanie, J.; du Plessis, H. R. H.; du Plessis, P. W.; Erasmus, F. C.; Fouché, J. J. (Sr.); Grobier, M. S. F.; Hertzog, A.; Heystek, J.; Hiemstra, E. C. A.; Jonker, A. H.; Jurgens, J. C.; Keyter, H. C. A.; Knobel, G. J.; Kotze, G. P.; Kotzé, S. F.; Labuschagne, J. S.; le Riche, R.; le Roux, P. M. K.; Louw, E. H.; Luttig, H. G.; Malan, W. C.; Marais, J. A.; Maree, W. A.; Martins, H. E.; Meyer, T.; Mostert, D. J. J.; Mulder, C. P.; Muller, S. L.; Nel, J. A. F.; Nel, M. D. C. de W.; Otto, J. C.; Pelser, P. C.; Rall, J. J.; Rall, J. W.; Sadie, N. C. van R.; Sauer, P. O.; Schoeman, B. J.; Schoeman, J. C. B.; Schoonbee, J. F.; Serfontein, J. J.; Steyn, F. S.; Uys, D. C. H.; van den Berg, G. P.; van den Heever, D. J. G.; van der Ahee, H. H.; van der Merwe, J. A.; van der Merwe, P. S.; van der Walt, B. J.; van der Wath, J. G. H.; van Eeden, F. J.; van Niekerk. M. C.; van Rensburg, M. C. G. J.; van Staden, J. W.; van Wyk, H. J.; Venter, M. J. de la R.; Venter, W. L. D. M.; Verwoerd, H. F.; von Moltke, J. von S.; Vorster, B. J.; Vosloo, A. H.; Webster, A.; Wentzel, J. J.
Tellers: W. H. Faurie and J. J. Fouché.
Noes—30: Barnett, C.; Bowker, T. B.;
Connan, J. M.; Cronje, F. J. C.; Durrant, R. B.; Gorshel, A.; Graaff, de V.; Hen-wood, B. H.; Holland, M. W.; Horak, J. L.; Hughes, T. G.; Lawrence, H. G.; Lewis, H.; Lewis, J.; Malan, E. G.; Miller, H.; Moore, P. A.; Plewman, R. P.; Raw, W. V.; Ross, D. G.; Shearer, O. L.; Smit, D. L.; Steenkamp, L. S.; Steyn, S. J. M.; Swart, H. G.; Tucker, H.; van Ryneveld, C. B.; Williams, T. O.
Tellers: N. G. Eaton and A. Hopewell.
Clause, as printed, accordingly agreed to.
On Clause 8,
So far as this clause is concerned, the hon. the Minister and hon. members opposite have made it quite clear that this bit of legislation is designed to maintain the security of Whites at the expense of any traditional liberties of the individual. Now the gravamen of our objection to this clause is that it widens the ambit of the “ statutory offence ” considerably and shifts the onus of proof. In fact it places new restraints on the rights and the liberties of the individual.
That is going very far.
That was the point we made during the second reading, that by removing the words “ in respect of employment ”, you widen the ambit …
We never said that this legislation was for the Europeans.
I said that it was designed for the security of Whites.
And the Blacks, and the Coloureds and the Indians.
Sir, this is not the first time that harsh terms and presumptive provisions have been introduced into legislation by this Government, and the excuse has always been that it is needed to deal with the agitator, the intimidator and the trouble-maker. But legislation of this kind does not hit only at the trouble-maker, it hits and restrains the rights and the liberties of everybody. It leaves everybody half free, and that of course is no symbol of good government. Sir, if Professor Hoernle had been here to witness this legislation, he would have adapted his oft-quoted phrase in the following terms: “ If democracy passes from South Africa, it will not be because it is in principle an inferior method of government, but because the human nature and the racial ideologies of the Nationalist Government proved inadequate to its demands.”
That is silly!
Let us examine this matter of intimidation a little closer. History has recorded over and over again that the rebel of to-day is the conservative of tomorrow, and we in this country have ample evidence of that.
The Minister of Justice is a case in point.
In fact, history has gone a full circle. Let me establish this point by quoting briefly from the report of the Judicial Commission which inquired into the events and the troubles on the Rand in 1922. This is the finding of facts by that commission—
That was the serious position that existed in 1922, but steps as drastic as this were not found necessary then. Sir, we on this side of the House have repeatedly indicated that we stand for the maintenance of law and order. It is, however, quite clear that if you stand for the maintenance of law and order, you cannot close your eyes to what is happening around you. It is always a minority which leads a movement or any form of protest, and since a protest of any magnitude cannot be effective unless it is universal the leaders of that movement must also be intimidators. And the Government’s type of logic in answer to this is to strengthen the powers of the police until the people are more afraid of them than of their leaders. But this will not take us very far, unless the whole country is held down by a vast police garrison. I say, therefore, to the hon. the Minister: After force, what? Because that is what we are being asked to do here, to strengthen the hands of force.
For peace and security.
Security by force! The hon. Minister would be well advised to remember what happened in 1793 in Paris and in 1918 in Moscow: No community even under intimidation will continue to give active support to extreme leaders unless it has real grievances. That is what must be remedied. That is the lasting aspect that must be remedied if we are to have what the hon. The Minister has indicated “ peace and order ”. The provisions of this clause, as I have indicated, widen the ambit of statutory offences and encroach upon the liberties of the individual. It seems perfectly clear, as I said in my second reading speech, that the whole clause can best be described as a determination by this Government to enforce order regardless even of the elementary concepts of justice.
I thought that the hon. member for Johannesburg (North) (Mr. Plew-man) would have expressed his views on the part of the proposed amendment which compels the accused in this case to prove that he was busy with a lawful deed, but the hon. member made a speech which was not actually applicable to this particular clause. I wish to say further at this stage that the hon. member for Johannesburg (North) did the hon. the Minister a terrible injustice. When the hon. the Minister dealt with this particular clause in his second reading speech he said very specifically that this clause is intended for the protection of all law-abiding people who want to proceed with their normal work and their normal daily duties. He even used the example of the Indian Bazaar in Durban where the intimidator merely rattled a box of matches in front of an Indian who wanted to sell potatoes while the potato boycott was in effect. Under normal circumstances that was quite a legitimate action but it had another meaning. That was the example which the hon. the Minister used. I must say I am surprised that the legislation did not contain this proviso when it was originally drafted, and which the hon. the Minister is now endeavouring to include in its proper form. Originally it was limited only to working conditions and that was far too limited a definition. The case I have just mentioned of the Indian who was threatened in a legitimate manner by the shaking of a box of matches in front of him while he was selling potatoes is very appropriate. He may be a person who is engaged in his own business, who is not “ in employment ” as such, who is not in a working circle as such, and it is this type of threat which this particular clause aims at combating. What happened during the disturbances here in the Cape last year? Everyone saw how the intimidators and their lieutenants walked down the streets and merely looked at petrol pump attendants. He does absolutely nothing else, he merely looks at him, or he winks at him, which under normal conditions is a legitimate action and which is not covered by the Act as it was framed originally. If the police should apprehend him he would say “ Well, I did not do anything illegal, all I did was to look at the man, and to look is not illegal.” Or he will say “I winked at him and to wink is not illegal ”, but the police know that he is threatening the man working at the petrol pump. The police know that he is threatening the law-abiding domestic servant. Provision is therefore being made here that if he is apprehended it is his task and his duty to prove his intention, why he looked at the person or why he winked at him. Then it is his duty and his task to prove that he acted completely lawfully and that his manner of looking at and of gesticulation had no relation to a joint effort to threaten people and to intimidate them to act in a certain way. I ask the hon. Opposition: For Heaven’s sake, you have voted against all the clauses, but I appeal to you please not to vote against this clause in the interests of the country, in the interests of your own party and in your own interests as hon. members. You will render the Act powerless and will chop off the hands of the police. From the experience gained by the police it is clear that unless the clause reads as it does to-day the police cannot take proper action in these particular circumstances.
Now I wish to say something else. What was particularly obvious to me was the fact that not a single hon. member from Natal has yet spoken on this Bill. From that I must conclude that the hon. Leader in Natal, the hon. member for South Coast (Mr. Mitchell), and even the hon. member for Berea (Mr. Butcher) who sat here, are not opposed to this measure. I felt in my own mind that Natal wants this legislation and if the Opposition wants Natal’s support they must vote for this particular clause.
I think it is a sad day for South Africa when an honourable member gets up in this House and pleads for legislation which will have the effect that a man who looks at another man is committing a crime. That is what the hon. member tried to convey to us that if a constable or a head constable sees a Coloured man, a European or a Native looking at somebody …
In a peculiar way.
Cross-eyed? Is that what the hon. member means by a peculiar way?
You know what he meant.
I know what he meant, but I want to tell the hon. member that it is not only the Nationalist Party that is concerned with the safety of South Africa. We are all concerned about the safety of South Africa, but we do not want to make a farce of legislation, and we do not want the world to know that to-day in South Africa you can’t look at a man. But I do not want to go into that, because to me that was a most tragic argument. I do want to say this that the hon. the Minister must appreciate as a legal man that he is now shifting the onus on the accused in this case. Mr. Chairman, the hon. Minister was perfectly correct in saying that legislation in the past, some legislation, has been amended in order to place the onus on the accused. But it has been done in certain rare cases where it has been almost impossible for the Crown to prove guilt, such as in the case of possession of stolen property, and in the case of liquor, but reversing the onus is rarely used in South Africa. We must not make a habit of transforming our whole legal system by now throwing the onus on an accused in more and more cases. What has the accused got to prove here? The presumption in this amending legislation is this: That you are guilty of an offence because you looked at a man in a certain way. The man has to come before the court. He can be kept for 12 days, he then comes into the box and says “ I did not look at that man at all, I was looking at somebody else ”.
He won’t do it again.
Mr. Chairman, this is far too serious a piece of legislation to make jokes about. I want to put it to the hon. the Minister that a man who looks at another man in a peculiar way can be kept in prison for 12 days and he must then come and prove that his look, or his beckoning to a man was innocent. He must prove it after 12 days in gaol! Surely, Sir, we are not going to make fools of ourselves and of our legislation in South Africa. According to the Minister the Government intends to stop intimidation. But you cannot bring in these farcical arguments that a look, a gesture, a signal is intimidation. I do not know where the hon. Minister gets it from that a man who looks at another man is an intimidator. Let me assure the Government that the intimidator will not be eliminated in this way. The intimidators who want to do their evil work (according to the Government) will not lay themselves open to arrest so openly. I simply want to say that in any event, assuming that a man is arrested under this clause and he goes into the box and says “ I have done nothing, and I was not associated with any intimidation ”, surely in any event he will be acquitted. I cannot see the purpose of throwing an onus on a man in this way, and I ask the hon. the Minister to reconsider the whole question of this clause.
I just want to reply briefly because it seems that both sides of the House are anxious to finish with this Bill before the dinner adjournment. I therefore rise only to tell the hon. member for Johannesburg (North) (Mr. Plewman) to come down to earth when he says that the freedom of the individual should be protected, and I can say that this clause is the most popular clause among the Native population in the cities for the simple reason that the position is now being made impossible for them. I just want to give the hon. member one example. Last year the people at Langa were forbidden by the intimidators to leave their township. After all, they had the right to walk to the shops or anywhere else. It was not just a question of going to work. There were other things they could do. But the intimidators kept them in the township so that the Natives could not go to a shop or any other place. But this is intimidation of a grievous nature. I just want to say that we are making the penalty severe. The Natives, the law-abiding Natives, expect us to protect them.
I think there are two points that must be made very clear. One is that this side of the House has given no indication that it wishes to finish this debate.
I did not say that any indication was given. I said I had the impression.
Well, the hon. the Minister is slightly misinformed, because when this side of the House is dealing with a matter of fundamental importance to the liberty of the subject, the question of terminating a debate in time to have supper is immaterial.
Look at your empty benches!
The hon. member has no right to talk like that. In debate after debate here when the House is empty, the benches opposite are empty. The other point which requires immediate reply is the accusation by the hon. member for Klerksdorp (Mr. Pelser) that the people of Natal are in favour of this legislation because no member from Natal has so far spoken during the Committee Stage. I can assure the hon. member that there again he is absolutely wrong, because if there is one province in South Africa which has fought for its liberty, it is Natal and the people of Natal, and we on this side of the House do not tie ourselves down into areas and into provinces— we fight as South Africans for the liberty of South Africa. I can well believe that there are hon. members on the other side of the House who would like to tie down the liberty of the people in Natal, who would like to apply some of these provisions to Natal.
Order! The hon. member must come back to the clause.
Sir, I am dealing with Clause 8, and I want to say that I can quite imagine that there are hon. members on that side of the House who would like to apply the provisions of this clause to the people of Natal who are opposed not to the rule of law, but who are opposed to the domination of the Government which is to-day trying to force its will on them. Clause 8 is one of those clauses to which we in Natal and in the United Party take the strongest exception, and one of the reasons is that we have had examples in Natal where, for instance, we had a person who said “I am proud to be a Bolshevik, I have been a member of international socialism for 23 years and I hope the day will come when I shall see the red flag, the emblem of Bolshevism flying over the Town Hall of Durban ”. To show how things can change, Mr. Chairman, that speaker was made a Senator by this Government, nominated, not elected. Senator Petterson, and was until a year or so ago a Senator under this Government, and he was one of those who was able to call gatherings and to attend gatherings, gatherings whose declared objective it was to see the red flag of Communism flying over the City Hall of Durban.
Order! The hon. member must now come back to the clause.
Sir, I am dealing with the clause, the clause which deals with the intimidation of people in regard to their employment, and when this statement was made there were strikes taking place in South Africa, strikes of which the objective was to prevent people from taking up their employment.
Business suspended at 6.30 p.m. and resumed at 8.5 p.m.
Mr. Chairman, before the debate was adjourned I had dealt with the type of difficulty which South Africa had faced in the past in regard to intimidation. I now want to turn to the effects of this clause as it amends the legislation for the future. This innocent little amendment, as it may appear in the Amending Bill, in fact creates the following position. It creates a situation where, for instance, assume that the Prime Minister went overseas to another Commonwealth Conference and came back with another diplomatic defeat. He might be met by two groups of students. On one side of the road a group of students cheering him for his defeat; on the other side of the road a group of students jeering him for that same diplomatic defeat. And in terms of this amending Bill those students who had come to cheer would be fine. Nothing would happen to them. But those who had come to jeer or even to stand in silent protest could be prosecuted as carrying out an act designed to intimidate.
I put it to the hon. the Minister that people could stand in silent protest and in terms of the Bill as now proposed they could be arrested and, in terms of Clause 4 they could be locked up for 12 days without trial. And thereafter they would have to prove their innocence, which is something contrary to the basic principle of law; something contrary to our whole concept of justice as it has grown up through centuries of fighting for justice. And I know the hon. the Minister will say that there are other examples in law where a man is guilty until he proves his innocence, but the implications of this clause go far beyond the suppression of agitators and intimidators with whom the hon. the Minister wishes to deal.
I want to call as witness to the lack of necessity for this amendment none other than the former Commissioner of Police, the predecessor to the present Commissioner who, I would like to say, has done a very good job. But the former Commissioner of Police was a man who had dealt with this problem of the agitator day by day. It was part of his responsibility and he did not see the need for this because he said the following only three years ago. After saying that the Government had been able to force the communist underground he said this—
which is another matter, and he went on to say—
The point is that the former Commissioner of Police, General Rademeyer, not only did not require this type of amendment but he admitted that the United Party in 1946 and 1947 had been in power during the period which he classified as being amongst “ the most successful period ” in our history in combating Communism. And we combated it without legislation of this sort. The Minister’s own former Commissioner of Police admitted that amongst the best years in combating Communism in our history were the years when we did not have to put on to the Statute Book this kind of law.
Now with even greater powers than the Government had in 1947 they have to come to this House to seek powers which go far beyond anything we have ever had before; powers which not only can be applied to dealing with an agitator but which can be applied to every man and woman in South Africa if they commit any act which this Government does not like. Coming back to the accusation by the hon. member for Klerksdorp (Mr. Pelser) that Natal were in favour of this amendment, I want to say that neither this sort of amendment nor any other sort of amendment will bring the people of Natal under the heel of any totalitarian government. That hon. member need not talk to us in Natal as being prepared to give up our freedom or our love for justice. We are fighting this clause because we refuse to have our freedom and our rights under the law taken from us. It is for that very reason that our opposition to any infringement on the liberty of any individual is as strong as it is. Let it not be thought that that means that we are in favour of agitators and troublemakers in this country. The history of South Africa has shown the record of this party throughout the years. My hon. Leader has said on numerous occasions that this party utterly condemns agitation, violence or any attempt to undermine the authority of the State.
That is not true.
We oppose this Bill, not because we are in favour of that, but because we believe it is not necessary in order to preserve the security of the State. The United Party as a Government preserved the security of the State. We aided this Government to preserve the security of the State; we gave it every assistance.
Order, order! The hon. member must come back to the clause.
Mr. Chairman, my point is that we gave the Minister, last year, every assistance he required in order to maintain law and order. But we do not regard this clause as being necessary for the maintenance of law and order. We regard this clause as being an invasion upon the rights of individuals who are not a danger to the State and who are not a menace. When it comes to agitators or when it comes to those who try to overthrow the State, that side of the House will yet look to us for help.
Order, order! The hon. member must come back to the clause.
But this clause, Mr. Chairman, removes a limitation which existed in the old Act and which created of certain actions a crime only if they were in regard to matters affecting employment. Sub-section (a) of Clause 8 deletes the words “ in respect of employment ”. It therefore spreads the scope of this clause to matters other than those for which the Bill was intended, and those matters have been enunciated by the hon. the Minister as being matters designed to deal with agitators and intimidators. The basic object of this clause is to deal with intimidators, and my point is this, that when the Government, when the State requires the assistance of the Opposition to protect it and to secure it, then it has always found the Opposition willing to give that protection and to give support for that. But we do not regard this clause as being one of those occasions when it is necessary to limit the freedom of the individual, to be able to place people under penal restriction merely because they hold a silent protest; merely because they hold a protest with which the Minister may disapprove.
But they usually march.
Yes, there have been people who have marched in protest—in peaceful protest. [Time limit.]
Both the hon. member for Boland (Mr. Barnett) and Durban (Point) (Mr. Raw) have done me an injustice as regards what I stated prior to the adjournment. The whole crux of this clause is the following, and I want to read it in English so that the hon. member for Point will be better able to understand it: “ Any person who in order to compel … ” That is the whole point—“ any person who in order to compel …” someone to do the following things. The hon. member for Point then made the point that this proposed amendment will make the holding of quiet and orderly protests impossible. How is that?
They will have to prove that they are quiet and orderly protests.
That is not so. Any person who wants to compel other people to take part in a quiet, orderly protest is subject to the provisions of the clause. It is the person who exercises compulsion, whether it is by means of a look or by words or by a threat—it is only that person who will be subject to the provisions of the clause. People who take part in the normal way in an orderly protest will not be contravening the provisions of this clause. This also applies to the hon. member for Boland who has said that I have claimed that in future it will be an offence merely to look at someone. I have only used the example of what happened last year here in Cape Town, namely that by a look or a nod of the head or merely by a gesture people were compelled to do something. Intimidation is practised in that way, and it is only in such instances, when people act in that way, when they compel someone to do something or to fail to do something, that the provisions of this particular clause will come into operation.
Then the hon. member for Point has said that the provisions of this secion previously were restricted to matters affecting employment. That is quite correct. My contention is that the section was worded altogether too narrowly. For the first time it now reads as it should have read. Kgosana and his henchmen were not concerned last year with “ employment ”. They went around in Sea Point and in my street as well and they forced servants in those streets to join them. They did the same thing in Rondebosch and Maitland. They forced people to join. That had nothing to do with employment. The point was that by intimidation, tyranny and fear they threatened that harm would be done to the persons concerned or to their property if those persons did not participate in the great demonstration in the Cape. This was something which could very easily have got out of hand. I now want to put this question to the hon. member for Point, and he must answer. He has said that Natal is opposed to this clause. Let us assume that a procession was to march from Cato Manor to Durban, a procession which had been inspired and was taking place as a result of this type of behaviour by intimidators who shake matchboxes or walk with a tin of petrol in their hand or who give a look or nod their heads, or who walk with a knobkerrie in their hands, which one normally can do—if that were to happen and something like that was to take place in Durban, then the hon. member for Point must remember that he told this Committee that Natal was opposed to this particular clause; that the hon. member for Point was in favour of these things which the police were powerless to stop.
May I ask the hon. member a question? Does the hon. member concede—it is true that it speaks of compulsion— that if a person who is standing near by on such an occasion, is brought before the court, it is the duty of the State to prove that he is guilty, but that it is also his duty to prove that he is innocent? Will the hon. member further concede that in view of the fact that there may be hundreds of people it may be very difficult for him to do so?
Order! The hon. member must put his question, not make a speech.
Mr. Chairman, those were my opening words. I said that I was very surprised that the hon. member for Johannesburg (North) (Mr. Plewman) had not taken this particular point. If he had argued that the onus was being placed on the other party, then I could have understood the speech by the hon. member for Johannesburg (North). But the hon. member did not make that point. My contention now is that it is extremely difficult for the prosecution to prove the guilt of such a person. I once again want to use the example of what we know in fact happened on the Indian market in Durban during the boycott movement against the sale of potatoes. The peace-loving Indian was carrying on his own business and selling potatoes, and nothing more was done to him than that someone shook a box of matches at him; that was all that happened. It is not illegal to shake a box of matches in that way. It is normally not illegal to do something like that. But when it is generally known that certain people are being threatened with fire if they do certain things, then it is simply impossible for the prosecution to prove that the man was acting illegally when he shook a box of matches. But that man himself knew what he was thinking when he did so and because he only knows what he was thinking, it is only reasonable and desirable that he should explain in the court what his intentions were when he shook the box of matches.
But he must prove that he is innocent.
No prosecutor can prove that such a person was doing something illegally when he shook the box of matches. He must prove that he had a lawful object; that he was for example in the habit of shaking his matches in that way before lighting his cigarette. The law provides for that. If he can prove that it is his custom always to shake matches in that way and that no threat was intended the clause provides for that. But if it is generally known that there have been threats of fire and such a person then shakes his box of matches before one, then it is a different matter and the onus is placed on him. [Interjections.]
And if the box of matches is empty?
Then it will be like your head.
It is quite clear that this provision is most essential, and I now once again make the same appeal as I made at the outset, namely that hon. members of the Opposition must not vote against this clause. In the interests of this country and in the interests of their own property they must allow this clause to be adopted without voting against it.
The hon. member for Klerksdorp (Mr. Pelser) has been good enough himself to condemn this clause by showing how impossible it would be for an innocent person to prove his innocence. I think it is quite clear that there is a difference of principle between us. I can see no point in seeking to convince hon. members opposite that this side is right in trying to stand up for the right of the individual to have himself proved guilty by the court and not to have to go there to prove himself innocent.
I think one must deal with what the hon. member for Klerksdorp (Mr. Pelser) has said, because it is quite clear that his whole approach is very naive, He himself appreciates the importance of this clause in the hands of the Minister, and the serious inroads it can make on the liberty of the subject.
As the clause appears at the moment—and as he quite rightly says—any person who, in order to compel any other person to abstain from doing or to do something, shall be guilty of an offence. The onus of proof of the intention of a person charged with compelling someone to do something, rests entirely on the shoulders of the Crown, and quite rightly so, because it is a very serious offence in terms of this law. But the amendment puts it in an entirely different position. The amendment would enable the authorities to arrest a person on any thought that may enter the mind of a police officer or any other person who is dealing with a crowd of people. You can arrest them, you can then make use of the previous clause in this Bill, which amends the Criminal Procedure Act, and the arrested person can then be brought before the courts and remanded without bail for a period of 12 days. You can put into the gaols of our country a considerable number of people, and, if you wish to, on the tenth or the eleventh or the twelfth day when they appear in court, you can discharge them because there is no case and you are not prepared to formulate some indictment against them. The responsibility of proving their innocence rests entirely on the accused without any proof being brought forward by the prosecution, if they do form a charge. That is the danger of this particular clause.
The assurance we would like from the hon. the Minister is this—because this is a very dangerous clause—where we may have a peaceful demonstration by a number of people such as I read of in the Press to-day where a number of Black Sash stood outside some building carrying a banner and it is the easiest thing in the world to endeavour to interfere with them. Is the hon. the Minister aware of some of the unfortunate incidents which can arise from an occasion of this nature where he proceeds in terms of this clause to arrest a large number of people who will then be put away, who will be brought before the court within 48 hours and remanded because the authorities are still busy investigating and compiling the necessary evidence necessary to frame an indictment? Does the hon. the Minister realize that as a result of this he himself, by that very action, can incite something in this country which probably never existed or was intended to exist or become practical?
All these difficulties present themselves, and the fear of this side of the House is that if this licence is given to the authorities, licence above the normal rule of law which demands that the responsibility of having a proper indictment, a proper onus of proof resting upon the shoulders of the Crown, it can lead to unprecedented incidents in this country? And that is something that nobody wants. And the Opposition in particular do not want it. We are not prepared to see any possibility of incidents arising such as were dangerously near during the occasion which was referred to by the hon. member for Klerksdorp, when, last year, the slightest spark may have set off one of the biggest riots in the history of the city. Fortunately, through the intelligent handling of the situation that was avoided.
There are many other laws which enable the hon. the Minister to control all sorts of situations, including those things the hon. member for Klerksdorp referred to. The Statute Book is full of laws controlling the actions of people. We have had prosecution after prosecution, but unfortunately the hon. the Minister is now employing a strange method, and that is that the moment he finds any possible loophole in autocratic action, whether it has any foundation or not, he seeks to provide an amendment in the law which will enable him to overcome it. And the fear of this side of the House is that if we allow this complete licence to the authorities—who sometimes cannot be controlled because things happen in the heat of the moment—one might easily spark off something which can have the most disastrous affects on the affairs of the Union. We are not prepared to give that licence to the hon. the Minister.
I agree with the hon. member for Klerksdorp (Mr. Pelser) that one of the dominating conceptions in this is the question of compulsion, of the active use of intimidation, of getting people to perform actions as a result of fear or an extreme form of terrorism. No one would support intimidation as a general weapon in civilized society. None the less, in civilized societies this weapon does exist, and it exists in countries where they do not find it necessary to change the law in that regard. In the United States you get the type of gangster who offers the shop owner protection. That means that if he does not pay he will have his shop bust open. You get the other type who goes to the big businessman and says: “Do you want acid on your merchandise?” And this is a form of intimidation. But in the United States, difficult as the problem is to deal with it, it has not been found necessary to put laws on the Statute Book specifically dealing with it.
Now, Mr. Chairman, my question to the hon. the Minister is this: You are going to give very great powers—that is admitted, and I think the hon. member for Klerksdorp himself will admit that if it is not shaking a box of matches and you have this class of person, they will use other methods and it will be very difficult to consistently catch up with the gesture which may be taken as the veiled intimidatory threat. I am leaving aside, for the moment, the question of the onus of proof. Now my question to this House is this: what is to be gained in actual practice by a clause such as this in relation to the general incursion into a freedom that is represented by such a clause?
The security of the law-abiding Natives.
That is so, yes, but the question is how much greater security do we get? Our case against the clauses of this Bill, on the whole, has been this: We are the last people, whether we come from Natal or anywhere else, to suggest that the Government should negotiate with anybody with a pistol at their heads. And the line of the Government speakers in relation to this Bill as a whole has been that we cannot go in for consultation because it amounts to consultation under threat.
Now, Mr. Chairman, although not strictly relevant to the clause itself, it is relevant to the whole case of this Bill: What did the Government do after a period when it had a pistol at its head and it pushed that pistol aside? Did it then consult while in a position to consult and when there was no gun?
Order, order! The hon. member must come back to the clause.
I leave that point there, Mr. Chairman, because our case against this clause, as against the other clauses of this Bill is not that we cannot see the dilemma, it is not that we live in a fool’s paradise and believe we are playing children’s games here, but what we do believe is this: If you are going to take drastic measures of this kind you must be in a position to give some guarantee that they are going to be effective, apart from anything else. And I say it is very doubtful whether a clause such as this—although it may give greater power—will give that great power which will ultimately be at all effective in relation even to the problem of intimidation with which we are faced. It is for that reason that we are opposed to it. Not because we do not sympathize with the lion, the Minister or the Government. It is our country that is concerned and we, too, are faced with these difficulties. But we are concerned about the method of approach to those difficulties and we say that a purely negative approach can only lead to more negative approaches, and more underground work. And it is for that reason that we cannot see the validity of the argument of the hon. member for Klerksdorp. If he could come to us and say: “Distasteful as this clause is, under it we can absolutely guarantee the security of South Africa” then we might be prepared to listen. But he can come with no such guarantee, and in those circumstances and in the dangerous times in which we live, certain risks must be taken in measuring one thing against another, and the one thing is the incursion into the freedom of the individual and the increasingly repressive force that you are using, which must have an equal reaction; and there is the question of how much you gain by so doing. We say that the Government offers no solution in this clause nor in this Bill.
In reply to the last speaker, may I point out that his approach to this problem is in fact incorrect because the powers which he says the Government is now taking unto itself, or which are being taken under this Act, are what he wants to discuss. But the powers are already contained in the Act. The point at issue is not whether these powers should be taken or this compulsion, which is being exercised, should be made a punishable offence. The point at issue is merely whether those powers should be extended.
The principle has already been adopted. It is now merely being made applicable to other cases as well, over and above the question of employment. It is only in that context that this matter must be seen.
Threats in respect of a person’s employment constitute a very exceptional case, and that is why that provision has been embodied in the Act.
That is not the position either, because the section only refers at the moment to employees. But in the past we have had many instances where the employer and the man who runs a completely independent business, people who have nothing to do with employment, have also been threatened. Such a person has nothing to do with employment or anything connected with it. He sells his potatoes on the market, as the hon. member for Klerksdorp (Mr. Pelser) has shown. It is of equally great importance that that man should be protected as well. There are also many other instances which we know occurred during the disturbances last year. These cases have come to our notice and hon. members must please see the reasonableness of our extending this provision so as to protect other people as well.
As regards the onus, may I point out that the onus which rests on the accused is not an unqualified onus. It is a severely qualified onus. In the English text the provision reads as follows: “Unless he proves that he had a lawful reason so to act.” If he can prove that he had a lawful reason so to act, then he has met the onus which rests on him. He must only prove that he had a lawful reason for acting in that way, and then he had discharged the onus. The onus still rests on the Crown to prove the offence as a whole. It is only this part of the onus which has been transferred to the accused, namely that he must show that he acted in this way and that he had a lawful reason for doing so. But then the provision continues: “or that his action was not connected with any similar action by any other person to achieve a particular purpose” In other words, that he was not colluding with other people who wished to achieve a certain purpose, and that he had no part in such a scheme. Then the hon. member for Bezuidenhout has mentioned the example of ladies who stand with placards. That is quite irrelevant because no woman will surely be able to exercise compulsion merely by standing with a placard. I cannot see how the Black Sash with their placards could ever exercise any compulsion. It is only certain cases which are affected by this provision, and the onus is very limited.
I am very glad that the last speaker has raised this issue and that he took the trouble to refer to it in English. I want to put this matter to him and to the hon. the Minister, telling them what the position will actually be if the conditions that he has outlined in respect of a meeting or a gathering takes place. If a person is picked up in terms of the amended Act, and then, in terms of this sub-section is arrested, the position will be that unless he proves that he had a lawful reason so to act he will have committed an offence. My question to the hon. the Minister is this: When is the first opportunity that that person has of proving that he had a lawful reason to be there? That is the first opportunity he has of proving his innocence.
That is a different clause.
It is this clause. The point is that by the addition of the words “unless he proves that he has a lawful reason so to act”, the position is changed. At present the Crown has to get evidence within 48 hours, but as far as I understand the position has been changed in terms of Clause 4 to 12 days, but my question to the Minister is simply this. If a person has been arrested and wishes to prove his innocence, when is the first opportunity that he gets? In terms of this Bill, can he be held for 12 days before he is given an opportunity of proving his innocence? Formerly the Crown had 48 hours to get evidence to prove his guilt, but now he has to wait 12 days if he is innocent.
The Chairman will not allow me to reply to you, because this has nothing to do with this clause.
Then I ask what is the meaning of “unless he proves that he has a lawful reason so to act”? When does he prove it? When is he given the opportunity to prove it? I think that is a fair question and I think we ought to get information from the Minister on that point.
There will be another occasion to discuss this generally, but my only comment now is that this has nothing to do with this clause.
If this clause is deleted, what is the position then? The Crown will have to prove that he is guilty. Is that not the case? In other words, what is the meaning of this sub-section, “unless he proves that he has a lawful reason so to act”? That is not in the present Act. It is now being placed there and it must have a meaning and I ask the Minister to explain the position if my interpretation is not correct, because it is a very important issue.
