I move—

In line 57, page 18, and in line 22, page 20, respectively, after “service” to insert “or the whole period of his service, whichever is the lesser period,”.

Agreed to.

Clause, as amended, put and agreed to.

On New Clause to follow Clause 25,

I move—

That the following be a new Clause to follow Clause 25:

26. Notwithstanding anything to the contrary contained in this Chapter—

1. (a) any service referred to in paragraph (b) of sub-section (5) of Section 13bis of the amendment Act shall, for the purposes of this Chapter, be deemed to be “pensionable service under the applicable pensions ordinance” as defined in Section 13 of this Act; and
2. (b) any pension or other benefit which in terms of this Chapter becomes payable in respect of such service, shall be paid out of revenue.

Agreed to.

On Clause 27,

I move—

In line 48 after “under” to insert “the Pensions Act, the Parliamentary Service Pensions Amendment Act, 1963 (Act No. 96 of 1963), or”; in line 60, to omit “or”, where it occurs for the second time; in line 71, after “territory” to insert “or”; and in subsection (2) to insert the following new paragraph to follow paragraph (b):

1. (c) Section 12 of the Pensions Act or Section 10 of the Parliamentary Service Pensions Amendment Act, 1963,.

Agreed to.

Clause, as amended, put and agreed to.

Remaining clauses, Schedule and Title of the Bill put and agreed to.

House Resumed:

Bill reported with amendments.

Amendments put and agreed to and the Bill, as amended, adopted.

Bill read a third time.

Would the hon. the Minister explain why this is necessary? It seems to be necessary and to arise as a result of the fact that the courts and the Services generally have gone on to a five-day week.

That is the reason.

Clause put and agreed to.

On Clause 4,

I move the amendment as printed in my name—

To add the following proviso at the end of sub-section (2) of the proposed Section 83:

This is a matter which was raised by the hon. member for Transkeian Territories (Mr. Hughes) during the second reading, and the hon. the Minister then indicated that he could talk about this matter in the Committee Stage. May I say at this stage that the law appears to give the right to an accused to be represented only where he is an accused. There is no right to legal representation in respect of this sort of examination and normally it would not be necessary to make provision for the right to have a legal representative present at the inquiry as it stood in its previous form, but in its amended form there are certain legal complications which arise out of the fact that a person can be called as an accomplice. He gives his evidence in accordance with certain other requirements of the law and the matter is subject to all sorts of difficulties and can be subject to a number of complications. The object of the amendment, which is to provide that such a person may, if he chooses, have a legal representative present at such an examination, does not mean that his legal representative has the right to examine him in the witness box; it merely means that he has the right to be present and, obviously, to address the magistrate on any point of law that may arise. As this is a novel provision, I am sure the hon. the Minister will have no objection to this amendment. At this stage, therefore, I will not say any more, but rather wait to see whether the Minister is prepared to accept the amendment or not.

The hon. member has stated the position fairly, namely that as the Act read before this amendment was made, there was no provision in terms of which a legal representative had the right to be present. He could be present with the consent of the presiding magistrate. There are also decided cases which indicate that a legal representative may be present under those circumstances. I am glad that the hon. member does not claim that such legal representatives should have the right to cross-examine, etc. because the object of this clause is not to create a second trial; there the hon member will readily agree with me. However, I have this problem, that if I accept the hon. member’s amendment then as surely as we sit here we will open the door to what amounts to a second trial. In the final result, the hon. member’s amendment just amounts to this, that the legal representative should only have the right to be present, but then the hon. member adds that such legal representative may address the court on points of law. If we open that door I believe, in the light of the knowledge I have at this stage, because I only saw the hon. member’s amendment for the first time this morning, that we will be opening the door to a full-scale trial. I want to suggest that we leave the matter there and see how it develops in the six months that lie ahead. I will then listen to the advice of the prosecutors, and if it appears that there is any substance in the amendment in practice, I shall be quite prepared again to discuss the matter with the hon. member and to reconsider the matter next year. But in the light of the knowledge we have at present, my Department and I cannot see why we should deviate from the procedure we had in the past. What is really being provided here is that the prosecutor will be present; it is true that we are inserting certain sections, but in my humble opinion that cannot prejudice the person, and under these circumstances it seems to me that we should not open the door wider than it is at the moment.

I hope the hon. the Minister will reconsider his attitude. He has indicated that under the law as it stands to-day there are occasions when magistrates agree to the legal representative of the witness being present. The magistrate would not do that unless it was of assistance to the magistrate himself in dealing with the matter and in dealing with the provisions of the law equitably. Sir, we all know that what the police seek is information, but the courts seek to do justice, and it would be of considerable assistance to the judicial officer to allow the person’s legal representative to be present at the examination, and if need be to address the magistrate on points of law. It will not detract in any way from the value of the statement made or the information that becomes available to the prosecution, but it will be of great assistance to the magistrate who has to carry out this task. As the hon. the Minister knows, the point has been made both at the second reading and in this debate that the old provision in the code is being extended considerably. I think the amendment proposed by my hon. colleague will improve this extended provision and I hope the hon. the Minister will be prepared at this stage to reconsider the case put up in support of this amendment and will agree to it.

My reply to the hon. member for Port Elizabeth (South) (Mr. Plewman) of course, is that as the hon. member knows it is within the power of the magistrate to allow legal representations.

It is permissive only.

In the cases visualized by the hon. member, it is within the discretion of the magistrate whether or not to allow such representations. This system has worked perfectly satisfactorily in the past and I have no reason to think that it will not work satisfactorily in the future.

I would like to point out to the Minister that it is most unsatisfactory to leave this clause as it stands. He is now putting the onus on the magistrate. The Minister is making the magistrate assume a responsibility which he should take; he should accept the responsibility of allowing persons thus examined to be represented in specified cases, and he should do so because of the fact that accomplices are now going to be heard by magistrates. Provision is being made here for accomplices to be treated in a certain manner. An accomplice can now be forced to talk and if he answers the questions put to him satisfactorily he must be given an indemnity. I submit that in view of the fact that an accomplice can now be compelled to talk, which he was not compelled to do before . . .

Because he gets indemnity.

That is why it is essential that his legal representative is there to see that everything is done properly and that he does get his indemnity and that there is no slipup by the magistrate. We know that all magistrates are not necessarily good magistrates; some are less capable than others and we do not want to run any risk of an accomplice being prejudiced because of some mistake made by the magistrate. I submit that if the man’s legal representative is there, there can be no mistake. It will be the duty of his representative to see that full protection is given to the accomplice. It is because of this additional power to make an accomplice talk that I appeal to the hon. the Minister to reconsider this amendment. The Minister is prepared to leave it to the magistrate. On what grounds must the magistrate decide? How is the magistrate going to make up his mind whether he should allow legal representation or not? The Minister is placing the magistrate in an impossible position.

The position is the same as it was in the past.

Yes, but it was not as important in the past that he should have legal representation as it is now. I submit that the Minister should give this matter further consideration. He says that he only saw this amendment this morning for the first time, but, Sir, on Friday when this matter was discussed here I said that we were going to raise this point, and the Minister said that we could discuss it at the Committee Stage. I therefore appeal to the Minister to make this concession.

I quite understand the hon. member’s argument. An accomplice who now appears before the magistrate is in precisely the same position as an accomplice who appears before the magistrate in open court. There is no difference. He either gets an indemnity or he does not get it. In open court he gives evidence just as he gives evidence here, but the accomplice who appeared in open court has never had legal representation. If he has never had legal representation in open court, or if there has never been any reason why he should have legal representation in open court, then there is no reason why he should have in this case.

The hon. the Minister’s case appears to be that this matter has always been left in the discretion of the magistrate and that the system has worked satisfactorily in the past, but, of course, the situation in the past and the situation now envisaged under this clause is quite different, the difference being that the accomplice in terms of this clause is given a certain right which he never had before; he is being given a most important right, to wit the right to an indemnity against any further prosecution, despite the fact that this is not a trial. He achieves that right to indemnity only after having answered the questions put to him to the satisfaction of the court, and in those circumstances where a potential witness examined under this clause has such an important right at stake, we feel that he should have the right to legal representation . . .

The clause does not prejudice him; it protects him.

Yes, it does protect, him. The provisions of this clause are there to protect him and all that we ask is that he should have the right to have a legal representative there who will hold a watching brief on his behalf, so that his legal representative can argue the law and the situation in which the witness finds himself. Let me give an example of the sort of thing that a legal representative should argue and to show why the magistrate would in fact be delighted to have some man learned in the law to advise him and to argue the matter before him. Sir, one must remember that this procedure is applied in those cases where the accused is not known and where the prosecutor calls a man into the witness box; he does not know who the real offender is but he thinks that the witness who is being called is an accomplice to someone whom he does not know about at all. The witness starts giving his evidence and it turns out that in fact he is not an accomplice; that he is the main and only offender. As I read this clause, if he answers three questions put to him and it is discovered from the answers to those three questions that he is in fact not an accomplice but the only person involved in the matter—the police thought that he was an accomplice: they thought that there were others involved and they find that there were not, and the moment the police discover that, the prosecutor may say, “I do not want to go on with the case.” As I read this clause the application of Section 254, if the prosecutor puts one question to him only and he answers that question satisfactorily he is entitled as from that moment to an indemnity against any further prosecution for that offence.

If he is an accomplice, but if he is not an accomplice it does not apply.

The hon. the Minister has now demonstrated precisely why a legal representative should be present. The hon. the Minister says that this only applies where he is an accomplice. Sir, what is an accomplice? An accomplice is a socius criminis; someone associated with another person in the commission of a crime. If it turns out that the person called to give evidence is the only offender—this could happen, because this section is to be applied when the offender is unknown—he is then obliged to give evidence as an accomplice. In other words, he must answer satisfactorily all questions lawfully put to him. If he answers all questions lawfully put to him and it turns out that he is in fact not an accomplice but that he is the criminal himself surely he is entitled, as I read it, to idemnity forthwith. The hon. the Minister does not agree and . . .

If it appears that he is in fact the criminal then the whole thing falls away.

No, Sir; I am quite satisfied that that is not so. If the Minister reads Section 254 he will see that it says that if a person called as an accomplice answers, to the satisfaction of the court, all questions lawfully put to him he is entitled to indemnity. What questions are lawfully put to him because you are applying Section 254 to this interrogation clause? If you apply it then, in the first place, he must give evidence and, in the second place, he must answer the questions satisfactorily. Having said that he is an accomplice he must give evidence and he can only give evidence satisfactorily if he implicates himself in the alleged offence. What happens in the circumstances I have just mentioned? Let me read Section 254. Let me say, Sir, that this very discussion indicates the desirability of having a legal representative there. The magistrate is going to be very pleased to be able to have some sort of argument on behalf of the person in determining what that witness’s legal rights are in terms of this clause applying certain other provisions of the law to a section which was never intended to have these consequences before. Section 254 says—

You only apply a principle such as this In forcing a person to incriminate himself on pain of being visited with imprisonment for 12 months at a time on the basis that he gets an indemnity. That has been the position up to the present as I understand it. The next section says—-

There it is. In those circumstances he may be compelled to give this evidence simply because the prosecutor, in his opinion, says he is an accomplice. If he thinks he is an accomplice he must have in mind some other offender or offence but he can be brought before the court on this inquiry although there is no other offence or offender. If it turns out that the prosecutor is wrong, that his opinion is wrong in compelling the man to give evidence, what is the position? The position is that you have compelled him to give evidence incriminating himself and you are not going to give him an indemnity and then you are not doing what this clause says you must do, namely, to apply all the provisions of Section 254.

In those circumstances, as I read this, I would argue before a magistrate that even if he is not an accomplice, once he has been called, because he is an accomplice in the opinion of the prosecutor, and answers all the questions put to him—even if the prosecutor then says: “I am not going to go on because it is quite apparent that he is not an accomplice”—he is entitled, as from that moment, to an indemnity forthwith.

