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