I should like to reply to the last speaker. The Criminal Procedure Act is quite clear. It provides that a person must be charged within 48 hours. The Crown does not always have to collect its evidence within 48 hours; it must merely charge the person concerned and it can then ask that the case be postponed to a later date, i.e. until it has collected sufficient evidence to prove the charge. The person concerned must only be charged within 48 hours. But under the present position, when he is charged within 48 hours, such a person appears before the court, and he can then also apply for bail. But in terms of the new provision he will not be able to apply for bail if the Attorney-General decides that it is in the interest of the safety of the public that he should not be allowed bail. The hon. member has now raised the other aspect, namely when he will have the opportunity to prove his innocence. That is quite another matter. That has nothing to do with the clause, because the Crown will still have to prove his guilt after the expiry of a period of 12 days, and he will have to prove his innocence. The two matters have nothing to do with one another, and I do not know why the first part, that relating to bail and the period of 12 days, is being dragged in here, because this is also a case where the onus is on the Crown. I do not see why there is any objection to the fact that the onus is being transferred to the accused.
I have been listening to this debate, and as an ordinary citizen I can quite understand that if a man learned in the law, like an attorney, is arrested under this clause, he will be able to appear in court and prove his innocence. But think of the ordinary, simple citizen who has not that knowledge! At present, if he is arrested and charged and is not able to employ a lawyer—and there are many thousands of people in South Africa who are in that position—he has the protection of the Bench. The Bench will say to the prosecutor: The onus is on you to prove the charge, and you have not done so and therefore I will not call upon this man to answer it. But in this case the citizen will be asked to prove that he is not guilty.
There are quite a number of Acts in which the onus is placed on the accused. [Interjections.]
I am very appreciative of all the assistance coming from both sides of the House, but if I were to be arrested I would not have all these lawyers to help me. I can understand the system under the Military Discipline Code. If a soldier is arrested under that Code, he has to appear before his commanding officer, who acts in a dual capacity. He hears the case put forward by the sergeant-major or the adjutant, but he is not only giving judgment; he is also protecting the prisoner.
It is quite clear that the hon. member has not appeared before a commanding officer, but was court-martialled. He must have committed a much more serious offence. The point I want to make is that in the military court the man is defended automatically, but under this clause he is not defended automatically because the onus is on him to prove his innocence. There are thousands of cases in our courts, often of Natives who have not much knowledge of the law. When such a person appears he is protected by a magistrate, but in this case that will not happen. The ordinary citizen will have to employ a lawyer, because he cannot defend himself without doing so.
I have every sympathy for the hon. member for Kensington (Mr. Moore) but I want to assure him that even if the most unenlightened and the most primitive Native should appear in court charged under this para, (a) and if he should appear without an attorney representing him, the court will take good care to ensure that justice is done to such a Native, and the magistrate will ask him questions to prove that the act which he committed was a normal, lawful act and that he had no ulterior motive, that he was not trying to compel someone to do all sorts of strange things. Consequently as far as that aspect is concerned, I can assure the hon. member for Kensington that as I know our magistrates’ courts, not to mention the Supreme Court, such a man has absolutely nothing to fear. The hon. member for Johannesburg (North) (Mr. Plewman) was also a magistrate at one time, and he surely did so himself. This clause is quite simple. I just want to put two questions to the Opposition. The existing provision lays down that certain acts will be unlawful if they take place in respect of employment, and all this new clause is doing is to provide that that provision should be extended, in recent years experience has taught us that this type of thing is also taking place; as the hon. member calls it, “veiled compulsion” or “veiled threats”. Is it or is it not desirable that this provision should be extended further than normal employment? I do not think that there is one hon. member opposite who will say that he regards it as desirable that this provision should only apply to employment and should not be extended at all, and that we should allow people to use compulsion and make threats, with the object of even causing a group of Black Sash members to come together so that they can demonstrate. I do not think they are in favour of that. What will hon. members think if the Black Sash wanted to demonstrate here before Marks Buildings and they wanted to have 200 people but could only collect 12, and then used compulsion to get more people to come? Hon. members would not want that to happen, because it goes against one’s feeling of justice. That is the one question. I say that experience has taught us that this provision should be extended further than employment alone.
The second question is this. A difficulty with which the police and the prosecutors are faced is the following. These people make threats in such a clever way that, if they were to act in that way normally, it would be lawful, but when seen against the overall background it actually becomes a threat, as for example shaking a box of matches, to use the same example once again. Every hon. member opposite could shake as many boxes of matches as they liked as they walk down the street, but if they were to do so with a certain object, in order to compel the Black Sash to demonstrate before Marks Buildings, then it would be a different matter. [Interjections.] Then this new clause provides that that is an offence. It is difficult to prove whether a man is guilty. One is convinced it is a threat but one cannot easily prove it, although other people accept it as a threat. How is the prosecutor to prove that the person concerned was acting unlawfully under the provisions of this section? All he can do is place the onus on the accused and say that the person concerned is in the best position to know what his intentions were, and if he was not doing anything, but was merely committing a normal act, then he will be acquitted. Similarly, if he did so independently of another group of people who were doing the same thing with a common purpose in mind, then he will also be acquitted. The question of time, which the hon. member for Umhlatuzana has mentioned, has nothing to do with the matter If he is charged in the normal way and the Attorney-General decides that this is not a case in which bail can be granted he will be charged within 48 hours, and when the Crown is able to continue, he will in fact have the opportunity within the limits of this qualified onus which rests on him, to prove that he had a lawful object and even to show further, if necessary, that if he perhaps did commit an unlawful act, he did not do so in order to further a common purpose. It is so simple and clear that I should like to see the three hon. members for Natal who have spoken, tell the House that Natal is solidly opposed to this provision and does not want action to be taken against the agitators and the incitors under this clause.
I have allowed a wide discussion, but hon. members must now confine themselves to the clause.
I intend to confine myself strictly to the clause. Firstly, I want to deal with the argument of the hon. member for Klerksdorp (Mr. Pelser) that that Clause 8 (b), placing the onus of proof on a person for a new offence, has nothing to do with the question of that person’s right to prove his innocence or guilt. You cannot divorce a newly created offence from the ability of a person to prove himself innocent or guilty of that offence. Not only does this clause place the onus on the accused, but it creates a new offence. By deleting the words “in respect of employment”, we are creating an offence which did not exist before, and under that offence which this clause creates a person can be punished. The point of the hon. Member for Umhlatuzana is that having created the offence and having made the person subject to punishment, and in addition having placed the onus of proving his innocence on that person, what chance has that person to prove his innocence, and when can he do so? That is all we want to know. Under a different clause the person may be held for 12 days, and this clause falls under that clause. Once a crime is committed, the person is still subject to the previous clause and therefore he may have to wait 12 days to prove his innocence, and that is a ground for objection to this clause. This clause can put a person in the position where he may be imprisoned and may not be able to prove his innocence in terms of the new crime created. That is what we want answered.
But I want to deal with the other point raised by the hon. member for Klerksdorp. He said that the people of Durban and of Natal should note that the Opposition is satisfied to see a column marching into Durban threatening the people of Durban. The point of this side of the House is that we do not need Clause 8 to prevent that. Section 2 of the Riotous Assemblies Act of 1956 gives the magistrate power to ban such an assembly, and you do not need this clause to prevent a column marching into Durban, or to prevent a threat such as he depicted. If that took place, obviously the State must take action and we are fully in favour of such action being taken. But this clause has nothing to do with a column marching into Durban; it deals with intimidators, and I want to refer to the original Section 10 (d). It says that a person is guilty of this offence if he acts in a disorderly or offensive manner by jeers, gibes and other like conduct. The hon. member for Klerksdorp denied that two groups of students, the one cheering and the other jeering, could lead to the situation where those who were cheering could be let free and those who were jeering could be arrested. I quote to him Section 10 (d) of the original Act, which we are now amending, so that not only will it apply to employment but to any activity. The hon. member who is interjecting is in fact, after the passing of this Act, committing an offence, because he is jeering in order to try to compel others not to do something which they are legally entitled to do, which is to make a speech. The hon. member for Wakkerstroom (Mr. Martins) has led gangs into meetings which I have addressed and by jeering and behaving in a disorderly manner, he has tried to prevent me making my speech, something I was legally entitled to do. The hon. member has on two occasions, by incitement …
That is a lie.
On a point of order, is the hon. member for Wakkerstroom entitled to say that the hon. member is lying?
That is not a matter which happened in this House.
Did the hon. member say that it is a lie?
Then the hon. member must withdraw it.
I withdraw, but on a point of order I want to ask your ruling. Can an hon. member lay a charge about what happened outside the House?
The hon. member for Wakkerstroom, at Charlestown and at the Volksrust, on one occasion with his own loudspeaker incited people to jeer and in terms of this amendment he would have committed an offence for which he could be sent to gaol for 12 days without trial.
On a point of order, the hon. member is telling the House a falsehood, namely that I incited a number of people to break up a meeting.
Order! The hon. member will have an opportunity of replying to the point.
On a point of order, a direct accusation has been made against the hon. member for Wakkerstroom. Has the hon. member for Wakkerstroom not got the protection of the Chair? It is not necessary for him to discuss it in the debate. [Interjections.]
The objection to this clause is that a person who behaves as I described, when the hon. member for Wakkerstroom stood on a chair and by making his own speech tried to prevent me from making mine, a speech which I was legally entitled to make, that action would become an offence, and he was supported on that occasion by his brother, the Provincial Councillor, and he drowned me out and took over and made a speech himself, and in terms of Section 10 he compelled me to abstain from doing something which I was legally entitled to do. That hon. member is going to vote for this clause and he is going to put himself and his own party into the position where every time they jeer at a public meeting they commit an offence in terms of this clause. [Time limit.]
Mr. Chairman, I had not intended participating in the debate on this clause, but I cannot allow the fantastic misrepresentation of what can be done under this clause to pass unchallenged.
It is possible.
The hon. member has suggested that if two people quarrel at a meeting, that is a contravention of this clause. But this clause only relates to two cases. I am referring to Clause 4 (1) The provisions of this clause will only come into operation under two conditions, and those are when “the safety of the public and the maintenance of public order” are involved. If these two aspects come into the picture, the Attorney-General can decide that bail should not be granted. But I say that the examples which are being used here are everyday ones in South Africa. They are after all not something which affect “the safety of the public or the maintenance of public order”. [Interjections.] I am afraid that hon. members are seeking a definition of “the safety of the public and the maintenance of public order” where it does not exist, namely, the example which the hon. member has used of a meeting where two people argue. All sorts of examples have been used. I do not even want to repeat the fantastic examples which were used yesterday. Hon. members have said that when the Black Sash stands in the street, it is intimidation. I ask when the Black Sash has ever frightened or intimidated anyone? This legislation is intended to maintain law and order and to punish the intimidators, and because it is difficult to prove these things, as the hon. member for Klerksdorp has said, and because it is our object to protect the large Native, Indian and Coloured populations against this terrible intimidation, we are making an appeal to the members of the Opposition, but my reply to them is that if they do not want to assist us, I cannot help it. I can only say that the intention of the legislation is clear and according to my law advisers the provisions in this Bill are clear. The intention is to restrict these people who intimidate others with the object of disturbing the safety of the public or the maintenance of public order. Many examples have been used. I just want to use one which to me has always been one of the worst. It is that Natives stand at a gate and prevent other Natives from making purchases. One brings such Natives before the courts and one must now prove that the two or three Natives who stood at the gate in order to stop the others, frightened those Natives so that they did not make their purchases. This is the intimidation which we have had in the past and the legislation was not adequate because we must remember that these intimidators have people behind them with enormous financial resources. They can go to the Appellate Division, and they do so as well. We must be realistic. After all, we are all living in South Africa. Hon. members have referred to Natal. Although Natal is mainly English speaking the Natalians, according to our information, are applauding every attempt being made to stop this intimidation of the Natives, but what the hon. member for Durban (Point) (Mr. Raw) is now doing on behalf of Natal is to place obstacles in our way and I say to him: Go back to Natal and explain to the people that the National Party Government wanted to stop intimidation amongst the non-Whites, but the Natal Opposition would not help us. And if he gets away with that in Natal, I am misinterpreting the attitude of the people in Natal. But I believe that if we were to hold a referendum in South Africa on this point to-night, namely whether we should stop intimidation or not, and whether we should do so by using this method of placing the onus on the intimidators themselves where we cannot prove such intimidation we would win. The big man who sits in Orlando and rides around in a big motor car is not the intimidator; he is not the person who stands at the buses and tells the Natives that if they board the buses to go to work, they will be dealt with. Hon. members opposite think that they are the only ones who can plead on behalf of the Natives and the other non-Whites, but they are such poor spokesmen that we have had this spectacle here to-night. I wish we could tell the Natives what has happened in this House to-night, namely, that representations have been made to us not to do anything, and to allow a repetition of what happened last year, and that the Natives should be intimidated so that they cannot go out for days on end to make purchases, and that the intimidators should be able to go from house to house and knock on the doors and when the doors are opened they show a knife. I think hon. members are talking without knowing what they are saying. I want to say this particularly to the hon. member for Durban (Point). I do not mind the fact that the hon. member is often flippant in his speeches and tries to make jokes, but I should like to make an appeal to him. As far as this subject is concerned, the nation will not forgive a man who is flippant. I am not making any accusations against the hon. member, but that is how I interpret his behaviour to-night, and I say that he is behaving in one of the most dangerous possible ways. This is something of which he will not hear the end, and I therefore make this appeal to him. If he is opposed to the clause, let him vote against it, but in heaven’s name do not broadcast that he feels that an injustice is being done here because that is not the truth—it is precisely the opposite. Of course if a White person should make himself guilty of the same type of behaviour, if he should intimidate anyone, he will also fall under the provisions of this legislation. Why should we not make this legislation applicable to all of us if by so doing we can render the non-Whites a service and remove this intimidation from their lives as far as possible? The hon. member can speak and vote against this provision and he can do what he likes, but I shall do my duty. I shall do my part to give the Natives and the other non-Whites the assistance for which they are longing. They are begging us to free them from the intimidators.
I cannot omit to rise and tell this House that I deplore the fact that while South Africa in certain respects is sitting on a volcano, we have had these irresponsible remarks which we have heard to-night from the hon. member for Durban (Point) (Mr. Raw). While the peace-loving Natives are being exploited and intimidated in this way, and we wish to prevent that intimidation, an hon. member like the hon. member for Durban (Point) has risen, and because he is so absolutely devoid of any policy and because in his heart he really wants trouble in South Africa, because he believes that if we have trouble and a blood-bath here it will gain support for his party in the future, he has made such irresponsible statements and he has put forward such a ridiculous complaint. I want South Africa to take note of the fact that the hon. member has described an orderly group of voters who listened to a public political meeting as a “gang”. Orderly voters whose votes he has been courting, he describes as a gang. And when that meeting asks questions because he has made untrue statements from the platform and he cannot answer those questions and the meeting moves a motion of no confidence in him, he comes to this House with a dirge and says that he has been intimidated. Mr. Chairman, just imagine a man who is in public life being unable to answer questions put to him at a meeting because he appeared on the platform unprepared and then, when the meeting shows its displeasure at the way in which he answers questions, he comes and complains in this House like a little baby and says that he has been intimidated. What will happen to our political life in this country if we are faced with people who come and cry like babies in this House when they suffer a defeat at a meeting? And then he tries in a distorted and incorrect way to apply that analogy to legislation which has absolutely nothing to do with this matter. I cannot understand how the hon. member can raise the matter here. It has nothing to do with this clause. Sir, the whole point is simply that hon. members opposite want us to have trouble in this country on 31 May. They believe that if there is trouble, it will regain them the support which they are seeking but which they are losing. Because they do not know how to gain that support, they are using such ridiculous arguments in this House.
I have allowed hon. members to discuss this point freely but I shall not allow further discussion.
I have very little to add to what I said during my first speech. When seven people had to be treated in hospital on one occasion, I did not regard it as an orderly meeting …
Order! I have said that I am not going to allow any further discussion on that point.
I thought you said that you would give me an opportunity …
There has been a great deal of heat, Sir, but the charge made by the Opposition against this clause stands unanswered. We do not object to a law to deal with intimidators. We have that in existing legislation, and now we are extending it beyond employment. We have no complaint about that. Our complaint against this clause is this: A person who is charged can be held if the Attorney-General so directs, for a period of 12 days and during that period that person has no opportunity of showing that he is not guilty. Say for instance an innocent person is arrested. These things happen and I am sure the hon. member for Klerksdorp (Mr. Pelser) will agree that I am right. An innocent bystander may be picked up and that person can be held for a period of 12 days without being brought before the court. They can be brought before court but they cannot be released, they can be remanded so that the case can be heard later. That person then has the onus cast on him or her to show that he or she is not guilty of the charge. If they cannot show that they are not guilty, they have to be found guilty. It is a very difficult thing in law to prove the negative as I am sure the hon. member for Klerksdorp and the hon. the Minister will agree. The reason why we will vote against this clause is because we object to it that persons who may be innocent should have the onus cast on them of proving their innocence. We say that that is something which is foreign to our common law. The hon. the Minister says there are many other cases but those are cases where there are matters peculiarly within the knowledge of the accused. For instance, if I were charged with having a firearm without a licence I am the one person who can establish that I have a licence and it is fair that the onus should be cast upon me to prove that I have a licence for that firearm. That is a totally different matter. In this case it is ordinary evidence in relation to an ordinary happening and the very examples given by the hon. member for Klerksdorp show how utterly impossible it may be in some cases for the person to establish his innocence. It is on that ground that we are going to vote against this clause.
Clause put and the Committee divided:
Ayes—61: Badenhorst, F. H.; Bekker, G. F. H.; Bekker, H. T. van G.; Bootha, L. J. C.; Botha, M. C; Botha, P. W.; Botha, S. P.; Coetzee, B.; Coetzee, P. J.; de Villiers, C. V.; Diederichs, N.; Donges, T. E.; du Piessis, H. R. H.; du Plessis, P. W.; Erasmus, F. C.; Faurie, W. H.; Fouché, J. J. (Sr.); Froneman, G. F. van L.; Grobier, M. S. F.; Hertzog, A.; Heystek, J.; Jonker, A. H.; Keyter, H. C. A.; Knobel, G. J.; Kotzé, G. P.; Kotze, S. F.; le Roux, P. M. K.; Louw, E. H.; Luttig, H. G.; Marais, J. A.; Maree, W. A.; Martins, H. E.; Meyer, T.; Mostert, D. J. J.; Muller, S. L.; Nel, M. D. C. de W.; Pelser, P. C.; Rall, J. J.; Rall, J. W.; Sadie, N. C. van R.; Sauer, P. O.; Schoeman, B. J.; Scholtz, D. J.; Schoonbee, J. F.; Serfontein, J. J.; Uys, D. C. H.; van den Berg, M. J.; van den Heever, D. J. G.; van dern Merwe, J. A.; van der Merwe, P. S.; van der Walt, B. J.; van Eeden, F. J.; van Niekerk, M. C.; van Rensburg, N. C. G. J.; van Wyk, G. H.; Venter, W. L. D. M.; Verwoerd, H. F.; Vorster, B. J.; Wentzel, J. J.
Tellers: J. J. Fouché and J. von S. von Moltke.
Noes—33: Bowker, T. B.; Connan, J. M.; Durrant, R. B.; Eglin, C. W.; Fourie, I. S.; Gay, L. C.; Gorshel, A.; Graaff, de V.; Henwood, B. H.; Holland, M. W.; Horak, J. L.; Hughes, T. G.; Lewis, H.; Lewis, J.; Malan, é. G.; Miller, H.; Moore, P. A.; Plewman, R. P.; Radford, A.; Raw, W. V.; Ross, D. G.; Shearer, O. L.; Smit, D. L.; Steenkamp, L. S.; Steyn, S. J. M.; Steytler, J. van A.; Swart, H. G.; Tucker, H.; van der Byl, P.; van Ryneveld, C. B.; Williams, T. O.
Tellers: N. G. Eaton and A. Hopewell.
Clause accordingly agreed to.
Remaining Clause and Title of the Bill put and agreed to.
Bill reported without amendment.
Mr. SPEAKER announced that the Committee on Standing Rules and Orders had appointed the following additional members on the Select Committee on the subject of the Union Education Advisory Council Bill, viz. Capt. Henwood, Messrs, J. C. B. Schoeman, Stander and Streicher.
Third Order read: Adjourned debate on motion for Second Reading,—Electoral Laws Amendment Bill, to be resumed.
[Debate on motion by the Deputy Minister of the Interior, adjourned on 9 May resumed.]
When the debate was adjourned last night in a slightly calmer atmosphere than the one that has existed here this evening, I had indicated that I intended to move that the Bill be referred to a Select Committee before the second reading. I had also indicated that it was my intention so to do because there were involved in this amending Bill several principles with which we could not agree and which we would have to oppose. I had said that I thought it was of the greatest importance, not only to the members of this House—because this is the legislation in terms of which every one of us is elected— but also to the country, that we evolved electoral machinery that was as nearly perfect as it was possible for us to do. I think the way to evolve the best possible electoral machinery is to discuss this whole question in a Select Committee before any fixed principles are agreed to. This amending Bill does involve certain principles which as I say we shall be obliged to object to. The hon. the Deputy Minister has given us the history of the consultation which took place in regard to this Bill. I want to say that I am perfectly sure that his intentions at the beginning and now have been good. I have no doubt about that, but I want to say this that somewhere along the road his good intentions have somehow gone astray. At the beginning of last year, as the hon. the Deputy Minister has informed us, there was consultation between the hon. the Deputy Minister, senior officials of his Department and senior officials of the various political parties. On that occasion there was discussed firstly the question of the practical steps that could be taken to improve the registration of voters, to improve the mechanics of general registration and also certain other matters in regard to the mechanization of the electoral offices of his Department. I thought that those were very useful discussions and I had hoped that they would be very fruitful. Then at a later stage the hon. the Deputy Minister indicated that he would welcome the views of the various parties in regard to improvements to the Electoral Act. On 15 July I in my capacity as general secretary of the United Party made certain submissions to the hon. the Deputy Minister in response to his request, which I greatly appreciated. I indicated at the time in my letter to the Secretary for the Interior that my organization welcomed and was appreciative of this opportunity afforded to it by the Deputy Minister. In this particular communication which I addressed to the Deputy Minister at his request, we made certain submissions. Very few of those submissions have been accepted in principle in this amending Bill. I want to say that unfortunately a great deal of work and consultation have gone into the drafting of this Bill but in spite of that this is not the sort of Bill that we had visualized after those consultations. I do want to say this and I want to say it quite clearly that I believe that the Bill begins to form the basis for discussion before the second reading, a basis from which I think we can reach an improvement of our electoral system and an improvement of our electoral laws.
The hon. the Deputy Minister has told us that there are three broad aspects of this Bill. I agree entirely. Firstly we have the provisions applying to the registration of voters. In these provisions which apply to the registration of voters there are certain new departures and certain new principles. The first one, and I think the basic one, is this that instead of the old provision by which at the Minister’s discretion there was a general registration of voters not more frequently than every two years but at least not at intervals exceeding three years, we now have a provision that at the Minister’s discretion there may be a general registration of voters at any time but not at intervals greater than five years. Added to this rather fundamental change to which I have no basic objection as such, there are one or two other provisions. One is that the rolls are now to be completely re-compiled at every general registration. That is unlike the existing law in that no comparison will be made with and no recourse had to the existing voters’ rolls. In fact we will make an entirely new start and by various means no doubt— because this is naturally not provided for in the Bill—we will have new rolls compiled, including of course the compulsory provisions in the existing legislation which enforce the registration of voters. We will have new rolls compiled, as I say, at periods to be decreed by the Minister but not exceeding intervals of five years. The intention. I think, is clearly to achieve at least every five years a completely clean roll. Taken simply in that context this is a good provision. I think it is tremendously important that we have a clean roll from time to time. But under these provisions how long will those rolls remain clean? You have the situation that you have a general registration which is tackled ab initio without recourse or reference to existing voters’ rolls. In fact you make a clean start. But then you have the provision in the existing legislation that there is no compulsion on any voter to notify change of address. Sir, you start with a clean roll, in fact you take radical action to achieve a clean roll because you throw all the existing rolls away. The fact that a voter is on the existing roll does not entitle him ipso facto to get on to the new roll at a general registration. You start ab initio with the admirable intention of having a completely clean voters’ roll for every constituency. But you have the provision in the existing legislation which makes the notification of any change of address not compulsory; it is discretionary in the hands of the voter. Sir, what happens in this developing country of ours—it is still developing fortunately; for how long I do not know. In this developing country of ours you have tremendous movement of voters. You have a tremendous fluctuation of voters especially in the urban areas and as between the rural and the urban areas. In the course of five years where the notification of change of address by a voter is not compulsory you can get an almost complete change in the composition of the residents in a constituency and you can still have in that constituency all the people who were registered at the general registration still registered there. In addition to this you have a third provision that is involved in this Bill, and that is that there is no longer a necessity for a residential qualification of two months on the day of the general registration. I realize there are difficulties in regard to the question of a residential qualification. I know that it is a difficult thing. It is particularly difficult now that no recourse is to be had to old voters’ rolls when you have a general registration. You have the position of a person who is in a constituency on a given day, on the day of the general registration, but who has not yet obtained by residence the two months’ qualification which was necessary for him to be able to register under the existing legislation. Because you are now not going to leave that person on an old voters’ roll —because you are going to take him off there —you are in fact, if you insist on a residential qualification, going to disenfranchise that person until the next supplementary registration. I realize that very well. The point is this, when you take these three provisions together, firstly that you have a new deal, a new departure when you have a general registration which could be only every five years. But the people on that roll can be people who to a very large extent, some extent at any rate, have not yet attained residential qualification in the new constituency. They may be temporary sojourners, like some of my friends believe the Bantu are, in a constituency but they will then get on to that roll. And the third provision in this legislation as it stands, the existing legislation and this Bill together, is that the notification of a change of address is not compulsory, and that I think will create a very nasty position in certain circumstances. You see, Sir, in the first place the basic principle of our electoral law is the single member single constituency basis. That I think entails the concept that the elected member for a constituency is the elected representative of the people who are actually resident in that constituency and domiciled there, that he is there to represent their interests as their Member of Parliament; the people domiciled in that constituency, whether it be rural, peri urban or urban. In terms of these provisions, however, you can very easily in the present circumstances of our country have the situation where there is a very great movement of population out of a constituency or a very great influx of population into another constituency, but that those people who move in between general registrations—the period has been lengthened to five years —remain registered in the constituency where they were originally registered. They need not notify any change of address. What happens to this basic principle of our electoral machinery, the one member one constituency principle? You can have a situation where half the voters in a constituency like Welkom can very well be registered all over the Witwatersrand. It can certainly happen.
The hon. the Deputy Minister has consistently—let me put it as euphemistically as I can—not paid heed to our requests that this old principle of our electoral laws—this compulsory notification of change of address, should be embodied in the existing law. The old legislation before 1952, as the hon. the Deputy Minister well knows, provided that notification of change of address should be compulsory after two months. I think that was a sound provision. This law does not, and coupled with that, as I have said, is this five-year general registration period and coupled with that again is the elimination of the residential qualification. I want to say this, that if the Deputy Minister started with the intention of achieving a clean roll at every general registration—and that apparently is his intention—then he is vitiating his own intention by not going further and demanding compulsory notification of change of address. Quite apart from the way in which this affects the principle of our electoral system, the old-established principle of one member representing the votes domiciled in his constituency, I think it opens the door to various grave abuses. One of them is the question of the influence upon delimitations of the registration of voters. Let me take a hypothetical case, and this is not a very unlikely hypothetical case. Assume that one party or another wishes to achieve a registration situation in which there will be more constituencies in this area than in that area. At a general registration it would, in terms of these provisions in this Bill and the provisions of the existing legislation, be perfectly easy to register voters, by simply transferring those voters temporarily, into a given constituency and then allowing them to move out again. Those registration figures will be the figures taken into account by the Delimitation Commission but those figures will not reflect the true situation in regard to the number of registered voters in the country or how they are distributed. I see the hon. the Deputy Minister shakes his head.
We had all those arguments in 1952 and now you are dishing them up again.
The fact that we had them in 1952 and that they are being dished up again, to use the hon. member’s elegant language, does not mean that they are not as valid to-day as they were then.
They were proved wrong.
They were not proved wrong. In the developing areas of the northern Free State, in the mining areas, in the urban areas of the Witwatersrand, in the developing areas of Pretoria, you have a situation to-day in which a Delimitation Commission working on registration figures in terms of these provisions, will have a completely false picture, all because, as I say, the hon. the Deputy Minister and his predecessor in 1952 refused to heed our requests that notification of change of address by a voter should be made compulsory. That is the basis of the thing.
You know that it was a failure.
It was not a failure. It may have been very difficult under the old continuous registration system, yes, but you have now no longer a continuous registration system, in fact you have a completely new idea and that is a new roll every five years, in order to have a clean roll, and yet you provide in fact, by not making change of address notification compulsory, for the sullying, the packing of that roll within a very short period.
How is compulsory registration going to help you there?
Do hon. members not want a clean roll? Do they want a situation where there are 5,000 people registered in a constituency where they don’t live? Do they want that? Because that is the situation now in very many constituencies.
But how will compulsory registration help you?
I am not talking about compulsory registration which we have already. I am talking about compulsory notification of change of address.
The same thing.
Sir, I am addressing the hon. Deputy Minister who understands what I am talking about. Voters register, let us say, in Johannesburg (North) on the day of the general registration. A voter six months later moves away say to Welkom where he lives permanently. For five years he can leave his name in Johannesburg (North). Is that right? But compulsory notification of change of address compels him after having lived at Welkom for two months to register there. So that the voters in Welkom would be actually residents of Welkom. Does the hon. member now understand that? I am dealing with the broad aspects of registration. These are some of the points which I think can be discussed with advantage in a Select Committee, but before the second reading. If they are discussed after the second reading, these principles will then have been accepted, and we can do nothing about them. I do think that if the hon. the Deputy Minister wishes to achieve a good electoral machine, and I give him credit for that desire, then he must accept the amendment which I intend to move.
The second broad aspect of this proposed Bill is also a new departure, and that is the linking of the population register with the electoral machine. Now, Sir, this matter has been given very careful consideration by this side of the House, and I want to say that in the first place we do not regard the Population Registration Act (I say this without reflecting on the Act) as a good Act. We have declared specifically, and in consequence of congresses of our party, that we will repeal this Act, and I don’t think that anything should be done which by linking this Act with any other one will tend to help to perpetuate the provisions of the Population Registration Act. In any event, we feel, after very careful consideration, this linking of the Population Register with the electoral registration system and the voting system will not eliminate abuses, because the voter, unfortunately, who wishes to perpetrate, to commit an offence, the offence of impersonation, the voter who really is determined to do so, will continue to do so. But we do feel whilst it will not eliminate to any complete extent this sort of impersonation, it will restrict and trammel the free expression of the will of the ordinary voter. We all know how very difficult it is to get voters to the poll, and even my hon. friends on the other side are experiencing that difficulty. What this linking actually contemplates and embodies is an additional difficulty. That difficulty, we feel, will literally on polling days disfranchise a large number of people, people who have mislaid their cards, people who have left them at home and have come to the polling booth without them, people who have not received them. One of my hon. colleagues will deal in some detail with this matter. We do feel that whilst this will only play a small part in eliminating abuse, it will make it very much more difficult for the average citizen to express his opinion at the polling booth on election day. Therefore we do not accept this principle and will oppose it.
The hon. the Deputy Minister himself appreciates to an extent how difficult this linking is going to be in any event, because there is a provision in this Bill that these provisions in regard to the production of identity cards for registration and for voting will only come into effect as from a date to be proclaimed. Now, Sir, we have always said, without any reflection on the Population Registration Act, that its administration is a practical impossibility.
That was not your attitude when we discussed the matter with the secretaries of the different parties.
I am sorry the hon. the Minister has raised this.
I have the minutes of that meeting and I will read them to you.
Yes, and I have here my written submissions, none of which the hon. the Deputy Minister has accepted. And then he talks about consultation! And he will find that in these submissions there is not a single reference to this link.
The third broad aspect of this Bill is the question of the postal voting provisions. I had at one stage hoped, very sincerely hoped, that the hon. the Deputy Minister would introduce sweeping changes in the system of postal voting. I had hoped, and I think I had some grounds for that hope, that he would accept the very sound advice which was given by this side of the House during the course of the Referendum Bill debate. The hon. Deputy Minister will recall that during the debate on that Bill certain amendments were moved from this side of the House which we hoped would be accepted and which we hoped would tend to eliminate abuse in the postal voting system. Those amendments were not accepted, and we had in consequence, I think, a most shocking array of cases—cases which reached the courts in respect of offences under the Electoral Act in regard to postal votes before and after the referendum campaign. Now I am not allocating blame one way or the other. The hon. the Deputy Minister will remember, and I want to refresh his memory here (he has been trying to refresh mine in regard to this matter) that it was agreed—and this is something that was agreed upon—that the present postal voting system lent itself to abuse by the over-eager supporters of various parties.
I admitted that when I introduced the Bill.