The hon. member for Durban (North) (Mr. M. L. Mitchell) is very concerned over the case where it now appears that a person is actually the principal and not the accomplice. Section 254 of the Criminal Procedure Act makes provision for that case. When the hon. member read it he read out a few words very fast without emphasizing them. It reads—

If on being questioned it appears that he is not the accomplice but the principal, he is already protected under this section. An accomplice is just as guilty as the principal. The privileges enjoyed by the principal are also enjoyed by the accomplice to an equal measure. The whole case the hon. member tried to build up for the principal by saying that the person will incriminate himself and will later be charged is not really applicable because this section protects him also. If it should appear that the opinion of the public prosecutor was wrong because he thought that the person was an accomplice and was not the principal, that person can still claim that he has answered all questions satisfactorily and that he is entitled to that protection. That appears very clearly from this section. I do not think the hon. member understood the section correctly.

I shall leave the hon. member for Heilbron (Mr. Froneman) and Durban (North) (Mr. M. L. Mitchell) to themselves to fight that one out. I want to draw the Minister’s attention to what I regard as the most important wording of this clause in that it says—

That is Clause 4 (1). This is the first time that I hear of criminal proceedings without legal representation. It is a court . . .

It is for the purposes of indemnity.

It is a new concept of our law. Sir, that in a court or in respect of any criminal proceedings the accused cannot be represented. If the Minister wishes to make this a hearing in camera, as it will be, and an examination for one purpose, then it is surely not a court and it is certainly not criminal proceedings. Once they are criminal proceedings and a court is established the Minister can’t surely create a new concept of our Criminal Procedure Act. A man is entitled to be represented at a court in criminal proceedings.

[Inaudible.]

No. I think the Minister misunderstands me. I am not going into the legal argument between the two hon. members on my left and right; that is another point. All I say is that the wording which the Minister is introducing into this clause is to create a magistrate’s court for the purposes of criminal proceedings without legal representation. This may not be analogous but you have the position of inquests. Inquests may not be criminal proceedings and no lawyer has any locus standi at an inquest but the courts have allowed a person to be represented by his attorney at an inquest.

The court has the same right in this case as it has in the case of an inquest.

Tn the case of an inquest an attorney is allowed to be present but now the Minister says he is not allowed in this case.

With the leave of the court, yes.

In the case of an inquest the leave of the court is necessary if the attorney is to address the court or wants to ask any questions, but he can be present with the leave of the court. He can come there as a spectator if he wishes to. The magistrate will allow him to ask questions or suggest questions or lead a witness who may be warned. No lawyer is excluded at an inquest. His right in that court is dictated by the magistrate, that is true; but the magistrate cannot prevent him from being present. I put forward this argument and see what the Minister has to say.

I want to reply to the hon. member for Boland immediately. The hon. member has been out of legal practice for too long to see this matter correctly. He has not read the section properly. We retain the old section as it was, except that we now say that the prosecutor may be present.

I have no objection to that.

The section remains as it was. We now introduce other sections. It is not in respect of the first part of the section that we say it will be treated like a court, but in respect of the last portion. We must put it on the same footing as a court. We must say that the powers will be similar to those of a court because we now introduce Section 216 which deals with witnesses who are in prison. We must give the magistrate the power to get them into court, because it is only a court which can get them there. Therefore we must say it is now similar to a court. We further say it is similar to a court because it must have the power to subpoena witnesses who are outside its jurisdiction. It must be similar to a court because it is given the right to pay witness fees to witnesses as provided for in the Criminal Procedure Act. For the rest, it must have the right, just like a court, because it can now give indemnity to an accomplice. But for the rest it is not a court we are establishing; it is an expedition to seek evidence. It has always been so; it was so under the old set-up and it is the same under the new arrangement.

Now I come to the hon. member for Durban (North’s) argument. The hon. member for Heilbron is quite correct. What is the position? The prosecutor knows, when he starts leading evidence, whether the person is an accomplice or not. If he knows that he is an accomplice, there can be no problems. Then he clearly puts it to the court that the person is an accomplice, and the person concerned will probably confirm it. Now he is an accomplice and he answers the questions put to him. There can be no problems then. Then the magistrate gives him the indemnity and that is the end of the matter. If he is not an accomplice there can be no harm either. Supposing the prosecutor wrongly regards him as an accomplice. The questions are put to him, and he answers them to the satisfaction of the court, and then he gets his indemnity. Even though he be the only person who committed the alleged offence, if the prosecutor has made a mistake he will go free; then nothing can happen to him. And it is sound and fair that it should be so, because he has complied with the requirements set by the prosecutor.

Supposing he is the only person who committed the alleged offence and he does not satisfactorily answer the questions and he does not get the indemnity, then nothing can happen to him either, because the evidence cannot be used against him. He has not made a confession; it does not comply with the requirements set for confessions. Then he simply cannot be charged. In fact, he may be charged but that evidence cannot be used against him. What prejudice is there to this person in this regard? I just cannot see it, with the best will in the world. Whereas in the beginning of this discussion I still had doubts, the further the argument has gone the fewer my doubts have become in regard to this matter.

The hon. the Minister himself has placed his finger on a significant point of difference between this clause and the existing section. As the hon. Minister knows it is the practice for the prosecutor to do the examination before the magistrate. There was no legal provision for that but it is now being written into the law. I have no objection to that. Clarity in regard to that position is now given. By the same token clarity in regard to the position of the person who appears as a witness should also be given in the law itself. Thus far it has been in the discretion of the magistrate. The magistrate has read into the law what is not there. I don’t think he will be able, in future, to read into the law what is not there because the matter is now being clarified.

It was decided in 1933 that the magistrate could allow . . .

Yes; “could allow”. It was entirely within the discretion of the magistrate. When the magistrate did do so he did it for his own benefit as much as anything. The change is this: The magistrate now, in fact, sits as a court and I have yet to learn of any situation in which a person who appears before what is de facto a court should not have legal representation present with him there. Our amendment is reasonable in the extreme, if I may put it that way, because all that is asked for is that there should be a legal right, not a permission, to the person concerned to have a legal representative present. It rests with the magistrate as to how far he allows this representative to deal with the matter. Some magistrates may say: “I don’t want to hear argument; I don’t think that is your job.” Fair enough, the magistrate will interpret the matter but the right should be there for the person concerned to have his representative before the court.

One reason the Minister advanced for not accepting the amendment was that he only saw it this morning. I, on the other hand, believe that if he were to canvas the views of magistrates he would find that they were in favour of this amendment. If there are doubts in the mind of the hon. the Minister in that regard I would suggest to him that he also leaves this clause over until next year, and that he canvasses the views of magistrates as to whether they would like this provision in the law. I put that seriously before the hon. the Minister. If he has doubts, let those doubts be resolved not by himself but by the people who have to do the job, namely, the magistrates concerned. Let him leave this clause over and canvas their views.

I am glad that the hon. the Minister has indicated that he has no more doubts that the clause should remain as it is and that he agrees with the hon. member for Heilbron (Mr. Froneman). I should like to cross swords with the hon. member for Port Elizabeth (South) (Mr. Plewman) in regard to this matter. He pleads for the right of the person who is being interrogated to have legal assistance. He basis his argument on the same ground as that on which the hon. member for Durban (North) based his, viz. that the accused person now gets a new right here and that he will perhaps not know how to exercise that right. If it were such a difficult matter that a lawyer should attend, then I would be inclined to make that concession, but the question here is really simple, viz. whether the accused can claim the indemnity promised to him. When can he claim it? He can claim it if the prosecutor informs the court that he is of opinion that the person whom he is going to question is an accomplice. That is the first requriement. It is a matter which can very easily be proved, because it takes place in open court; it is a case where there are enough witnesses. The second is that the prosecutor must have a certain opinion. That opinion is conveyed to the magistrate. It is also easy to prove that. Thirdly, this particular person must be called as a witness by the prosecution, i.e. by the State. It is just as easy to prove that. Thereafter it must be proved that questions were put to him and that he answered them satisfactorily. But that is not the most important matter. What is important is that the magistrate or the presiding officer must record in his notes that he answered the questions to the satisfaction of the court. It says here: “If such person fully answers to the satisfaction of the court all such lawful questions as may be put to him, he shall, subject to the provisions of sub-section (3), be discharged from all liability to prosecution for such offence and the court shall note the aforesaid indemnity in the record of the case.” The proof which has to be submitted is open; it is patent; it is easy to prove. If the hon. member for Durban (North) or the hon. member for Port Elizabeth (South) wants to plead the case of that person, whether he can claim the indemnity or not, then these are the only grounds they must advance; these are the only grounds on which the person can claim the indemnity, and that is all they are concerned about.

If they are concerned about the accused and his legal assistance, then they must just say that it is impossible to prove those three things without legal assistance. In addition, it has been proved in practice that the magistrate is not averse to giving legal advice. I think it is much better to leave the discretion ad hoc to the person dealing with the matter; every case has its own circumstances, and every accused person has his own psychology. Therefore one should not try to make a rule, but to solve matters ad hoc. I shall be sorry if the Minister accedes to the suggestion of the Opposition.

The hon. member for Standerton (Dr. Coertze) has dealt with the question of the accomplice and he has said that, in his view, the factors which have to be decided in order for an accomplice to get indemnity are so simple that it is not necessary for legal representation to be present. He has, however, conceded that if the matter is one of some difficulty he will accept that it is reasonable that legal representation is present.

It says “principal or accessory”.

I shall deal with that; let me just amplify. That is the point the hon. member has made. The first point that must be decided, according to the hon. member for Standerton, is whether the person who is brought before the magistrate is in fact an accomplice.

No, it is the opinion of the Attorney-General which counts.

The hon. member says it is the opinion of the Attorney-General that matters, in other words, the prosecutor, as to whether the person is or is not an accomplice. What would happen in practice? In practice the prosecutor would say to the magistrate that he believes that the person, who is being brought before him, can, in the circumstances of the particular case, be classed as an accomplice. But it is surely for the magistrate to decide, before he gives him indemnity, whether in fact he is an accomplice.

No, you are quite wrong.

It is not for the magistrate to decide at all.

If the position is simply that if the prosecutor were to present this man before the magistrate and simply say: “This man is, in my opinion, an accomplice” and that was the end of the matter, the magistrate would be obliged to accept that; that would be a different matter; but surely that is not so. I submit the magistrate himself must decide, before granting the indemnity, whether he accepts that this man is an accomplice.

Where do you get that from?

Anyone practising in the courts will know that this question as to whether a person is or is not an accomplice can very often be a very difficult one to decide. It very often gives rise to intricate legal argument on both sides. Surely, that being so in the case of an open trial, it must be even more important in a private examination of this sort that a person who is brought before a magistrate, on the basis that he is an accomplice, ought to have the benefit of having a legal representative present to argue that aspect of it before the magistrate if that question arises. Even if the hon. the Minister is not prepared to allow the insertion of legal representation to be present as of right in respect of the other categories referred to in this clause I submit that he ought to do so in respect of accomplices. I would point out to the hon. the Minister that the provision in respect of accomplices is a new one; they are now being brought within the bounds of this section whereas they were not before. The hon. the Minister has said that in the past there has been no difficulty because the magistrate had the discretion and that he allowed legal representation if he considered it necessary. As has been pointed out the section did not operate in the past in respect of accomplices. They are now being brought in and if the hon. the Minister is not prepared to accept it in respect of the other categories, I would urge upon him to accept this amendment in respect of them.

I am afraid the hon. member for Durban (Musgrave) did not understand my Afrikaans, because otherwise I cannot see how anybody can be so ignorant in regard to a provision which is as simple as Section 254 (2). The hon. member says that the magistrate must be convinced in his mind that the court is dealing with an accomplice before he decides that the person is entitled to an indemnity. The relevant sub-section reads as follows, and I shall read it to the hon. member in English, because he evidently does not understand my Afrikaans—

If such person . . .

And here. Sir, you must remember that “such person” is a person of whom the Attorney-General has said that he is suspected of being an accomplice. That is all. Then the provision continues—

In other words, only questions relevant to the incident being investigated, and not other fishing expeditions. If it is a “lawful question”, no intimidating questions may be asked in regard to matters falling outside the particular matter being investigated—

In other words, where he will not be entitled to the indemnity, i.e. if one day he has to give the evidence and does not do it as well as he does it at the moment—

In other words, whatever the magistrate may think of the matter is absolutely irrelevant. Nor is it the magistrate who has to decide whether the person is entitled to an indemnity. In addition, it does not relate to an accomplice only, but to an accessary. An accomplice is not an accessary; he is one who does something, that is why he is called an accomplice. An accomplice, like the person who committed the crime, has all the privileges that the accused has when he gives evidence against himself. But what is the position when afterwards it appears that he was the main culprit? The hon. member says he is then in trouble.

No, I did not say that.

That is what the hon. member intimates, because that is why he wants legal assistance for such a person. Why does he want legal assistance for him if the person is not in trouble?

You have evidently not understood my argument.

But even if such a position arises and evidence is given which counts against him, that evidence can still not be used against him. But if it appears afterwards that the person concerned is the principal—in respect of this point the hon. member may perhaps differ from me—and it appears that the Attorney-General or his representative is of the opinion that the person is an accomplice or an accessory, and this person is called to give evidence for the State, and he has answered all questions put to him to the satisfaction of the court, is he then entitled to the indemnity? What is there in this clause which prevents him from receiving that indemnity? I just cannot imagine that a man like the hon. member for Durban (Musgrave) does not have this information available to him, or perhaps he could not digest it. Therefore I also feel as the Minister feels in respect of this amendment —the more I think about the matter, the less I think of the amendment moved by the Opposition.

Mr. Chairman, the hon. member for Standerton having spoken twice, I may permit myself the luxury of speaking once. I should like to say at once that laws are not made merely for the delectation of lawyers, for debate and discussion, here and elsewhere —they are also made for people. I want to refer to the impression that has been created outside this House by the strenuous arguments offered by the lawyers supporting the hon. the Minister against the very simple proposition— very simple from the point of view of the public—that a person who has to appear before a magistrate and who has to be examined by a prosecutor, and, what is more, may be appearing in a private court in the sense that no-one knows where the hearing is taking place, should at least have the right to be legally represented. He should have that right regardless of what technical description you give to his status at any particular time.

You are the most thick-skinned person we know.

Order! The hon. member must withdraw that remark.

I withdraw.

I fail to see the relevance of that remark. What has this matter to do with my thick skin? I could very well say that this is the product of a pachydermatous Government such as this country has never seen. That might not be relevant—although it is. I think, quite an appropriate comment. Mr. Chairman, I was about to say that this trial, or hearing, or examination already has the features that the person concerned may be a witness to begin with, may in turn become an accomplice and finally an accused; that he appears at an examination which is not conducted on the same lines as a trial or a court hearing, which is normally held at a definable and identifiable place, a place like the magistrate’s court to which the public have access. No, Sir. Because sub-section (2) reads that—

In other words, Sir, a minimum number of people will know where the hearing . . .

But that appears in the old law.

That is so, Sir, I agree that this provision exists in the old law. But under these circumstances I feel there must be a very good reason why hon. members on the other side are so bitterly, so strenuously opposed to the proposition that a man should be entitled to ask for his legal representative to be present. Hon. members on this side have indicated that they do not consider it essential for the legal representative under these circumstances to have any specified rights. Let us assume that he is no more than an observer. Will the hon. the Minister say that if the legal representative concerned attends this particular hearing, wherever it may be held, in the capacity of an observer, he will in any way prejudice or obstruct or delay the hearing? If the hon. the Minister feels the representative might do that, then it will be most interesting to hear how the mere presence—and that under conditions of silence —of a lawyer can obstruct the hearing in any way.

I must tell the hon. the Minister that outside this Chamber an extraordinary impression may have been created because of the determination of the lawyers supporting the hon. the Minister to refuse to appreciate the reason for allowing, under some circumstance or another, a legal representative to be present at such a hearing.

I hope that the hon. the Minister, by accepting what we have argued up to now—and I am not arguing this matter on the legal ground at all—will dispel that very impression I have referred to, because I know the Minister is concerned about certain views which are already held regarding certain laws on the Statute Book. I do not believe that the Minister wants to increase that concern that in any way. I believe that the hon. the Minister wants to see that he has certain powers which may be required in certain circumstances. But surely. Sir, the presence of a legal representative at a hearing will in no way detract or derogate from those powers, or obstruct the hearing. I sincerely hope that the hon. the Minister will either accept our proposition, or else that he will tell the House why he has difficulty in accepting our amendment

The matter ought to be very clear, namely, that we are not dealing here with an accused person and therefore also not with a person who can be detrimentally affected as a result of these proceedings. He can only derive benefit from them, but in any case, he will not suffer detriment. This has been made very clear by the hon. member for Heilbron (Mr. Froneman) and the hon. member for Standerton (Dr. Coertze) and so I need not discuss the matter any further. The position is that we are dealing here with a witness. If hon. members want to demand this right for this type of witness—in other words, that they no longer want to leave it to the discretion of the magistrate—why not then demand it for other witnesses as well?

What is the essence of what is happening here? Here we have a consultation between a prosecutor and a witness—a consultation which in fact takes place before the magistrate and which is written down by the magistrate. This is an essential relationship between the witness and the prosecutor. It is after all a fact that witnesses and prosecutors hold consultations every day. If hon. members want to demand this right for this sort of witness, they must take the logical step of demanding that every witness should have his lawyer with him before the prosecutor can consult with the witness. But the position which will then arise will be ridiculous.

I want to admit—and I also said this openly to the Committee—that at the start I had a great deal of sympathy for the amendment of the hon. member. But the further we went, the more my sympathy waned until I have now reached the stage where I have no more sympathy at all in this regard.

I should like to ask the hon. the Minister a question. What objection he has to a witness having legal representation? The witness may at some or other stage during the proceedings make a request to the magistrate in this regard.

in such a case the magistrate has the discretion of agreeing to it or otherwise.

Where is the magistrate given that discretion?

The magistrate has that discretion; the court has decided in this regard over and over again since 1933, the year when this case was tested before a court of law for the first time. There are more than enough judgments in this regard.

But over and above this hon. members can imagine themselves in a situation, which can arise, where it will be fatal to allow any lawyer to be present. At that stage, for example, evidence may be adduced which should certainly not be made public. If a legal representative is present, the purpose of the proceedings will be completely frustrated. But, while they argue in this way, can hon. members tell me why this particular provision has been retained in its present form for so long? Why has there never been any argument advanced in the past that a man should have the right to have his legal representative present? Up to 1933 the interpretation was that no legal representative was allowed. In that year it was decided for the first time that the magistrate does have a discretion in this regard. Why cannot we leave the matter at that? Hon. members are just as aware of the implications as I am.

Let us put it in its worst light. Let us imagine that a man can adduce intimate evidence in regard to subversive activities. In such a case is it in the interests of any person that an attorney should be present? There are attorneys and attorneys; there are good attorneys and there are others; there are attorneys who can keep a secret and there are those who cannot. Hon. members are aware of this fact. If one publicizes a matter of this nature, we may as well forget about the whole thing because it will be the same as shouting a warning from the rooftops to the actual criminals, those people whom one wants to catch. I say, therefore, that the matter must be left to the discretion of the magistrate. Magistrates have in the past always exercised this discretion in a satisfactory way, at least, in such a way that there have never been any complaints in this regard. Why should this no longer be the case in the future?

Mr. Chairman, I am sorry to say that while I had an open mind in regard to this matter at the start, I would not at this stage touch the hon. member’s amendment with a barge pole. I cannot therefore consider it.

The hon. the Minister says we have here to deal with a witness and not with an accused. But the Minister is not quite right, Sir. Because we have here to deal with a potential witness, or a potential accused, or a potential accomplice.

If he is a potential accused nothing can happen to him. No prejudice can result therefrom.

Order! I must point out to hon. members that they must confine themselves to the proposed amendments, namely, firstly that the examination can take place by the public prosecutor and secondly that certain sections of the Criminal Procedure Act shall apply. That is really all that is before the Committee.

And the amendment, Mr. Chairman.

Yes, and the amendment.

The hon. the Minister has just said that there exists a relationship between the prosecutor and the witness on the basis that he is a witness. They have conferences. He knows what is going on. There is a sort of mutual confidence existing between the two. The hon. the Minister is, of course, absolutely right if he was referring to other witnesses in other trials. But quite the opposite to what the Minister has said applies to the situation which is dealt with in the clause under discussion. A person is only called before the court if he refuses to talk, if he refuses to make a statement, if it is believed that he has certain information, but he refuses to divulge that information. This section applies to Pressmen who are responsible for a report in a newspaper which indicates that they know something about a certain offence and who refuse to talk because they claim it would be in conflict with their code of ethics. In such a case the prosecutor says, “All right, I am going to call you before the Court.” This applies when that relationship has broken down altogether. So in that respect the hon. the Minister is not right.

If that relationship has broken down altogether and you have to use the powers embodied in Section 83 of the Code, then if you apply those provisions to someone you allege to be an accomplice, not knowing who the offender is—which is also the intention of this clause—then that argument is strengthened. In fact proof of the proposed amendment is to provide for cases where the actual offender is not known or suspected. So not only do you have no proper relationship between the man who is going to call the witness and the witness—there is no confidence between them, the prosecutor does not know what the person is going to say, and he does not know what his statement is, otherwise he would not use this— but in addition, Sir, the prosecutor does not even know who the main offender is. This will leave the door wide open for this to apply to the case I mentioned to the hon. the Minister. That is to say to the case where they do not know who the offender is but because they know X had something to do with the offence, they say to him, “You will give evidence here”, to which he replies, “I am sorry, but I do not want to give evidence.” The prosecutor can then say to him, “Look, you are going to give evidence because you are going to be named as an accomplice. I am going to tell the magistrate that in my opinion you are an accomplice. Then you will have to give evidence, evidence which will implicate you in the commission of the offence because we know you are in fact implicated in it.” The person concerned then turns around and says: “Fine, I will do that, but will I get an indemnity?”, to which the reply is, “Yes, even if you are the only offender, nevertheless you will receive an indemnity.” But the answer of the hon. the Minister is that he will not be indemnified in those circumstances. Surely the hon. the Minister will not deny that a situation of this sort could not arise having regard to all the factors that are here involved. Surely, Sir, in those circumstances the magistrate should have the benefit of hearing argument from a legal representative. Surely where such an important right is involved, a right on the part of the witness X, he should have the benefit of having someone to argue the law in relation to the rights he has here, undoubted rights, Sir. He will be greatly prejudiced if he does not have those rights. Because if he does not receive an indemnity, he will be making a statement implicating him in the commission of an offence, a statement which he is obliged to make. He will be obliged to make an incriminating statement without receiving the indemnity. In these circumstances I do appeal to the hon. the Minister. One never knows when one applies various provisions of our law to something else, when one uses a procedure and applies it to other matters, one never knows what circumstances will arise. I do hope the hon. the Minister will give consideration to it. Because, Sir, it cannot do any harm . . .

It can do no good !

Oh. surely, Mr. Chairman! Do no good? Good heavens! The hon. the Minister said to the hon. member for Boland that it is a long time since he had practised in the courts. But, Sir, does the Minister know of a single Judge in South Africa who does not prefer to have counsel appearing before him rather than have an accused appearing for himself?

If the Judge wants counsel to appear before him, he can have them, because it is in his discretion.

It is in his discretion yes. But the principle involved here, Sir, is what I am concerned about. How can it possibly do any harm? That is what I want to know.

But I explained all that.

The Minister told us that there are some attorneys who can keep secrets whilst others cannot.

And you and I know that is in fact the position.

Well, I am afraid I do not regard that as a very good argument. There are some attorneys who cannot keep secrets when you have a trial in camera. But that is no reason for not having someone representing an accused at such a trial.

That is different because the accused must be defended. But here nothing can happen to the man if he answers the questions.

That is so. But something can happen to him if he does not answer the questions, in exactly the same way as something can happen to an accused who refuses to answer questions. Because, Sir, the magistrate may place the interpretation of the hon. the Minister on it.

Another reason why I think the man should have the benefit of legal representation is the following. The man may be a witness who is going to be detained in terms of Clause 7 of this Bill. As such he has no right to see his legal representative. He has no right to ask to interview him. He may be taken straight from the gaol, or wherever he is kept—the hon. the Minister said it will not be a gaol— to the court. On the other hand, the magistrate may come to the gaol for the interrogation because, quite clearly, it can take place at a court or anywhere else. Now, Sir, unless he has the right to such representation, the question is not going to arise. Unless he has a right to such representation, the magistrate does not have to ask him whether he desires to be represented. He will simply go to the gaol and interrogate him in terms of this clause.