Yes, the hon. the Minister admitted that himself, and I think the hon. Deputy Minister has attempted to go some little distance in this Bill towards eliminating these abuses and the possibility of abuses, but I am grievously disappointed. I had cause for higher hopes, because in December 1960 for instance, after the referendum campaign, there was a report in Dagbreek en Sondagnuus. Of course that was also after there had been a series of rather nasty cases in connection with alleged abuses of the postal vote system. Now I want to say that I am not referring to any report of any interview given by the hon. Deputy Minister, but I have always regarded this newspaper as fairly authoritative in regard to the plans of the Government. After all I think the hon. the Prime Minister is chairman of the board.
He runs it.
Here we have this report saying this—
Verneem word dat verskillende administratiewe maatreëls oorweeg word om spook-posstemme uit te skakel. Dit sal wysigings van die Kieswet meebring. Die wenslikheid word ook geopper dat posstemme alleen voor landdroste uitgebring moet word en nie voor party-amptenare nie.
Here we have a fairly accurate foreshadowing of certain of the amendments which the hon. the Deputy Minister intended to introduce in Dagbreek en Sondagnuus on 4 December 1960.
How can you say that?
His Master’s Voice.
And let me say that that foreshadowing …
You are quoting a newspaper and then you say that those were my proposals.
I am fairly well convinced in my own mind that the hon. the Deputy Minister would like to adopt proposals in regard to postal voting similar to those which this side of the House proposed during the debate on the Referendum Bill. I want to ask him again what objections he has to adopting those proposals and whether it is right or wrong that, as quoted in this report, he or his Department had at some time or other given consideration, and serious consideration, to these proposals. The hon. the Deputy Minister will recall that those proposals embodied one basic principle, the same basic principle as that mentioned in the report I have here and that was that the handling of applications and ballot papers for absent voters should be removed from those persons who were openly partisan, and therefore obviously openly biased, and placed in the hands of the state authorities as such. Sir, our election law goes to tremendous lengths to provide that where a voter goes to a polling booth he votes in front of the presiding officer or a returning officer who is an unbiased and unpartisan person.
Where do you get that?
Is that a reflection on our civil servants and our election officers and our magistrates and assistant-magistrates and police officers? In respect of 80 per cent of our voters who go and present themselves in person and vote in front of a presiding officer, or a returning officer, great care is taken that those ballot papers cannot go astray, that nothing can go wrong with them. These people are non-partisan by reason of the offices they hold. But for about 20 per cent, unfortunately, because of this system of noncompulsory notification of change of address, that does not apply. We have a tremendous number of postal votes in every constituency, usually 20 per cent, or at least in many constituencies 20 per cent, and that 20 per cent of the electorate vote not in front of nonpartisan officials, non-biased persons, but in front of commissioners of oath, presiding officers, who are in fact the employees or the nominees of a political party. The hon. the Deputy Minister knows that party organizers in the full-time employ of parties are ex officio commissioners of oaths. He knows also that the election agents and sub-agents of candidates are ex officio commissioners of oaths and therefore presiding officers for the purposes of postal votes. Sir, this system is wrong. It has been proved wrong. It is a shocking system. And the hon. the Deputy Minister, I am quite sure, is convinced that the system is wrong. He has now gone a little way in this amending Bill towards attempting to eliminate abuse in the casting of votes by absent voters. I praise him for it and thank him for it. But I think he must go a long way further, after discussion of this matter in a Select Committee before the second reading. Unfortunately too, in going some little distance towards eliminating abuse of this postal voting system, I think he has opened the door to other abuses. You see, Mr. Chairman, we have great doubts, and these will be dealt with in detail by my colleagues here, as to whether his attempt at improvements—and they are attempted improvements, and I give him credit for it— whether these attempted improvements do not lead to other abuses, not intended by him. There is for instance the question of the secrecy of the ballot, which is one of the matters which will be raised on this side.
Apart from these three basic matters, there are also many details of principle in this Bill which we are not enamoured of. There is for instance Section 25 of the principal Act which is now being amended by Clause 13 of this Bill, to the effect that rolls for general election purposes need not be printed for any fixed period—the old period was two months —before a general election. Now I know the hon. Deputy Minister when he introduced this Bill said that normally an election was fought on a supplementary roll so that you did have the general registration roll and then the supplementary roll. I know that is so, but it is not always the case that a general election is fought on a roll which has a supplementary. This leaves a discretion in the hands of the Minister, which I feel is too great. You can have a general registration and you can have a very quick election after it. I don’t like this provision, and I should like to discuss it further with the Minister. Then of course there is another provision which concerns us greatly. I know the hon. the Deputy Minister ties it up with the mechanization of his electoral office. But Section 29 of the principal Act is amended by this Bill so that there is no longer the necessity for the Chief Electoral Officer to ensure the comparison of voters’ lists to eliminate duplications. The word “shall” has been changed to “may”. I would like to know a great deal more about that. This question of duplication of registrations in various constituencies is a serious one. I think the hon. Deputy Minister and hon. members on those benches will agree that all over this country, by design or by accident, you find people registered in more than one constituency. In terms of the existing legislation it was obligatory upon the Chief Electoral Officer to ensure a comparison of voters’ lists for the purpose of eliminating duplications. This is now being left to his discretion. The Chief Electoral Officer may now effect a comparison. As I say, I would like to know a great deal more about that, because it seems to me that that opens the door very wide to abuse. I want to know whether there is not some other method, some other system, and I would like to go into details to get some other system which will eliminate the possibility of large-scale duplications. This master index in the Chief Electoral Officer’s office was the only way in which this could be done in the past. You had the master index, the alphabetical index of every voter in the country and it was very easy to eliminate duplications. If this is done away with, what steps are to be taken and how can they be enshrined in this legislation to eliminate the possibility of duplication?
Of course there are some features of this Bill which we like. The provision for the extension of the hours of polls is a good provision, but may I say in passing that if identity cards are to be produced by voters at polling booths this extension of hours is not going to be long enough to get all the voters through, because the process of voting will take longer. However, as I say, there are provisions in this Bill which we like and there are others which we do not like and which we would like to discuss in the Select Committee with the hon. the Minister, but before principles are established. I hope the hon. the Minister will seriously consider the amendment which I now move as follows—
The hon. member has ended his speech rather close to the adjournment and I shall not be able to discuss his whole speech in the few minutes which remain. I just want to take up the first point which the hon. member has discussed, and it relates to Clause 2. He has said that he objects to the fact that an amnesty is now being granted to the few people who committed high treason during the last war. I am very sorry that the hon. member has adopted this attitude; I am really very sorry. He should remember that after the First World War the late Gen. Smuts and the late Gen. Botha granted an amnesty to a number of people who perhaps did worse things than these people did during the last war, and that later they sat in the same Cabinet with Gen. Smuts. I wonder whether the hon. member remembers that? I think six people are affected by this provision. One of the six is a doctor of theology, a leading member of our Church, a member of the moderamen of our Church. I want to say that intellectually he is far above the average voter of this country; one is a professor; I do not need to discuss the other four at the moment, but I am merely showing what type of person it is from whom the hon. member wishes to withhold the vote because they have done things regarding which their leaders have in fact granted amnesties in the past. I therefore want to make an appeal to the hon. member to withdraw his objection.
Before discussing the measure any further, I now want to move—
That the debate be now adjourned.
Agreed to; debate adjourned until 15 May.
The House adjourned at
First Order read: Third reading,—General Law Amendment Bill.
That the Bill be now read a third time.
Before calling upon the hon. member for Springs (Mr. Tucker) to address the House I would just like to read to hon. members the provisions of Rule 180—
This is one of those cases of a piece of legislation which is being placed on the Statute Book which I believe I am right in saying is a piece of legislation which all members of this House regret should come before it for consideration. There may be differences of opinion as to its necessity, but I hope that every single member on the Government side regrets as much as I do that certain provisions of this legislation are being placed upon our Statute Book. Sir, I wish to refer to some of these provisions and indicate how far-reaching they are. The provisions of Clause 4 introduce into the law of South Africa—it is true on a temporary basis but nevertheless introduce into the law of this country—something which is entirely out of keeping with the spirit of our law. The spirit of the system of law under which we operate and of which we are proud has always been that a man is regarded as innocent until he is proved guilty, and it is in furtherance of that principle that provisions have been inserted into our law in order to ensure that no injustice shall be done to a man who may possibly, at the end of the proceedings, be held to be not guilty. In furtherance of that principle our law provided that persons were entitled to bail and that they had to be charged within a period of 48 hours after their arrest. Now for the first time in terms of the provision which is about to be put on to the Statute Book of this country, arbitrary power is vested in the Attorney-General. Although the Minister has told us that he does not exercise that power we know that this provision does in fact also place power in the hands of the Minister, in terms of our law, to decide that any person who has been arrested on a charge of having committed an offence, shall not be released on bail before the expiration of a period of 12 days, because the clause provides that the Attorney-General (which includes the Minister) may, if he con siders it necessary in the interests of the safety of the public or the maintenance of public order, issue an order that such person shall not be released on bail or otherwise before the expiration of a period of 12 days. The hon. the Minister was quite straightforward with this House in his reply to the second reading debate. He mentioned there that at the end of the period of 12 days, unless persons have been found guilty or have been charged and the proceedings are still in progress, they may be released. Sir, I say that this Opposition has been right to oppose this clause. The hon. the Minister will admit that in terms of this clause, if a person is arrested on a charge that he has been guilty of some offence—any offence whatsoever, however serious or trivial it may be—it is possible for the Attorney-General to order that that person shall be held for a period of 12 days without being entitled to be released on bail. It is our submission that that power is one which should not find its way on to the Statute Book of this country. It is in conflict with the whole spirit of our law. It must be remembered that this clause suspends not only the provision in regard to bail, but in my submission it also suspends the provision that a person must be brought before a court within a period of two days. If a person is not brought before the court within that period he has to be released. I think the hon. the Minister will agree that this clause also suspends the necessity of bringing persons almost immediately before the court. I hope the hon. the Minister will tell us that he himself deeply regrets that he considers it necessary that that should be done. Our submission is that this clause is a clause which is so foreign to the whole of the spirit of our law that it is a provision which should not find its way to the Statute Book of this country, even on the temporary basis which is provided for in this clause, in terms of which the clause will be operative for a period of only 12 months, unless it is renewed by Parliament.
Agitators are foreign to the spirit of our law.
I agree that agitators are foreign to the spirit of our law, but I do not believe, Sir, that you will permit me to discuss agitators. I am seeking to deal with the merits of this clause as it stands. I am quite prepared to cross swords with the hon. gentleman in regard to that matter. We are not interested in agitators.
Order! The hon. member must not cross swords with the hon. Member now in regard to that subject.
Very well, Sir, may I say that what we are attempting to do is to ensure that it will not happen as the result of the operation of this clause that innocent persons will suffer, and that can very well happen.
You are helping the agitators.
Sir, it is somewhat difficult to speak to the clause when there are constant interjections and interruptions from the other side which are contrary to the ruling which you gave earlier to-day. I do submit that when the hon. member for Mossel Bay says that I am helping the agitators, then you should permit me to reply to allegations of that sort coming from hon. members on the other side.
I appeal to hon. members to give the member a chance to make his speech.
Sir, we are recording this final protest against this clause, because we do not believe that it is a clause which should be enacted, and if there are difficulties which the hon. the Minister foresees, we say that this is not the way to deal with those difficulties.
A second provision I wish to refer to is the provision which relates to the Riotous Assemblies Act of 1956, and in effect, in certain respects changes the whole character of that Act and makes it of general application. There we have a widening of the powers in regard to riotous assemblies, there is the increase of penalties which we fully dealt with at the earlier stages of this Bill, and then there is a provision to which the strongest objection is taken, one which I feel sure experience will show is a very unwise provision to include in the Act—it is a provision again contrary to the spirit of our South African law, because it reverses the onus of proof and places it on the shoulders of the accused. Sir, the hon. the Minister has said that there are other examples of this. I will concede that. But he has not been able to quote a single example where, in matters of this nature, the onus has been reversed and placed on the shoulders of the accused. This provision, we submit, is one an accused may find it very difficult to meet, and therefore that is a provision which of necessity we must oppose, as we have opposed it.
I just would like to refer to one provision to which objection is not taken, the provisions in Clause 2 in regard to the control of firearms in this country. That is common cause among all members of this House. No objection has been taken to those provisions. The provisions seem of a sensible nature, and it is conceded that they are necessary. In fact members on both sides of the House have asked that something should be done to bring the question of the holding of firearms by our licences into a more satisfactory state as at present.
But the other provisions of this Bill are of a totally different nature. They grant arbitrary powers to the Executive to invade the liberty of the subject and they restrict the powers of the courts to protect the individual. Sir, I hope that any Opposition at any future time will protest, as this Opposition protests at the present time, at legislation the contents of which provide for powers of that nature. We say that those powers are inadvisable. We say that there are other methods by which the difficulties which perhaps this measure is devised to assist the Government in—that there are other powers which could be used. In the ordinary case there is no difficulty about dealing with the question of bail and charging persons timeously. It is only if they are arrested on a large scale that there might be difficulties, and the courts might not be able to cope with them. I believe that it is not beyond the wit of the hon. the Minister to deal with that situation, and there is always the possibility of bringing those persons before the courts and laying a charge, because there must be information in regard to a charge, and asking for a remand so that cases can be properly dealt with at a later stage. At the present time this Bill empowers the executive to do away with the right of bail for the period of 12 days; it also does away in my submission with the very salutary provision in our law that a person must be brought before a court within the period of two days. We have protested and will continue to protest. I beg to move as an amendment—
Yes, I agree that it is a shame that, under this Government, it has been found necessary to place legislation like this upon the Statute Book of this country, to place a law on the Statute Book of this country in terms which cut clean across the whole spirit of our laws, and introduces on to the South African Statute Book a provision which confers arbitrary powers, arbitrary powers which it has been the whole system of law under which we operate to eliminate and to submit all these matters to the decision of the body which is there to protect not only the safety of the State and the peace, but at the same time to see that the rights of the individual are protected. We submit that this Bill fails in that measure and, for that reason, I move.
I second the amendment.
You will have noted, Mr. Speaker, that the hon. member for Springs (Mr. Tucker) did not say a word about that part of the Bill which deals with ammunition.
He approved of it.
Well, then I could not have been here when he said it, and I am glad that we are at least on common ground there. But we also have other common ground. The hon. member deplores the fact that it is necessary to pass this legislation. So do I. I also deplore the fact that the position in the country is such that it is necessary for this House to pass such a measure. We all regret it. But that is the end of our common ground. The hon. member says that it is out of step with the spirit of our laws. I want to deny that because the spirit of our law is not to surrender and to allow disruptive elements to wage war against us under the cloak of peace and in that way to bring us to a downfall. That is not the spirit of our laws. That is the defeatist spirit I detect on the part of the hon. Member for Springs and the whole of the opposite side of the House. The spirit of our laws is that every challenge issued to the Government is accepted and replied to in the same manner as that in which the challenge was issued.
That is the duty of the State.
Yes, it is the duty of the State, and this side of the House has never hesitated to do its duty. It is the duty of this House to ensure public safety and good order. When this side of the House considers it necessary to pass these measures, it would be failing in its duty if it did not do so.
What is the position to-day? It is simply that under the guise of peace a cold war is being waged against us both overseas and in this country. The fact is that both the hon. member for springs and all his supporters, as well as the supporters of this side of the House, are engaged in that war. The fact is that if we do not fight that war we are a lot of hands-uppers, including the hon. member for Springs and all his supporters. What are we doing now? We are accepting that challenge. We say that we have a position here in which it has become necessary to detain certain people for a period of at least 12 days. We say that because the period of two days is too short for a variety of reasons. One of the reasons, which the hon. member rejected, is that we do not have sufficient time to bring to court all the people arrested and to give the reasons why they should be detained. Another reason is that there is in fact evidence on which the police and the Attorney-General come to a decision for the benefit of the country, i.e. in the interest of the safety of the public and the maintenance of public order, whilst that information cannot be divulged, because by doing so the object to be achieved would be defeated. But the hon. member rejects that. He does not accept it. Why? Because his view of the facts differs from that of this side of the House. Now I can tell him this. We forgive him for holding those views, but he should not try to sell them to us. It is our responsibility to care also for his safety and those of his voters, and if we fail to do so he and his voters will be the first to reproach us. If we are to adopt his views and fail to protect them, as he would fail, we cannot later correct the mistake, because then we would be locking the stable door after the horse had been stolen. Hon. members opposite do not realize, or do not want to realize, that we are in fact engaged in a cold war. The cold war is that pressure is being exerted on us from abroad to adopt measures which, if they were to be adopted, would amount to the abdication of the White man.
Order! The hon. member may not now discuss the reasons for this Bill in detail.
Mr. Speaker, the effect of this Bill will be that the whole House accepts the challenge now being issued to the Government as it behoves us to do. Furthermore, the hon. member for Springs regretted the fact that the onus of proof was now being placed on the accused in terms of Section 10 of the Riotous Assemblies Act. The only reason he evidently heard the Minister giving is that it was done in other respects in the past, and he says that is not a reason for doing it, but a reason for condemning it, if I understood him correctly. Perhaps I am using bigger words than the hon. member used, but that is how I understood him. What do we have in this case? We are dealing with persons who are trying to affect the right of personality of other people. The right of personality is one of the intangible things, one of the undefined concepts in our law. This right of personality means that one has the power to perform one’s ordinary deeds of commission and omission. This Section 10 prohibits people from derogating from one’s right of personality, i.e. from obstructing one in performing one’s ordinary deeds of commission and omission. Now it may be that there are people who assist in doing that merely by virtue of their presence, without wishing to do so. But that is something which is particularly within their own knowledge. On the face of it, they can immediately be convicted. We do not want to do that. We do it in the spirit of our law; we will punish such a person only when he has mens rea. And who knows better than the accused or the arrested person himself that he found himself in such a situation without having any mens rea and that conclusions are being drawn from his presence which he did not intend? It does happen that we place the onus of proof on the accused. Take, e.g., the person who receives stolen property. The receiver is as guilty as the thief. Under the circumstances he must prove that he did not know that the goods were stolen, because those are matters within his own peculiar knowledge. Here we have a similar position. We are dealing with facts which are within the peculiar knowledge of one of the high standards on a certain occasion, the res gestae. But what is wrong by putting the onus of proof on such a person in regard to matters which are within his peculiar knowledge and to make him prove that he did not take part in that particular crime with which he is charged.
Then the hon. member had a big grievance against this provision that a person will not be brought before court within the usual time. I already said in the second reading that “ as soon as possible ” has a particular meaning. It means as soon as possible, taking into consideration all the circumstances. And the circumstances in this case are that a crime has been committed against the community as a whole and not against individual persons, and the circumstances can vary widely. They can apply to a single individual or generally. But when we take everything into consideration it is quite possible that we need longer than 12 days to convince the court that it is necessary to detain such a person. But what is more, when we are engaged in a cold war in which South Africa is asked to do certain things which will result in the abdication of the White man, even 12 months is nothing for the preservation of peace and order and the safety of the whole country, because the fact is that the peace and order of this country is the peace and order of the White man, a Pax Europea, if I might call it that. It is the peace of the Europeans who brought it here, and this Bill is one of the measures we adopt to protect that Pax Europea (and I use “ Europea ” as an adjective and not as a noun). To say that we are adopting a measure which is foreign to the spirit of our laws is the biggest nonsense, because the spirit of the law as he knows it was conceived at a time when there was peace and no cold war which even has to be fought on two fronts. The spirit of this law we are passing to-day was conceived in the light of the fact that we are engaged in a cold war at the moment. That is why it will be effective for a year only. We believe, and I hope the hon. member for Springs also believes it, that it will be required for a year only. I am glad, and I want to thank the Minister, for having introduced this measure. It has been necessary for a long time already for us to fire a charge of bird-shot into the reeds where the finches are making such a noise.
I concur with what the hon. member for Springs (Mr. Tucker) has said about Clause 2 of the Bill. We are not opposed to it, and I have nothing further to add to what the hon. member has said.
I want to say that our objections to the rest of the Bill were clearly stated during the debate on the second reading and in the Committee Stage, and therefore it is really not necessary now to say very much indeed. But we want to pause for a moment to consider very briefly the contents of this Bill and what flows from those contents. We have, as has been pointed out, Clause 4, the crucial clause, namely the one enabling the Attorney-General to decide that an apprehended person may not be per mitted to be released on bail for a period of 12 days. Then we have the provision dealing with increased penalties, and we have the provision dealing with the difficult onus of proof which is now placed upon what may well be an innocent person. The hon. member for Standerton has talked about the Pax Europea. He has coined the phrase “ Pax Europea ”. I would say that if that phrase has any content in the circumstances of contemporary life in South Africa, then the Pax Europea must be dependent upon Pax Africa, the peace of persons of other racial groups in the country, because peace is not divisible, peace cannot be separated, cannot be put into water-tight compartments in this country. If there is to be peace, it must be a peace which reigns throughout the country, and by reason of the fact that the inhabitants of this country, whether European or non-European, feel at peace and feel that they can regard this as their common fatherland. But I do not want to develop that theme, because then I would perhaps be going beyond the scope of the third reading debate.
Before I sit down, I want to say that I accept that the purpose of this Bill, as pointed out by the hon. the Minister and indeed by other hon. members opposite, is to enable peace and law and order to be maintained over a period of political unrest or possible political unrest. Now, Sir, no responsible person objects to such a purpose. It is certainly the duty of a responsible government to maintain peace, to maintain law and order. But what we say and want to emphasize is that persistent legislation of this kind is an ominous symptom of something seriously wrong in our race relations. You see, Sir, this is not the first piece of legislation having contents similar to the contents of the present Bill. Mr. Speaker, I say this in all seriousness, that if the power to outlaw institutions and to deprive men of their liberty for undisclosed reasons, without an appeal to the courts, is needed in South Africa at the present time, in peacetime, then that throws a lurid light on conditions in the country. That is really the gravamen of our objection to this Bill. We are not objecting to the Minister maintaining law and order. We are not objecting to the Minister trying to preserve the peace of this country. What we are trying to point out, in the light of the contents of this Bill, is that if the peace referred to by the hon. member for Standerton and other hon. members must be maintained in this country, then it will not be done by measures such as this, measures containing increased penalties, making additional intrusions into the rights and the liberties of the individual. What is so necessary is to get down to the basic causes of discontent. Because after all Communism thrives on discontent. This Bill is aimed at agitators and Communism thrives by producing agitators amongst a discontented community. But I believe that we shall not root out Communism, as we want to, if we are going merely to seek to deal with the agitators and potential agitators by virtue of legislation such as this. You will not permit me, Sir, to go once again into the pattern of legislation to which I referred in my second reading speach, legislation after legislation with increased penalties, creating further crimes and so on. But the Minister goes on and on. He is drawn into a net, clearly of his own making.
Order! The hon. member must not himself be drawn into a net. He must come back to the contents of the Bill.
Yes, Sir. I say that we are opposed to this Bill not because we are opposed to the maintenance of law and order, but because we believe that it should not be necessary for this Government to have to introduce legislation of this kind if it would get down to real causes, to root causes. In other words, there may be a need for action at the present time, but we believe there should not have been such need for action; and that unless the Government by getting down to root causes so re-shapes its policy as to avert further trouble, we shall have to continue with legislation of this kind. Therefore we cannot be a party to legislation at this stage which may merely be part of a further pattern of increasing penalties, etc. If the hon. the Minister says that I am not patriotic I say that I, as well as other hon. members on this side of the House, yield to no member in this House, or to any man, in our patriotism towards South Africa, whether under a monarchy or whether under a republic. But we shall not willingly forfeit our right to say what we feel is the proper thing to do in the interest of this country. Therefore, Sir, we oppose this Bill, despite the taunts from the hon. member for Mossel Bay and from other members on that side of the House, and despite taunts against the hon. member for Springs and against myself. We oppose this Bill because we believe that by opposing it, we are opposing something which is inherently wrong and inherently unnecessary, although the Government may have brought itself to a stage where it can maintain the peace only by this means. We believe, Sir, that permanent peace cannot be maintained on such a fragile and dangerous basis, and it is for this reason that we will vote against the third reading of the Bill and support the amendment moved by the hon. member for Springs. I do not propose to go further into the details of this Bill because we could argue at great length about the discretion of magistrates who may have to deal with applications for bail. May I just say this in conclusion, that I have little doubt in my own mind that if a person of whatever colour were to be brought before the magistrates of established courts and charged with incitement, with prima facie evidence being available to justify such a charge, then because that particular crime has been made a very serious one with heavy penalties attaching to it, I doubt very much whether any magistrate would grant bail if there is a period of temporary difficulty—in other words I do not think that the provisions of Clause 4 are necessary. I entirely concur, therefore, in the observations made by the hon. member for Springs that this is a novel proposition and that it is an ominous innovation in our criminal law, namely, that discretion should be granted to an administrative official to issue an edict by a stroke of the pen or by a rubber stamp preventing individual citizens from obtaining bail and preventing—because that is what it connotes at the same time—our judicial officers from exercising their functions and their discretion to decide whether or not an application for bail should be granted. Legislation that does this is dangerous and pernicious, and we cannot accept it. For these reasons we shall vote for the amendment proposed by the hon. member for Springs.
One of the main reasons, or arguments, advanced by the hon. Minister to justify the contents of this Bill and, particularly, the objectionable portions of that content, was that industrialists and businessmen in South Africa were looking to the Government to take a strong hand in putting down racial unrest or racial disturbances in the country.
Order! The hon. member must come back to the contents of the Bill. I cannot allow wide discussions because we are concerned with the third reading only now. The hon. member is now making a second reading speech.
Mr. Speaker, I only want to point out that the contents of this Bill vests in the Government drastic powers and the amendment moved by the hon. member for Springs (Mr. Tucker) is intended to object to the granting of arbitary powers to the Executive to invade the liberties of the subject and to the restriction placed upon the powers of the courts to protect the individual. My address to you, therefore, is in terms of that amendment. It stands to reason that trade and industry want peace and good order to prevail throughout the country. So does everybody else. There is a vast difference between (a) maintaining peace and order solely by means of the strong arm of the law and by arrests and detentions in terms of this Bill, and (b) having a state of peace and order based on racial tranquillity and civil contentment being the outcome of good government by consent. I cannot agree that industrialists and businessmen are looking for peace and good order brought about by coercion through arrests and detention …
Order! I cannot allow the hon. member to continue on those lines. He must come back to the contents of the Bill.
I will endeavour to obey your ruling, Sir, but I am faced with an amendment which is wide in its terms. I say,
Sir, that it is not greater arbitrary powers or sterner legislative measures that are required to be exercised by the Government. What everybody wants—and that includes people outside the country—is a change in policy.
Order! The hon. member is not speaking on the contents of the Bill.
All I am trying to Indicate is that the contents of this Bill will not inspire the confidence which is being sought. On the contrary, it will do exactly the opposite. You see, Sir, the contents of this Bill constitute just another form of despotism.
Order! The hon. member must either resume his seat or he must discuss the contents of the Bill. I am very sorry but I cannot allow the hon. member to continue on those lines. He has my sympathy but there is the rule which must be adhered to.
I hope you will allow me then to deal with another argument which has been advanced in regard to this Bill and that is the provisions of Clause 8 and Clause 4 which indicate that we are living in a state of danger. If that is correct—and the hon. Minister obviously has information which is not available to us in respect of which he has not taken us into his confidence—then surely the time has come when there should be self-examination by the Government.
Order! That is another subject and the hon. member should seek another opportunity of discussing that. We are now busy with the third reading of this particular measure.
Does that mean, Sir, that you will not allow me to indicate that the time has come not for passing this Bill but for a re-examination of the situation which has developed?
Order! I cannot allow the hon. member to discuss matters which are extraneous to the contents of this Bill. I have read out the relevant rule and I expect him to obey it.
Sir, the contents of this Bill are directed at solving a problem which exists in this country and it is proposed to solve that problem by means of the use of force, by the force of law. That is what I think the contents of the Bill are, and I am trying to indicate that that is not a method which will assist this Government in its endeavours.
Order! The hon. member knows that the occasion to have raised that point was at the second reading. We are now busy with the third reading and the hon. member is, therefore, behind the times!
Sir, I naturally want to obey your ruling for the reasons which you yourself have given. We are dealing now with a provision in the Bill which prohibits the intimidation or annoyance of persons and their relatiives or their dependants. That is what we are dealing with in this Bill—a remedy against this form of activity in South Africa. My purpose is to indicate that this method of dealing with intimidation is only one method, but that there are also other methods to deal with it—more effective measures; and the measure which I would press upon the Government, even at this late hour to give reconsideration to as an effective method, is not the remedy proposed in this Bill because it is inadequate and ineffective. The real method to deal with intimidation is to realize that intimidators do not create grievances but that grievances create intimidators. A solution to the problem, therefore, will be to examine that aspect of the matter and to remove the causes …
Order! Yes, but the occasion to do that is not now.
You have permitted me, Sir, to make the point that the remedy which is being sought by this Government is not the correct one and my plea is, at this late hour, that there should be re-examination of the matter. I think, Sir, you will allow me to deal with this question of intimidation because this is at the root of the Bill with which we are dealing. South Africa is now going to be divided into three types of periods: a state of peace, a state of proclaimed emergency, and a state of twilight emergency. The Bill is dealing with the last stage—the state of twilight emergency in South Africa. The provisions of this Bill will not, to my mind, lessen the difficulties with which we are faced to-day, but will increase them. The amendment which has been moved is that we, on this side of the House, cannot support the Bill because it grants arbitrary powers to the executive to invade the liberty of the individual and this invasion is effected by at least three clauses of the Bill. Another reason is that it restricts the powers of the court to protect the individual and this is a very serious matter as the hon. member for Springs and the hon. member for Salt River (Mr. Lawrence) have pointed out. We in this country have thus far always had trust in our courts but we are now, by measures of this nature and particularly Clause 4, placing distrust in our courts and this is completely unwarranted.
The contents of this Bill are, according to what we have heard from the hon. Minister, intended to maintain law and order in the country in a situation which he believes will arise …
Order! The situation which has arisen now is that we are discussing the third reading of this Bill.
But I am dealing with the actual contents of the Bill, Mr. Speaker.
The principle of the second reading is not now under discussion.
I will then deal with the contents of the various clauses. The object of Clauses 4 and 8 is to control a situation which the hon. Minister thinks will arise in the near future. We on this side of the House want to draw attention to the seriousness of invoking powers of this nature and we, in fact, maintain that these clauses are not really necessary for the hon. Minister to achieve his purpose. These clauses, Sir, may lead to an unfortunate situation where, instead of achieving the object of controlling persons whom the State fears may be a source of danger to it, may tend rather to inflame feelings of its subjects …
Order! Yes, but that is a matter of opinion. We must now come back to the facts, that is the contents of this Bill.
But how does one discuss the contents of the Bill then, Mr. Speaker? If we deal with this Bill at its third reading, we are dealing with its contents and what its contents means in the context of South Africa …
Order! The hon. member should abide by my ruling. It is, I think, clear to everybody else what that ruling is.
I do not want to appear to try to find reasons for opposing the third reading the Bill when, in fact, I am speaking to an amendment which states that the effect of the Bill is going to restrict the liberty of the subject. I would, therefore, like to oppose it to the utmost of my ability and I must, therefore, be guided in that respect if I am so severely limited, because my purpose is to make clear on what grounds this side of the House is moving an amendment of this nature the effect of which will be not to allow the third reading of this Bill to take place and not to allow it to become law and to appear on our Statute Book. That is the purpose of our opposing the third reading of this Bill and if I could be assisted to find the proper channel in terms of the rules, I would be delighted to comply with your ruling, Sir. If I may proceed, subject to your approval of my interpretation of the rule, Sir, I would like to say that these two particular clauses place in the hands of the Executive powers which carry dynamite in their application. That is how I see the contents of these two particular clauses to which we, from this side of the House, are endeavouring to direct the attention of the Minister. This Bill grants additional powers which we feel can create a state which the hon. Minister is trying to avoid.
Order! The House is not concerned with the creation of a state but with this Bill.
I want to refer once again to the amendment, which I think is very specific in its terms. It makes an appeal to the House not to pass this Bill. It makes that appeal because it says the Bill has a certain effect which is set out in the amendment, an effect which controls and restricts. Not that there are no other laws in our country which do not control and restrict but the control and restriction imposed by this Bill are unnecessary. That is why this amendment has been moved and that is why this House is asked not to pass the third reading of the Bill. The hon. Minister may in his reply traverse a much wider field than I have been able to traverse in my limited vocabulary …
I have no intention to.
Well, I do not know, Sir. We have had a quite interesting traverse of this Bill at other stages of its passage and I feel that the Minister may wish to do so again. We must, therefore, make every effort because we are very sincere in our point of view. There has been an accusation that there is not perhaps sufficient co-operation with the hon. Minister in his object of maintaining law and order in this country by means of this Bill, but that we refute because we stand for law and order …
Order! That is not under consideration now.
I will, therefore, content myself in conclusion by pointing out to the hon. Minister who is piloting the third reading of the Bill, that the contents of the amendment have the serious support not only of this side of the House, Sir, but I think of the majority of well-meaning citizens of South Africa and that he must take note of this and of the contents of the amendment. That is the appeal which we make and that is the object of our objection to the third reading of the Bill.