I appeal to the hon. the Minister to consider this amendment. Because, Sir, it can only do good. And if the Minister is so concerned—as he indicated he was—with the sort of impression that is given in this House, then let his attitude to this be an example of the sort of attitude people outside the House will adopt to what happens in this House. Let his attitude be an indication to the people outside this country of what they think is happening in this country.

This is basically a very simple matter. We should therefore like the hon. the Minister to indicate at least that he will give consideration to the amendment. Because the attitude he has just expressed, distresses me in in that he said he was not prepared to entertain this amendment, whereas in the beginning he was fairly sympathetic towards it. I appeal to the hon. the Minister as a lawyer, as a man who has practised in the courts, to reconsider the amendment which I have moved to this clause.

It was not my intention to participate in this debate. I rise now simply to support the hon. the Minister in connection with what he said about the position in the past. In the case of Marx, it was said—

This case came before the court in 1933 and this is the first judgment in regard to this matter that I have been able to find. As hon. members can see, according to this judgment a magistrate already has a discretion. This judgment following upon a request to the court that legal representation be granted in a certain case. The judgment from which I have quoted is that of Mr. Justice Solomon in the court of the Witwatersrand.

To my mind there is something strange in this regard. Hon. members opposite always say that the courts must have a discretion. They say that a Judge or a magistrate must have a discretion. Here we have a case where a magistrate has such a discretion, but now they are opposed to it. Year in and year out we hear from hon. members opposite that the courts must have a discretion; that we must not deprive the court of this discretion; we must not affect the courts detrimentally by depriving them of their discretion. But here this discretion is being given to the court and now it is wrong! This discretion has been given since 1933; it has never been changed. Hon. members could have changed it in 1955 when the Criminal Procedure Bill was before Parliament, but they did not even discuss it then.

And again in 1964.

Yes, and again in 1964 when the Act was amended. They had nothing to say in this regard at the time. What has happened in the meantime to make them object in this way?

I want to be brief because I think there is a very short answer to the point raised by the hon. member for Port Elizabeth (North). My answer to the hon. member is also the answer to the question put to this side of the House by the hon. the Minister. The question was why there should now be a right to the legal representation when that right has never existed in the past in situations of this type, namely in the examination of a witness before a magistrate. Well, Mr. Chairman, the short reply—and I respectfully submit to the hon. the Minister that is also a complete reply— is that in the past there was no right in the public prosecutor to conduct the examination. As the hon. the Minister pointed out in his opening address, in the past the public prosecutor was excluded from the examination.

How does that affect the principle?

It seems to me, with respect to the Minister, obvious that where the State is now given the advantage of having the public prosecutor examining the witness, then surely—if we are to continue on the basis of our present legal system—the witness ought also to have the right of having his legal representative present, if only in the way we are asking for, namely as a watching brief. I submit, Sir, if on the one hand the prosecutor is introduced into the procedure, it is nothing less than fair for the witness to have his legal representative present just to keep an eye on things. We do not suggest that he should have the right to conduct a trial, because—as the hon. the Minister pointed out —that would defeat the object of the examination. I submit this is an answer to the question of the hon. the Minister.

I wish to say that the hon. the Minister— with all respect to him—has not appreciated the point made by hon. members on this side in regard to accomplices. The position is this: a man is to be brought as a witness—and I accept that—for the purpose of interrogation. But he is being brought as an accomplice in the case of an accomplice-witness. Now, Sir, what is an accomplice? An accomplice is not a person whom the prosecutor says is an accomplice. It is a question of law and fact combined whether a man is or is not an accomplice. What happens in a court of law? A man is brought before the court as an accomplice, the prosecutor asserting that, in his opinion, the man is an accomplice. But the man has the right to challenge that. He is not obliged to accept that he is in fact an accomplice simply because the prosecutor says so. He has the right to challenge that. As I said, it is a question of combined law and fact whether he is or is not in fact an accomplice.

Surely if a witness is brought to an examination on the basis that he is an accomplice, surely he has the right to challenge that? He is not obliged to accept that position. As I pointed out to the Minister, if he is an accomplice then he is obliged to answer all the lawful questions put to him at this examination. If he answers satisfactorily he is indemnified. But the point I make is that he is obliged to answer if he is an accomplice. From that it must follow that if he is not an accomplice then he is not obliged to answer a single question. No penalties can be visited on him for his refusal. So, when deciding this preliminary point of whether he is in law an accomplice or not, surely it is only fair that he should have the right to have a legal representative present.

If the hon. the Minister will not accept an amendment making legal representation a right in respect of the other categories, I would nevertheless urge him to accept it in respect of this category, and I would ask him to accept it in respect of an accomplice if only in this limited sphere, namely for the legal representative merely to argue—should the occasion arise—whether the person concerned is in fact an accomplice or not. If the State felt that it would not be in the interests of justice for the representative to hear the evidence, he could be excluded from that. The amendment could be limited to the aspect of the representative arguing whether the witness is—in law and in fact—an accomplice. I respectfully urge the hon. the Minister to give consideration to this aspect of the matter.

Amendment put and negatived (Official Opposition and Mrs. Suzman dissenting).

Clause, as printed, put and agreed to.

On Clause 6,

I rise to move as an amendment—

To add the following proviso at the end of the proposed sub-section (1) inserted by paragraph (a):

It adds a proviso to par. (a). In order for the Committee to appreciate the implication of the amendment, this sub-section relates to persons arrested on a charge of having committed an offence, i.e. it relates to accused persons, and in terms of one of the amendments introduced it is limited to persons accused of the offences referred to in Part II bis of the Second Schedule. Those are all serious offences, with the exception of the contravention of any provision of the Suppression of Communism Act, which includes both the serious and the minor offences under that Act. But for the purposes of my argument, I would confine myself to the submission that the majority, and practically all, of the offences listed in the Second Schedule, are serious offences. There have been a number of instances where persons who have been accused of serious offences have had to wait a very long time from the date of arrest to the date of their trial. There have been postponements in many cases for one reason or another, but the fact remains that in a substantial number of cases persons accused of serious offences, in particular, have had to wait an inordinately long time for the case to go to court. We believe that the Minister has made out a case for giving the right to the Attorney-General to refuse bail in such serious cases. We do not oppose that, but we believe that this should be limited in a way which does not create undue hardship on the accused person. We believe, therefore, that a proviso should be inserted to give the right to the accused person, if no evidence has been led within 60 days of his arrest, to apply to the Supreme Court, on notice to the Attorney-General, and to allow him to appear before a judge sitting in Chambers to state his case for bail. I would point out to the Minister two important aspects of this amendment, firstly that the right which the proviso gives would operate only 60 days after arrest, and in our submission 60 days should give ample time to the State to be able to come before a judge in Chambers and state why bail should not be granted. Secondly, our amendment provides for the accused to appear before a judge sitting in Chambers and not in open court, because we appreciate that in the serious cases, before the State is ready with its case, it may prejudice the State if the evidence becomes known in open court, particularly if reporters are present. So we provide that the case should appear before a judge sitting in Chambers; in other words, the appearance will be private. We believe that particularly in the light of those two aspects the provision we suggest is a very reasonable one. I would point out to the Minister that the right the section gives is very far-reaching. It gives the Attorney-General the right to refuse bail to any accused person and to continue that refusal until sentence has been passed or the accused has been discharged, and that can be a very long time. Whilst we accept that the Minister has made out a case for giving the Attorney-General the power to refuse bail in these serious cases, We believe that that right should contain the limits we propose.

I very seriously considered this matter which was raised by the hon. member for Musgrave and I just want to point out a few dangers to him, but in spite of it I want to make a confession to the hon. member. In 99 cases this amendment of the hon. member will not be necessary because the person must be charged within 48 hours and it is obvious that one tries to bring one’s case before the court as soon as possible. So in practice it will happen that a preparatory examination is held within 60 days in 90 per cent of cases. One’s problem is with the difficult cases, and those are the very cases we want to cover. Take the case of Rivonia. The arrests were made in July. In spite of the fact that we gave absolute priority to the matter, it was quite impossible—and we did not have a preparatory examination; it was a summary trial—to begin with the trial before November. If those people could have got bail. hon. members will agree with me, in the light of what happened, that not a single one of them would have remained here. That is the problem. But I realize now that there was substance in what the hon. member said, and although it is contrary to the advice of the people concerned with these cases, and who have the best knowledge of the matter, I do not want to create the impression that I am not concerned with the principle, and I shall be prepared to accept the amendment, but then the hon. member must extend the period. I believe, after many consultations, that the 60 days he mentions will not be sufficient for us. I should have liked to make it 120 days, but if the hon. member moves that it be 90 days I am prepared to accept it.

In the light of what the hon. the Minister has said, I will amend my amendment by making it 90 days instead of 60 days.

With leave, amendment withdrawn.

I now move—

To add the following proviso at the end of the proposed sub-section (1) inserted by paragraph (a):

I should like to express the appreciation of this side of the fact that the Minister has accepted this amendment. I rise to move the following—

To omit paragraph (b) and to substitute the following paragraph:

1. (b) with effect from the first day of June, 1965, by substitution for sub-section (5) of the following sub-section:

   “(5) Subject to the provisions of subsection (6) the provisions of this section shall lapse on the 30th June, 1966”.

Order! If the hon. the Minister moves the amendment standing in his name, I do not think the amendment moved by the hon. member for Germiston (District) (Mr. Tucker) will be in order.

I move the amendment standing in my name—

The amendment of the hon. member for Germiston (District) is consequently not applicable.

The amendment of the Minister has not yet been accepted and my amendment is one which applies to the same clause, but provides a different remedy. I therefore submit, with respect that my amendment is still in order. We do not wish the special provisions which are contained in this section to become part of our permanent law. We are very glad that through the years this provision in our Criminal Code has had two qualifications, those contained in Sections 5 and 6. That in Sec. 5 has been renewed from year to year and we believe that it is most desirable that it should be renewed once again. The effect of the Minister’s amendment will be to take this provision from our law, if it is agreed to.

Then as far as sub-section (6) is concerned, we would like to see this provision remain as one which has to be renewed by Parliament annually. I have amended the date to 1st June so that it can be effective from that date. It will be noticed, to, that it is provided by subsection (5) that the section will lapse on 30th June 1966, which lengthens the period slightly and it is more convenient, obviously if the amendment can be done during a normal session of Parliament, which almost invariably ends by 30th June. Then we would not have the position we have at present that the date up to which the section was valid has already expired. We look forward to the day when there will be no need for legislaton of this sort, and I make bold to say that the Minister and all hon. members opposite share that hope with the Opposition. It is for that reason that we much prefer that these special powers of the Attorney-General to prohibit release on bail should be of limited duration. The provision is so extraordinary that we hope that the extension will only take place with the consent of a resolution of this House and of the Other Place. I sincerely express the hope that the Minister will accept this. We believe it is in the interest of our judicial system that it should be accepted. We believe it gives the Minister the powers he requires and that it will be greatly welcomed outside this House, and also that it is in the interest of this country in the eyes of the world that special provisions of this sort should be of limited duration. I hope the Minister will be prepared to accept my amendment instead of his own amendment.

I accepted the amendment of the hon. member for Musgrave, but I regret that I cannot accept the one moved by the hon. member for Germiston (District). I said very clearly when introducing the Bill that I do not need it only for subversion but even more for robbery. In those circumstances I cannot see how there can be any objection to this provision remaining a part of our ordinary law. Secondly, it can only be argued (a) that it is unnecessary and (b) that it may lead to abuse. That has been the usual pattern of criticism in the past. Now I want to tell the Opposition this: Let us be reasonable. I accepted similar amendments in the past, but I now want to put the onus on the Opposition, as I said in the second reading. I think the time has now arrived for me to put the onus on them. The parliamentary machinery exists. If next year they think it is unnecessary or that it is being abused, they can move a motion to delete it. Consequently I feel that it must now remain on the Statute Book, and if my friends opposite feel next year that they have reason for coming to the House either because it is unnecessary or because it has been abused, they can move a substantive motion to repeal this provision. Because we have had this sort of thing so often in the past, I think it is fair that I should now adopt this standpoint.