I think it is clear from the four speeches that we have had from hon. members opposite that they do not have any new arguments to advance after the very thorough discussion that both sides of the House have conducted on the second reading. I can well understand that. We discussed the whole matter very thoroughly during the second reading, and it does not appear from the speeches on the third reading that many new points can be raised. The hon. member for Springs (Mr. Tucker) has referred to Clause 4 of the Bill and I agree with the hon. member for Salt River (Mr. Lawrence) that that is the crux of the Bill. As on a previous occasion, the hon. member for Springs said that powers were being placed in the hands of the Minister under this clause. I have already said that, in practice, that was not the position because the Minister did not—I trust my predecessor did not do so and I trust that those who follow me will not do so—interfere with the Attorney-General. It has also been said that Clause 4 gave extensive powers to the Attorney-General. The reply to that is that under the law of the country the Attorney-General in South Africa has very extensive powers. I have said on a previous occasion that they were extensive powers that exceeded those of the courts, because the Attorney-General had the power to decide whether or not to prosecute in a case in which hundreds of thousands of pounds may perhaps be involved or where the lives of people may be involved. He is the only person who can say whether the case should go to court or whether the person should be released. I cannot think of a greater power in the hands of any person than that. The power which he receives under this Bill is of a minor nature in comparison with the power which he already has. What power does he get under this Bill? He merely has to decide when anybody has committed a crime—remember, has committed a crime; remember that heading “ when anybody has committed a crime ”—whether the facts as submitted to him warrant the man being detained for 12 days instead of two days. Mr. Speaker, it is generally known that Attorneys-General, with the assistance of the police, have information at their disposal concerning certain people or can have information at their disposal which the court does not have at its disposal because in terms of the rules of the court that evidence cannot be placed before the court. In the second place it is very often of a secret nature and of such a nature that it is peculiar only to the knowledge of the police and of the Attorney-General. He is, therefore, in a much better position to come to a reasoned decision whether bail should be granted to a person or whether he should be detained for a few days. And last but not least, as far as this point is concerned, it is obvious that, with a view to the circumstances which prevail in the world to-day, the circumstances which prevail in South Africa and in Africa as well, extraordinary steps have to be taken. I repeat that these are temporary measures. I have deliberately made it of a temporary nature for the simple reason that neither side of this House wish to take measures such as these, unless the safety of the State is involved. That is why I have listened with interest to the hon. member for Salt River because I expected him to suggest an alternative if he objected to this measure.
I said that you were caught in the web but I would not enlarge upon that.
Any Government of a country that wishes to maintain law and order in the country, as we want to maintain it, has to take certain steps. I have already said that, if at all possible, we did not want to declare a state of emergency; we did not want to abrogate the laws of the country completely and place everything in the hands of the Government. That will be the alternative. We had little appreciation from hon. members opposite for this attitude.
Order! The hon. the Minister is now getting away from the contents of the Bill. There is no clause in this Bill that refers to appreciation of the Government.
I shall not go into that any further, Sir, although this is a serious matter. The hon. member for Springs also pointed out that a person was entitled to bail within two days. That is not the law of the land. According to law nobody is entitled to bail. It is in the discretion of the courts whether or not to allow bail to anybody.
Another point that has been raised is the question of the onus that now rests on the accused where he is charged with having practised intimidation. He has to prove whether or not he has intimidated another person. The hon. member for Standerton (Dr. Coertze) has already dealt with that point. In cases where the evidence is peculiarly within the knowledge of the person himself, when he stands with his attaché case at a bus stop at Sea Point, as he has been standing there for the last couple of days, he has to tell the court why he is standing at the bus stop with his attaché case. It is within his own knowledge what he is doing there. That is not within our knowledge. That is why I think it is good that in those cases the onus should rest on the accused. It is easy for him to say, if we find him there, what he is doing with a long knife at the door of a law-abiding Native during the night. [Interjections.] No, the hon. member is wrong. These are examples of where the onus rests on the accused. That is all I am doing and I am not going to enlarge upon it.
Mr. Speaker, my task at the third reading is an easy task. The fact that so little criticism has been offered at the third reading makes my task an easy one. I think that proves the fact that because of the knowledge that we have acquired during the last few days in particular, all of us realize that it is necessary to pass legislation such as this.
Question put: That all the words after “ that ”, proposed to be omitted, stand part of the motion,
Upon which the House divided:
Ayes—82: Bekker, G. F. H.; Bekker, H. T. van G.; Bekker, M. J. H.; Bootha, L. J. C.; Botha, M. C.; Botha, P. W.; Botha, S. P.; Coertze, L. I.; Coetzee, B.; Coetzee, P. J.; de Villiers, C. V.; de Villiers, J. D.; de Wet, C.; Donges. T. E.; du Piessis. P. W.: Erasmus, F. C.; Fouché, J. J. (Sr.); Fouché, J. J. (Jr.); Froneman, G. F. van L.; Grobier, M. S. F.; Haak, J. F. W.; Heystek, J.; Hiemstra, E. C. A.; Jonker, A. H.; Jurgens, J. C.; Keyter, H. C. A.; Knobel, G. J.; Kotze, G. P.; Kotze, S. F.; le Roux, P. M. K.; Louw, E. H.; Luttig, H. G.; Malan, A. I.; Malan, W. C.; Marais, J. A.; Maree, W. A.; Martins, H. E.; Meyer, T.; Mostert, D. J. J.; Mulder, C. P.; Nel, J. A. F.; Nel, M. D. C. de W.; Niemand, F. J.; Otto, J. C.; Pelser, P. C.; Potgieter, J. E.; Rall, J. J.; Rall, J. W.; Sadie, N. C. van R.; Sauer, P. O.; Schlebusch, J. A.; Schoeman, B. J.; Schoeman, J. C. B.; Scholtz, D. J.; Serfontein, J. J.; Smit, H. H.; Steyn, F. S.; Strydom, G. H. F.; Treumicht, N. F.; Uys, D. C. H.; van den Berg, M. J.; van den Heever, D. J. G.; van der Ahee, H. H.; van der Merwe, J. A.; van der Merwe, P. S.; van der Walt, B. J.; van der Wath, J. G. H.; van Eeden, F. J.; van Niekerk, M. C.; van Nierop, P. J.; van Rensburg, M. C. G. J.; van Staden, J. W.; van Wyk, G. H.; Venter, M. J. de la R.; Venter, W. L. D. M.; Viljoen, M.; Vorster, B. J.; Vosloo, A. H.; Webster, A.; Wentzel, J. J.
Tellers: W. H. Faurie and J. von S. von Moltke.
Noes—44: Barnett, C.; Basson, J. A. L.; Basson, J. D. du P.; Bloomberg, A.; Bowker, T. B.; Bronkhorst, H. J.; Butcher, R. R.; Cronje, F. J. C.; Durrant, R. B.; Eghn, C. W.; Fourie, I. S.; Frielinghaus, H. O.; Gay, L. C.; Gorshel, A.; Henwood, B. H.; Higgerty, J. W.; Holland, M. W.; Horak, J. L.; Lawrence, H. G.; le Roux, G. S. P.; Lewis, H.; Lewis, J.; Malan, E. G.; Miller, H.; Mitchell, D. E.; Moore, P. A.; Oldfield, G. N.; Plewman, R. P.; Radford, A.; Ross, D. G.; Russell, J. H.: Shearer, O. L.; Smit, D. L.; Steenkamp, L. S.; Streicher, D. M.; Swart, H. G.; Tucker, H.; van der Byl, P.; van Ryne-veld, C. B.; Warren, C. M.; Waterson, S. F.; Williams, T. O.
Tellers: N. G. Eaton and A. Hopewell.
Question affirmed and the amendment dropped.
Motion accordingly agreed to and the Bill read a third time.
Second Order read: Adjourned debate on motion for second reading,—Electoral Laws Amendment Bill, to be resumed.
[Debate on motion by the Deputy Minister of the Interior, upon which an amendment had been moved by Mr. Horak, adjourned on 10 May, resumed.]
When the debate was adjourned the other night, I had dealt with only one point in the arguments advanced by the hon. member for Sunnyside (Mr. Horak). Before dealing further with what he said, I just want to say that I am sorry that, to some extent, he gave a party-political tinge to the debate. I hope he did not intend it in that way, because my standpoint, as well as that of most of the members of the House, is that, because the Electoral Act affects every individual in South Africa, every citizen with the franchise, it is not a matter where party politics should be dragged in when we have to provide the machinery for holding an election. The main object of the Electoral Act is to enable every person to vote in an election in an orderly manner, and to put as few obstacles as possible in his way. At the same time one must ensure that there is no impersonation and other irregularities, and, for that purpose, certain rules must be laid down. As far as I am concerned, I am always most reluctant to tamper with the electoral laws. I feel that one knows what one has, but not what one might get. It is like a man who wants to get divorced. He does not know what the second wife will be like, and very often he comes a cropper. It is very dangerous to tamper unnecessarily with an Act of this kind, but from time to time it becomes clear that certain amendments have become necessary, and I think that is the object of the Minister in introducing this measure.
I now want to come to a few of the arguments of the hon. member for Sunnyside which I could not deal with the other night. The first argument he advanced was that we should get a fresh list once every five years, a general registration where the old lists fall away. The hon. member welcomed that, but he said that this list would not remain up to date; in a little while people have changed their addresses again. In addition the hon. member said that it was dangerous not to have residential qualifications at a general registration. I agree that it is dangerous if one merely says that a person must register where he finds himself on that day, but perhaps we can amend the clause in the Select Committee so as to read that on the day concerned the person must give his permanent address, and not the one where he happens to find himself that day.
But is that not a change in principle?
No, it is not. That is the trouble with those hon. members. They have no principles. It is dangerous unless one ensures that the person gives his permanent address, and it is very easy to remedy it. The hon. member’s solution is that it should be made compulsory to notify changes of address between general registrations. It is not true to say that where the law says that there will be a general registration at least every five years, that is what will happen. The way I look at it is that when there is a general election in the offing a general registration will be held so that there can be new voters’ rolls; or if there is a delimitation pending, there will be a general registration and new voters’ rolls. That ought to assist appreciably in tracing the people who change their addresses. But, supposing we do what the hon. member suggests, and make the notification of changes of address compulsory, what will we get then? We will again have the chaotic position we had before 1952, because one cannot make it compulsory without imposing a penalty. The people who do not notify their changes of address should be prosecuted. At that time we had the experience that the United Party complained that we did not keep the lists up to date, and if the Department wanted to prosecute the United Party people told the voters that the Nationalists were prosecuting them. It may also work the other way round. They may form the Government, and we can reproach them for prosecuting people. It is simply impracticable. The other thing they did at the time was to notify the electoral officer that the following people were no longer residing at their addresses. In terms of that provision, it means that he had to delete their names as voters, and in that way thousands of people were disfranchised. Our object is to get every possible person who is entitled to the vote on the voters’ roll and to keep them there, and not to see how many can be deleted. It is easy to solve the problem, if the parties do not expect the State to do their party organization for them. In the final result it is the function of a political party to keep their organization up to date, and, if they do that, it follows that a person who has come to live in one’s area is registered, and then his name is deleted from the list on which it appeared at his previous address, and in that way the lists can be kept about 95 per cent accurate. I would rather suggest that than the method suggested by the hon. member, i.e. to make the notification of changes of address compulsory, with all its implications.
The second matter raised by the hon. member is the question of the identity card. Here his argument is that he does not want the Population Registration Act to be linked with the electoral laws. But they are both laws of the country, and there are many laws which are linked together. Where the one creates machinery which can be used by the other, it is used, and therefore this is no argument. But what worries me in regard to the identity card is to what extent it is practicable to introduce it, and in that connection I think the Select Committee will carefully have to scrutinize the evidence submitted to it by the Departments. The Department will have to answer certain questions. Supposing a person has lost his identity card and discovers the fact shortly before the day of the election, how long does it take the Department to supply him with a new card? Such questions arise. The identity card must be used to determine the person’s identity. Where one has a small community where everybody knows each other and the one man comes 30 miles to vote and his neighbour is the presiding officer and he says: You cannot vote because you do not have your identity card, it can almost lead to civil war. I mention it because it is an aspect we should bear in mind. For this and for many other reasons, I feel that the Chief Electoral Officer should give evidence before the Select Committee, also the senior official from the Population Registration Office, to hear to what extent it is practicable to use the identity card in an election. But I feel that fundamentally it is sound to use the identity card wherever necessary. One can make provision for the necessary elasticity where it is not the voter’s fault that he does not have his card. In general it will eliminate many difficulties if the production of the identity card is made compulsory.
The hon. member’s third point was in regard to postal votes. It is quite clear from what he said that he wants only Government officials to handle the postal votes. That is an idea which I myself have often considered. I think we all agree that the system of postal votes we have to-day lends itself to abuse, and one wants to eliminate that. But it is quite impossible in the platteland, where people live up to 15 miles away from any Government official, to have his postal vote taken by an official if he is ill.
What about a doctor?
But doctors are not Government officials. One must have the necessary flexibility and where to-day one has the position that in certain constituencies two or three thousand people vote by post, I would like to know how many officials will be required to deal with postal votes, not in office hours but after office hours, when most postal votes are dealt with, and what it will cost the State to remunerate those people for the work they have to do? It is not always practicable. There will have to be the necessary flexibility, but I hope the Select Committee can do something about it. I think the measure introduced by the Minister here will do quite a lot to eliminate irregularities in regard to postal votes. One cannot go further than is practically possible in regard to this matter, and I think that what the hon. member asks for is too much; it is impracticable.
But what worries me more than anything else in regard to postal votes is the large number of spoilt ballot papers we get. In every constituency the greater proportion of spoilt papers are postal votes, and in most cases it is due to pure ignorance. I just want to mention a few figures. I have the returns in connection with the referendum. I find that in Ermelo there were 100 spoilt votes, in Lyden-burg-Barberton 130, in Namaqualand 140, in East London (North) 116, in Somerset East 101, in Transkeian Territories 103, and in Ladybrand 146, and a total for the Union of 7,904, and I say that of these over 7,000 must have been postal votes. Experience teaches one that. It is where the signatures do not compare or where the presiding officer makes a mistake. I would like to see a method evolve to reduce the number of spoilt votes. The best thing I can think of is to reduce the number of postal votes. There are too many unnecessary postal votes cast in an election. In this regard I do not want to discuss in detail what can be done, but the hon. member for Pretoria (West) (Mr. van der Walt), who will also participate in the debate, has expressed an idea, which I do not want to discuss now—I leave it to him—which will result, I think, in the number of postal votes being reduced by one-third. I hope he will put his suggestion to the House and that the Select Committee will consider it.
The hon. member for Sunnyside further referred to the matter of the voters’ lists which under the present legislation have to be ready two months before the election, but which is being changed in terms of this Bill. That is also a matter which I think the Select Committee can investigate. Nobody is bound to this new provision. It may be that the Select Committee finds it necessary to change this provision. A matter in regard to which I want to support the hon. member is the question of the central index. I feel that without a central index one cannot exercise proper control to see whether a person has been registered in more than one part of the country. Particularly will difficulty be experienced where a person is registered in one place under her maiden name and in another place under her married name, but the Minister has told us that the Department, with the new scheme of mechanization they have, also have some control there which will be tested. I hope we will receive information from the Department as to how they are going to do it, and until we get that I think we should leave the matter alone.
It is not the intention to abolish it.
No, but the law provides that it may be abolished, and it is not always that particular Minister who will deal with it. We might get a Minister who is in a hurry and who abolishes it.
I now want to pass a few general remarks in regard to the Bill. It is a long Bill with 54 clauses and it is impossible to deal with all of them in a second reading speech. I just want to express a few thoughts. Firstly, we have a number of amendments which were made last year in connection with the referendum, like voting taking place until 9 p.m.. postal votes until two days before the election, the opening of postal votes on the morning of polling-day, etc. These are amendments introduced by the Minister last year and of which we have now had practical experience in the referendum. I feel that we will each have to decide for ourselves whether this experiment was a success or not, and then decide whether we want to embody it in the law or not. I hope the hon. the Deputy Minister will not blame us if we discard some of these experiments as unsuccessful, because I think he also regarded them as experiments. I liked some of his amendments, but not others. He must therefore allow us to regard the matter objectively in the Select Committee and in the Committee Stage. Then there are the amendments in regard to the resignation of the Members of Parliament, which are obvious, and which were asked for by you, Mr. Speaker, and the officials of this House to simplify the matter. I have nothing to say about that. Then there are amendments which became necessary as the result of the proposed mechanization. They are, inter alia, the general registration and the residential qualifications, and then we have the sequence in which names will in future appear on the voters’ list. I want to say frankly that I do not like this sequence. One finds certain information about every voter on his identity card. Now we have it that according to the sequence proposed in the Bill, all the information contained on the identity card will be given in the column immediately after his name, but his identity number comes right at the end, after his occupation. I want that to be changed. The number and the man’s name and Christian names should all be together, as a whole, and as it appears on the identity card and the rest can remain as it was in the past.
Then we have the question of the initials which will merely be given, and then Miss or Mrs. in the case of women. I do not like that very much; I prefer the full names. I have ascertained that there will now be 90 names on a page, in terms of the new system, if there is one line for every name. The pages are shorter than the pages of the present voters’ list, and what do we find now? If people are working under pressure at the polls and there are 70 to 75 names on a page, one finds that the official deletes the wrong name because the names are too close to each other. I say that if we are to have 90 names on a page, the position will be even worse. I want to suggest that two lines should be set aside for every voter. Then one can put in his full names and all the other data and there will be about 45 names on a page instead of 90, and the official’s work will be facilitated, and one is satisfied that the man’s full name is there. With names like Botha, of which there are many, one finds a large number of people with the same initials, but when one takes the names there is a distinction. Consequently I want to suggest that the Select Committee should investigate this matter seriously. This is not a matter of principle either and consequently hon. members cannot say that it must be done before the second reading. That concludes what I have to say in regard to postal votes.
I just want to say that it will not assist us much to provide that the commissioner of oaths before whom a person votes must see the identity card of that person. He no longer even needs a witness, and he can easily say that he saw the card even if he did not. I am apprehensive about this. I think we should provide for something more tangible to compel the commissioner of oaths to declare that he saw the identity card. One of the things I want to suggest is that the number of the voter should not be put on the application form for a postal vote which is usually sent to the voter, because then the commissioner of oaths knows that this is the man’s number. He should send the number to you, and not you to him. That is perhaps a way of controlling it.
There is one other provision in the Bill. Clause 38 says that if a ballot paper is altered, if the voter has first voted for one person and then for the other, that ballot will be regarded as spoilt. I have often noticed at the polls that people become confused when they go to vote and that they first voted for one man and then find that they made a mistake and changed the ballot. Nor do all of them know that if they have marked a ballot paper wrongly they can exchange it for another one. They simply put the ballot paper into the box. Then I want to suggest that in regard to this clause we should rather say that in regard to postal votes—because it is here that one wants to eliminate any tampering with votes—the ballot paper will be thrown out if it has been changed, and not at the ordinary polling booth. That can easily be controlled because the postal votes arrive in a separate box. They are opened separately and scrutinized before being added to the others. I think this is a practical method.
They have a different secret mark.
Yes, they have a different secret mark at the back. One first throws them out and then puts them into a separate box; one turns the box over and counts them and then one can immediately see whether some of them have two crosses, and those can then be thrown out.
In connection with the identity card, I want to say nothing further except this. Section 80 of the Electoral Act provides that if people are away and one notifies the presiding officer of it in advance, then he cannot allow them to vote until such time as they have proved their identity. The Minister is now providing for the introduction of the identity card everywhere in the Bill, but obviously does not do so in Section 80. I think that is par excellence a section where the identity card should be introduced.
I would rather discuss the remaining proposed amendments in the Committee Stage. At this stage I just want to say that I hope the Select Committee will thoroughly consider every provision of this measure. I hope that if the Select Committee can think out new ideas which seem practicable and which can improve the Electoral Act, it will not hesitate to come to this House to ask for an instruction to consider those new principles also. This Bill has been, drafted so widely and covered so many phases of the electoral laws that this will be necessary in very few cases, because these amendments all contain new ideas and in addition one has the old ideas of the existing Act. One can easily delete an amendment in the Select Committee without coming back to the House, because that does not affect a new principle. One cannot, however, introduce new principles in the Bill without coming back to the House. I hope the Select Committee will do its work thoroughly and produce a sound Bill.
Anyone who has been concerned with what may be called the “ business end ” of the Electoral Act, i.e. the implementation of the Act in connection with the organization of an election, whether as a candidate, as a party worker or in whatsoever capacity, will be grateful, as I am, to the hon. the Deputy Minister for his intention to improve this Act by amendments, and, therefore, the operation and implementation of it. I hope that I may be permitted to make one or two observations in regard to three of the clauses of this particular Bill. First of all. Clause 8 refers to the form in which the name of the voter will appear on the voters’ roll. Before I deal with the main aspects of that clause, I would like to say that whereas the Afrikaans of 8 (b) is perfectly clear, “ sy van en onmiddellik daarna sy voorletters en, in die geval van ’n vroulike kieser, die woord ‘ mevrou ’ of ‘ mejuffrou ’ of ’n afkorting daarvan, na gelang van die geval ”—in English, it does appear a little more ambiguously, because it says “ his surname and immediately thereafter his initials, and in the case of a female voter the word ‘ mistress ’ or ‘ miss ’ as the case may be, or an abbreviation thereof ”. What I would like to suggest, with deference, is that the word “mistress” should never appear behind the name of a female voter. It may have an unfortunate connotation for some and therefore I think that at least as far as the English version is concerned, we should content ourselves with the description in the abbreviated form, i.e. “ Mrs.”, which, incidentally, has become common English usage in its full form of “ missus hardly ever is the archaic word “ mistress ” used to describe a lady! The main purpose of my comment on Clause 8 is to reinforce, if I may, the opinion of the hon. member for Pretoria (Central) (Mr. van den Heever) in regard to the proposition that the surnames should appear on the voters’ roll followed by the initials only, and not the Christian names in full as at present. He has referred to the confusion that can arise because of the similarity not only of surnames, but also of Christian names. I have here with me the voters’ roll—I cannot say that it was chosen at random—of the Hospital constituency. Sir, if you look at only the first three pages of this, then the point made by the hon. member for Pretoria (Central) becomes tremendously important, by illustration. For example, on page 82 of this roll, the first page dealing with male voters, there are two names following each other: 6473 Alexander, Nicolas; 6474 Alexander, Nicholas; and if you look at the addresses you will find that both are resident at 11, Belvista Mansions, 87, Loveday Street. I must say that when I saw these two names I was under the impression that there had been a misprint in the compilation of the roll, and that in fact they referred to one person; but, in actual fact, at this address there are two people who are known as Nicolas Alexander, plain and simple—and _ the only difference in the voters’ roll description is that the son’s name is spelt without an “ h ” and the father’s name is spelt with an “ h ”. When I asked the father, who was born overseas, whether his Christian name was spelt differently from that of his son he said: “ Not at all; I named my son after myself”; so there you have on example of Nicholas Alexander and Nicolas Alexander, both living at the same address, the numbers following each other. I must say that if this were to appear as Alexander, N. only, the position would be even more confusing than it was to me and others some ten days ago. However, looking at only three pages of this particular voters’ roll, you find, for example—if I may illustrate it further—that under the name Barnard you have 6585, Barnard, Daniel Jacobus and then you have 6586, Barnard, Diederich Johannes. Without the Christian names they would both appear as Barnard, D. J. I know that the point has been made that the identity card will serve as some sort of identification, but I think the hon. member for Pretoria (Central) made the point that that in itself will not be sufficient to eliminate completely the possibility of confusion in the identity—not the similarity, but the identity—of names on the voters’ roll. In this very House there are two hon. gentlemen who would appear on a voters’ roll as Fouché, J. J., possibly registered at the same address and one does not want to creat any confusion between them, either. In regard to Clause 8, therefore, I would like, if I may, to support the point that the Electoral Act should provide, as it has hitherto, for the appearance on the voters’ roll of the Christian names as well as the surnames of the voters concerned.
Dealing with Clause 29, I know that there is a very strong feeling that the hours of voting should be extended by keeping the polling booth open, as is proposed here, until 9 o’clock. Sir, I wonder whether that, in effect, is a good provision. I must say with all deference that 13 hours in any one day appears to be completely adequate for any person who desires to vote, and other things being equal, has the physical opportunity or capacity to vote, to do so. You get the class of voter who would not vote if you made polling a sort of nightclub affair where he could vote through the night—24 hours, around the clock. You do get people who simply will not be “ bothered ”, as they put it. The others, whether they start work early or late, can vote between 7 a.m. and 8 p.m. I am concerned with the impact of this extension on the people who do the major portion of the work at an election, namely, the workers of the parties concerned and—I say this with deference—the effect on the candidate who stands for some 15 hours in one position, being greeted by and greeting all and sundry, and who is as likely as not to die on the very day of his or her election. Therefore, I would like to suggest that this is a case where “ enough is as good as a feast ”. I think that 8 o’clock is fair enough as closing time for any polling station.
Another point that I would like to make is in connection with Clause 30 (2)bis, this question of the control exercised at a polling station. It reads—
I wonder whether this could not be extended in order to control, also, apart from violence, obstruction at a polling station. The hon. member for Pretoria (Central) made the point earlier that many people are, as he put it, “ ver-bouereerd ”—they are confused when they come to a polling station. How much more confusing is it, in a tightly fought election, to have them virtually lifted bodily out of the cars that bring them, and to have them obstructed, as I have seen, on the way to the entrance to the polling station. I have seen elderly ladies, particularly, who do wish as a rule, to record their votes, turn away in tears and give it up as a bad job, because they are obstructed from the moment they are brought to or approach the polling station, through the over-enthusiasm or the zeal of some worker in an election. Sir, I can say with some certainty that I have had experience recently of cases where a police officer has actually been requested to intervene in regard to what I could call, for want of a better term, or perhaps quite bluntly, obstruction of a voter who came there in the ordinary course of events to register his or her vote, and where it was said that as no “ violence ” had occurred, the police could not interfere. I would like to see, where it is at all possible, a little protection afforded to the voter to make sure that all these matters are undertaken in the proper way and that there is no obstruction, let alone violence, at a polling station at any time.
The main point I wish to make in connection with this Bill is in connection with Clause 41 which deletes sub-section (2) of the principal Act. It means in effect that there will no longer be any limitation on the amount spent by a candidate in an election. I believe that this party has in the past maintained that the present limitation is perhaps unrealistic and that the figure is too low, and should be doubled. But may I put it with the utmost deference to the hon. the Deputy Minister that to go to the extreme of eliminating completely every restriction whatsoever may, in the light of experience, prove to be a case of replacing a lesser evil by a greater evil, because it amounts to this—that the criterion for the election of a Member of Parliament may not necessarily be the merit of the man himself or the opinions of his electors; it may rather be the amount of money he or she is able to spend on the election. I am not here to examine the motives of any person who has come as a member to this House, but I think it is clear that the electorate would like to believe that their public representatives have come here in a spirit of dedication to the service of South Africa in the first place and, in the second place—a very close second place—to the service of their particular constituencies and their constituents. But there is no telling what may motivate a person who can, through the use of a great deal of money, become a Member of Parliament; there is no telling how far that may go, in the completely opposite direction to the one that I have indicated. Sir, may I illustrate it with what I think is widely known as a classic example? I hope, Sir, that you are (as I am) a Gilbert and Sullivan addict. The classic example is that of a character by the name of Strephon in “ Iolanthe ”, one of the very well-known Gilbert and Sullivan operas. Incidentally, Sir, this is a piece of Africana which I hold here, which was printed in Cape Town in 1877, and a very fine job of work it is too. Strephon was an Arcadian shepherd suffering the disadvantage of being half fairy and half man. He was fairy down to the waist, and man from the waist down. He was very anxious to marry a girl who happened to be the ward of the Lord Chancellor, and the Lord Chancellor said in effect, “ Nothing doing; I will not allow my ward to marry a mere shepherd”. The fairies were very concerned about this and they decided that in order to help him, they would have to give him some sort of status which would be completely beyond any exception on the part of the Lord Chancellor— and so they sent him to Parliament to represent the fairies. Sir, this story is set in the England of the eighteenth and nineteenth centuries, but it still holds true to-day. There is thus the case of Strephon who went to Parliament, not because he felt he could do anything there, he says, in fact, “I am afraid I should do no good there ” when the fairies say that they will nominate him as their M.P.—but he went there in order to achieve a purpose which had nothing to do with the good of his constituents or with the good of the country. This Bill, I think, should be a case of learning from the apocryphal experience of Strephon, because the moment this individual who was half fairy half man became a Member of Parliament, the Lorld Chancellor immediately withdrew his objection. In fact, one might say that when the question was put to him, “Would you like your daughter to marry an M.P.?” he immediately and emphatically said, “ Yes ”. There you have it, Sir! Such side-issues should not, in my humble opinion, be allowed to motivate the election of a Member of Parliament.
Turning to the clause itself which seeks to delete the present limitation, you have in the principal Act, under 97 (b), the items which I believe would still remain as a framework for expenditure—the items printing, advertising and so on—and there you have a case in point where a candidate, providing he is prepared to spend unlimited sums of money, could take a full page in any one of the daily newspapers in a large centre like Johannesburg or Cape Town, at a cost of approximately £250 a page, if I am not mistaken, and over the seven or eight weeks of an election campaign, he could in this one medium alone spend something like R40,000 on Press advertising—and there is nothing in the Bill to prevent it. He could proceed also to advertise extensively in other ways—for example, on the screen. He could, for further example, also advertise on Springbok Radio which I know is regarded as nonpolitical. We know how a “ message ” is “ sold ” over the radio. For example, although most of us have forgotten it now, “ chlorophyll ” was established in the minds of the public as being something quite indispensable in the composition of tooth-paste. I foresee the position arising where a candidate, if he owns a particular company that makes a particular commodity, will be able to spend thousands of pounds per week on publicizing himself and his merits as a candidate on the radio. There is a further point here in the Act which deals with “ messages ”. What constitutes a message? Quite recently a “ message ” was sent out to every one of the electors of Hospital, called the “ scoobiedoo ”. A “ scoobiedoo ” consists of pieces of electrical flex covered in certain colours, and any one colour or combination of colours is supposed to transmit a certain message to the recipient. In Hospital we had 10,938 people on the roll, all of whom received “ scoobiedoos ”. I do not know what the value of these were, but under this clause, which deletes the limitation on expenditure, there would be nothing to stop the same candidate or any candidate from sending out to every one of the voters on the roll—say 10,000 of them— such a message in enamelled gold, possibly costing R10 or R20 each. Sir, if I have made this appear absurd, it is because I really want to make the point that here you open the door to the pressure of money, to the money-power alone, to determine an election, when up to now it has not been possible for the money-power to determine the choice of a Member of Parliament. It means in effect that the man who may have devoted himself to the service of the community and of his country, a well-meaning man, highly thought of, but a man who cannot spend more than £500 or £700 on an election, is actually knocked out before he starts, because some person who is not as altruistic, who is more of an opportunist and who happens to command tremendous wealth, can make use of that wealth, having said to himself, “ Well, if it costs me R50,000 or R100,000 to be elected to Parliament, that is my whim; and I am prepared to indulge it I say that for that reason I, for one, would like to feel that careful consideration will be given to this question before doing away completely with any limitation on the expenditure of a candidate in an election.
The last point I want to make deals with something which does not appear at all in this Bill, but which I think would be well worth considering—and that is the question of canvassing. Canvassing or “ huisbesoek ” has become part of the tradition of a political campaign in South Africa. One asks oneself, first of all, how necessary is it? And if the answer should be in the affirmative, one is still entitled to ask: “ How desirable is it?” I have a vague recollection—and I speak without the book— that in Australia, for example, there is no such thing as canvassing in an election. There is compulsory voting, it is true, but the norm apparently is that the voter will come to the polling station in order to vote for the candidate of his choice without having been subjected to what I call, perhaps too strongly, the brain-washing which he undergoes in South Africa during a campaign which is characterized by canvassing or “ huisbesoek ”. There are many examples of people who have been canvassed ad nauseam—and the word nauseam is used in its least polite sense—by the canvassers of both sides. They may receive calls from four canvassers from the one side and two from the other side. They never know when they can sit down to dinner without the uninvited guest appearing thus, over a period of six or seven weeks. Life becomes extremely difficult in a closely built-up or compact area such as the “ flat-lands ” that we have in the larger cities, where the front door perhaps leads right into the only room in the apartment, or the entrance hall or the dining-room; and I say in all seriousness that during an election campaign in a flat-land area, the poor voters simply have no privacy whatsoever. It is common cause that they are at home only at certain times of the day, and that is when the deluge of canvassers descends. I need not dilate on the fact that canvassers, again perhaps through over-enthusiasm—misguided as people can be when they are zealots for a particular cause—tell the most hair-raising stories each about the other side’s politics and about the other side’s candidate, and if anything is calculated to create confusion and a sense of unrest in the breast of the voter, I, frankly, feel that it is that insistence on canvassing which is so characteristic of our elections. Sir, I know it may be only my whim, but I would have liked to see a clause which provides that it shall be an offence for any person to approach a voter other than at the polling station on the day of the election, in connection with his political opinions or his vote. I say with the utmost deference that if that were to be done, we would have a sort of political armed truce, which would, in my humble opinion, do a tremendous amount of good, and no harm whatsoever. If I were precluded from telling the individual voter how bad the policies of this, that or the other party are, and if the other parties were precluded from telling the electors how bad my policies are, the spirit that will then be generated will be all to the good. I sincerely trust that the hon. the Deputy Minister will find some way of introducing some or all of my suggestions into the provisions of the Act.
I want to congratulate the hon. member for Hospital (Mr. Gorshel) on his maiden speech and I hope that during the years that may be granted to him to sit in this House, he will make fruitful contributions to the debates in this House During the course of my speech I shall refer to a few points raised by the hon. member.
Our present Electoral Laws were consolidated in 1946 and placed on the Statute Book. Prior to that, since Union you had to refer to a great number of laws when you wanted to determine what provisions were laid down in the electoral laws of South Africa. Prior to 1946 there were as many as 22 Acts that had to be consulted if you wanted to ascertain what the electoral laws of the Union of South Africa were. It was a happy day when the Act which still governs us to-day was placed on the Statute Book. However, to-day is the fifth occasion that we are amending that Act. Two previous Acts amended a great number of sections and similarly this Bill is amending a large number of sections. That is why I feel that I should plead with the Deputy Minister right at the outset that we should once again consolidate the law as it stands at the moment. I know it is customary on the part of the Department to publish an annotated Act but in view of the fact that we are to-day dealing with legislation that is based on the experience gained over the past 13 years, and particularly the experience gained last year with the referendum, f think it would be just as well that we once again consolidate the law. I am pleased to see that an attempt is being made in this Bill to eliminate the malpractices that have become evident over the years, more especially as far as the postal vote is concerned. The main object of the postal vote is to make it possible for the greatest number of voters in the country to record their vote during an election. If we did not have a postal vote system, it would have been necessary to devise a different system but if we were to abolish the postal vote 15 per cent or 20 per cent of the voters would probably be disfranchised and unable to record their vote on polling day. That is why I say that the object of the postal vote is to enable the greatest numbers of voters possible to record their vote at the polling booths, but the object is certainly not to bring people who are already in their grave to the polling booth, neither is the object to let people who cannot be traced, undergo a kind of reincarnation process and to come back to life in order to vote. That is why we are pleased to see that an attempt is being made to eliminate the malpractices that have been practised under the existing legislation as far as the postal vote is concerned. I am also pleased to see that an effort is being made to simplify the postal voting system; to do away with all the witnesses that were required formerly. I should like to make a few further suggestions to simplify the method even more. I wish to say something about Clause 8 (a) which provides that in future an electoral officer will be obliged to accept the first application received from or handed in by an applicant. I realize, that this is an attempt to eliminate manipulation or manoeuvring of postal votes. If this amendment is accepted the electoral officer will now be obliged—I think that was also the position last year on the occasion of the referendum— to act on the first application for a postal vote and to issue a postal vote on the strength of that. This, of course, is to prevent the parties, once the application has been handed in, from trying to persuade the voter to change his choice of address. That is to prevent the parties from being able to say that the postal vote should be sent to another party or to another office or to another place. I think there is a lot to be said for that, but there is also the fact that party representatives go to voters and bring them the wrong impression and in that way get hold of their application form for a postal vote. We who are engaged in politics, know the numbers of cases where a person, without saying which party he represents, has gone to a person who is unaware of the fact that such a representative is able to tamper with a postal vote and has said to him: “Just give me the form and I shall hand it to the electoral officer.” Sometimes he even says which party he represents., and if he represents a party different from the one that the man supports by means of his postal vote, he says that does not matter, he will in any case hand it in, and if the address given is the address of that party it means that that party gets hold of that ballot paper. We are now preventing another person from trying to help that other person to change the address to which the ballot paper has to be sent so that the ballot paper may be sent to the new address. This may be a good provision but I should like to point out that where a person is convinced that his ballot paper will be tampered with or that his ballot paper will be destroyed, he cannot now hand his application form for a postal vote to somebody else with whom he should like to entrust it.
There is another difficulty in this respect namely that in terms of the proposed amendment, a person who is travelling and who would like to have his ballot paper sent to a certain address, will not be in a position to advise the electoral officer of a new address once he has handed in his form. Let me explain: If a voter intends visiting various places and that he thinks he will be at Johannesburg on a certain date, he may inform the electoral officer in the one or other constituency in the Cape Province to forward his ballot paper to such and such an address in Johannesburg. But on the date when the ballot papers are issued he may no longer be in Johannesburg but in Durban perhaps, in which case, according to this new clause, he will not be able to write to the electoral officer and say to him: “ Please do not forward my ballot paper to Johannesburg, but to Durban ”, because if I read the clause correctly, that form cannot be changed. I think provision should be made in this connection that it should be possible for him to do so.
That does not happen often.
It can happen. I may add that during the referendum campaign I came across a number of cases where the man had moved from the address where he had resided and he did not have the right to go to the electoral officer and to say to him, “ Look, that is no longer my address, I have moved to another address ”. According to this provision that cannot be done. Even when a person finds that he should not have handed his form to a certain person but that he had done so, the only way open to him is to approach the electoral officer as soon as possible and to say to him: “ Sir, I have made a mistake I have handed my application form for a postal vote to Mr. So and So, and I should now like to complete a fresh form which I want to hand in to you.” If he thinks he has made a mistake by giving his form to the representative of the wrong party, that is the only way in which he can be the first to get a form to the electoral officer.
There is another point that is not covered in this legislation and I know that the Select Committee will have to ask this House for a special instruction if they wish to consider it. However, I wish to ask for it to-day and I trust the Select Committee will give its attention to it.
An instruction is unnecessary if our amendment is accepted.
It concerns this that I do believe that where a person who has applied for a postal vote finds on polling day that he is able to go to the polling booth himself and he prefers to hand in his ballot paper personally, he should be able to do so. The postal votes are opened on polling day, they are kept separate and the respective ballot paper is kept with each one until such time as the ballot papers are removed from the postal documents. In other words, until such time as the ballot paper is removed, the postal vote of any person who had voted can be obtained and the ballot paper removed if he had put in an appearance at the polling booth on the day of the election. I want to point out what the advantages are of that. In the first place it happens that people apply for a postal vote in the name of other persons, sometimes knowingly and sometimes unknowingly, and then the correct person turns up at the polling booth. I may say that in my constituency about 20 people turned up on the day of the referendum in whose names applications had been made for postal votes. Those people said that they had never applied for postal votes. In that case the man demands to vote and the only thing the electoral officer can do is to offer him a ballot paper which is valueless unless the court orders that that ballot paper should be counted. My suggestion is this that when a man gets to the polling booth and says: “ Somebody has applied for a postal vote in my name”, the electoral officer or the presiding officer should be able to say to him: “Here is your ballot paper”; and that when the ballot papers are counted that evening the electoral officer should have the right to remove that false application, discard it and not count it. In other words, the correct person, particularly now that he has to show his identity card, goes to the polling booth and says that he is the man who has the right to vote. If application for a postal vote has been made in his name, he can nevertheless still obtain a ballot paper. Something else happens in the case of postal votes, namely, the ballot papers do not reach the people in time, or the people leave their address—that is the example that I wish to give the House now. He then turns up and demands to vote. You have cases where they come from afar, sometimes hundreds of miles, under the impression that they can vote. The person had applied for a postal vote but had not received his ballot paper, due perhaps to a mistake on the part of the postal authorities or due to the fact that he had changed his address. He goes to the polling booth and wishes to record his vote. I maintain that if a man has not recorded his vote he has the right to ask for a ballot paper when he gets to the polling booth. Assume, for instance, that he has voted and that he is trying to record his vote a second time, his previous ballot paper may then be removed when the votes are counted and the vote which he actually recorded at the polling booth, may then be counted.
As in the case of declaration votes.
Yes. In other words you give the man who turns up at the polling booth a chance to vote there where it is easiest to vote and where he has the best opportunity of proving that he is the person who is entitled to vote.
Must the vote recorded at the polling booth be given preference?
Yes, it amounts to that and I think we should try to provide for that. I want to admit at once that there is still room for manipulation. Perhaps I should explain how that can happen. One party may perhaps have persuaded a person to sign an application form for a postal vote and subsequently the other party dissuades him. Those people now wish to take him to the polling booth to record his vote in favour of a candidate other than the one for whom he originally intended to vote. That is where the trouble lies, but in defence of my standpoint I say that the best way in which to record your vote is at the polling booth where you enter without anybody being able to influence you. Consequently I am still in favour of this procedure.
I wish to say something about the five-yearly registration of voters. The 1946 legislation provided for the so-called continuous registration of voters, but it appeared that that continuous registration of voters resulted in our voters’ rolls being loaded with voters whose names should no longer appear on the voters’ roll for that particular constituency. As it is known in common parlance, the voters’ rolls are “ full of dead wood ”. I believe that during the 1948 election the names of many more voters appeared on the voters’ rolls than there were voters in the Union of South Africa as a result of all the duplication that had taken place. The Act was amended in 1952 to provide for a registration at intervals of at least two years and at the most three years. I welcome the provision that in future there will be a general registration at intervals of a maximum of five years, and that, subsequently, that basic voters’ roll which is compiled every five years will be supplemented by four-monthly supplementary registrations. I think the amendment which is proposed here will, to some extent, make the work of the parties more difficult. It is going to make it more difficult, because you will have to deal with a large number of supplementary voters’ rolls covering the period between the five-yearly registrations. When you reach the fourth year after the registration, you will have to deal with some 12 additional supplementary voters’ rolls in order to ascertain whether a voter is registered. On the other hand, however, I feel that it will assist the parties in getting a more up-to-date voters’ roll than is possible under a general five-yearly registration. In view of the fact that this will be the position in future, the public should be made to understand very clearly what the position is as far as the registration of every individual person is concerned. Whereas, in terms of the old provisions, the voters’ rolls were compiled from two sources, in the first instance, from the existing voters’ rolls of persons who have qualified to vote, and, secondly, from the list of names of people who have applied for registration, we shall henceforth only have a voters’ roll that consists of persons who have applied for registration on a specific date. I welcome this, because that will give us a very “ up-to-date ” voters’ roll, but then the public must be very well informed on the point that a previous registration is no longer of any value. If this amendment is accepted, it will mean that a person who has been registered must be reregistered when there is a new registration, because his previous registration will no longer be of any value. The new roll will not be based on the old roll. It will be a completely new registration. Those of us who are concerned with the practical side of the organization know how many people arrive at the polling booth to vote on the day of an election and who say to you: “ I have been living at this address for the past 20 years; I have not moved, but my name is not on the voters’ roll to-day.” If this amendment is accepted, it should be brought very clearly to the notice of the public that it will be a completely new registration. On the other hand, I think it will be good training for the voting public. Every person will know that when there is to be a general election he must go and register if he wishes to vote at the coming election. As far as the training of the public is concerned, I think this is very, very good.
With a view to mechanization, I believe that form R.V.1 is to be changed. If that is so, I want to ask that the R.V.1 card be simplified. Many of the application forms for registration that people submit are spoilt because of the clumsy way in which the R.V.1 application card is compiled. I think we should have a card that makes it very clear to the voter what information he should furnish. It is interesting to note that the hon. the Deputy Minister pleaded for something similar in 1948. At that time he pleaded that the card should be drafted in the form of question and answer; that the voter should be asked specific questions. I have no definite suggestion to make, but I do hope that when the cards are changed they will be drafted in a simpler manner.
The hon. member for Hospital raised a point in connection with the expenses incurred by a candidate at an election, and said that if this amendment were passed he would no longer be required to make a return of such expenditure. I want to say immediately that the reason is probably that the existing provision is quite outmoded. Under present-day circumstances it is no longer possible for a candidate to fight an election on the stipulated amount, and in general, candidates, I include myself, have had to violate their conscience in drawing up the statement for submission to the electoral officer reflecting their expenditure. What I am saying is surely something that every Member of Parliament has experienced. I would not have said this had I not been aware of the actual facts. The amendment is an improvement, and it will no longer be necessary for members to violate their own consciences. On the other hand, if anybody wishes to act fraudulently and wishes to spend large sums of money on an election, there are all sorts of methods by which he can do so, and he will not reveal how he has spent the money in his return if he wishes to act fraudulently.
I am also pleased about the provisions that are to be embodied in the Constitution, provisions to which this bill has been adapted, namely, that in future the life of a Parliament will last till just before the election day in respect of any election. In the past this Parliament has tried to remedy the position so that the country would not be without a Parliament for a long period prior to an election. According to the 1946 legislation, the period between nominatior day and the election day was a minimum of 14 days and a maximum of 21 days. Parliament is dissolved just before nomination day. In 1958 that period was lengthened to 35 days with a maximum of 49 days. It was felt that that was far too long, and in 1955 that period was shortened to a period of 28 days and a maximum of 35 days. In other words, Parliament was of the opinion that the period should be shortened and made as short as possible. A solution has now been found to this problem for which we are grateful. One of the main difficulties in the past has been that if the life of Parliament were extended right up to the day of the election, members whose nomination was not contested on nomination day would stand nominated while the previous member is still representing the constituency, with the result that there would be two members in the same constituency. This provision that when a member’s nomination is not contested his election is valid only from the date of the election, makes it possible to lengthen the life of Parliament right up to the date before the election. A member only becomes a legal Member of Parliament on the date of the election. We ought to welcome that, because that means that the country will not be without a Parliament for such a long period as in the past, particularly in these difficult times in which we are living.
It is a pity that the hon. member for Sunny-side (Mr. Horak) has objected to the proposed amendment in Clause 6 in respect of people who have become disenfranchised as a result of having been found guilty of high treason during the period 1931 up to 1950. We are now entering a new era in the history of our country, and we should like to change the character of the struggle which we have had in the past in South Africa. It is inevitable that in a democratic country such as ours there will be a struggle in the political field, but we should like to see that struggle, from the nature of things, as far as the two White national groups in South Africa are concerned, waged on a different basis. That is why we do not wish to forget the things that have happened in the past, but we want to let bygones be bygones as far as that struggle is concerned. In this heterogeneous country of ours there will be differences of opinion in the political sphere. We are faced with big problems, and there will probably be many points in dispute, but on the eve of our becoming a republic we hope that we will be entering a new era in our history. We did not agree with the Opposition during the Second World War, and people did certain things during that war in the belief that they were serving their own nation. Their intentions were good, and it is beyond comprehension to think that those five or six persons who are still disenfranchised to-day, as a result of acts that they committed during the war, should continue to be disenfranchised now that their ideal has materialized, and I am sure that they will not again make themselves guilty of high treason in South Africa. That is why I feel that their citizenship should be restored to them.
I am also pleased to see that the Act is being amended, in terms of which relief will be granted to people who have been disqualified as a result of imprisonment. We in South Africa are trying to introduce an enlightened system of imprisonment, a system of rehabilitation. That is why we should not make the penalty, as far as citizenship is concerned, too drastic. If you wish to rehabilitate people and restore them to society after they have committed an offence against society, you should make them feel that you are accepting them back into that society. I personally would like to see the amendment go so far as to restore the franchise to a person as soon as he has served the sentence that has been imposed on him, except in the case of hardened criminals or people who have committed very serious crimes against the community. The electoral laws should not be a means of inflicting further punishment on persons who have served their sentences of imprisonment. I think that, whereas we in South Africa are trying to aim in the direction of rehabilitating the large number of offenders in South Africa, it is just as well that we bring relief in this respect, and I consequently welcome this provision.
I think it is very seldom that an hon. Minister introduces a Bill on the subject of which he was an accepted authority long before he became a Minister, on a subject in which all members of this House have an interest and on a subject on which most members of this House can speak against a background of some personal experience. I think for these reasons it is fortunate that the hon. the Minister has given the House an opportunity of reviewing this very important legislation, legislation which provides the link between the citizens and the machinery of the State; legislation which provides the machinery whereby the representatives of the people are elected. I am sure it will be accepted by members on both sides of the House, that the electoral machinery should be of such a character that it makes both the enfranchisement of citizens who are eligible for such enfranchisement easy and, secondly, makes it as easy as possible for those voters who have become registered to exercise their votes, but at all times guards against any possible abuse both in respect of the registration of voters and in the exercise of the vote by voters. One has the difficulty that very often in opening the door to easier registration, in opening the door to easier balloting by the voters in South Africa, one also creates certain dangers and certain difficulties which may lead to abuse. The hon. the Minister has adopted a wise course. He has embarked on certain consultations with members of the Opposition parties before introducing this legislation. We also had the opportunity last year of experimenting during the referendum with certain modifications of the Electoral Act which the Minister now seeks to introduce as a permanent part of our legislation.
This piece of legislation is primarily an administrative measure and it is clearly a measure which can best be discussed at the Committee Stage or by a Select Committee. I think that the hon. the Minister is to be commended for indicating that it is his intention that discussion should take place in a Select Committee. But I think it is also important for the hon. the Minister and for this House to realize that, while this is primarily an administrative measure, it also contains certain important principles. Once these principles have been accepted by this House, it would stifle free discussion in the Select Committee and it would make it very difficult indeed for that Select Committee to introduce new principles. I think for these reasons the hon. the Minister would be well advised, in the interests of this legislation, to refer the matter to a Select Committee before the second reading. I think the debate over the last two days has indicated that there is genuine interest and concern over the proposals that have been put forward, and I think the hon. the Minister would be well advised to accept the amendment of the hon. member for Sunnyside to refer this to a Select Committee before the second reading. I believe that the hon. member for Sunnyside has more than just tacit support of hon. members on the other side of the House. The way I interpret the comments made by the hon. member for Pretoria (Central) (Mr. van den Heever) is that he wants to draw the attention of the hon. the Minister to the very great difficulties under which a Select Committee would operate once the House has accepted certain basic principles. If the hon. the Minister wants the piece of legislation, in which we all have a common interest, not to be upset merely by parliamentary procedure, I would ask him to consider once again the advisability of accepting the amendment moved by the hon. member for Sunnyside.
What are the important principles which this House is being asked to accept before referring the Bill to a Select Committee? The first is that our electoral laws should be linked with the Population Register. Many people, Mr. Speaker, will have no objection to the linking of voters’ lists with a simple system of registration of citizens, or with a simple system of identification of citizens, but both the nature of the Population Registration Act and the history of its implementation over the years, indicate clearly that it is more than just a simple system of registration and that it is more than just a simple system of identifying voters. Were it only these two latter things, the linking of this simple system of registration with the registration of voters might under certain circumstances have prevented duplicate or multiple registration. It might prevent, or make more difficult, impersonation both with regard to the issue of postal ballots and the issue of ballot papers at a polling station; it might, under certain circumstances, aid the identification of voters, although I must say that I have heard of no difficulty with regard to the identification of voters in terms of the present Electoral Act. I have not yet heard of any instance where a voter has been put the two cardinal questions: “ Have you voted before?” and “ Are you this voter?” and where it has not lead to the correct identification of the voter concerned. So, Mr. Speaker, while it may have its advantages, we cannot be sure of this. What we can be sure of, on the other hand, is that it is going to introduce certain additional administrative difficulties which are either going to make the registration of voters more difficult, or may, under certain circumstances, make it difficult for a voter to bring out his vote. Both of these things, Sir, outweigh the simplifications or improvements which are intended. It is quite clear that once you compel a voter to link his population register number with his application for a postal vote, or with his application for registration as a voter, further complicated administrative machinery will have to be gone through by that voter. Those of us—including the hon. the Deputy Minister—who realize how difficult it is under the best of circumstances for people to complete the R.V.l form satisfactorily, realizes further that this is going to make it more difficult for them to complete the form correctly.
But, in addition, there are going to be many circumstances under which bona fide voters are going to lose their right to vote on polling day, either because of accidents, or because of circumstances. The hon. member for Pretoria (Central) (Mr. van den Heever) has mentioned a few of these which I think should be mentioned once again: The man who has come a long distance and, for a variety of reasons, has forgotten to bring his identification card along with him. Now, it may well be said that a person should not forget his identification card, but is that a sufficient ground to justify the denial to that man of a cardinal right which he has as a citizen, namely his right to vote when he is correctly registered on the voters’ roll? I think it is a very harsh provision for a man who does not happen physically to possess his identification card, to be denied to exercise his right to vote in an election of the Government for South Africa. I think, in this connection, also of those people who have lost their identification cards not on account of negligence but as a result of fires, of theft, or delays in the postal services, etc. These people also will be denied the right to vote although they are registered as voters and although they are able to identify themselves by all the other normal means of identification. Sir, I think the administrative difficulties which the hon. Deputy Minister proposes to import into the Act, far outweigh any possible advantages which he might think of.
But another factor which is most unfortunate is that he is linking it with the Population Registration Act, an Act which one cannot with all the goodwill in the world describe as other than one that has brought hardships and unhappiness to a number of people. The hon. Deputy Minister is introducing a definition of a “ White person ” by linking it with the Population Registration Act while the other Departments of State are not prepared to accept the same definition. I think it should be pointed out that we have not yet got a standard definition of what “ White ”, “ Coloured ”, “ Asian ”, etc., in relation to the various legislative provisions we have at present in South Africa. So, in any case, I think it is premature on the part of the hon. Deputy Minister to import into the Act for the first time since Union a definition of what constitutes a particular racial group of voters especially since that is not a common definition in terms of other legislation. It would also be well for the hon. Deputy Minister to realize that both Opposition Parties in the House are already committed to the repeal of the Population Registration Act should they come into power and it would be unwise for the hon. Deputy Minister, therefore, to proceed to make the population register a cornerstone of our Electoral Act.
Another principle which this House is asked to accept before referring this Bill to a Select Committee is the principle contained in the radical revision of the system whereby voters are registered in South Africa. I think it will be conceded by members on both sides of the House that this Bill, as it is before the House now, involves a radical departure from the whole system of registration as we have known it hitherto. It involves fundamental changes. At present, once a voter is registered he remains so registered until such time as he becomes disqualified. However, it is proposed in this Bill that such voter shall remain so registered only for a maximum period of five years. At present, once a citizen has discharged his obligation to register as a voter, it is the duty of the State—of the Electoral Officer—to see to it that, provided he does not become disqualified, he remains so registered; now it is proposed in this Bill to place that continuous responsibility, not on the State, but on the voter himself to renew his registration every five years. The hon. Deputy Minister has indicated that it is his desire to clear the voters roll at regular intervals of extraneous names and to see that it is kept more up-to-date and more accurate than was the case hitherto. With all due respect to him, Sir, I do not think the machinery which the hon. Deputy Minister proposes is going to assist him to succeed in this task, but what I am sure of it will succeed in doing, is to disenfranchise—even though it is not by design—many thousands of citizens, particularly in the urban areas, who have a right to register and a right to vote in elections.
Why do you think so?
I will come to that. The practical effect of this proposed change in the method of registration, will be to disenfranchise many thousands of citizens of South Africa. Now, in regard to the claim put forward by the hon. Deputy Minister that he is going to keep the voters’ rolls more accurate than has hitherto been the case, I want to say that if he wants to achieve that he should not have extended the period of general registration from a maximum of three years to a maximum of five years. Most of us, but especially those living in urban areas, know that there is an estimated turnover of voters, even in settled, single, unit residential communities such as the one I represent, of approximately 15 per cent per annum. There is approximately a 15 per cent turnover per annum in the most stable of urban communities—I am not talking now of those communities in the heart of flat-land or the platteland. That means that after three years one can expect a turnover of 45 per cent while the hon. Deputy Minister, on the basis of his registration, foresees a turnover of 75 per cent before he has a new registration. I think that is too long a period if regard is had to the tremendous movement of population which takes place in South Africa. Furthermore, by weakening the provision which encourages a voter to notify a change in his address, we are going to find, at the end of the five year period, that the voters’ roll of each constituency is going to be in a chaotic state. The roll will have a large number of names but you will find that many thousands constituting the bulk of voters in that constituency will have moved in the course of the five years.
Furthermore, at a general registration a voter does not have to register at the address which is normally his home address, not at the address where he normally maintains his home, but at the address where he, by chance, happens to be on the registration day.
That is according to the Bill as it now stands. It is no use the hon. member for Wakkerstroom shaking his head, because if he takes the trouble of reading the proposed new Section 8, he will see that that is the intention. It was referred to by the hon. member for Pretoria (Central) as well. We all know that many South Africans are away from their homes at any given date of the year and you will, therefore, have a large number of people registering at addresses other than those at which they are normally resident. And if they want to change their address to get back to their normal constituency, it is going to devolve on the administrative machine of the state as well as on the individual citizen, an enormous burden. I do not believe that the hon. the Deputy Minister by his proposed amendment to the system of registration is going to bring about a better, or cleaner, or more up-to-date voters’ roll.
My second charge is that this proposed change will disenfranchise many thousands— tens of thousands if not hundreds of thousands—of people, particularly in the urban areas. All of us have had experience of registering voters by voluntary means and all of us realize that, even if all the political parties co-operate and the state co-operates by means of the S.A.B.C. or by advertising, there remains a tremendous number of people who succumb to the weakness of ordinary human apathy, and this is a factor which we must take into account. We all know that citizens of South Africa have a dislike of continuously having to fill in forms, and I think to ask a person to do that once every five years when he has already satisfactorily discharged his responsibilities to the state, is not only unnecessary but is going to cause a large number of these people to default. I see die hon. Deputy Minister looks at me but I want to remind him about the problems of the aged and the infirm. He knows how many people are not, in their latter years, active politically in the sense that they do not maintain these things up-to-date, and he also knows that there are many people who do not realize the importance of re-registering once every five years.
But the parties have a responsibility too? Cannot your party help these people?
Of course all parties will cooperate but the hon. Deputy Minister should realize that the vote is a personal thing belonging to each citizen and not something dependent upon the goodwill of political parties. I think that the State which is responsible for citizens should see to it that it is as easy as possible for voters to remain registered continuously. Then what about people who may be good citizens and who may be in contact with a party, but who are away from their homes and who are moving around for longer periods than 30 days? These people will not be contacted by the local party organization even if such organization wishes to do so. I think of the practical machinery which would be necessary to deliver to every single voter and to every aspirant voter, not only a new R.V.1 form every five years, but which would be necessary to arrange for its collection and for it to be sent to the electoral officer by the voter concerned. Now, for those of us who are deeply politically conscious, this is not such a difficult task at all, but there are hundreds of thousands of voters who do not have such a keen interest in party politics.
Then I would like to raise with the hon. Deputy Minister a very practical problem in connection with people who are overseas or out of the country on the day the general registration takes place. These people are required to register as soon as they return to the country. Now, Mr. Speaker, what will be the problems facing them under those circumstances? The first will be that the publicity which has accompanied the period of general registration will have lapsed. Let us presume that a general registration is held in August with these people out of the country on that date, but when they return the publicity and the endeavours of the electoral officer to encourage people to register will no longer be undertaken. But let us assume that such people do register within a short while of their returning. The fact is, then, that on the day they return, they are disenfranchised, and remain disenfranchised until the date they appear on the voters’ roll. Now, let us assume that a person, a good citizen, who is overseas returns over Christmas or the New Year and registers on 1 January. He will then only appear on the voters’ roll on 1 May of that year. Similarly, persons registering on 1 March will only come on the voters’ roll some six months later. It must be remembered that these are people who were registered, but who were disenfranchised in their absence, and that they will remain disenfranchised for a period of two to six months after their return. Now, I think, people who happen to be out of the country on the date on which a general registration takes place, should not be penalized to the extent of being unable to take part in a general election which takes place within two to six months after the date of their return to the country. I want to point out to the hon. Deputy Minister that, even if such a person should want to register while overseas, he will not be allowed to do so. So you have the situation where people who happen to be overseas, will be disenfranchised not only for the period which they are away but also for a long period following upon their return.
I next want to deal with the reduction of the period of general registration from the 90 days to which we have become accustomed, to a maximum period of 30 days. I want to ask once again, whether it will be practicable to register all voters within the limited period of 30 days? Does this mean that the electoral officer is no longer going to accept the responsibility of calling on people to register, but if he is going to accept that responsibility, then I suggest it is not going to be met sufficiently within the period of 30 days.
For all these reasons, Mr. Speaker, I believe that a large number of people—many of them good, solid citizens—will, just because they are away from home and moving about the country, be removed from the voters’ roll, and you will find fewer people registering themselves, as was the case hitherto. So, I think the hon. Deputy Minister is going to fail, on the one hand, to keep his voters’ rolls up to date, and on the other hand, he is going to disenfranchise a large number of citizens who would ordinarily have had the right to vote.
These are the basic principles with which this party is concerned. There are still a few other matters, however, with which I would like to deal. One of these is the slight relaxation which the Minister proposes to make in respect of the registration of Coloured voters. The hon. Deputy Minister has relaxed the existing provision slightly in that it will no longer, in terms of this Bill, be required of a Coloured voter to go to a magistrate, or an electoral officer or to a police station in order to vote, but that commissioners of oaths, who are in the employment of the State, will now also be authorized to sign the R.V.1 forms completed by Coloured voters. The hon. Deputy Minister may have a case that where a qualification for a voter is required, there should be the necessary machinery for ensuring that such qualification is complied with.
I make that relaxation at the request of the hon. member for Karoo.
I would have expected the hon. Deputy Minister to have relaxed the existing provision whether or not the hon. member concerned asked for it and I do not know, therefore, why the hon. Deputy Minister is so sensitive about it. After all he is the Deputy Minister of the Interior and I would have thought that his good common sense would have led him to relax it and that he would not have had to wait for a request to come from the hon. member concerned. I want to say, however, that it is a pity that the hon. Deputy Minister has only agreed to accept this limited relaxation because thereby he is setting up two classes of commissioners of oaths: a commissioner of oaths who happens to be in the employment of the State and who seems to be the only commissioner of oaths whom we can trust with the registration of Coloured voters, and commissioners of oaths who cannot be entrusted with this work. Why does the hon. Deputy Minister make this differentiation between commissioners of oaths? Surely a man who is a commissioner of oaths or a man who is a justice of the peace is recognized as such by the State because otherwise he would not hold either of these positions. Similarly, a man who is a commissioner of oaths or is a justice of the peace has a statutory responsibility towards the State and should be trusted. Why should a Member of Parliament or a member of the Provincial Council or a Senator be less trusted in dealing with these matters than a man who is a commissioner of oaths and happens to be a State employee? Why should not the advocate and the attorney who is commissioned by the State to be a commissioner of oaths also be able to deal with it? So, while on the one hand I welcome the slight relaxation which the hon. Deputy Minister has made, I think, on the other hand, that he has placed an unnecessary obstacle in the way of Coloured voters and at the same time inflicted an unnecessary slight on other commissioners of oaths by not allowing them to assist in the registration of Coloured voters.
Another point which involves certain important changes is the question of postal votes. Once again I want to say that it is generally agreed that no one should be debarred from, or denied the right to vote just because of a genuine inability to get along to his particular polling station on the polling day, while at no time introducing an abuse in the electoral system by measures designed to meet such genuine cases. There are one or two healthy extensions in this respect. One of these is by advancing the final date by which ballot papers can be applied for from five to two days before the election. This is a healthy and sensible extension of the privilege of having a postal vote and the referendum proved that there was no essential obstacle to this. Then another category of persons who will be entitled to apply for an absentee ballot has been introduced, namely, to a man who thinks he will not be able to go to his polling station on polling day on account of his work in the transport services. Now, I think a case can be made out for such people who cannot be at their respective polling stations, but there are, at the same time, many other categories of people who have equally important public duties to perform and who can also not be at their polling stations for that reason. My objection is not to transport workers being allowed to apply for postal votes, it is against the fact that they will be the only category of workers who will have this privilege. I am thinking of those people working in our hospitals, many of whom have full day-time duties to perform and find it extremely difficult, if not impossible, to go along to polling stations to vote. I am thinking of various people working in State Departments; of people working at our power stations. Many of these are also quite unable to go along to their respective polling stations during polling hours. Then there are people like commercial travellers, not falling under the category of transport workers, but who, very often at the last minute, are sent away so that they are unable to be at their polling stations on polling day. I think it is reasonable therefore to ask that if this privilege is going to be extended to transport workers, then it should also be extended to those other types of workers I have mentioned, to workers who for some reason or other will be away from their constituency on polling day. But I want to make a special plea in this connection for people who are not in South Africa on polling day. Why should there be no such provision for good South Africans who happen to select that particular time of the year to be overseas either on holiday or who happen to be undertaking work overseas either on behalf of the community or on behalf of the State?
State servants overseas have the vote.
Yes, but that was in respect of the referendum only and not in respect of ordinary elections.
Of course they have—in respect of all elections.
I am pleased if that is so, but if State employees can vote while they are outside South Africa, why can other South Africans not do so provided they do so at South African embassies? Surely there are people at these embassies entrusted by the State with the task of looking after the interest of South Africans overseas and if State employees can vote at embassies and legations overseas, why not also other South Africans?
There is a very big difference.