Why do we have a provision of this nature, that these laws must be renewed every year? It only applies to laws which the House does not like. The Minister himself accepted the amendments last time, which provided that the House renew that provision every year, because even he did not like it. It is a drastic measure. It is taken because of the serious position which may obtain at the time, and if the position is not serious any more the Minister need not renew it. But only the Minister can know whether the position is serious or not. We do not have the information he has. He has his police. We cannot know, because of necessity we are often kept in the dark, for obvious reasons.

If it is not necessary, it will not be applied.

That is just the point; it remains on the Statute Book.

Just as a safeguard.

Why did the Minister agree to it two years ago when it was first imposed?

I will tell you.

*The reason is quite clear. I wanted to negative the propaganda of hon. members that it would be abused. That was the great argument, that we asked for these powers because we wanted to abuse them. That was said not only in this House but also outside. That was the reason why I did it, to prove my bona fides. I said in the second reading that the pattern of debate has always been that a tremendous fuss is made about a certain section, and when once it has been accepted we never hear anything about it again. That was the reason why I accepted it, and not because it was drastic, but because I wanted to guard myself against the reproaches of hon. members that we would abuse it. Now I want the shoe to be on the other foot and the hon. members, instead of now making accusations, must come later with substantive accusations of abuse. If it is no longer necessary, the Attorney-General will not make use of it, and then it can do no harm to leave it there in case it is necessary to use it. I am being very reasonable in my judgment on this matter and I want to go out of my way to meet the Opposition, but I think that in regard to this matter I have now gone as far as I can go.

This clause has now been amended in two respects. The Minister has moved an amendment which to some extent reduces the scope of the clause in that now the State President may not by proclamation add to the Schedule. The official Opposition has moved another amendment whereby the length of time during which a person may be kept without bail is reduced to 90 days instead of having to wait until the case actually comes before the court. To some extent that is also an improvement and therefore I will support the amendments because at least they lessen the time period and set limits to it. But even so I am afraid I must vote against this clause because it contains a principle to which I strongly object, and that is to remove the discretion from the courts and even from the Appeal Court, because persons who are refused bail by a magistrate could still appeal to the Appellate Division and obtain bail. Now the discretion of the courts is dropped altogether by virtue of this clause, and even though it has to some extent been modified, the principle is still completely abhorrent to me, and furthermore it is now translated into permanent law. The attempt made by the hon. member for Germiston (District) has failed. The Minister says he is not prepared to have a time limit. That does not make much difference, in my opinion, because if the Minister wishes to extend it next year he will simply come back, as he has done year after year with other clauses which had to be renewed, and there is very little the Opposition can do about it. But there is the principle of keeping it permanently on the Statute Book, and in that regard the Minister has shown himself to be unyielding. He is now changing the idea of the 12-day no-bail clause to one of 90 days, and originally be allowed it to be renewed each year because he wanted to prove his bona fides. I think that is a very poor excuse for changing a basic principle of the law, just because his own personal bona fides are at stake. I do not think that should remotely influence the Minister. I am not going to vote for this clause and whether the official Opposition does so does not concern me. I only know that when the no-bail clause was put into the law on a temporary basis in 1961, the Opposition opposed it tooth and nail and made some very telling speeches. The hon. member for Florida said: “We object to this clause and will vote against it. We 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, for a period of 12 days without allowing bail, is a power which is far in excess of the requirements of our law.” And the Opposition voted against it, and they voted against it again in 1962, when it was renewed, and then the hon. member for Durban (North) (Mr. Mitchell) said—

And the following year again the Official Opposition opposed the clause when it was narrower in its implication and was not a permanent part of our legislation. Therefore I have no difficulty in opposing this now, when it goes much further.

As far as the Attorney-General is concerned, I want to say at once that he is not impartial in this regard. He is on the team of the prosecution and it is on his information that this clause will be implemented. So that gives me no comfort at all. In my opinion, this is a bad clause. There is a long period between people being arrested and charged, and that has now been limited to some extent, but my other objections still remain, that it is wrong in principle, and thirdly, because of the very wide definition of the Suppression of Communism Act and the Sabotage Act, which are so wide that people can be arrested and detained without bail without any discretion to the courts to intervene, for periods of up to 90 days for as simple a matter as posting slogans or even forgetting to report, which is a great hardship to people who are under house arrest. For all these reasons, I oppose it, particularly because it is now to be a permanent part of the law, and secondly, because it is being extended from 12 days to 90 days. Therefore I will vote against this clause.

In so far as the hon. member for Houghton deals with the Suppression of Communism Act, she will notice, if she looks at the Order Paper, that there is a proposed amendment which will be moved when the Schedule comes before the Committee, in the name of the hon. member for Transkeian Territories, that only certain offences under that Act should be considered. The one the hon. member mentioned, forgetting to report, is one which will be excluded if that amendment is accepted. Let me say this: The Minister has made a case for the refusal of bail in certain circumstances. There is no gainsaying the case the Minister makes out in regard to robbery. He has given certain examples. In the case of robbery where if I may put it that way, they have a bank behind them, they have put up bail no matter how high the figure; they have gone out and committed further offences including the crime of murder.

The courts can refuse bail.

Yes, the courts can refuse bail and it is not a step that one takes lightly. The hon. the Minister has made a case in respect of cases where the courts have had the right to refuse but nevertheless granted bail. Sir, what is involved here and what we have to consider when we decide whether or not we are going to accept it in respect of some of these offences, is the question of the protection of the public, and in so far as the Minister made out a case in that regard we will support him. But, Sir, I do not think the hon. the Minister’s attitude is fair in relation to the amendment moved by the hon. member for Germiston (District) (Mr. Tucker). The hon. member has asked that the operation of this clause should be extended from year to year. The hon. the Minister has a case to-day; he did not have such a case yesterday; that is to say, he did not have this case last year.

But you may have a case next year.

This clause has been renewed on a yearly basis since 1961 until to-day. It was then on a 12-day basis, and it was not suggested that it should be put on any other basis. Last session when this clause was renewed, the Minister did not then have a case for making it a permanent feature of the law; this year he does. Let us hope that he will have got the situation under control to such an extent by next year, as far as crimes of violence are concerned, that it wall not be necessary to have this provision in our law as a permanent part of the law. That is why I think the amendment should be accepted. The hon. the Minister’s argument is not valid. But, Sir, I want to say something else to the hon. the Minister. When he was asked by the hon. member for Transkeian Territories (Mr. Hughes) why he insisted on a yearly basis before, the Minister said, “You argued that this was not necessary and that it should not be a permanent part of the law”. I hope I am not being unfair to him; I think that is what the hon. the Minister said.

You said that this power would be abused.

The Minister says that we said it would be abused and therefore he consented to put it on a yearly basis. Of course, it was the hon. the Minister’s predecessor who introduced that Bill. [Interjection.] I have here the original Bill, AB58, in which this provision first appeared in 1961, as read a first time, in other words, as presented by the then Minister of Justice, who was not this hon. Minister but the Minister’s predecessor, Mr. Erasmus. The Bill as introduced originally contained sub-sections (5) and (6), which are the subject of discussion under the amendment moved by the hon. member for Germiston (District). Sub-section (5) read—

Sub-section (6) read—

The argument that the hon. the Minister puts up in that regard does not hold any water because it was not an amendment moved by this side of the House.

You adopted exactly the same attitude with regard to the banning of the P.A.C. and the A.N.C.

I am not talking about the banning of the A.N.C. or the P.A.C. I am dealing with the amendment of the hon. member for Germiston (District) which seeks to put back in the Bill what the Minister of Justice moved in the first place when he first introduced this provision when it related only to 12 days’ detention. Sir, that is the point. This was moved by the Government; it was the intention of the Minister’s predecessor and there is no reason whatsoever why it should not be placed on such a basis. We appreciate that this is a change in the law but we appreciate that at the moment it is necessary in some respects. That is the hon. the Minister’s case, but surely the hon. the Minister’s case is not that he is never going to have such control over the situation that he might not want to repeal this perhaps one day. Let us examine this provision from year to year and see whether it is still necessary to have it. The hon. the Minister is doing it in respect of the next Bill on the Order Paper; he is retaining it in respect of that Bill, in the Sobukwe clause, and I suggest that the reasons for doing that are the same reasons which apply to the amendment of the hon. member of Germiston (District). Sir, the hon. the Minister knows that he will _ have his majority here; he will have his majority next year; he may not have it the year after that in which case the onus will rest on us to decide whether or not we should renew it. Let us put it on a yearly basis.

In the case he has just tried to state, the hon. member has conceded that it is necessary, for example, in the case of robbery. All of us hope and trust that cases of robbery will decrease, but there is nobody who believes that robbery will never again be committed in this country. Robberies will always be committed, whatever measures one adopts. We believe that by introducing this measure we will reduce the number of robberies. In any case, even though we do not succeed in doing so, we would prevent these people from committing further robberies. But supposing we succeed in reducing the number of robberies, as we believe we shall, and that we reduce the number from, say, 100 to 50 and perhaps later to 30, should we then repeal it and then wait until the number reaches 100 again and then introduce this measure again? Surely that would be foolish. Therefore I say that this measure, as far as I am concerned, and in regard to serious crimes, the crimes mentioned in the Schedule, should remain on the Statute Book permanently.

The Opposition agrees that it is a sound method of reducing the number of crimes. Surely it would be foolish to abandon the method which enabled us to reduce the number of serious crimes and to say that now we are no longer going to have it. If there are people who object to this measure in principle, let them then come to the House and ask for the repeal of this measure, but why should I waste the time of the House by bringing this measure before the House every year? The hon. member for Durban (North) correctly said that this provision was in the original Bill, but the hon. member should see it against the background. My predecessor inserted it particularly so as not to waste the time of the House, because the House would have had to listen to the arguments of hon. members year after year, the same arguments that were used in regard to the banning of the A.N.C. and the P.A.C., viz. that this provision should be valid also only for a year. That was the favourite escape hatch of hon. members opposite, to say that the provision should be valid for a year only. My predecessor anticipated that argument by inserting that provision in the Bill, otherwise it would not have been there. I honestly think that we should leave the matter there.

I do not agree with the argument which has just been advanced by the hon. the Minister. I believe that when an extraordinary power of this sort is vested in the authorities it is wise that it should be subject] to annual review; I think it serves a very healthy purpose indeed.

It can be removed by means of a private member’s Bill.

The hon. the Minister knows that if the Opposition were to introduce a private member’s Bill to remove this provision, it would not be given priority. He knows that private members’ Bills of that sort seldom go beyond the stage of the publication of the Bill at the commencement of the Session, so that is not a parallel. My submission to the Minister is that it is a good thing to leave these two sub-clauses in the Bill; that is our aim; we believe that it is sound that there should be an annual review of the position by this Chamber. It is not a matter which takes a long time. I think most of us are pleased to see that these powers are being used less and less, and we hope that they will be used even less in the 12 months during which we propose that these powers should remain in force. In those circumstances we stand by the point we have made. We would like to see these provisions forming part of the Bill. I am sorry to see that the Minister wants to go so far to-day as to remove them. I suggest to the Minister that he should reverse his decision and that he should agree to the insertion of these measures this year. Next year perhaps the matter can be introduced at a very much earlier stage of the session when there can be a thorough examination of the whole matter. At this stage I do not like the idea of making this a permanent feature of legislation, as the Minister proposes in his amendment, and I hope he will not press it.

I want to make an appeal that this provision should be a permanent part of our law and I shall try to indicate why I say this. If non. members look at the old clause to which hon. members have referred they will see that the old clause only makes provision for “an offence”. There is no definition of the serious offences to which this particular clause will apply. In other words, the door in this regard is being left open for the Attorney-General to issue such an order in respect of any offence whatsoever. Sir, we are aware of the circumstances which prevail to-day. Hon. members opposite, particularly the hon. member for Houghton (Mrs. Suzman), would like to stand by the arrangement that the court and the court only must determine whether bail should be allowed or not. The arrangement which holds good now is that when an application for bail is made, the person concerned can go to the court and ask for bail. When that application for bail is considered, the question of whether the accused is guilty or not is not relevant. There are other factors which are considered. When bail is applied for the Attorney-General can oppose the application through his representative.