I shall be pleased if the hon. Deputy Minister can quote one difference In principle between a South African who happens to be overseas on State service and a South African who happens to be overseas for other duties on behalf of the community or merely because he is enjoying himself. The fact is that he is a registered voter and that he has an equal right to express himself and where facilities to vote exist for State employees, similar facilities can be created for those who are not.
Finally, Mr. Speaker, on this question of the postal vote, there has been an attempt by the hon. Deputy Minister to prevent tampering with ballot papers or to prevent tampering with ballot envelopes. The proposal which he makes in this connection is that the envelope should be sealed, that it should contain the official number of the ballot paper that was issued and that it should be signed across the flap and across the envelope. Now, commendable though this is as an endeavour to prevent tampering with ballot papers, I want to suggest that this is not only ineffective but is going to have unfortunate consequences. By way of experiment I took a couple of envelopes here this afternoon, wrote a name across it and soon afterwards undid the flap and sealed it down again. I think the hon. Deputy Minister will find that it is impossible to say that that was done. It is clear that, particularly with aged and infirm people, to sign across the envelope may cause the pen or pencil with which they sign to catch up on the rim of the paper. For practical purposes this suggestion, however well-meant it may be, is not going to eliminate a person with skill from opening and closing the ballot envelopes. I do not think, therefore, that the hon. Deputy Minister has hit the nail on the head but his proposal does create the risk of postal votes in future not being secret. For the first time we will have a situation where the ballot paper can be identified by the returning officer and by all his officials.
It is no use saying “ no ”, Mr. Speaker. The hon. Deputy Minister continues to shake his head. In the past the position was that a ballot envelope could not be identified. It was an ordinary brown envelope with a ballot paper inside it. Now the position will be that you will have a ballot paper inside an envelope which is identified.
But they are not counted one by one.
It is identified by the number on the outside and by the person’s signature, and whether the hon. Deputy Minister likes it or not, somebody other than the voter must slit open the ballot envelope and take out the ballot. The whole object of the existing postal vote system is to have a ballot envelope which could not be identified. Once it was established that the declaration of identity was in order, before you opened the envelope, you had to separate the two. So it was quite impossible to identify the ballot paper. I realize that the hon. Deputy Minister is trying to meet a danger in this regard but nevertheless the position is that every time a ballot envelope is slit upon, the person who does that will see the signature of the person concerned and he will have to take out the ballot paper which is inside. The Deputy Minister can say what he likes but I think this will go a long way to destroy what we have had thus far in South Africa, namely secrecy. This is what a large number of people will be afraid of and particularly people who take out postal votes, because I think the hon. Deputy Minister is aware that one of the dangers of postal votes is not the technical abuses that take place but the pressure which is often applied by party organizations particularly on old and infirm persons to take out ballot papers. Many of these are going to be very chary indeed of using the postal vote system when they realize that it has now being moulded in such a way which permits of a way of identifying the ballot paper inside the envelope with the signature on the outside. Therefore, I ask the hon. Deputy Minister to tread very warily indeed before proceeding with this because the last impression we want to create is that we are doing anything to detract from the secrecy of the ballot. As far as election expenditure is concerned, I want to say that I support those people who say on the one hand that one does not want to place anyone in an advantageous position where he can use his financial position; on the other hand, all of us have had practical experience of the difficulty of defining in law what is and what is not expenditure and finding an effective safeguard for this whole thing. I am quite sure that if one looks at the returns of electoral expenditure put in by candidates for the past 50 years, very few of them bear any real relationship to he Act as it was intended to be applied.
There are just one or two final points. Firstly, I think we should have a more adequate explanation as to why those people who committed treason between 1931 and 1950 should now become registered as voters. I listened with interest to the hon. member for Pretoria (West) (Mr. van der Walt). While on the one hand he made a plea for forgetting the past, is there not the danger that we will make too light of treason if we suddenly by a stroke of the pen wipe out the past in respect of all these cases? I think it is extremely dangerous, lest it be thought that on an arbitrary basis from time to time Parliament amends these Acts.
I was also alarmed at the provision which does not require the returning officer to provide voters’ rolls at least two months before the election. I know the Minister will say that there is nothing which prevents him from doing this, but I think it should be laid down in the law that the minimum period of notice given to the parties and the candidates of who are registered voters in their constituencies should be at least two months. I think the Deputy Minister has had practical experience of the difficulty that arises when we get the voters’ rolls as late as we do.
In regard to polling agents, I think a very good case can be made out for increasing their number, to assist the candidate at the polling stations, but I wonder whether the Minister should not relate it to the number of voters but rather to the number of polling districts and polling stations. I think that is far more important than the number of voters at each polling station.
Then I want to draw attention to Clause 28 (b), which includes the phrase “ by the insertion of sub-section (2) after the word ‘ packets ’ where it appears for the first time ‘ not being packets containing counterfoils of voting papers ’ ”. The way I read the Act it does include counterfoils of voting papers, because included in the original Section 71 which says that the electoral officer must make up these packets it says that he must make up packets in respect of those articles used in terms of Section 54, and Section 54 makes specific mention of the inclusion of counterfoils of ballot papers in this particular parcel. I would like the Minister to look into that clause and to satisfy himself that this is not erroneously stated.
Finally, I would like to ask the Minister to define his attitude in regard to this whole question of penalties for non-registration of voters. Whenever the question is asked whether people will be prosecuted, hon. members opposite say: If you were in office, would you prosecute them? But we have to decide whether this is the law or not. If it is the law and we do not prosecute people, we are making a farce of the law.
That is what happened in the past under the United Party Government.
It is no use talking about the United Party. I think we have now come to the stage where there is considerable agreement on a number of detailed aspects of the Bill. When you pass a law which will make potential statutory criminals out of tens of thousands of people, you know they will have the laugh on you because they know you will not prosecute them. I am not advocating that they should be prosecuted, but I think that if the law states it some action should be taken. If it is not the Minister’s intention to have this compulsory registration it should be deleted from the law, because the danger of the present situation is that we are allowing people to laugh at the law and to evade it, knowing that the Government will take no action. So I hope that the Minister, because of the important principles involved in the Bill and the fundamental defects in the Bill which he has introduced in all good faith to improve our electoral laws, will agree with the suggestion of the hon. member for Sunnyside that this Bill should go to a Select Committee before and not after the second reading.
I do not intend saying much about the Bill. I am very glad that the hon. the Minister is trying to clear up the Electoral Act. It is a tremendous step forward. I am particularly glad that it is being referred to a Select Committee. I do not want to speak in general but only about a few points concerning my Coloured voters in particular.
There is the matter of the general registration. I think it is necessary that there should be supervision when the Coloured voters are re-registered in a general registration. I just want to mention an example. At the last general registration 98 Coloureds were registered at Touwsrivier. They were transferred from one part of the town in terms of the Group Areas Act to a new extension, Steen-vliet, and although all of them were at Steenvliet all 98 of them were removed from the voters’ roll because they had moved a half mile away. As you know, it is very difficult for a Coloured to be registered again. It is a complicated procedure which will now be simplified, but I merely mention this because I think it is very unreasonable and provision must be made for preventing this sort of thing happening.
I am a little dubious about the suggestion made here that only public servants should act as presiding officers for postal votes. When one has a constituency like mine where more than half of the voters must vote through the post it is impossible to get the people to a public servant. I admit that a postmaster is also a public servant but I think we should be very careful before making suggestions which are impracticable. I am especially glad to see that the hon. the Minister is endeavouring to ensure that secrecy in regard to postal votes will be enforced. I refer not so much to secrecy but to the fact that it will eliminate abuses to some extent. I cannot quite agree with the hon. member for Pinelands (Mr. Eglin). Although he made his experiment on the back of an envelope I can almost say that on that system the postal vote will be virtually foolproof and then there will automatically be far fewer postal votes, and I welcome it.
Just a final point which the hon. member for Pinelands also touched on. I am very glad that the hon. the Minister has eased the position in regard to competent witnesses for a Coloured voter but in my opinion it does not go quite far enough. I hope to give evidence before the Select Committee. Do not think that I am one of those persons who say that just anyone should be accepted as a witness. I do feel that this idea that it must be a commissioner of oaths in the employ of the State helps us tremendously but I would have liked Members of Parliament and members of the Provincial Council and members of the Union Council for Coloured Affairs to be added to this. I am only mentioning this and will explain my reasons more fully before the Select Committee.
One of the basic objections which the hon. member for Pinelands (Mr. Eglin) has to the Bill is the inclusion of identity cards at the poll and the inclusion of the identity numbers on the votors’ rolls. I think there could be practical objections if it were to be introduced immediately but I wish to draw the hon. member’s attention to the fact that the introduction of identity cards is not automatic but that it will come into effect on a date to be announced by the State President. I believe that the provisions of this Bill will be applied wisely and that it will only be required in practice once the population register has progressed so far that it will be possible for every person to be in possession of his identity card. The principle of incorporating the identity card into the voters’ roll is a sound one. I do not think anyone will object to it if one bears in mind all the evils which can be eliminated through this.
Another matter to which the hon. member for Pinelands objected, was the question of there not being any compulsion in regard to giving notice of a change of address. This is food for thought but one thing I am very scared of is that if compulsory registration is to be reverted to then there will again be an endless stream of objections from political parties and voters. We had that experience in the past. It placed a tremendous burden on the electoral officers and the parties and it served no useful purpose, and if compulsory registration is again to result in that sort of thing then I am opposed to it.
Mr. Speaker, an efficient electoral system and an election procedure which is practicable and is above all suspicion is a fundamental requirement for the constitution of a democratic and representative legislative body. The Electoral Act which creates the electoral machinery and determines the electoral procedure is again being amended, as is done from time to time with a view to greater efficiency, but also with a view to eliminating as far as is humanly possible any abuses committed under the Act. I say so far as is humanly possible because no electoral system or Electoral Act will ever be so perfect as to eliminate all abuses. The Electoral Act, apart from determining who will have the franchise, has two functions in particular. The one is to arrange for the registration of voters and the other is to arrange and to determine how an election should be conducted and controlled. Up to now the Electoral Act contained many restrictive provisions and useless obligations in respect of election costs and which are now being abolished.
As far as the registration of voters is concerned this Bill, in Clauses 2 to 14, provides for a whole series of very practical and useful provisions aimed at obtaining the purest and most comprehensive voters’ rolls. The proposed amendment in Section 8 of the principal Act, namely that a completely new voters’ roll must be compiled at a general registration, is a very wise decision. Together with the new provision that applications for registration will be accepted up to only 30 days instead of 90 days after the date of a general registration, this procedure will result in obtaining a fairly complete voters’ roll because it will in the first place limit duplicate registrations to an absolute minimum. The deletion of Clauses 2 (b)(i) of Section 8 of the principal Act, which determines that the voters’ roll be compiled at a general election by, among others, adding the names to it of persons enumerated on the existing roll, was necessary because it resulted in the less conscientious registration officers not doing their work properly and that practically every voters’ roll contained a number of names which should not have been placed on it. But, while these amendments aim at cleaning the rolls the completeness of the rolls was also taken into consideration. Section 7 abolishes the residential qualification of two months in regard to a general registration and the compilation of new rolls. Through that a large number of persons who were not included at the last general registration because they had not at the time of the registration completed the residential qualification of two months at their new address and who were also removed from the previous roll because they had left their former address permanently, will now be included. I cannot agree that a person should be included in a roll at a general registration merely because he slept there for the night or because he was visiting there. Section 7 (a) states clearly “ unless in the case of a general registration he … was resident in that constituency on the determined date ”. If a person only visits there then he is not resident there. In my opinion the Act does not cover these cases adequately. Otherwise the electoral officer will in future not be able to reject an application in which only minor and unimportant details are lacking. If the application in terms of Clause 5 (a) contains the details necessary to establish the applicant’s identity, his right to vote and the constituency in which he is to be registered as a voter, then the official will be compelled to place his name on the roll. Therefore I think that these new provisions will provide a fairly complete roll.
I welcome the foundation for the mechanization of the electoral machinery as contained in the proposed amendments and I think we should thank the hon. the deputy Minister and express the appreciation of the House to him for his personal contribution and enthusiasm to bring about mechanization in the election office. It is a colossal task which can only be brought about with the greatest circumspection because it concerns so important a matter as the voters’ rolls which is the foundation of the whole electoral machinery. I am convinced that mechanization together with the re-arranging and re-organization of the voters’ rolls as determined in Clause 8 will, apart from the large saving in manpower, money and time which will result, bring about more speedily more efficient machinery with fewer mistakes and one which is less cumberous. I want to appeal to the hon. the deputy Minister to ask his administration to consider making registration cards available at post offices. The present position is that the registration cards are obtainable mainly at magistrates’ courts and sometimes also at police stations. In many cases there are no supplies and it has then to be applied for. In my opinion the post office is the best place because everyone goes to post a letter at some time or another and then one can obtain the card and fill it in and post it in a franked envelope, thereby also eliminating the possibility of it going astray at home. I also want to ask the hon. the deputy Minister to make use of the radio to impress upon the people that they must register. It can be done in the same way as was done with decimalization, by means of something like “ Decimal Dan ”. I ask the hon. the Minister to consider this.
Postal votes have become the overriding factor in conducting and controlling an election. The time and money spent on it is colossal. It occupies more than two-thirds of the work of a candidate and an electoral officer and their personnel, while postal votes usually represent less than 15 per cent of the number of votes polled. Sections 16 to 26 of this Bill deal with voting by absent voters and there are two problems in connection with postal votes which I wish to deal with. The one concerns the enormous proportions it has assumed and the other concerns the abuses involved.
As far as the proportion is concerned I honestly believe that postal votes have in some cases assumed ridiculous proportions. About 50 per cent of the people who normally vote as absent voters ought to vote at the polling booth. At the referendum 1,634,240 votes were polled of which 224,522, or 13.7 per cent, were postal votes. The hunt by parties for postal voters is not the only and the most important reason why the use of postal votes is being exaggerated. The problem is rather that the Electoral Act makes it possible for nearly everyone to vote by post. Section 42 of the principal Act only requires a voter to have a reason why he thinks that he will not be able to vote at the polls and then he obtains a postal vote. It is definitely a very wide concept in which one can get away with practically anything and it has virtually become the fashion among voters to vote as absent voters. Postal votes are applied for for the most trivial reasons and the fact is that if the one party does not want to arrange for it then the other party will be only too eager to do it for the voters. I do not think the proposed amendments will reduce the number of postal votes. On the contrary, two amendments taken over from the Referendum Act, namely to extend the postal votes to transport services, which I think is a very good proviso, and the fact that applications will be accepted up to two days before the election, can perhaps increase the number of postal votes. If one adopts the principle of wanting to enable every voter to record his vote at an election then it is very difficult to bring postal votes under control through legislation without violating that principle. It is a problem which can to a great extent be controlled by the voters themselves through every voter being intent on recording his vote at the polls if at all possible and at the same time to be very determined and selective about who he allows to handle his postal vote if it is necessary for him to vote as an absent voter.
As far as the abuses which can take place under the Electoral Act are concerned I do not think this evil is as great as the exaggerated use of postal votes. But the fact that abuses can arise in connection with postal votes is a contributory factor to a number of amendments being proposed in this Act. I believe that this Act goes further than ever before and that a more vigorous effort than ever before is now being made to combat such abuses. The new provisions that identity cards should be introduced in connection with postal votes and that a postal vote on which a vote for one candidate has been changed to a vote for another candidate will be rejected are the most efficient for this purpose. The introduction of the serial number on the back of the ballot paper’s envelope can only be of value if it is printed on the envelope. But if it is simply written on, as many electoral officers have done in the past on own initiative, it has not got much value. The provisions abolishing the two witnesses at the voting of absent voters and which require the presiding officer to also place his address on the declaration of identification are of great importance. Because of circumstances it was in the past very difficult for aged, sick and bedridden people to mark their ballot papers in secrecy in the presence of so many inquisitive people in restricted circumstances, and also for other absent voters. Now that more strict provisions will make it very difficult for anyone to interfere with a ballot paper after it has been marked the other danger of the ballot paper being destroyed or delayed arises and it is therefore essential that as few people as possible who can see for whom the voter has voted shall be present.
A further restrictive measure proposed in Section 21 (h) of the Act requires an absent voter to also sign his name on the back of the envelope, and that the signature will be compared and must correspond with that on the declaration of identification and with that on the postal vote application form. This provision could be very efficient and useful provided it could be made practicable and that it does not place a compulsion on the absent voter whereby the risk of his vote being declared void could be increased abnormally; and provided the secrecy of the vote will not suffer as a result. Unless the Department can design a particular type of envelope and considerably improve the quality of the paper from which the envelope is made it will be very difficult to place a signature in the manner prescribed by the Act without running a great risk of the signature being rejected. The number of postal votes rejected at each election is very high and I think that at least 80 per cent of the postal votes rejected are rejected because the signature on the application form and that on the declaration of identity do not correspond to the satisfaction of the electoral officer. Anyone with any knowledge of this will agree with me that 99 per cent of the signatures which, in the opinion of the electoral officer, do not correspond are in fact the handwriting of the actual and legal voter who signed the application. No falsified signature could be so poorly forged as to be unacceptable for the purposes of the Electoral Act. There are numerous reasons why a person’s signature differs from time to time. I have not got the time to go into detail on it. What remains a fact, however, is that the more signatures there are to be compared the more spoilt votes will there be. In my opinion this provision will result in the number of rejected postal votes being considerably increased in the future and that the legitimate votes of the aged, sickly and the less educated voters will be subjected to an unbalanced test. The result will be that greater use than in the past will be made of Section 43 (2) of the principal Act which provides that someone other than the voter himself may sign in certain circumstances, and it is in all respects always desirable that the voter himself should handle his vote.
I accept that all the amendments are well-intended attempts to eliminate the abuses in connection with postal votes. One will never be able to eliminate them completely. The main problem is still that the vote of absent voters has become such a complicated procedure that there are very few voters who can handle their own postal vote. The handling thereof by another person other than the voter himself has therefore become a necessity and here again the voter can make a great contribution towards combating abuses by ensuring that he entrusts the handling of his postal vote only to a person in whom he has absolute confidence. If that happens more and more complicated legislation will become superfluous.
I do not think that it is without significance that not one of the three hon. members who have spoken on that side of the House—the hon. members for Pretoria (Central), Pretoria (West) and Parow—has had a single word to say in respect of the amendment moved by the hon. member for Sunny-side (Mr. Horak). Sir, if you sit and listen carefully to the speeches of hon. members on that side, particularly those of the hon. members for Pretoria (West) and Pretoria (Central), then it seems quite clear that there is a desire on the part of both those members to support the amendment moved from this side of the House. For example, the hon. members for Pretoria (West) and Pretoria (Central) suggested that the Select Committee, after a consideration of the Bill, after the second reading, should still be allowed to come to this House with a request for an instruction in the Committee Stage in order to include new principles in the Bill. Why go to all that trouble? If we send the Bill to a Select Committee before the second reading then these new principles which hon. members desire can be included in the Bill before the House approves of the second reading of the Bill. It is quite clear from other observations of these hon. gentlemen that they have certain grave doubts about the proposed new principles which are set out in this amending piece of legislation containing 54 clauses. I agree with the hon. member for Pretoria (Central) that in dealing with a measure of this nature which seeks to amend such a fundamental Act as the electoral laws of our country, it is, to quote his own words, “ extremely dangerous to tamper with the Electoral Act without due consideration having been given to all the new principles that we wish to include in the new measure ”. I want to give three reasons to the hon. the Deputy Minister as to why he should accept the proposition that the Bill be sent to a Select Committee before the second reading. First of all, when the Act of 1946 was passed by this House, it was described at that time by the present Minister of Justice as a measure which could be considered by the Nationalist Party as the Magna Charta of the voting public of South Africa. The present Minister of Justice went so far as to move amendments asking for a minimum residential qualification of two months for voters. Since 1946, since the passing of this electoral Magna Charta, which was accepted unanimously on all sides of the House there have been some four amending measures, the major one being that of 1952. The point that I want to make with the Deputy Minister is that in 1952 when major fundamental changes were made to the principles of the Act of 1946, it was done after negotiations between the parties, before the Bill came under discussion in this House. There was full negotiation and I do not think that the Deputy Minister can claim that in respect of this Bill, which includes such far-reaching new provisions, the same measure of discussion between the parties has preceded the introduction of this Bill into this House. It is true that the Deputy Minister referred to certain discussions between party organizers some 18 months to two years ago, and to the fact that certain representations, were made by this side of the House. The Deputy Minister will agree with me that none of the representations made by this side of the House in regard to fundamental principles was accepted other than the one minor one that was contained in the amending Bill of 1957 where we asked for an extension of voting hours to 9 o’clock instead of 8 o’clock. That is literally the only concession that had been made by the Deputy Minister in respect of new principles in the Bill now before us. Sir, when you describe an Electoral Act as a Magna Charta it is intended to convey the impression that the electoral machinery has been devised in such a way as to eliminate manipulation on the part of any political party and political organizers. I think the Deputy Minister will agree with me that it is very necessary in passing new legislation to continue to give that impression to the electorate of South Africa. But there is a second reason why I ask the Deputy Minister to accept the amendment from this side of the House. As far as I know it has always been a parliamentary tradition to try to reach agreement between the respective parties before a measure of this nature comes before the House, and I would ask the Deputy Minister how many of the principles put forward or suggestions made by this side of the House are included in this Bill? Have we not the same rights as members of the Deputy Minister’s party to express our views and to take evidence as to whether it is worth while to embody new principles in the electoral machinery? But then there is a third reason why I would ask the Deputy Minister to accept the amendment moved by the hon. member for Sunnyside. The Bill as it now stands, in my submission, and as I shall attempt to show, embodies new principles which open the door to the possibility of a dishonest conduct of election, and seems to be the first step to interfere with the secrecy of the vote. I think it is necessary, when one makes a submission of that kind in a debate of this nature where we are considering the principles of an electoral Magna Charta, to submit those principles to a Select Committee before their acceptance by this House. Sir, there are 54 clauses in this Bill. Some are improvements of a minor nature to the existing Act, and quite obviously it is impossible to deal with them all at the present time, but I would like to pin-point a few of these provisions, particularly those that introduce new principles that may lead to malpractices. Take Clause 8 for example. Clause 8 amends Section 15 of the original Act, which deals with particulars to be shown on the voters’ lists.
I am grouping these clauses in regard to possible malpractices not in the order in which they appear in the Bill but as they affect voters’ rolls and forms of registration. I want to show that the cumulative effect of these proposed new principles may be to introduce even greater malpractices than those which may be perpetrated under the existing Act by some unscrupulous person, and if there is such a possibility, we are as much concerned on this side of the House as the Deputy Minister’s party is. If we show that these loopholes do exist and that there is an obvious desire on the Deputy Minister’s part as well as on our part to close them, then I submit that if the Bill is referred to a Select Committee after the second reading and it appears that these loopholes for further malpractices do exist, then it is impossible for the Select Committee to incorporate in the Bill a principle which differs from the principles already accepted by this House. The time to consider such changes is before the Bill is accepted in principle by the House. Clause 8, which deals with the particulars to be shown on the voters’ list makes it possible that there will no longer be a separation of the sexes on the list and that Christian names will no longer be shown in detail, as they are at the present time. The hon. member for Hospital (Mr. Gorshel) has dealt with this at some length in his maiden speech. I took the trouble to look up the rolls in certain parts of the country where you have many voters with the same surname. Take the constituency of Uitenhage for example. There you literally find hundreds of Oliviers on the voters’ roll. You find hundreds of persons with the same initials but with different Christian names. Let me quote a few examples from the roll. To illustrate this, I need only refer hon. members to the names appearing in the telephone directory. Take the Joneses. You get five Joneses with the initial H. There are no less than 22 M. Smiths; there are no less than five W. A. Smiths; there are no less than 11 L. Smiths. Let us take the van der Merwes. In the telephone directory there are no less than eight G. J. van der Merwes, people with the same initials but with different Christian names. Take the van der Walts. There are no less than three T. N. van der Walts; one B. and five N. T. van der Walts. In the Florida constituency there are five G. J. van der Merwes. Sir, can you imagine the possible confusion that may result if only the initials were to appear on the voters’ rolls and not the Christian names? Hon. members know that from time to time we get a father and son with precisely the same initials and precisely the same names. I am very glad indeed to support the plea made by the hon. member for Pretoria (Central) to the Deputy Minister that re-consideration should be given to the question of publishing rolls with the full Christian names of the voters. It is quite clear that the use of the initials only may result in confusion as far as registration is concerned, and confusion as far as the voters are concerned on election day. But let us take another provision dealing with the voters’ list. Any hon. member who has fought an election knows that from to time one finds a high percentage of duplications on voters’ rolls. If I remember correctly, in my own constituency there were 16 duplicate registrations which were referred from time to time to the presiding officer for decision in the referendum campaign, because they were absolute duplicate registrations. Sir, while duplicate registrations have appeared on rolls in the past, the voters have always had the feeling that they have been genuine errors. We know that duplicate registrations may appear from time to time on voters’ rolls particularly where the electoral office has to deal with millions of registrations, but there has always been a feeling of security in the minds of the members of the public because they have known that Parliament has placed a responsibility on the Minister of the Interior in charge of the electoral machinery to see that a proper check is kept and that no duplicate registration takes place, either in the same constituency or in different constituencies. There has always been that feeling of security in the minds of the voters because the Act placed an onus on the electoral officer to compare rolls for the purpose of checking duplicate registrations. Now we find in this Bill that the amendment proposed in Clause 14. which amends Section 79 of the Act, removes this onus on the electoral officer to check for duplicate registrations and simply gives him a discretionary power, which means in fact that it is not going to be done. It means in fact that there is going to be no protection for the public against false, duplicate registrations. Sir, when it becomes known to the public that there is no check on duplicate registrations, can you imagine what the effect will be on unscrupulous persons? They would not hesitate to register in different constituencies, and whatever arguments hon. members opposite may advance, the fact remains that this leaves a loophole. Then let us take another amendment to the voters’ roll that is proposed in this Bill. I am sure every member in this House who has fought elections knows how many people come to the polling booth on election day to check whether their names are on the roll and who are then told that their names are not on that particular roll but on the roll of some other area; it happens from time to time. But why have people always been prepared to accept the presiding officer’s decision in a polling booth in respect of their registration? Because the evidence has always been placed before them by the presiding officer of a master roll, duly initialled and checked which they are perfectly prepared to accept. Now we find that the onus on the electoral officer to initial any alteration to the roll that takes place on election days is removed. These alterations may now be made and there is no means of checking the bona fides and die correctness of an alteration made to the roll on election day. In terms of the proposed amendment in Clause 11, which amends Section 19 of the Act, there is no longer a responsibility placed on the presiding officer for initialling any addition or possible alteration that may be made to the roll a few days before the election. Sir, public confidence in the correctness of the voters’ rolls is the prime requisite in a democracy to conduct an election. If the public has no confidence in the rolls, then the accusation can always be made that there has been jerrymandering, that there has been manipulation in a particular constituency to ensure the success of a particular candidate. I submit that the voters of South Africa have always in the past believed that the rolls truly reflect the voters in that particular constituency. Now we have another alteration which has already been dealt with by other hon. members. In Clause 13, which amends Section 25 of the original Act, we have the position that the rolls will be printed “ at such time as the chief electoral officer may consider necessary or as the Minister may direct”. In other words if we have a general registration at five-year intervals and the Minister decides that two years after the general registration the rolls will be printed and that no further rolls will be printed … [Laughter.] Sir, the hon. the Deputy Minister laughs, but this is the law that we are being asked to approve and we have to deal with the facts.
I am laughing at your absurd arguments.
If the arguments I am submitting are absurd, then I submit that the Bill is absurd.
That is the same old story that you told us last year when we dealt with the Referendum Bill and none of your prophecies materialized. It is a lot of parrot-talk.
Sir, I am dealing with the clauses as they appear before us and in which the Minister asks us to accept new principles and my submission to the Deputy Minister is that if there is a vestige of truth in what I say, that is sufficient justification to send this Bill to a Select Committee before the second reading. I submit that with these wide discretionary powers the Minister now wishes to take in respect of the printing of the rolls, an election may very well be conducted on completely out-of-date rolls. Let me point out to the Deputy Minister that when he introduced this Bill he gave no single reason for this proposed amendment. Why not leave it as the original Act provides for, namely that the rolls are to be printed two months before a general election? We have had no reasons submitted to us, either by the Deputy Minister or by any other member on that side, in support of this amendment that we are being asked to accept here. In other words, if I have to be completely blunt, with this provision as it stands the Government party may present rolls on which to fight an election which are no true reflection of the actual voting strength of a particular constituency as determined by the Delimitation Commission. That is the position. Let me give it in facts and figures. According to the delimitation which preceded the 1958 election, the number of voters in my constituency together with loading was 11,200 voters. But what was the actual position when we went to the polls? When we went to the polls there were over 13,000 voters. Can you imagine, Sir, what the position would be if the printing of the rolls were left for such lengthy periods or to the discretion of the Minister as the representative of the Government party, bearing in mind the constant movement of the population in the country? We would be fighting the election on rolls which do not reflect the decisions arrived at by the Delimitation Commission. In the light of the Deputy Minister’s refusal to give any satisfactory reason for such far-reaching alteration to the original Act, I am entitled to put the worst possible interpretation on the provisions of this Bill. However, I do not wish to do so and that is why I ask the Deputy Minister to accept the proposal that the Bill be sent to a Select Committee before the second reading.
Let me turn to another aspect of this Bill. The Minister, when introducing the Bill, was at great pains to emphasize the benefits of the Bill to his Department from an administrative point of view. He talked about O and M method, being applied in the compilation of the roll. He talked about mechanization in the electoral division, about the conference of electoral officers and about overseas studies. But may I point out—and I made careful notes of the Deputy Minister’s speech—that he did not explain in what way this Bill will give greater security and certainty that every citizen will be able to exercise his vote in complete secrecy. The Deputy Minister did not indicate what benefit the voters themselves will derive from the inclusion of these new principles in the Act. He said that these changes were based on experience gained in the referendum campaign, but it is my submission that what may have been good practice in a referendum, is not of necessity good practice in a general election, for the very simple reason that in a referendum campaign you do not have candidates; you are dealing with broad issues which are placed before the public on the basis of a simple “ yes ” or “ no ”, but in a general election you are dealing with the human factor; you are dealing with individual men who offer themselves for election, men who hold specific views and who state the specific principles for acceptance or rejection by the public. In a general election the personal factor is a big factor to consider. Because it was good practice, according to the Deputy Minister to place no limitation on the expenditure by parties in the referendum, we are now being told that that principle should also be applied to general elections, and in Clause 41, which amends Section 97, any candidate will be allowed unlimited expenditure. Sir, are we to deny the right to a working man to stand as a candidate, whether for a political party or as an Independent or for any other minor cause? Because what is the effect of this? Private individuals who sincerely believe in a certain cause which they wish to put to their fellow citizens but who have not got unlimited funds, may be pushed out by a candidate with large sums of money at his disposal for expenditure in any election campaign.
It can be done to-day.
The Deputy Ministersays it can be done to-day, but the Act today stipulates £350 for the first 5,000 voters and certain sums thereafter.
You ought to know better.
May I ask the Deputy Minister then whether he cooked his returns in the election? We had had an open admission here this afternoon from the hon. member for Pretoria (West). Are candidates now expected to make a farce of our electoral laws by rendering false returns? Let hon. members on that side answer.
I made no admission.
It is clear that by sending this Bill to a Select Committee after the second reading, this principle can be considered but no Select Committee can come back after the second reading with a recommendation that a certain amount should be stipulated after the House has agreed to the principle of unlimited expenditure by candidates. Let me remind the House and the Deputy Minister that in 1957 it was proposed from this side of the House that £500 should be fixed as the limit of expenditure for the first 5,000 voters, and let me tell the Deputy Minister what the reply of his predecessor was. His reply was: “ I do not think the time has arrived for any change of that nature.” If three years ago the Minister of the Interior considered that the time was not appropriate to increase the maximum expenditure, on what grounds are candidates in an election now to be allowed unlimited expenditure? It is my submission that with this provision in the Bill, we are putting the clock back more than 150 years as far as our electoral laws are concerned, because let me remind the Deputy Minister, in case he has not studied his political history, that the principle of not allowing unlimited expenditure was one of the major bones of contention when the Reform Acts were passed in 1838 in the House of Commons, and it was fought on the principle that the ordinary man without money should have the same right as the man with money to stand before his peers and to represent himself as somebody suitable to hold public office. The Deputy Minister has even gone further; in his second reading speech, if I understood him correctly, he threw out the suggestion that the Select Committee should give consideration to the question as to whether or not our Liquor Laws should not be reconsidered so that liquor may be saleable on election days. Sir, imagine the situation where we have unlimited expenditure, with the bars open. It would place us right back to the middle of the nineteenth century.
You are putting up your own skittles to knock them down yourself. Nobody knows what you are talking about. I do not believe that you yourself know what you are talking about.
Whenever one attempts to submit a case to the Deputy Minister for genuine and honest consideration one gets this attitude on his part.
Business suspended at 6.30 p.m. and resumed at 8.5 p.m.