In many cases where this is opposed by the Attorney-General or his representative, the application is refused, while in other cases it is granted. I feel that it is important for us to have uniformity in the case of all serious offences. The hon. member for Transkeian Territories (Mr. Hughes) and other hon. members who are in practice will agree that as the position is now one finds that a certain yardstick is used by one magistrate and another yardstick by another magistrate. All the circumstances are considered. The court listens to all the sound arguments in favour of bail being granted; the court listens to all the pious arguments advanced to it that the person applying for bail is such a sound person and that he will not try to abscond, and in many cases bail is granted when in fact it should never be granted. I feel, therefore, that we should have some or other uniform system in regard to the granting of bail, particularly in cases of serious offences. Hon. members opposite will agree with me that it is a good thing to have uniformity; to have the same treatment meted out by the courts under the same circumstances, irrespective of where the application is heard. If hon. members agree that it is desirable to have uniformity, then I want to ask them whether they can suggest anything better than is being proposed here, namely, that the Attorney-General, who is in the best position to judge, should be able to bring about some measure of uniformity, at least in the area under his jurisdiction, in regard to the circumstances under which bail may be granted.

I feel, therefore, that for the purposes of uniformity it is desirable for us to place a measure of this nature on our Statute Book permanently and not for a year or two. There is, of course, also this other consideration that an order of this nature will not be issued by the Attorney-General in respect of any offence, as was provided in the Act previously. Previously the Act provided that such an order could be issued where “offences” had been committed. This applied to any offence. It was left to the Attorney-General to provide in the case of any offence that bail could not be granted in any particular case. In this case there is a large measure of protection because such an order can only be issued in the case of offences which are now being defined in Part liéis of the Schedule. Everyone will agree with me that the offences defined in Part liéis of the Schedule are serious offences. I want to draw the attention of the Committee to the fact that this does not mean that the Attorney General has to issue such an order; he “may” issue such an order. In other words, if circumstances warrant it, the Attorney-General need not issue such an order. I think that the Attorney-General is in fact in the best position to judge, having regard to all the circumstances, whether such an order should or should not be issued. If it is desirable for us to have uniformity we cannot leave the matter in better hands than in the hands of the Attorney-General.

I think the hon. member who has just sat down has certainly made a very valiant effort to defend the hon. the Minister’s point of view but I am afraid he has erred. He maintains that as far as this amendment is concerned, the field has been narrowed as far as offences are concerned, but we must take into account the circumstances under which this provision was originally placed on the Statute Book.

Order! That point has been made.

Sir, I am just leading up to another point I want to make.

Hon. members have been attacking the principle and others have defended it; hon. members must now advance new arguments and confine themselves to the particulars.

Although this Bill limits the scope of offences to those set out in Part II of the Schedule, this provision is being maintained in order to meet certain special circumstances which existed according to the hon. the Minister.

Order! That point has also been made already. The hon. member must advance new arguments.

We believe that the hon. the Minister should allow himself to be persuaded to agree to an annual revision of this provision. The other factor to which I want to draw the attention of the Minister is that what he is virtually doing is to take away the discretion of the Supreme Court in considering applications for bail.

Order! That argument has also been advanced.

When we asked the hon. the Minister to bring a matter like this back to Parliament every year for review, our purpose is to leave the legal code of the country as little changed as possible, because our present Criminal Code is based on principles which have been laid down by our courts throughout the years. There are certain standards of justice in the Western world, to which we believe we must continue to subscribe, and we maintain that the hon. the Minister should accept this point of view. Sir, I am afraid that if you are of the opinion that every argument that can be advanced has already been used …

Order! I have allowed a wide discussion. I have allowed hon. members a good deal of latitude in attacking and defending the principles of the Bill. But they must now confine themselves to the particulars of this clause and advance new arguments.

Sir, one of the points made by the hon. member who has just sat down is that the Attorney-General has a discretion as to whether he should oppose the granting of bail or not. We maintain that giving discretion to an official in a matter of this kind is quite a different matter from placing that discretion in the hands of the Court itself. I do not know, Sir, whether you think that point has been made before but it is a very relevant point in this whole argument. There is no gainsaying the fact that circumstances may warrant extraordinary steps but, as I have said, discretionary powers of this kind should be in the hands of the courts and not in the hands of officials. We contend that it is a far-reaching step to make a provision such as this a permanent feature of our law.

Sir, I do not want to cast a silent vote on this clause. The clause is either good as it stands or it is bad.

That has been said already.

Order! I want the hon. member to state his objections very briefly.

Sir, in terms of the ruling I will deal only with the amendments moved by the hon. the Minister. Sir, I think you will allow me to say that I have no sympathy for people who commit serious offences. The law as it stands to-day is that the Attorney-General may, if he considers it necessary in the interests of public safety, issue an order that a person shall not be released on bail before the expiration of 12 days after the date of his arrest. This Clause now provides that where a person has been arrested on a charge of having committed an offence referred to in Part IIbis of the Second Schedule the Attorney-General may issue an order that bail shall not be granted before sentence has been passed or before the person has been discharged. Sir, it is trite law or custom in this country that an accused person must be brought to trial as soon as it is reasonably possible.

He must be brought to trial within 48 hours.

He must be charged within 48 hours. The law does not provide that he must be brought to trial within 48 hours after his arrest.

It stands to reason that you cannot proceed with a trial until such time as the evidence has been collected.

Sir, the hon. the Minister said some time ago that I had been out of practice too long to remember what our law is, but I have not forgotten my law and I have not forgotten the principles of our law. The principle of our law is that a man must be brought to trial as soon as reasonably possible after his arrest. I do not therefore accept the 90-day amendment of the amendment of the hon. member for Durban (Musgrave) (Mr. Hourquebie). I think the Minister must have sufficient confidence in the Attorney-General to believe that he will be in a position to make up his mind within a period of 12 days after the person’s arrest. The Attorney-General has the power to-day to issue an order that bail shall not be granted before the expiration of 12 days after the date of arrest. Why must a man sit in gaol for 90 days before he is brought to trial . . .

Order!

Sir, I am talking to the amendment.

No, the hon. member is not talking to the amendment at all. The matter under discussion is a question of bail, not the question of being brought to trial.

Sir, the hon. member for Musgrave seeks to insert the following proviso: “Provided that if no evidence has been led against such person, at a preparatory examination or trial, within a period of 60 days after his arrest ...” I believe the hon. the Minister has said that he will accept it if it is altered to read “90 days.” Am I right in saying that? I submit that that is too long a period. It is a negation of the right of the man to be brought to trial as soon as it is reasonably possible after his arrest.

Order! It is not a question of bringing the man to trial; the question under discussion is the matter of refusing bail.

Sir, I do not want to evade your ruling but I should like to have your guidance, Sir. The proposed proviso reads: “Provided that if no evidence has been led against such person at a preparatory examination or trial within a period of 60 days after his arrest . . .”

Then he can apply for bail.

That is right. My submission is that he should be able to apply for bail as soon as possible after he has been charged on good cause shown. There is no reason why he should have to wait for 6ff days before he is brought to trial. For those reasons I will vote against the Clause.

Order! The hon. member is now attacking the principle of the Bill.

Amendment proposed by Mr. Hourquebie put and agreed to.

Amendment proposed by the Minister of Justice put and agreed to (Official Opposition dissenting).

I am afraid the amendment of the hon. member for Germiston (District) (Mr. Tucker) cannot be put as it is in conflict with the decision which the Committee has just adopted.

Amendment proposed by Mr. Tucker dropped.

Clause, as amended, put and agreed to (Mr. Barnett and Mrs. Suzman dissenting).

On Clause 7,

Sir, this is without doubt the most objectionable clause in the whole Bill. This is the clause which provides for the detention of state witnesses and for the detention of potential state witnesses as well. In the first place in terms of sub-clause (1) an opinion must be expressed by the Attorney-General that certain circumstances exist which justify him in issuing a warrant for the detention of a witness. This sub-clause applies not only to people who are witnesses, as the section is presently worded, but it also applies to persons who are likely, in the opinion of the Attorney-General, to give material evidence for the State. In other words, as this sub-clause is presently worded you do not have to know that the person has material evidence in respect of the offence; it is a person who in the opinion of the Attorney-General is likely to be able to give evidence. As I understood the hon. the Minister when he introduced this Bill the intention of this clause is to deal with certain witnesses who may abscond or who are intimidated and so on. The hon. the Minister left me with the impression that so far as he was concerned this should not be administered by those who will be responsible for it, in the many cases that will arise, for the purpose of interrogation. In other words, this should not be part of the process of investigation. This should deal only with bona fide genuine witnesses whose protection the Minister seeks to ensure and whose disappearance he seeks to avoid. I therefore move the amendment which stands in my name—

To add the following proviso at the end of sub-section (1) of the proposed section 215bis:

If the hon. Minister will accept this amendment it will remove much of the danger to which this clause is subject; it will remove almost altogether any suggestion that these persons, against whom a warrant is going to be issued, are going to be arrested because someone thinks they may have evidence and detained on the basis of being kept for six months until and unless they answer questions. It is as simple as that. The hon. Minister can then make regulations relating to their detention. No court will be able to inquire into those regulations. They will not be allowed to see anyone except with the permission of certain officials, except that they will be allowed to see a magistrate once a week. In those circumstances I think the amendment I have moved is a wise amendment. I think it is an amendment the hon. the Minister will accept because, as at present advised and because of what the Minister said during the second reading, he does not propose to mean this as a means of interrogation. In other words, Sir, if he accepts my amendment he will dispel all the speculation that this is the 90-day clause doubled and in disguise.

I just rise to move the amendment standing in my name—

In line 11, after “proceedings” to insert “in respect of an offence referred to in Part II6/s of the Second Schedule”.

I do not wish to reply to the argument of the hon. member for Durban (North) (Mr. M. L. Mitchell) at this stage yet. I shall wait a little to hear further arguments.

I move—

To add the following provisos at the end of sub-section (2) of the proposed Section 2156/5-:

1. (a) as from the date of any resolution of either the Senate or the House of Assembly disapproving thereof, to the extent of such disapproval; or
2. (b) as from the date on which Parliament is prorogued after any session during which such regulations have been laid upon the Table of the Senate and of the House of Assembly for at least 28 days,

whichever is the earlier date.

In terms of this clause witnesses can be detained presumably in gaol. I gathered from an interjection made by the hon. Minister that that was the position. The Minister will then promulgate regulations dealing with the conditions under which they will be so detained. My amendment is to the effect that these regulations must be tabled so that we can have an opportunity of studying and discussing them.

All regulations are tabled.

No, they are not.

I want them discussed in terms of a provision similar to that contained in the Public Safety Act. I want those regulations approved fay this House. If they are disapproved they will fall away and if the Minister does not arrange for them to be discussed in the House and the House does not approve of them they will also fall away. I am inserting this amendment so that we will have an opportunity of discussing these regulations if necessary. I do not know how the Minister can have any objection to this provision. After all, Sir, these are witnesses; they are not accused persons awaiting trial. The Minister himself admitted during the second reading that it was a drastic measure to apply to witnesses. I do not think anybody can deny that. It is a drastic measure to toe able to detain a witness until the trial takes place or for six months. We are trying to protect the interests of these witnesses so that Parliament can toe assured that the treatment meted out to them is satisfactory. For instance, I would like the assurance now that the conditions under which they will be held will not be less favourable than those under which a prisoner awaiting trial is held. We know that awaiting trial prisoners have certain privileges not enjoyed by convicted persons. The terms of this clause before us are very severe. The witness can for instance be held incommunicado; he can be treated as a 90-day detainee where the police will try to get evidence from him. In this case they already have a statement. They are only holding the witness. If the Minister reads this clause again he will see that severe treatment can be meted out to such a witness. He can toe held without seeing his legal adviser, his relatives or anybody. The Minister gave us the assurance on Friday that he would be allowed to see his family.