Before the dinner break in order to strengthen the case that I was attempting to put for the reference of the Bill to a Select Committee before the second reading, I tried to show the accumulative effect of amendments to the voters’ roll, and the manner in which the door could be left open for malpractices as far as the registration of voters is concerned and in the conduct of elections.
In the time that is left to me, I wish to make one or two further observations in respect of a few other provisions of the Bill. Sir, it has already been alleged in this debate that the Bill as it now stands and the new principles embodied therein, open the door for tampering with the secrecy of the vote. Sir, I hold to the point of view that it is quite an incorrect principle, no matter what other ills the Minister hopes to cure with the proposition that the voter should sign the back of his ballot paper, that ballot papers as such in separate envelopes will be separately inserted into ballot-boxes with the signature of the voter thereon, and it will be possible as a result thereof to identify the voter and the manner in which he voted. I do not say that it will be done, but it certainly opens the door to creating the impression that the secrecy of the vote will not be 100 per cent under this system. But there is another aspect which worries me as far as the secrecy of the vote is concerned in this Bill, and that is the provision contained in the clause that no longer will the counterfoil of the ballot-paper be sealed away with the other documents of an election, which can only be opened on a court order. The hon. the Minister gave no explanation and no reason of those provisions that the counterfoils of ballot-papers will now be available to, I presume, officers of his department, or somebody else, but they are being excluded from the provisions of the Bill which lay down that all documents applying to the election should be sealed by the presiding officer and put away, and in terms of other provisions of the original Act can only be opened by court order. I hope that the hon. the Minister when he replies will give the reason for the inclusion of this amendment. One fact clearly remains and that is that it is possible on the counterfoil of a ballot-paper to trace how a voter has voted. For the past half century in terms of the electoral law of this country, all documents relating to the conduct of an election and the secrecy thereof have been carefully preserved under sealing which have been carefully lodged in vaults and never been opened unless there has been a dispute and when they have been opened by order of the court. But here a very important portion of the documents, the counterfoils themselves to the ballot-papers, are now excluded from the secrecy provisions, and we have no reasons given to us by the hon. the Minister for this departure.
The vote still remains secret.
I am referring to the counterfoil of the ballot-paper from which the issuing officer takes the ballot-paper from the book, the counterfoil which is open and on which he records the voter’s number. That is now excluded from the secrecy provision …
You don’t see the ballot-paper with the cross on it.
I know, but why are these particular documents being excluded from the sealing provisions which apply to all documents appertaining to the election.
What clause are you referring to?
Clauses 20 and 21. I want to know the reasons for this exclusion.
Before I sit down, I wish to deal with Clause 28 of the Bill which now provides that it is not necessary that at the time of a general registration a voter has to give a permanent address for the minimum period of two months as is now prescribed in the original Act. It is clear what can happen, and I want to explain my attitude towards this provision in these simple terms, to indicate how easily it is possible for unscrupulous persons to load constituencies. Mr. Speaker, 10 per cent of the entire electorate, it is estimated, belong to political parties. If an unscrupulous organizer at the time of a general registration, which is made public, has to select 20 particular addresses (as an example) in the particular constituency, and at those 20 addresses he leaves the names of 20 other persons, when the Government enumerator, who is a voluntary worker, inexperienced, temporarily appointed at a daily rate, comes along to a particular address and asks who resides there, and the owner of the property says: “ These 20 names ‘ A to S ’,” and when he says: “ Are they here now?” he replies: “No, you can leave the registration cards with me.” Then he does so. They don’t sign them personally and he leaves 20 cards at that address. He comes along the next night and collects 20 signed cards in terms of the Act as now proposed—who is to know whether those registrations are false or not? There is no residential qualification asked for. The man can say: “ This is where I reside ” and who is to dispute it? There is nothing that he has to prove. He simply says: “ I reside here.”
He has his identification card.
His identification card does not mean twopence in this case, because if you are attempting to load certain constituencies with a certain number of voters for the purpose of suiting your party interests for delimitation purposes or any other purposes, it is as simple and as easy to do so without this residential qualification. Twenty selected addresses with 20 selected names at each address, is the loading of a constituency to the extent of 440 voters. And, Mr. Speaker, you can work your balance from constituency to constituency if a party organization wishes to act in an unscrupulous manner, and surely it is not our intention in this House to leave the door open for such unscrupulous practices.
You seem to have a lot of ideas and systems?
I am looking at this legislation in terms of my own experience in dealing with Nationalist Party organizers. I am dealing with false registrations at 20 or 30 particular addresses. No questions whatsoever are asked and there are no restrictions to load constituency to constituency on any supplementary roll if it is in the interest of any particular party. I ask the hon. the Minister whether that is what he wishes, whether that is the type of tactics he wishes to see applied in the conduct of our elections in this country. I submit, and every hon. member sitting on the Government benches knows it, that to accept this provision as it stands, leaves the door open to that kind of unscrupulous practice. There is silence on the other side. They don’t deny it, because they know that it is possible. I submit with respect to the hon. the Minister: Is that what they want our politics in this country to descend to? If we do not lay down a residential qualification and if we don’t make that compulsory in regard to the basis of delimitation, then we are looking for trouble and we are lowering our politics to the lowest possible standard. I want to appeal to the hon. the Deputy Minister: If it was said by his previous leaders who brought him to this House that the electoral laws of our country should be the Magna Charta of the voting man to ensure democracy and true representation of the people of this country, then I appeal to the Deputy Minister to-night to go back to past practice and to accept our amendment, and then we will meet the hon. the Minister across the floor before we accept principles of this nature. [Time limit.]
In a comparatively objective debate, the hon. member for Turffontein (Mr. Durrant) has now been quarreling with himself for the past 40 minutes. He makes the accusation against this side of the House that nobody has spoken about the amendment moved by the hon. member for Sunnyside (Mr. Horak). But the very arguments that he advanced prove that unless we first decide on the principles before this Bill goes to a Select Committee, a Select Committee would not be able to make any headway either. They would have to listen for days and days to the half-baked arguments of the hon. member for Turffontein. The fact of the matter is that every one of us in this House has some experience of conducting elections, and now everybody wants a law based on his own experience. The hon. member for Turffontein showed that here perfectly clearly. In the main the principles of the old Act remain unchanged. The changes in this Bill, or at any rate the vast majority of them, are based on the Referendum Act, and I want to say here that that experiment stood the test brilliantly. I think that the referendum went off more smoothly than any other election in the history of South Africa, in spite of the fact that the highest percentage of votes was cast in the whole of our history.
There are just a few major principles embodied in this legislation, and I do believe that a Select Committee would be able to bring about improvements here and there, improvements which in the nature of things would benefit our system. But the most important principles are, firstly, the introduction of the identity card to combat the ghost vote; secondly, the elimination of irregularities in handling postal votes in so far as there have been irregularities and, thirdly, the extension of the general registration period from three to five years. The United Party now comes along with a different principle that they want to insert, and that is the system of continuous registration and objections, as we had it from 1946 to 1952. Sir, there has never been greater chaos in South Africa in connection with the Electoral Act than there was during that period. We on this side will never revert to that system. When one reads the speeches made at that time, one finds that even the United Party was relieved when the system of continuous registration and continuous lodging of objections was abolished. The hon. member advanced quite a number of arguments here and, amongst others, he referred in terms of ridicule to people with the same Christian names. He said that if Christian names only appeared on the voters’ roll, it would lead to difficulties. But surely those van der Merwes and van der Walts, or whoever they may be, do not all live at the same address.
Sometimes they do.
No, when two people with the same initials live at the same address, they are senior and junior, father and son, or mother and daughter, and in addition to that an entirely new factor is now being introduced and that is the identity card and the identity number, but that of course, is really the principle that the United Party is opposing. If the identity number appears before the registration number and before the name, then surely there can be no confusion at all. There are no two people in South Africa who have the same identity number.
An important argument that has been advanced on the other side is in connection with the expenditure that a candidate may incur in an election and in regard to which he will no longer be required to submit a return. They regard that as a terrible new principle. To be quite honest, I think they were playing the fool. Candidates were supposed to submit a return of their election expenditure. If I remember correctly a candidate was entitled to spend a maximum of £650 or £750. Sir, there is not a single candidate in South Africa who has had as much personal expense as the Electoral Act provides for. The fact of the matter is that the parties pay the expenses. A candidate only pays his personal expenses. The practice that has developed in South Africa is that in every constituency the party organization pays the expenses.
Speak for yourself.
And the party organization is not obliged to submit a return of election expenditure. Of course, that is quite apart from the fact that I know that in many or most cases United Party candidates are given at least £1,000 each to cover their personal expenses.
Then we come to the argument that voting will no longer take place in secrecy because the voter will now have to sign his name on the back of the ballot paper envelope when he votes by post. But surely that argument holds no water. The facts in connection with an election are these: The small envelope for the postal vote is taken out of the big envelope and then it is put back into the ballot box and there is not a single election in which the ballot papers in a ballot box, in whatever electoral district it may be, may be counted separately. The ballot box must be checked and if the votes in the box tally, as well as the postal votes, they are all thrown into a big bin and mixed up. I admit that it may happen that one of the people who helps to count and who takes a ballot paper out of the small envelope—usually it is folded double and he is not allowed to open it—may see the name. But then the Act goes on to provide that every person who helps to count must take an oath of secrecy, and he is not allowed to divulge what he saw. In terms of the Act, that knowledge must die with him and he is not allowed to make use of it. The argument therefore that there will no longer be secrecy is not one that holds any water. Then there is still one further argument that I want to deal with and that is the argument advanced by various speakers on the other side that the disappearance of the two months’ permanent residential qualification at a general registration is such a terrible crime. Sir, according to my experience that is the very thing that was wrong with the old Electoral Act. When there is a general registration, every registration official is given a lot of names and addresses; he is given blank registration cards and he then goes along with the form containing the man’s name and address and occupation and all the particulars (this is not a new registration; it is taken from the old voters’ roll) and the voter concerned then has to sign the form, and if he does not find the voter concerned at that address and he is told that the voter has left, he does not go and look for him; he simply writes “left” on the form. On the man’s arrival in the Cape from the Transvaal, the Cape enumerator or registration official looks him up in the Cape. But he has not lived in the Cape for two months and therefore cannot be registered there. The result is that his name is deleted and he is not registered at all, and thousands upon thousands of voters are taken off the roll in this way at every general registration. I shall come back to it later, but I want to say here this evening that at a general registration the voters’ roll in South Africa is more inaccurate than at any other time. The Electoral Act that we have had hitherto has been amended repeatedly. It was consolidated in 1946 and since then it has been amended quite a few times. It was not perfect, and I want to say here that these amendments are certainly not going to make the Electoral Act perfect. I feel, however, that an honest attempt is being made here to eliminate irregularities. But who are the people who are complaining so bitterly about irregularities in connection with the Electoral Act? It is the Opposition. Well, it is the privilege of an Opposition to complain. It has that privilege, although I do not know whether it has any right to complain. Sir, the ghost vote is a matter about which we hear complaints from time to time, and it is a factor which this legislation takes into account. The most important amendments in this Bill are concerned with the elimination of the ghost vote. I want to remind the United Party that we had complaints from them in connection with the referendum—I think from the hon. member for Sea Point— that the voters’ rolls had been packed. These allegations appeared in the Press. I do not know precisely what they meant and whom they blamed, whether they blamed the Chief Electoral Officer or the Government, but that is the complaint that was raised. I admit that the ghost vote is a real problem. That has been our experience over the years. The Electoral Act as it stood lent itself to ghost votes. Let us take a practical example. The hon. member for Sea Point is so concerned about ghost votes. Take his own constituency, Sea Point, where they have never had an election. Every hon. member here knows what it means to build up an election organization, and that constituency which has not had an election for years, had a 96 per cent poll at the referendum! I do not want to suggest that they were ghost votes, but the constituency was haunted. The ghost vote does play a rôle in postal voting. The Act requires the two signatures on the postal vote application and on the statement of identity accompanying the postal vote to correspond. But with what is that signature compared originally? With nothing. The signature on the application form is not compared with the signature of the voter on his registration card. I know from experience that people who were abroad received a postal vote. These are the ghost votes, and there is only one way to eliminate them and that is by means of the identity card, the use of the identity card at the polling booth, and the use of the identity number and the identity card in postal voting. In this connection I agree that there should be no leakages. Once a law has been enacted it must be carried out, and I am not one of those people who believe that there are as many irregularities in connection with postal voting as some people allege. On the other hand I do not want to allege that no irregularities take place. There is one thing that makes me feel a little unhappy in connection with these amendments and that is the fact that we are doing away entirely with the two witnesses to the application for a postal vote and at the voting itself —one witness to the application and two witnesses at the voting. Other precautionary measures are now being taken; for example, the commissioner of oaths or the presiding officer for postal votes now has to give his address, but I do not think that is sufficient. Since this Bill is going to go to a Select Committee, I want to tell the hon. the Minister that I would feel much happier if we continued to insist on these witnesses. I do not think that this is a principle: it is a detail. It is true that under the existing legislation the presiding officer can be called to account but only in the event of an equality of votes or when one candidate has lost by only two or three votes. Where a candidate has a large majority nothing happens, and these people who committed irregularities go free. I should not like to leave this matter only to the presiding officer therefore. I should like to see that we still insist on two witnesses. The argument has been advanced here that people are afraid to vote in front of a lot of people. But the voter who casts his vote is not allowed to vote before those witnesses. The witnesses are only there to affirm the voter’s signature on oath, and thereafter they have to leave the room in which he votes. He and the presiding officer are the only people who are allowed to remain there, and the presiding officer is not allowed to see how he votes. That argument with regard to secrecy therefore falls away.
Another matter about which a great deal has been said here and in connection with which a great deal of objection has been raised, is the fact that the general registration period is being extended from three to five years. The fact of the matter is that, as in the case of a delimitation, it is left to the discretion of the Minister. Delimitation may take place every five years, but it must take place every ten years. It is for the Minister and the Government to decide whether it is necessary to have a delimitation every five years or whether it is better to have one every ten years. The same thing will happen here. If it necessary to have a general election Minister, in the nature of things—it also affects his interests—will decide to expedite the general registration. But I repeat that the most incomplete roll is the roll which is compiled from time to time by the State at general registrations. One finds that thousands of voters are left out, and it is the duty of the political parties to see that the names of the voters appear on the lists. It has become the tradition in South Africa for the political parties to take care of the registration of people, and they certainly do it better than the State does at a general registration. Moreover, we must not forget that in any event the Act places an obligation on the voter to be registered. Every voter in South Africa who has reached the age of 18 years, is obliged to register. There will still be double registrations, as there have been in the past. That has always been the position and that will also be the position in the future, particularly since we have to deal with such vast areas in South Africa. But the United Party and the Progressive Party oppose the one measure that is designed to obviate intrigue and that is the identity card and the identity number. There may be double registration, but the identity card eliminates double voting.
In two constituencies?
No person can vote twice in a constituency, because then his vote is thrown out.
In two constituencies—in Parow and Bellville, for example?
The person has to show his identity card. But I want to be fair. We are struggling to overcome certain problems. Even with the identity card it may still happen. It happened under continuous registration, the system which the hon. member now advocates. It is still going to happen, but we are going to limit it to a minimum now.
Then there is one further matter that I want to deal with in connection with the postal vote. I do not think anybody will deny that under the present circumstances the postal voting system lends itself to irregularities.
You know that very well.
I know it very well, because I have a great deal of experience of the hon. member for Sea Point. I have been involved in many elections over a period of 20 years, but I want to say in all honesty that while I have always heard about these terrible irregularities after the election, I have never come across one irregularity during the election. In the Malmesbury constituency during the referendum campaign, I came across one instance where the United Party instituted a case, and they fared very badly. The point is that they did not have a case. There is a place to lodge complaints and that is with the police, but in 99 cases out of 100 where people went to court or to the police and the case was investigated, it was found that it was a suspected contravention; it was not a contravention at all. The greatest sin that is committed in this connection is that this propaganda is made for political gain. This type of propaganda is made against opponents for the sake of political gain; but when the case is investigated it is found that there is nothing in the charge and that it was made purely for party political propaganda purposes.
As they did in Newcastle.
Yes, precisely. Now I want to come to the provision which is being made here for the identity card and the identity number. I do not say that this is the alpha and omega of the whole situation. But in my opinion it does eliminate many of the irregularities which do take place. The vast majority of them will be eliminated by the identity cards. The people who complain most about irregularities are the United Party, and now they want to reject the instrument which is provided in this Bill to eliminate irregularities. Now they do not want it. Let us be honest with one another. It is not easy to accept new things. In the initial stages all the parties are going to experience difficulties. But, after all, we find that in the case of all new things. We had practically a new Electoral Act at the referendum: we all mastered it within a short space of time and there were no mistakes. The voters will simply have to learn to take their identity cards with them. I say that if the production of identity cards is a guarantee against inconsistencies and irregularities—and in my opinion it is a guarantee—why do we not accept it then? Why oppose this measure and suggest that it be replaced by something which can do absolutely nothing at all to curb irregularities so far as they do exist?
There is one problem as far as I am concerned, and I want to mention it here. In my opinion the signature on the envelope in case of a postal vote does not endanger secrecy. That is no argument; but let me tell you how I view it. I hope that the hon. the Deputy Minister will allow the Select Committee which is going to consider this matter to work out some plan or other. I fully agree that here we are getting a measure that will provide all the security that we can possibly get. I have no objections, but I think there is going to be some difficulty in connection with this third signature, and I shall tell you why I say so. I foresee this difficulty in the case of the old people. If 200 old people are required to vote in this way, there will not be 20 of them, judging by my experiences who will be able to reproduce the same signature twice, either because of old age or illness.
Some other person could vote for them.
That is a factor, it is true, and I agree with the hon. the Deputy Minister, but it causes more work. My experience is that in most cases where postal votes are rejected it is because the signatures do not correspond. If you get an electoral officer who wants to be difficult, he can be very difficult; he wants every little twirl to correspond, and if it does not correspond he rejects the postal vote, and you cannot complain because the final say rests with him. He is the boss. You can lodge an objection but you can only win when the result is a draw or when there is a doubtful result, in which case you can go to court. The court may then count the votes, but you can do nothing about it. I feel therefore that we should devise some other plan. I still hope that the Select Committee will be able to produce something other than this third signature. If two do not correspond, then I certainly do not know how three are going to correspond.
Mr. Speaker, there is another suggestion that I should like to make, and that is in connection with what I regard really as the irregularity in postal voting, and that irregularity lies in the Act. The Act provides that an absent voter may fill in a form for a postal vote if he anticipates that he will be absent on election day, or if there is reason to believe that he will not be able to get to a polling booth. Sir, I want to tell you why the number of postal votes has increased so greatly in recent years. It is because of the fact that the political organizations of the parties become better and better as time goes on. These people get to know their supporters better, and what happens is this: political party A knows that it has 100 doubtful voters whom it believes are going to vote for political party B. Under the present legislation it then gets these 100 voters to apply for postal votes. It lets them fill in forms to vote by post, because then it can exercise control as a party over their votes. That is the reason why the number of postal votes is increasing to such an extent. I believe that all that is needed to eliminate these irregularities is a small change in the Act, and then we will also be eliminating this large number of postal votes. The Act should make provision for the words “ I shall be absent” The argument that is advanced against that is this: What about the man who is about to be transferred and wants a postal vote and who then discovers that his transfer is not proceeded with? Or a person wants to go on holiday and then finds that he is unable to go, with the result that on Election Day he will still be in the constituency. He has then contravened the law and he is punishable under the old Act. What happens in the present circumstances is that where a person has honestly applied for a postal vote and then finds that his transfer does not go through, he goes with his postal vote to the polling booth on election day …
But he has already voted.
No, he has not voted, because he does not vote until he has made sure that he will be out of the constituency. He retains his postal vote and on election day he goes to the polling booth and gives the postal vote, as it was issued to him, to the presiding officer, and then the electoral officer gives him a ballot paper. Then he has contravened no law and he still votes at the polling booth. It has happened in the past that office-bearers of the various parties, of the National Party and of the United Party, have thought that they would be away and applied for a postal vote. Such an official then discovers that he will not be going away and on election day he wants to help his party at the polling booth. He then goes back to the polling booth with his postal vote and gives it back to the presiding officer and he is given another ballot paper. I do not know whether this can be dealt with in the Select Committee because I suppose it is a principle. But if the hon. the Deputy Minister is out to control postal votes—and I agree that the time has come when we should do something about the large number of postal votes—then he should do something in this direction. The position is not that we want to place obstacles in the way of people to vote, because I believe that we should make it as easy as possible for people to be able to vote. But it is also our duty as the highest legislative authority in the country to eliminate inconsistencies, and I believe that in doing so we shall be going down to the root of irregularities in connection with postal votes, and by taking this step we eliminate these irregularities.
The hon. member for Malmesbury (Mr. van Staden) who has just sat down, has set the cat amongst the pigeons, or I should rather say he has set the dogs on the hare, and I am afraid the hare is going to be the hon. member for Sunnyside (Mr. Horak), and I think that after the House adjourns to-night, there will be many hon. members who should check up on that £1,000 to which he has referred. The hon. member missed the mark completely when he accused the hon. member for Sunnyside of advocating continuous registration. That is not the position. The hon. member has also brought in the argument that this party was responsible for the former continuous registration. But I think it is generally admitted by everyone who had anything to do with elections at the time that system was in operation that the legislators of that time in all sincerity meant that as an experiment. I believe that it was a very successful experiment. It was introduced and there were many objections against it. Since that time the system has been changed. The hon. member need not make a party matter of it. But what the hon. member has in fact discussed has been compulsory registration or rather a compulsory notification of changes of address. I think it is obvious why he has done so. If a general registration is held and there is no obligation on the voter to notify the electoral officer of his change of address during the five years, one can imagine, as the hon. member for Malmesbury and many other hon. members of this House will know, what the voters’ lists will look like. I find it hard to believe that any election can be held unless the constituency concerned is one in which the majority for either side is small, and in which an organization can be maintained all the time at heavy expense. But, Mr. Speaker, I cannot see what objection there is to an obligation being placed on the voter to notify the electoral officer of his change of address, particularly if there is an obligation on the voter to register. Once he has given his address, and he changes that address, there should be an obligation on him to notify that change of address within a specific period. That is what the hon. member for Sunnyside has asked.
The hon. member for Malmesbury has also raised the question of identity cards and identity numbers, the use of which is envisaged by the Bill. Hon. members have also discussed this matter, and I foresee very great difficulties in that regard. There are going to be dozens and hundreds of instances at elections when a person will come to the presiding officer and for some reason or another he will not have his identity card with him. If it was merely a case of the identity number appearing on the list at the time of registration, I could still understand it, although if this is a step to prevent dual registration, I cannot see at all how it can prevent dual registration. After the hon. members had put his arguments and had to reply to a few interjections, he had to admit that it might establish control in one constituency, but what is there in an area like Cape Town or the Rand where there are a large number of constituencies in a small area, to stop any person registering in various constituencies? What prevents a person from registering in a Cape Town constituency and registering in other constituencies in Port Elizabeth or Johannesburg and then simply voting by post? As far as the identity card is concerned, this in my opinion represents an obligation which is being placed on the voter when he votes which may result in an incalculable measure of hardship and inconvenience to the voter and the little control which it will provide is insignificant. I do not say that things will go that far at elections, but there are members in this House who during the last war were prisoners, and when persons who were in prison camps tell us what they were able to do as regards the falsification of identity cards and documents, etc., in the camps through the use of the few things they were able to smuggle in, what will be the position in the absolutely free society which we have in South Africa?
Then it is forgery.
The hon. member for Vereeniging (Mr. B. Coetzee) has himself discussed in this House the forgery of Native passes and reference books which is taking place daily. In that regard this is not a control measure at all. If it could be done in prison camps, where the people concerned had practically no facilities at their disposal, where they did not have the ink and the other necessary equipment, why can it not be done in a free society? I prophesy that there will be the same black market in the case of White identity cards as we have to-day on a large scale in the case of Native passes. I say the little control which the identity cards will provide will place such a burden on the voter that it will not be worth while. The hon. member for Malmesbury has said that he is speaking from experience because he has been concerned with elections for the past 20 years …
And you have probably the same experience!
No, not quite. I have a little more than half his experience in years. But that does not matter. After one or two elections one knows just as much as he knows to-day. The hon. member has spoken about other people who have to vote by post. The hon. member must surely realize himself that in the case of such a person whom one practically has to teach how to vote before the time because he is nervous when he arrives and he does not know how to make a cross, let alone sign his name—if we are still going to place the additional burden on such a person that he must have his identity card with him at the polling booth, then we know what the result will be.
Yes, Mr. Speaker, I hope that I shall have the opportunity one day in this House to say who voted for the hon. member for Vereeniging, for whom he has voted and how he voted.
I am very sorry, Mr. Speaker, but the hon. member says just what he likes and I should like to answer. Nor does it matter a great deal what he says
What is the trouble with you now?
I agree entirely with the hon. member for Malmesbury when he refers to the difficulties which arise at a general registration, when one has a person who has not yet been living at his present address for two months and consequently does not qualify for registration, but does register in the other constituency where the canvasser shows him as having left, with the result that he does not appear on the voters’ list at all. We know that after every general registration we have this difficulty of hundreds of people who are off the voters’ lists. I am sure that if this matter is submitted to a Select Committee, ways and means can be found by which this difficulty can be overcome. But as the law now stands, in the case of a general registration an exception can, for example, be made so that a person is registered even if he has not yet resided for three months at that address. But what happens in the meantime? A person simply goes from one place to the other on holiday. There some political organizer or another talks him round and he signs a registration card. He does not need to declare that he has lived there for two months.
Is that what you have done at Hottentots-Holland?
The hon. member must not talk about Hottentots-Holland…. [Interjections.]
Order! The hon. member must not pay attention to the interjections.
I was organizing secretary for Hottentots-Holland. It is sometimes a good thing to listen because it brings one into one’s stride.
What about the Hottentots?
The hon. member who is talking about Hottentots, should do so outside the House. The hon. member has referred to Hottentots-Holland. That was at the time when there was a continuous registration. I had the experience there that at the 1948 general election there were nearly 800 people in Hottentots-Holland who had come to the Strand for a few weeks’ holiday a year or so previously and had been registered there as voters. I do not blame any political party for that. I blame the system which was in operation at that time, and that is what we now want to prevent. Under the new provisions that is exactly what is being made possible.
You took the gap.
It was at that stage when one could still object, and I objected to 520.
The hon. member must come back to the Bill.
Mr. Speaker, the question of registration is definitely relevant to the Bill. I want to come back to the question of registrations with a shorter time limit or no time limit at all as regards residence. I want to say in all seriousness that this gives rise to very great difficulties. It will lend itself to abuse (mistoepassing) and contraventions of the Act. [Interjections.] I should really have used the word “ wantoepassing The fact remains that if we have the position that people can simply go somewhere on holiday for a few weeks or months, and can fill in a registration card there, we shall have a voters list at an election which will be no reflection whatsoever of the people who live in that constituency and who should be entitled to vote in that constituency.
The hon. member has referred to ghost votes. I do not know how we shall ever eliminate that. But I just want to say this. If this system of registration without residential qualifications should be applied, then we will have ghost votes. Those votes will as usual be postal votes. I have had experience of one case. Eleven names were registered on the voters’ list at the same address. When I checked up on the address in a small place like the Strand, it was an open plot. Mr. Speaker, I can give you the assurance that I had had nothing to do with the registration of those people. Nor shall I say whose organizer was responsible.
Mr. Speaker, may I direct your attention to Rule 61 (2) which provides that a member whilst present in the House shall not converse aloud. The hon. member for Vereeniging is giving a running commentary …
On a point of order, Mr. Speaker, may the hon. member make a speech when he raises a point of order?
Order! The hon. member for Outeniqua (Mr. Holland) may proceed.
I was discussing the question of ghost votes. This is something which will always exist in one form or another, no matter how one words the Act.
Talk about abuse (mistoepassing) again.
I should prefer to speak of a “ misfit ” in the case of that hon. member.
The hon. member must withdraw the word “ misfit He may not say that another hon. member is a “ misfit ”. [Interjections.] Did the hon. member use the expression that the hon. member is a misfit?
The hon. member for Vereeniging used the expression and I did so as well.
The hon. member must withdraw it.
What about “ mis-koek ”?
Mr. Speaker, on a point of order, the hon. member has used the expression that the hon. member is a “ misfit ” and should he not withdraw it as well?
When he referred to “ abuse ” (mistoepassing) I said his language was a “ misfit ”, but I withdraw it.
The hon. member for Outeniqua may proceed.
Mr. Speaker, I have repeated an expression here and I have withdrawn it on your instructions. Is the same rule applicable to other members of the House?
The hon. member may proceed with his speech.
Is the word “ miskoek ” permissible?
Order! The hon. member must not trifle with the Chair.
No, Mr. Speaker, I am not doing so. That expression was used by an hon. member opposite and I heard it.
On a point of order. Mr. Speaker, may the hon. member use the word “ miskoek ”?
Order! Will the hon. member proceed with his speech?
Mr. Speaker, I should like to proceed with my speech. I just hope that the rule that one may not trifle with the Chair is applicable to other members as well.
Will the hon. member withdraw that?
Yes, I withdraw it. Various speakers have placed great emphasis to-night on irregularities which take place and which can take place in connection with postal votes. It is practically impossible to see how these irregularities can ever be totally eliminated. In any case, I feel that to make a start it is high time the hon. the Deputy Minister gives consideration to placing an obligation on persons who ask for a postal vote, to give very much sounder reasons when making the application, as to the circumstances which necessitate their asking for a postal vote. As the law stands at present and also as it is to be changed, it will be very easy for anyone to ask for a postal vote while in reality he could go to the polling station to cast his vote himself. It seems to me in the case of postal votes that we can in the main divide such votes into two categories. In the first place there are those people who cannot be at the polling station on polling day because they cannot be in the constituency in which they are registered, whether as’ a result of their work or because they are on holiday or for other reason.
Or because they are doubtful.
Or because they are doubtful, as the hon. member for Karas says.I do not know whether the hon. member for Karas is now thinking of the Germans during the 1950 election. [Interjections.]
Order! The hon. member must proceed.
Mr. Speaker, flippancy aside, if a voter cannot be at his place of residence and wishes to apply for a postal vote, then it is very easy for him to do so under the present law. He can simply say that he believes that he will not be at his place of residence in his constituency on that day. At the recent referendum the position was aggravated still further, because a small percentage of people—one can probably count them on the fingers of one’s two hands— sometimes could not vote at elections because although they would be within the constituency they would not be able to get to a polling booth because they were on the running staff of the Railway Administration. In the light of our experience at the referendum the position is that if we introduce this amendment to the Electoral Act, we shall have the same position at the next election, namely, that practically all railwaymen will simply be approached—not because they want to do so themselves—by political agents of any party and they will be asked to fill in an application form for a postal vote. This was one of the main reasons why we had such a tremendous percentage of postal votes at the referendum.
There were no more because of that.
I shall not say it is only as a result of that, but it made a very big contribution. If the Minister will just investigate what happened in the constituencies which contain large railway centres, he will find that this had a very real effect. I believe that when the Minister introduced that provision into the Referendum Act he never foresaw or intended that this should happen.
I naturally wanted those people to be able to vote.
Those who could not get to a polling booth on the polling day—that I accept. But the intention was not that every railwayman should be able to vote by post merely because he was a railwayman. That is what happened. I do not doubt the hon. the Minister’s intentions at all, but that is what actually happened.
May I ask the hon. member a question?
Allow me to continue. If the hon. Whip will ask his own supporters to interrupt me less often, then I should not be put off my stroke, but I would have time to finish my reply.
Are you off your stroke now?
Mr. Speaker the hon. the Minister never intended that, because it is absolutely clear that the political parties made any railwayman fill in a postal vote form so that he could vote by post.
I now come to another category, namely, those people who simply state that they have reason to believe that they will not be in the constituency on polling day. But on polling day the person is there in the flesh, although he has already voted by post. I believe that this is an abuse of postal votes, and that it is not what the postal vote was meant for. When postal votes are used in this way, we have these tremendous percentages of postal votes. It is unbelievable that so many people can be sick or absent from the constituency on that particular day. How is it that they hold elections when so many people are absent. But just as the person who is outside the borders of South Africa on polling day on other business than in the service of South Africa, just as such persons of whom there are thousands, lose their votes at every election and cannot cast them, so persons who are in South Africa can ensure that they are in their constituencies on polling day, and if there are circumstances under which they can obtain a postal vote, it should not be made so easy for them that they can simply say that they believe they will be away and that is sufficient.
Then we come to a further aspect, namely, that when that vote is cast, I believe that it should be cast before a presiding officer who is appointed under the Act and who does not hold that post merely because he is temporary commissioner of oaths. Then there are also the cases of sick persons whom I can regard as the second category. I do not see why the law cannot be amended to provide that such a person can vote before a doctor. Any person who is sick and has reached the stage that he can be registered as a voter, and who suffers from a recurrent or chronic disease, surely has a family doctor. There is some doctor or another who knows that he is ill and who has treated him at some stage or another.
What about the nurse?