Each case must be treated on its merits. You cannot lay down a hard and fast rule.

The Minister is going to publish regulations; are not those regulations going to apply to them all?

The regulations will contain this discretion.

A discretion; not a right.

We want to see what those regulations are; Parliament wants an opportunity of approving or disapproving of them. If that provision could apply in the case of the Public Safety Act I cannot see why the Minister should refuse it in this instance. I shall be glad to hear what his objection is to giving us an opportunity of discussing these measures.

I want to move the amendment standing in my name—

Sub-section (4) will then read—

It is self-evident that a man who is detained under such circumstances, as a witness or as a person considered likely to be a witness, is in a difficult position, perhaps through no fault of his own. He will have certain problems and so will the members of his family—perhaps they will have even greater problems. There is the possibility, for example, that his family may be left destitute during such time as he is being detained. There is the possibility that his health, to begin with, may not be good; there is also the possibility that his health may deteriorate while he is being detained. I do not think it can in any way create any difficulty for the State if such a person is permitted the normal right of having his legal representative, his medical adviser and members of his family in the position of having access to him. I don’t need to develop the point. As I have said, it is obvious that it is in the interests of the person concerned. It does not seem possible to argue that it is not in the interests of the State to permit of such access by the legal representative, the medical adviser and members of the family. I hope, therefore, that the hon. the Minister will accept this, and now I would like to hear him say so.

I wish to move a slightly revised amendment to the one standing in my name—

To omit sub-section (7) of the proposed Section 215bis and to substitute the following sub-sections:

1. (7) A witness arrested and detained under sub-sections (1) and (2) may on notice to the Attorney-General apply to a Judge of the Supreme Court for the rescission of the order of arrest and detention, and the said Judge, sitting in Chambers, may, after hearing oral evidence, if any, and after considering the representations of the Attorney-General and of the witness or his legal representative, make such order as he in the circumstances deems just.
2. (8) A witness arrested and detained under sub-sections (1) and (2) shall when released from such detention, be absolutely freed and discharged from all liability to prosecution for the offence which gave rise to criminal proceedings in respect of which he was arrested and detained.

I have inserted the words “sitting in Chambers” so that it now reads “may apply to a Judge of the Supreme Court for the rescission of the order of arrest and detention and that the said Judge sitting in Chambers may, after hearing oral evidence . . .” It will be seen that by that small addition it is brought more into line with the amendment reflected under the name of the hon. member for Musgrave (Mr. Hourquebie) in Clause 6. The effect will also be to enable the application to be heard in private by the Judge in Chambers as distinct from in full open court.

The approach that this amendment makes is that these people are witnesses. The hon. the Minister has stressed that; the Bill stresses that. It will be seen that these people are entitled to witness fees and I think it is a fair interpretation of this clause to say that they cannot be interrogated under it. Any evidence which they may give will be given in terms of Section 83 as to be inserted by Clause 4. The amendment therefore proceeds upon that basis.

The hon. Minister indicated that there was the type of person who wished to obtain protection. That person can be taken into protection and is clearly not affected by this amendment because, since he wishes to be protected in this way, he will not wish to make application of this kind. This would have particuar application to the witness who might not wish to be protected; the witness who might feel that there is no need for it, that he is not afraid, and that he was prepared to continue at large. I stress that I am making the approach which the Minister has made and which the Bill makes, namely, that these are witnesses. This amendment will give to such a person who is prepared to face the outside world the right to approach the court and to have the matter decided. It is for that reason that I have moved the amendments.

I think this clause, like the previous one, contains thoroughly objectionable principles. It now enables the hon. the Minister to go even further than he was able to do under previous legislation, and detain witnesses. Last year he took unto himself the power to keep a witness for a certain period of time, up to a year, if he refused to give evidence but, at least, in that case there was some appeal to the higher courts. Now there is no such appeal and the hon. the Minister may now detain people up to a period of six months or until the criminal proceedings in respect of which evidence is required, are concluded—whichever is the lesser period. As far as I read this clause he can re-detain these people if the criminal proceedings are not concluded within six months. So there is nothing to stop the hon. Minister from letting a person go, as he will have to do, after six months but if the criminal proceedings in respect of which the man is required to give evidence are not concluded, he can re-arrest him immediately afterwards and continue to keep him for another period of six months.

Business suspended at 12.45 p.m. and resumed at 2.20 p.m.

Afternoon Sitting

When business was suspended I was saying that Clause 7 involved the extension of a very objectionable principle and that I was certainly going to oppose it. I do not think, however ameliorating the amendments moved by hon. members on this side of the House may be, that they in any way alter the principle to which I object.

I must say that the Johannesburg Bar certainly seems to agree with the sentiments I have expressed in so far as they have stated that this Bill will empower the executive, through the Attorneys-General, to exercise all their authority and perform all their functions subject to the control, of course, and jurisdiction of the Minister of Justice, to suspend habeas corpus in respect of prospective State witnesses in criminal proceedings in which the accused is charged with certain crimes. The Johannesburg Bar go on to say that in this respect the law even goes further than the 90-day law which applied only in respect of certain political offences. I see that the hon. the Minister is going to amend this clause in a later amendment he proposes to Clause 16 but nevertheless it is extremely wide in all its implications.

The hon. Minister said by way of interjection that all regulations were Tabled. I presume he meant that wherever an Act made it necessary for him to frame regulations those regulations were Tabled.

Yes.

That was the reason why we never saw the regulations pertaining to the 90 day detainees.

You never looked.

No, under that law, as the hon. member should know, no obligation was laid on the hon. Minister to frame regulations. That was why they were not Tabled. The point is that here we are going to see the regulations. The hon. Minister has already retracted to some extent an undertaking he gave during the second reading because he now says that the regulations are going to apply to each case on merit and that certain allowances, such as the right of the detained witness to have his family visiting him, will be a discretionary right, a discretionary right, I again presume, on merit in each case. But it is not a right implicit in the regulations. When I asked the hon. Minister during the second reading whether the families would be allowed to visit them he said “yes”. When I asked him whether they would be able to do so regularly he said “yes” unequivocally. Now I see that each case will be considered on merit and that it is only a discretionary right, presumably, which will be conferred upon a detained witness by the official who will be charged with administering this particular law. So it is not going to be a right embodied in the regulations for detainees to have their own families visiting them.

I might say that however comfortable the hon. the Minister makes these detainees, the principle of this clause remains highly objectionable. He is detaining witnesses, not even detaining persons awaiting trial. To suggest that if they are at least put on the same basis as people awaiting trial, it will be acceptable, still does not make it acceptable to me. These are not people on trial; these are not accuseed people; these are witnesses and the hon. Minister is going to detain them for at least six months, or less if the court case happens to be concluded before then, but it can be more if the court case is not concluded by then. If he makes their conditions as comfortable as possible, if he gives them hot and cold running water, with all modern conveniences, overlooking river and sea, as far as I am concerned these people are still incarcerated, they are still held in gaol for no good reason that I can see and nothing will make this clause less objectionable to me.

I want to stress the unreliability of the evidence which is going to be forthcoming from witnesses detained in this way . . .

That is a matter for the court to decide.

That may well be but even in court it is often very difficult because witnesses are still under duress. They know perfectly well that they can be rearrested under the wide laws which are now on the Statute Book; they can be charged with all sorts of things such as advancing the aims of Communism, etc. All sorts of evidence will come out during the period of detention which can be used against the witnesses themselves; it can be used as a threat against them. I can see affidavits forthcoming about the threats that are brought to bear on people who are locked up, as they were locked up under the 90-day clause and as they will be locked up under this clause. This certainly leads me to believe that people will be inclined to say anything in order to get themselves out of this position of being detained incommunicado at the Minister’s pleasure. Therefore I shall most strongly vote against this clause.

I rise merely to appeal to the hon. the Minister to deal with the points which have been put to him. I think the case has been fairly fully stated and it might facilitate the debate if the Minister were to reply at this stage.

I do not wish to deal with this clause on a political basis at all. I want to ask the hon. the Minister when he will use Section 83 as inserted into the Act by Clause 4 of this Bill. While I appreciate the fact that there are certain people who will give material evidence in connection with certain cases, Section 83 will enable that person to be brought before a magistrate immediately even if it is unknown who has committed the offence. Why must he be detained for six months if the Minister now has the power to bring him before a magistrate at any time under Section 83? As I say, I do not want to use political arguments at all; I am not worried about that aspect. I am only trying to deal with the legal aspect of the matter. I think I am entitled to an explanation from the Minister in respect of the two powers we have just passed.

In reply to the hon. member for Boland (Mr. Barnett), I may just say that the two clauses have nothing whatever to do with each other. The clause to which the hon. member refers is the one which makes provision for obtaining information. That has been in our law for a long time already, and we have only amended it in certain respects. This clause is to ensure that the witness is there on the day he has to give evidence. Does the hon. member understand that?

Yes.

Then we understand each other and it is not necessary for me to give any further explanation.

I of course expected the hon. member for Houghton (Mrs. Suzman) to vote against the Bill. In fact, the mere fact that she votes against it strengthens my feeling that this clause is correct. In regard to the witnesses, I want to tell the hon. member very clearly that she, when I replied to her by way of interjection, was referring to the case to which I referred, viz. the person who asks for protection and who is retained under those circumstances. It is obvious that such a person who asks for protection will at all times be allowed to see his people, because in such a case the danger does not exist that they can threaten or bribe him. The hon. member should understand very clearly that I shall not allow people to see a witness, which will negative the whole object of the clause. Then we need not have this clause at all. If I am to make regulations which generally make it obligatory that any person should at any time receive visitors . . .

I spoke about relatives.

But I am telling the hon. member that in so far as the relatives of such people are concerned, there will be only one test, viz. whether they are going to intimidate or influence them, and if those two factors do not exist it is obvious that they will always have access to them. But surely hon. members understand that we are dealing here with various types of witnesses. For the sake of clarity I want to mention it again. In the first place, we are dealing with the witness who asks for protection. There are such witnesses, and hon. members know it as well as I do. It is obvious that they are in a separate category, and in respect of them quite different circumstances will apply. Then there is the type of witness who will run away. It is obvious that one must treat such a witness in a different way. But then there is the type of witness who is an accomplice, and obviously he will have to be treated in another manner in so far as access to him is concerned.

Therefore, to start with the amendments, it is obvious that I cannot accept the amendment of the hon. member for Hospital in regard to the right of the witness to see his legal representatives. Then I might just as well not have this clause, because what type of legal representative will be briefed? The hon. member can answer that question for himself. In regard to medical services, I want to point out that for a long time the 90 days’ provision applied, and not a single example was ever mentioned in this House of anyone who needed medical services and did not obtain them. These people received the best medical services and where it was necessary for an outsider to come, he came. Just imagine me detaining a witness and treating him badly! He is detained with a view to his giving evidence. Will I now allow him to die in the meantime, before he has given his evidence? Surely it is obvious that I will give him the best medical treatment if he is ill, because I want him to give evidence. I am not detaining him for no reason at all; I am keeping him in prison so that he can give evidence.

And after he has given his evidence?

Then he is discharged. He is then a free man. Or does the hon. member think that he will be detained for ever after he has given evidence? That is too silly for words.

Now we come to the other amendments moved in this regard. Normally, there would have been substance in the amendment of the hon. member for Durban (North). It looks nice on paper, but what is the position? Surely we must learn from the experience we have gained in this regard. Let us take the African Resistance Movement. Here we had a group of people who conspired. These people are not quite stupid either. They surely realize that if they are a group who conspired and one of the group is arrested, the police are aware of the activities of this group. And what has happened in practice? The moment one was arrested, a whole lot ran away, people of whom the police were not even aware at that moment. Surely that will happen again. I can give examples. Take the students of Rhodes University who fled to Swaziland. Take the Natal students who fled to Swaziland. They were not people who could be charged, but they were people who could give evidence. But the moment certain accused persons were arrested, the witnesses fled.

Because they had guilty consciences.