No, because then I am afraid the hon. member for Karas will be sick at every election. Any sick person is after all in contact with a doctor and under the Electoral Act the obligation could be imposed on the doctor to act as a presiding officer in this regard. In this way we would cover these two categories of people: Those who will be absent from the constituency, and who must vote before an official who is charged with this duty; and then the people who are ill. Then we shall be eliminating these political agents who merely because they are temporarily commissioners of oaths, can act as presiding officers in the case of postal votes. But the proposed amendments to the legislation will result in further difficulties and further abuses. I think the hon. the Minister and many hon. members on both sides admit that abuses take place at every election and it is our object to prevent such abuses, but as the law stands at present, I do not see any real change taking place. We have a person who merely because of his political enthusiasm is a branch chairman or secretary, a man who has a great deal of time on his hands at an election. He goes to his party organization and says that he will assist as the candidate’s sub-agent. Because of the time he has available, he is appointed, and ex officio he is a commissioner of oaths. Here we have a person who is not a paid official of a party, and when I refer to a paid official, I mean a person who has a responsibility and has been trained in his work. This is purely a temporary official. It is this type of person who allows irregularities to take place. In this case one is also placing him in the temptation that he can go to a person who must cast a postal vote and he can act as a presiding officer without there being one or two or more witnesses. I feel that in the light of the experience which the hon. the Deputy Minister himself has had, he will have to admit that this is an undesirable state of affairs. I think that I can make an appeal to the Deputy Minister because at the referendum he and I were involved on opposite sides, and at a certain stage he told me that it said a great deal for the agents on both sides that there were so few spoilt postal votes.
In any case you got a big hiding.
Yes, but we shall not go into the reasons for mass hysteria at the moment. I just want to emphasize that this system of appointing presiding officers in the case of postal votes is dangerous when there are no witnesses, because it will result in abuses on a larger scale than hitherto.
The hon. member for Malmesbury has used the argument of the two signatures which do not correspond in the case of old people. I agree with the hon. member. I have seen myself that a returning officer has declared postal votes invalid because the signatures did not correspond, while I myself know that the signatures were those of the same person, but that person was old or sickly. But I cannot accept that the returning officer only does so because he wants to be difficult. That is nonsense. A duty rests on the returning officer. The representatives of both sides can put their case, and I have never seen a returning officer doing so merely because he wants to be difficult. But when the signatures do not correspond, there is greater danger if there must be three signatures. But there is already a concession as far as the original intention of the Electoral Act in giving postal votes is concerned, and to make it so easy that he must, in addition, be assisted, and if his signature does not correspond with his other signature, it is still valid, makes the position ridiculous. As far as I am concerned, the more signatures the better, in order to establish identity.
I want to deal briefly with an aspect of the new legislation which affects me to a large extent. I see that Clause 5 provides that in future a competent witness in the case of the registration of a Coloured voter will be a person who is in the service of the State and who is a commissioner of oaths. In this regard we have a tragic history. [Interjections.]
Order! Hon. members must give the hon. member an opportunity.
It is not the hon. members, Sir; it is the hon. member for Vereeniging (Mr. B. Coetzee) who is so discourteous.
I say it is a tragic history, and I meant this not in the sense that it is tragic for the people concerned, but that it is also tragic for us as Whites in this Chamber, the highest authority in this country, that we have lent ourselves to the measures which are applicable to the people to whom I am now referring. In 1948 an amendment was inserted in the Electoral Act, with the result that a Coloured, if he wanted to register as a voter, was practically obliged to go to a police station because the police sergeant was the only competent witness whom he could reach. Later the Coloured voters were placed on a separate roll, and in the minds of many hon. members opposite a danger to South Africa was removed, but no relief was afforded in respect of the method by which they had to register as voters. It is obvious that there is antipathy and protests amongst these people. One of the main difficulties with which we are faced is that these people are practically obliged to go to the police station to register.
What is wrong with that?
What is wrong is that it has not been made obligatory that that hon. member must go to the police station to register as a voter. If an hon. member cares so little for the feelings of others that he makes such a remark, it is very late for South Africa. In the meantime legislation has been adopted which has placed the White 18-year-old on the electoral roll, but no relief has been afforded in connection with the circumstances under which the Coloured who wishes to register, can obtain such registration. We now find that, in terms of this Bill, anyone who is in the service of the State and who is a commissioner of oaths will be able to carry out this registration, but of what help will this be to these people? Who is the person who is in the service of the State and who is a commissioner of oaths? Is it the postmaster or the stationmaster? The Coloured is at work from seven in the morning until five in the evening and, when he stops work, none of these commissioners of oaths is available to him, and he will still be forced to go to the police station. I hope the hon. the Minister will not accept the suggestion made by the hon. member for Karoo (Mr. G. S. P. le Roux), namely, that he should only select the members for the Union Council for Coloured Affairs to serve as witnesses, because I tell the Minister that if he does so, at the next elections in the Coloured seats we shall have the worst attempts at corruption we have ever had in the history of South Africa.
The fact of the matter is that under the present legislation we have thrown together into the same constituency a group of the population who fall mainly in the lower-income group. The equilibrium has been completely disrupted, and the conditions are absolutely ripe for this type of thing, because I have seen it with my own eyes.
What objection do you have to the members of the Union Coloured Council?
I have no objection to them personally, but the fact of the matter is that the Minister will be selecting a few people, as people, who can serve as witnesses, and if those people are not available, what then? In a constituency such as Outeniqua there are only five or six such people, and they are not even a drop in the ocean, because this constituency stretches for 1,000 miles, and it will serve very little purpose. But what is going to happen is that these people will be in such a favoured position that unscrupulous people and the type who will spend £5,000 or £10,000 to become Members of Parliament, will do anything in their power to register such a man who does not want to go to the police station, and here individuals would be placed in an invidious position by being exposed to the danger of becoming agents for a certain person.
In other words, the members of the Coloured Council can all be bribed.
I did not say that, and the hon. member is talking nonsense. I said that it was dangerous to select a few people in a vast area and to expose them to this sort of thing. At the last election when there was still a limitation on the amount of money one could spend, I was present when a bag of money was handed over.
To a person who was to be the paymaster in the constituency, and this sort of thing happens, and it will happen in future as well.
Did you report him to the police?
The hon. member knows as well as I that it is impossible. My submission to the Minister is that while he wants to have the electoral laws considered and seeing that from time to time, when this matter has been raised in the House, the Minister has promised that he will go into it and that relief will be afforded as far as the registration of Coloured voters is concerned, he is now making a change which is of so little value that it is of practically no assistance. I feel that I am making a reasonable appeal to the hon. the Deputy Minister when I ask him to reconsider the position of witnesses in the case of the registration of Coloureds and to make a greater concession. In the case of Whites it is merely a question of filling in a registration card and any other person can sign as a witness. If the Minister wants to place a limitation on witnesses in the case of Coloureds, why then cannot a commissioner of oaths act as such? There are not very many of them. There is control over their appointment, as I know from experience, which is a matter I should like to discuss with the Deputy Minister, but this Bill proposes a change which will be of practically no assistance. We are now forcing these people to go to the police station, something which is being exploited by the agitators and extremists.
But I am not forcing them to go to the police.
But what change is the Minister introducing? The post offices close at 5 p.m. The other public servants who are commissioners of oaths are not available after 4.30 p.m., because a public servant works behind closed doors when he works overtime. What relief is being granted to the man who leaves his home at six in the morning to go to work and stops at five in the afternoon? He must go to the police. That is the only office which is still open, and where he may find a sergeant on duty.
Does he not get a day off?
I hope the Deputy Minister will consider an amendment to the Act making it compulsory for the hon. member for Rustenburg (Mr. Bootha) only to register when he has the day off. [Time limit.]
The hon. member for Outeniqua (Mr. Holland) used a wonderful term here, viz. “ mistoepassing ”, and if I have regard to the fertility of his speech the application of that fertilizer (mis) must have been very meagre.
The hon. member states that if members of the Coloured Advisory Council are appointed as commissioners of oaths who can sign as witnesses for purposes of the registration of Coloured voters, that appointment will lead to the greatest measure of corruption and fraud and bribery. In other words, he, an hon. member who represents Coloureds here, now tells the Coloured population of South Africa that the members of the Coloured Advisory Council are all susceptible to bribery.
I never said that.
And if they act as witnesses it will lead to corruption. The hon. member for Karoo suggested that those members should be used in this capacity because he evidently accepts these councillors as honest and bona fide representatives of their community and people who really wish to render service to their population group. But the hon. member for Outeniqua regards them as being open to bribery and as people who will lend themselves to corruption. I wonder whether that accusation also means that the hon. member for Karoo and other hon. members who approve of these councillors being appointed as commissioners want to use those people for corrupt practices.
But you know I did not say that.
That is the only inference I can draw from it.
I want to analyse one matter stated here by the hon. member. He said that as the result of the fact that in the Bill the onus of proving two months’ domicile is not placed on the voter who wants to register will result in a duplication of registration. He also couples that with the other clause that because the electoral officer is not now compelled, according to his interpretation, to eliminate duplication there will be continuous duplication. But the hon. member should study the Bill more thoroughly. This Bill only provides that as the result of mechanization which is automatic and which can eliminate duplication in a much cheaper manner, the electoral officer is not compelled continually to make use of the central index system. The Bill further provides that he can still make use of the index in order to eliminate duplication. But that duplicate registration of which he is so afraid will not take place as the result of the new system of mechanization.
Because you have a system of mechanization which works very much more easily, and the electoral officer still tries to prevent duplication, and it is now simply being provided that he is not obliged to make use of the central index system.
Order! I cannot allow the hon. member to make so many interjections.
It is a pity that hon. members make this Bill a political matter because I believe that the Electoral Act and the machinery employed to give every voter the right to cast his vote should not be a party matter; it should be above all party politics, because we in South Africa have always accepted that once every five years when there is an election or a by-election the voters are the judges who must give judgment and approve or disapprove of what was done during the past five years, and that they must also judge of the Opposition and the way they did their duty; and where one wants to give these judges the opportunity to give the best possible judgment and one wants to prevent their judgment being obstructed as the result of defects in the Electoral Act, all parties in this House should try to find the defects in that Act and jointly remove those defects in order to give the voters the best possible opportunity to give judgment on the policy and administration of the Government. I believe that the hon. the Deputy Minister is only trying to do that by means of this Bill, to remedy the defects in the Act and to try to adapt to it the changes we made in the referendum in order to make it easier for the voters to pass their votes, with great success. But even with all these amendments there are still certain defects, and I think the Minister recognizes that, and therefore he is referring the Bill to a Select Committee after the second reading. I want to Doint to a few matters which are not practicable yet and where defects exist.
If we now have to find the defects, why not send the Bill to the Select Committee before the principles have been determined?
Because when once the second reading has been passed, one has accepted the principle that the defects can be remedied, and everything can be rectified in the Select Committee and in the Committee Stage.
Hon. members objected because we are extending from three to five years the maximum period for a compulsory registration. This is being done as the result of administrative circumstances, because if we include the identity card number in the voters’ list we will in the first place have a better voters’ list than in the past and then it is not so necessary to have a registration every three years, and the period is extended to five years, which means a saving in money and manpower. Therefore I do not see the necessity for insisting that there should be a registration every three years. But now as the result of the amendment possibly the existing voters’ list will not be used as the basis for registration, and I want to ask the Minister to allow the Select Committee to consider still using, as in the past, the existing voters’ list as the basis for registration. I do so because one finds, particularly in rural constituencies where there is a more settled population, that one can use that basis, and if one does not do so and one has to start right from the beginning, one will find that there are possibly voters who have been living in the same place for years and have not gone away but who as the result of the laxness of the administrative official or of the party have been omitted from the list. I believe that the first consideration is to register and to put on the list as many people as possible so that they can cast their votes. In Section 5 we find that the identity number is included in the registration. I welcome that. It will result in duplicate registrations being eliminated to a larger extent, and that there will be better control of the persons who can be registered. But now we find in the Bill that there is also the idea that only the initials of the voter should be used. In so far as the control of the electoral officer is concerned, I do not see anything wrong in that, but I would like to say something about this matter in the party-political connection. We find that usually when a constituency is being organized before an election there is a member of the Executive at each polling booth and they know the pooling, but often they only know them by their names. Where there is more than one person with the same name and only the initials are given, one will often experience the difficulty that the members of the Executive and the organizers do not know those people by their initials; they only know them because of the fact that their name is Herman or Albert and they do not know that his initials are H. E., because there may be more than one H. E. Therefore I want to ask the Minister to consider including the identity number, and secondly, that the full names should still appear on the list and not only the initials.
I go further. I would very much like to see provision being made in the voters’ list for many more details. If there are two or three people with the same name and one can say that the one is P. /Son, then one knows that he is Piet’s son. I go further. In this clause provision is made only for the residential address. I would like to see, if possible—and I do not think it will cost too much—also the postal address and telephone number being given in the voters’ list, only for purposes of organization. It makes it possible to know the voters so much better and it will be easier to send them party propaganda if one has the postal address.
I come to another matter, namely, that the voter must take along his identity card when he goes to vote, and I want to say something about this in connection with postal votes. Postal votes amount to 13 per cent and that is not too much. There are hon. members who think it is too high, but if one remembers that there are many voters employed by the railways who never know when they will be called out to work—-those people have the opportunity both under the principal Act and this Bill to state in their application form that the reason why they apply for postal votes is because they believe that possibly they will not be in the constituency on that day. The hon. member for Outeniqua objected to this. He said it was an anomaly that the person who received a postal vote should be there on the day of the election. But there is nothing wrong with that. If he has received a postal vote, he votes on that postal vote, and if he is there and does not want to use his postal vote he hands it in and votes on the ordinary ballot paper. In other words, whether he applies for a postal vote or not, he can vote only once. Therefore I cannot see what the objection is.
Now I come to another matter. It is that in this Bill, as in the Referendum Act, it is provided that only the first application can be considered. I want to ask that the Select Committee should consider that if a second application is received together with a sworn affidavit to the effect that the first application was not signed by the person himself and that it is not his application, then the second application should be taken into consideration. Now various hon. members mentioned the problem of the signature. In the various elections in which I took part I had very little difficulty in regard to postal votes which were rejected because of differences between the signatures, because any right-minded electoral officer realizes that the signature cannot always be the same, and I shall explain how that difference comes about. But many more postal votes are spoilt because of the negligence of the commissioner of oaths and I feel it is very unfair to a voter that he should lose his vote for that reason. One finds that the commissioner of oaths often does not fill in on the declaration form the capacity in which he acts as commissioner of oaths. He often fills in that he is a commissioner of oaths or a justice of the peace without mentioning the area in which he acts as such. In such a case the vote is rejected. I think that in this connection we should make some arrangement whereby the voter will not lose his vote because of the negligence of a commissioner of oaths or a presiding officer. It is not fair.
Talking about signatures, I want to point out that hon. members said that particular signatures of the older people often vary. But that has not happened only in the case of older people. We find that particularly in the case of women. Their signatures differ much more than those of old people. One finds this peculiarity that in the application form a person will apply as “ I, Anna Scheepers ”, and when the declaration form is signed she just signs “ A. Scheepers ”. Then the electoral officer says this is not the same person. Or one finds that the woman signs the application form in print and then signs the declaration form in her ordinary handwriting. That is again a difference. The position is that a woman perhaps signs the application form on a table-cloth and when the declaration form is signed she does so on a hard surface. In such a case the signatures vary again. Therefore I want to point out that the circumstances under which these documents are signed often result in differences between the signatures. A person may perhaps be lying in bed when signing the application form, but then that person recovers and his signature is different when he signs sitting at a table. Therefore there is the danger that on comparing the signatures on the declaration form, on the application form and on the envelope containing the postal vote, there may be noticeable differences between the three signatures. I think that there should be greater control over postal votes because as the system works to-day one finds that practically every vote is valid. Many ballot papers which were regarded as spoilt in the past are to-day treated as being valid as the result of various decisions of the courts. For example, during the recent referendum I sat at the head of the table and saw that the name of a person who had evidently voted for the republic was simply deleted. When the man approached I said to the United Party man with me: “ That is a postal vote approaching there.” He asked: “ How do you know that?” I said: “You will see.” And when we turned over the ballot paper we saw the secret mark, and it was a postal vote. Evidently that vote was changed at some stage, perhaps by the voter himself … [Interjections.] but as the result of changes on the ballot paper being allowed, by virtue of court decisions, there is a defect here which we shall have to try to remedy. In this regard I want to associate myself with the hon. member for Pretoria (West). My request is that we should make provision that if a person comes to the polling station and applies for a ballot paper and the electoral officer tells him that a postal vote has already been issued to him, that person should be able to make a statement there that he has not received the postal vote or that he did not apply for one. In such a case the electoral officer should give him a ballot paper and a note should be made of it which should be sent to the electoral officer together with the other papers, so that when the votes are counted, before such a postal vote in the place of which another ballot paper has been issued is counted, the postal vote together with the application form should be put aside. That will ensure that persons will not apply for postal votes in the name of other people, and when those people go to vote they find that they may not vote. I want to associate myself strongly with that. Whilst the hon. member for Pretoria (West) was speaking I said; “ As in the case of the declaration vote ”, and now I come to another point which I want to bring to the notice of the Deputy Minister.
In the case of declaration votes one finds that often one loses the actual vote of the voter as the result of mistakes made by the presiding officers. I want to give an example. I had one case where 23 voters from one polling station went to vote at another polling station. Naturally they had all received declaration ballot papers. The presiding officer at the polling station where those people had to vote learnt that these 23 people had already voted, not at his polling station, and he simply scratched out their names on the list. When it came to the count those 23 declaration votes were thrown out, notwithstanding the fact that the books of the presiding officer did not balance, because according to his books he had deleted 23 more names on the list than he had issued ballot papers for and for which there were votes in the box. The system is such that if the voters’ lists are compared and those voters are noted as having voted at a polling station, then the declaration votes together with the envelopes of those same voters are thrown out. I want to request that provision should be made for this not to happen any more.
Hon. members also referred to the possibility of voting outside South Africa by way of postal votes. It was pointed out that the necessary arrangements for that have already been made, but that now there is difficulty in regard to the Protectorates. The position is that a voter who is in a Protectorate can apply for a postal vote, but when that postal vote has been issued to him or that postal vote has been issued by a party office, then that voter cannot vote in the Protectorate. He must be taken to beyond the borders of the Protectorate because the Electoral Act and the Commissioner of Oaths Act provide that a commissioner of oaths for the Union of South Africa is not a commissioner of oaths when he is in a Protectorate. In such a case his appointment lapses. Now I want to ask that it should be considered that for the purpose of an election a commissioner of oaths who has been appointed as such for the purpose of an election should also be a commissioner of oaths in the Protectorate for the purpose of certifying a postal vote. That will mean an immense saving to us. Instead of voters being fetched and taken to the border and then being taken back to their home in the Protectorate, one can then simply send in a commissioner of oaths with the necessary witnesses and they can do the work there.
Hon. members referred to the amendment in regard to the costs. I want to point out that as the Electoral Act reads to-day there are so many loopholes by which one can get past the cost to which one is confined that this provision is really worthless. You will remember, Sir, that in 1954 there was a by-election in my constituency. Do you know that that election cost the Torch Commando £12,000? [Interjections.] Yes, 400 members of the Torch Commando camped there with a lot of lorries and two aircraft and it cost the Torch Commando £12,000, apart from the costs incurred by the United Party and those incurred by the candidate who stood against me. In other words, this return which is made of the costs is meaningless. I am not saying that the Torch Commando tried to buy votes, because they did not achieve anything, but they treated the people very well. I am just giving this example to show that the system of making a return of costs as provided in the Act to-day is useless. There are too many loopholes by means of which all kinds of things can be done. Therefore it will be a good thing if the Select Committee also devotes attention to this aspect. I want to conclude with this thought. I think other hon. members also referred to it. It is that we should make use of our post offices to assist us in the registration; not only should they hold the registration cards so that they may be handled easily, but the post offices are also acquainted with the changes of address of people. The post office knows the address of a person who leaves a constituency, and I feel that in this regard and for purposes of registration the post offices should be asked to make available to the electoral officers the changes of address given to them in order to forward the man’s post, and that this should be made available also to the registration officials so that there can be greater control over people who change their address.
As I said in the beginning, I do not think that the Deputy Minister regards this Bill as a bit of political legislation or as a party matter. I think he is making an honest attempt to make it possible for every voter in South Africa to give his decision in an election. This Bill is intended to make it possible for every voter to give his decision like a Judge as to whether the United Party, or let me say the Opposition, has fulfilled its responsibilities. Therefore I believe that it is the duty of this House not to approach this Bill from the political angle but in such a way as to provide only the fullest opportunity for every voter in South Africa to cast his vote.
The hon. the Deputy Minister who is in charge of this Bill is a person who has gained a good deal of practical experience of the working of the electoral system over a long period of years. I know that he has put a good deal of work into this effort and that he held detailed discussions in advance with the various parties, although I do get the impression that he is not being very accommodating to the Opposition in respect of the proposals that they have put forward. However, the result of all his efforts is that quite a number of improvements are being made to the existing Act. There are, however, a few respects in which the hon. the Deputy Minister is still being altogether too conservative and is clinging too much to old practices and to expensive and time-consuming processes. I am thinking especially of the clumsiness of the existing registration system and the redundant central index. I want to ask the hon. the Deputy Minister whether it is really necessary to keep a separate index with duplications in nine regional offices and a whole army of hundreds of officials who in the long run cost the State millions of rand, just to look after a lot of cards which, as the result of deaths, the shifting of people and continual changes of address and the addition of all the newcomers who attain the age of 18 years, in any case become out of date from day to day and then have to be changed again. There will never be a perfect electoral system, of course, but it seems to me that the logical and the modern thing to do is to do away entirely with the central index and also, of course, with the whole system of continuous registrations, and then to open an office in every electoral area a few months before every general election, say for a period of a month, where citizens who comply with the electoral qualifications and who have been resident for two months or more in the electoral area can then register personally or have their registrations handed in. At by-elections the same procedure will then be followed in respect of the constituency in which the by-election takes place. A month before a by-election legally commences, registration offices can then be opened in every electoral area to give voters who have been resident for two months or longer in that electoral area an opportunity to have themselves registered for the purpose of the by-election. I can tell the hon. the Deputy Minister that I saw this system in operation in one of the States in America, and I could find very little fault with it. In the first place it eliminates entirely the necessity of a central index. At every election an entirely new roll is drawn up, thus doing away with the necessity to keep a continuous index. Moreover, in this way one also eliminates a large number of unnecessary offices, a great deal of unnecessary work and hundreds of officials who can then be used for other important duties. In the long run it will save the State tens of thousands, if not millions, of rand. The most important point to my mind is the fact that with such a system the voters’ rolls would be completely up to date at every election or by-election. They would contain all the latest addresses of the voters, which would be of tremendous advantage to the party organizers, but in particular this system would bring about a drastic and natural reduction of redundant postal votes. We will never be able to eliminate postal votes. Every attempt that is made to keep the number of postal votes within limits appears to be fruitless. I am convinced that it is only by changing the system in such a way that the voters’ rolls will be absolutely up to date that one would be in a position to bring about a natural reduction in the number of postal votes. We all know that at every election postal votes become a greater burden to parties and party organizations and call for greater expenditure and that they cost the State and the postal system in particular tens of thousands of rand. If a system such as I have suggested were followed one would also get a much more accurate reflection of political opinion in every constituency than is the case at present, because in actual fact under the present system there are hundreds of people in every constituency who have left the constituency long ago but who still vote in that constituency by post. The result is that one cannot get a true reflection of political opinion in such constituencies.
The hon. the Deputy Minister will observe that by implication I am also pleading that we should do away with the system of electoral enumerators who go from house to house to register people as voters at general registrations. I cannot see why there should be any compulsory form of registration in the case of 18-year-olds or why a continuous index of voters should be kept. And I cannot see why the State should send out electoral enumerators to beg people as it were to become voters. If people are given a month, when there is an election or a by-election in the offing, to have themselves registered in the electoral area, I think that would be more than enough. I am afraid that we do not draw sufficient distinction between what is the citizen’s right and how far the State’s duty goes. In the normal democracy every citizen who qualifies ought to have the right to have himself registered as a voter and to go and vote if he wishes to do so, but I cannot see why the State should regard it as its duty to force a person to have himself registered as a voter at the age of 18 years or later. If a person does not take the necessary interest in State affairs and has good reason to believe that he is not competent to express an opinion on political affairs, I cannot see why the State should go so far as not only to force him by law to have himself registered at any stage but why the State should go so far as to send somebody after him when there is a general registration to have his name placed on the voters’ roll.
But he need not vote.
I am dealing now with compulsory voting. We can be grateful that there is no compulsory voting, because it ought not to be compulsory for a person to vote if he does not want to vote. It is a false idea that it is a person’s duty to vote. A person may be living in a constituency where two parties contest the election or where two candidates stand, neither of whom he supports, and if under a system of compulsory voting we then force the man to vote, we are doing something which is not at all in consonance with the character of a democratic state. If a person is satisfied just to have the right to have himself registered as a voter, without exercising that right, that ought to be sufficient for the State. I believe that if the State adopted that attitude we would have a much more selective electorate, an electorate that would actually and actively take an interest in the government of the State. I would seriously urge therefore that we do away entirely with the present system of registration and with the keeping of a central index, and that we put in its stead something that is much more streamlined, something that would be much more modern and effective, that would cost much less and that would eliminate, in a natural way, the present excessive postal voting.
How are you going to do delimitation calculations under such a system?
The delimitation could be done on the information gathered at the latest general registration or on the basis of other available population statistics. In any case I do not think that this aspect of the matter presents an insurmountable difficulty, and I think that the problems which do exist can be overcome, as they have certainly been overcome in the relevant states of America.
The system that I am suggesting is a general registration before every general election or by-election, whenever it may be held —a general registration by opening registration depots in every electoral area for a period of a month, or whatever period may be decided upon, before every election or by-election; the voters could then have themselves registered for the purpose of that particular general election or by-election. I think I know what the hon. the Deputy Minister’s one objection will be to this proposition. As an ex-party organizer he will say that if the State does not register these people, the entire burden to do so will fall on the political parties. That may be true, but I do not think that that is a good reason why the burden should be thrown on to the State to force either unwilling persons or disinterested persons to have themselves registered. The fact that there are constituencies where the poll is sometimes as low as 43 per cent clearly indicates that the State is wasting tens of thousands of rand to get people on to the voters’ roll and to keep their names on a very expensive central index, people who do not always want to make use of their right to vote and to exercise it. As far as party organization is concerned I can only say that if the registration is done before a by-election or before a general election, then in any event the party organizations are already at work by that time, and it ought not to give them a great deal of extra trouble to give assistance at such a registration, particularly if there is a registration depot at hand in every electoral area. I want to add that if the assistance of the Press and of the radio, and I hope television too later on, can be called in—which ought to be done—great success ought to be achieved with such short and concentrated periods of registration before an election. I realize that if the hon. the Deputy Minister accepted this suggestion it would bring about a radical simplification of the Electoral Act as well as a radical simplification of the Bill that we have before us. That is why I want to ask the Minister seriously to consider the proposal of the hon. member for Sunnyside (Mr. Horak) that this Bill be referred to a Select Committee before the second reading. After all, there are no far-reaching political principles involved in this Bill, so it would really be better to refer it to a Select Committee before the second reading rather than after the second reading.
Then there are a few other minor matters in connection with this Bill that I should like to touch upon. The first is this: I should like to hear from the hon. the Deputy Minister whether he does not think that we have reached the stage where we can introduce electrically operated vote-recording machines in the urban centres. In overseas states we find that these vote-recording machines are used in conjunction with the system of ballot papers. The vote-recording machine is only used in the thickly populated urban electoral areas, and in the rural centres of the same constituency they are still using the ballot paper system as we know it. In any event I hope, if I may say it here in passing, that we are going to acquire a vote-recording machine for the election of the State President here in the House of Assembly. It would save a good deal of time; it would be much more convenient in any case and it would create an impression of greater neatness.
The second point that I want to mention is whether the hon. the Deputy Minister will not cause a new consolidated Act, in a handy form, to be printed immediately after the passing of this Bill—more or less on the lines of the existing Electoral Act but with a more durable cover.
A third matter that I want to mention is that I am rather perturbed about Clause 2 (a) of the Bill which is designed to re-instate as voters people who were found guilty of high treason and who have already been treated liberally. We are living in difficult times, and the effect of this measure can only be to create the impression in the minds of the public that high treason is not such a serious offence in South Africa as it is represented to be. I must say that I am rather surprised that the Government should come along with such a proposal at this stage and I wonder whether it should not reconsider the matter.
The next matter that I want to raise is whether the Minister will not make use of the opportunity afforded by this amendment to the Act to ameliorate the effect of the section which sets out the provision in respect of premises where liquor is usually sold. I refer to Section 127 of the principal Act. In the smaller towns of this country, and this applies particularly to South West Africa, the hotel is the traditional meeting place—the place where all meetings are usually held. In many towns there is no meeting place at all other than the hotel dining-room. As the result of this section in the Electoral Act, candidates and parties are often put to the greatest inconvenience at election times. It often happens in the smaller places that a meeting has to be held in the veld or cannot be held at all, particularly during the winter months, as a result of the fact that the hotel is the only meeting place. Personally I feel that our people are sufficiently mature and that this section can be deleted and that it can be left to the judgment of the parties and the candidate as to where they consider it best to hold their meeting. The candidates and the parties would not be so unwise as to choose places where it would be difficult for them to hold their meeting. But if the hon. the Deputy Minister does not see his way clear to bring about this change in respect of the Union. I want to ask him whether he will not take into consideration the special circumstances of South West and make an exception in the case of South West. The Bill which is before us already provides for quite a number of exceptions in respect of South West—for example in respect of the identity card and the way in which the voters’ rolls are drawn up. There is no good reason why South West Africa should not also be treated as an exception in respect of the use of premises. As far as South West Africa is concerned. I personally would like to see Section 127 of the principal Act excluded altogether, but if the Deputy Minister is not prepared to go quite so far, it would be an easy matter to provide that if a meeting is held in an hotel, the bar must be closed and the serving of liquor discontinued just for the duration of the meeting, or that only hotel dining-rooms from which there is no direct access to a bar may be used. Even that would help a great deal. The Deputy Minister is well acquainted with the circumstances of South West and I hope that he will accept this suggestion of mine and come to the assistance of South West.
We have heard a great deal latterly about intimidation and the necessity to check it. It is true that this intimidation took place in a different sphere, but nevertheless there is a subtle form of intimidation of candidates which I think ought to be eliminated through the Electoral Act in the interests of parliamentary democracy. The Electoral Act uses the term “ improper influencing ” and it provides certain penalties for people who influence or intimidate a voter in an improper way. The form of intimidation of candidates that I have in mind is the practice that is followed by practically every political party to make their candidates sign an undertaking when they accept nomination that they will resign as a Member of Parliament if ever their conduct in Parliament is in conflict with the dictates of their party, even in regard to matters which at that stage cannot be foreseen at all. I regard that sort of thing as improper influencing of a candidate in respect of his subsequent duties as a Member of Parliament, and I think a provision ought to be inserted in the Electoral Act positively prohibiting such a practice by political parties. In a true democracy Members of Parliament—and aspirant Members of Parliament—ought to be encouraged to act at all times in Parliament in accordance with their honest convictions and in the best interests of the country; they should not be subjected in advance, in respect of their conduct in Parliament, to intimidatory dictates. [Interjections.] If hon. members believe that I am defending myself, I can only say that this applies to members on all sides of the House. The hon. member for Vereeniging (Mr. B. Coetzee) was subjected to this, so was the hon. member for Fort Beaufort (Dr. Jonker), and the whole of the Progressive Party is being subjected to it to-day. It did not affect me to the same extent, because I had not signed an undertaking which put me in as difficult a position as they found themselves. This form of intimidation of aspirant Members of Parliament is something which ought to be checked through the Electoral Act, particularly because it means that the honour of Members of Parliament is constantly made suspect in the minds of the public. While the House is overhauling the electoral system I just want to ask whether the Minister cannot go into the possibility of making it obligatory for elections for the House of Assembly and the Provincial Councils in the Union and the Legislative Authority in South West Africa to be held on the same date always.
We have gone into it. It is impossible.
Strictly speaking this is a matter which falls under the Constitution and not the Electoral Act, and I cannot therefore go into it at great length. If, however, this Bill is referred to a Select Committee before the second reading, it will be possible for the Committee to consider this aspect of elections as well. In South West Africa there was one occasion when an election for the House of Assembly and for the Legislative Assembly took place on the same date and it worked excellently. I cannot think of a single difficulty that we cannot overcome by means of a small amendment to the Electoral Act or to the Constitution; it would not be difficult at all to remove the few existing stumbling-blocks and to make it possible constitutionally and technically for elections for the House of Assembly and the Provincial Councils and the Legislative Assembly of South West Africa to take place on the same date.
At 10.25 p.m. the business under consideration was interrupted by Mr. Speaker in accordance with Standing Order No. 26 (1), and the debate was adjourned until 16 May.
The House adjourned at