Quite right, and that will happen again. It is obvious that in normal circumstances and in the majority of cases one will first arrest the accused and after that one tries to find witnesses. But it does not work so easily in practice, and therefore I cannot accept the amendment, because it will tie my hands in that respect. Cases will occur, and have occurred, where I will probably have to arrest the accused and the witness simultaneously because I know my witness is going to flee. Having had this experience in practice, it would surely be foolish of me to take no steps. It is particularly because I have had this experience that I am introducing this measure. But what is more, I told the hon. member that I am more particularly concerned about the activities of the trained saboteurs who are coming here. I must find my witnesses from amongst them. I mentioned this during the second reading. That being so, the hon. member will surely understand that I cannot accept his amendment because the moment I arrest the person the witnesses will flee, and if I have no means of preventing the witnesses from running away the position will be, as the hon. member for Standerton said, that I close the stable door after the horse has bolted. If we have to have this section, let us make it as effective as possible. Why should we now curtail its effectiveness in every possible manner? I can understand hon. members moving amendments which will not curtail the activities, but the moment it decreases the effectiveness I cannot consider such an amendment. In regard to the hon. member for Transkeian Territories (Mr. Hughes), the Interpretation Act provides that regulations must be tabled here, but why should we debate it now? The procedure of this House makes it possibe for the hon. member to discuss it.

What about the Public Safety Act?

The circumstances there were quite different, because one could then arrest wholesale and an emergency existed. But what is more, we have now gained experience in this regard. I have detained more than 1,000 people. An attempt was in fact made by the Progressive Party to say that we ill-treated these people, but the hon. member is a Whip of the United Party and he knows that no accusation has been made, even to this day, by his party that I did not treat these people well and that the regulations which were in operation (the prison regulations adapted to the discretion allowed by the law) were not applied reasonably. If hon. members want to say that I did not treat these people well, that I ill-treated them or that the regulations did them an injustice, then they should have told me so. I repeat what I said during the second reading, that I waited right throughout the Session, but hon. members never said anything about ill-treatment. Then surely I must accept that the Official Opposition was satisfied with the position. Surely I cannot now accuse them and say that they were dissatisfied, in view of the fact that they have said nothing? I must accept their silence during the debate on my Vote and right throughout the Session as an admission on their part that things went well. And I accept their good faith and their bona fides. Therefore they should be glad that I accept it.

I come to the amendment of the hon. member for Pinelands (Mr. Thompson). The same arguments apply there. I need not waste the time of the Committee.

I have considered all these amendments thoroughy and hon. members know that it has always been my standpoint that if I can accept an amendment without watering down or destroying the essence of my Bill, I do so, and also when an amendment is moved which is an improvement, as was still the case this morning when I accepted the amendment of the hon. member for Musgrave. I do not hesitate to accept amendments, but I am not prepared to accept amendments which endanger the whole object. I particularly want to remedy matters in regard to which we have gained experience by means of this clause. I am not prepared to emasculate these provisions and therefore I regret that I cannot accept the amendments of hon. members.

I move the amendment—

To add the following sub-section at the end of the clause:

1. (9)

   1. (a) Subject to the provisions of paragraphs (b) and (c), sub-sections (1) to (7) shall be in operation until 30 June 1966, and for such periods thereafter, not exceeding 12 months at a time, as the State President may from time to time by proclamation in the Gazette determine.
   2. (b) Any proclamation under paragraph (a) may be issued at any time whether or not the said sub-sections have then ceased to be in operation.
   3. (c) The State President may at any time by like proclamation suspend the operation of the said sub-sections or withdraw any proclamation issued under paragraph (a) or (b).

I am quite well aware that under paragraph (6) the hon. Minister took up a political stand in regard to a simiar kind of amendment, for political reasons. I would remind the hon. Minister that when he is not a politician, he is the custodian of the system of jurisprudence of South Africa, and it is in that capacity that I am addressing him, through the Chair. There is no doubt about it that this new clause is a drastic provision. The hon. Minister has in effect admitted it. He argued that he required it for purposes of expediency under existing circumstances. Sir, I can only deduce from language of that kind that the hon. Minister himself does not want to see this as a permanent part of the criminal code of South Africa. The purpose of my amendment is to ensure that it shall not become a permanent part of the law, that it shall remain only for a fixed period and be subject to extended periods after that. Now I don’t think it is helpful to argue that if the Opposition does not want a clause of this sort, it can at a subsequent stage move its deletion. Sir, the administration is in the hands of the Government and it is in the hands of this Minister to deal with the matter in this House not purely as a dispute between the two sides of the House, but to deal with it because of its essence in the administration of justice in South Africa, and if the need arises there is a duty on the hon. the Minister to come back to this House and to say so. In those circumstances it is also the duty of the Opposition to inquire, to criticize, to expose, if necessary to oppose, provisions of this kind. That is how a democratic Parliament should work, and I say that the amendment that I am moving now will give the Minister and this Parliament an opportunity to debate matters on that level when the need arises.

May I ask the hon. member a question? I merely want to ask the hon. member whether he was present this morning when the hon. the Minister replied to the amendment proposed by the hon. member for Germiston (District) on a previous clause?

The hon. member should know that I have also dealt with this already. We are dealing here with a different clause, the circumstances are new, and this is an entirely new addition to our judicial procedure. I say, and I think I can say without any hestiation, that there are few lawyers who would want a provision of this kind to be a permanent feature of the law. We on this side of the House have tried to ameliorate the harshness of the provision to a degree, but the hon. Minister has now made it quite clear to us that he is not disposed to bring in any amelioration of this kind. But I do hope that this is another of the instances which will fall under the hon. Minister’s pronouncement that he is never reluctant to accept amendments if he can, and I hope therefore that this will be one of the instances where he can. It leaves the position entirely as he wants it and it leaves it in the hands of the Government.

The hon. member for Port Elizabeth (South) (Mr. Plewman) really in essence moved the same amendment as the hon. member for Germiston (District) (Mr. Tucker) moved earlier to-day. He really wants this measure to be valid only for 12 months and then the Minister must again come and prove that he needs it. That is the essence. He may disguise it in any other form, but that is the essence of the amendment. I am sure that the offer the Minister made earlier in respect of the hon. member for Germiston (District) still holds good for the hon. member for Port Elizabeth (South), because the facts are these: The Minister needs this clause not only for sabotage but also for robbery. Therefore he does not want to renew it every year. But if the hon. member has evidence that this clause is unnecessary, surely he can prove it. There is sufficient provision in the Standing Rules of Parliament to enable him to discuss this matter, because this is all he wants. This is all he advanced, viz. that the matter should again be discussed here, and that he can do. He can do it in the Budget debate; he can do it in the no-confidence debate; he can do it under the Vote of the Minister; he can move a substantive motion and he can do it when the regulations are tabled. There are plenty of opportunities for it. And if it is very urgent, they can also make use of the half-hour provision, if there is an incident by reference to which the matter should be discussed. I think the amendments of the hon. member for Port Elizabeth (South) have no substance.

But let us now look at the amendment of the hon. member for Pinelands (Mr. Thompson). The Minister clearly intimated, and we who read the newspapers know it, that the courts were very liberal in granting bail to accused persons concerned in one of these cases. It is not the fault of the courts because they did not have the evidence. Therefore what the hon. member is really proposing now is that we should again maintain the status quo in respect of bail for a witness, which we found did not work well when we were dealing with an accused person. And then the Minister’s problem is still really to have evidence to deal with a crime. As I said the day before yesterday, it is a great miscarriage of injustice if somebody who is innocent is found guilty as it is that a crime should go unpunished. In this particular case we detain witnesses who can give evidence. Some of them want to be detained; others do not want to be detained, but they must be detained because they will either run away or something else will happen to them.

The Minister gave us statistics. In the light of those statistics I just cannot understand that any responsible person in South Africa, much less one on the Opposition benches, can object to these measures introduced by the Minister. Let us repeat the statistics. There are six cases where witnesses were murdered before the case was heard. Six murders were committed. Do hon. members of the Opposition think that is right? Do they think it is right that crimes should go unpunished because of murder? There were 12 witnesses who fled before they could give evidence, so that justice could not triumph. Then there are witnesses who were influenced by intimidation. They promised earlier that they would give evidence, but later said that they no longer wanted to give evidence. They were more afraid of the result of giving evidence than of the vengeance which would be wreaked afterwards—no fewer than 43 of them. If those 43 had been detained, this pressure could not have been exerted on them. Do hon. members think that this is a position which can be allowed to continue? It seems to me that the Opposition tries to pose as the protector of persons who break the law and then tries to evade the result of its deeds.

That is a scandalous allegation.

I should like to know whether those hon. members are serious when they try to create that impression. Is that what they want to do, or not?

May I put a question? Does the hon. member object to attorneys, doctors and relatives visiting such people?

I do not even want to deal with the nonsensical amendment of the hon. member for Hospital because the Minister has replied to it fully. He made it quite clear that when it is somebody who will not be subjected to pressure—his legal adviser, his family or his medical adviser—then they can visit him freely, but when he will be subjected to pressure it is inadvisable to allow it.

Let me pay the hon. member the compliment of replying to his amendment. The Minister clearly stated that if the family exerts pressure they cannot visit him. What legal advisers will there be? The Minister told the hon. member for Hospital that he could guess who they would be. Then the Minister will, of course, say no, they cannot come. But take the doctors. There is no better medical service in any hospital than that which is available in prison. The hon. member may not agree with this, but if he consults the medical men about it he will see that prisoners enjoy great privileges in regard to medical services, more than any other individual. We are, of course not interested in penalizing anybody if he is ill. We are just interested, and if the hon. member were on the Government side he would also have been interested, in judging crimes and ensuring that people who ought to be punished will in fact be punished.

I rise merely to take the strongest possible exception to the remarks just made by the hon. member for Standerton (Dr. Coertze). Sir, we in our opposition to these proposals are seeking to protect our system of justice, and to suggest that we are seeking to protect wrongdoers is entirely unworthy of somebody who has been trained in the profession. I take the strongest objection and I feel that the hon. member for Standerton owes us an apology.

I heartily endorse what was said by the hon. member for Germiston (District) (Mr. Tucker). The hon. member must remember what the hon. Minister must also remember. The hon. Minister can say as much as he likes that he can accept amendments wherever he can, and when they are reasonable. We are also very reasonable. We are also very much concerned about this country and its future and the state of affairs that exists, and the hon. Minister will appreciate that we are also taking a reasonable attitude towards this Bill. Where he can make out a case, we have supported it. But what case does he make for this?

Every single amendment moved by this side of the House has been designed to ensure that this clause is not used for the purpose of interrogations, designed to give effect to the principle which has been accepted at the second reading and that is that witnesses should be given protection, and every amendment that we have moved is to see that in the first place the person is a witness and in the second place that person detained under this clause should not be interrogated, that it should not be used as a means of eliciting evidence. The hon. Minister has refused every single one, but the hon. Minister has not at the same time said, as he was invited to do by the amendments and by the speeches, that this clause will not be used for the purpose of interrogation, and I hope that he will still get up and say so. So far he omitted to do so. We are left with the clause as it stands. What does this clause mean?

The hon. Minister said that if he accepted these amendments, the effect of which would be, as I said, not to provide that this should not be part of the interrogation process, so that it would only be a case of having witnesses you have, and protecting them, or stopping them from running away—witnesses in the true sense —but the hon. Minister said: “If I accept your amendment it will cut my arms off.” what does he want to use his arms for? If he wants to use the arms that he is getting here for the purpose of protecting witnesses from interrogation, for the purpose of stopping witnesses absconding, then how does our amendment cut his arms off, unless he intends to use this provision for another purpose? Sir, we are not dealing here with witnesses.

The hon. member for Standerton should have a look at this Bill. It does not say “a witness”. What is a witness? A witness is a person who has evidence and is prepared to give evidence in a case for the State, a man from whom there is a statement which the prosecutor has seen and in respect of which he has decided that he would like to have his evidence at a trial. But you are not dealing with that here. You are dealing here with a person who “in the opinion” of someone is likely to give material evidence. Not a person who has material evidence and is prepared to give evidence, but a person whom they think is likely to give evidence. There is no definition of a witness here. What is the purpose of the 90-day clause? It is to get information, and you only get information from people if they are likely to have information. What is the difference between information and evidence? It refers to someone who is likely to give evidence, not someone who has evidence. The Minister expressed himself very unfortunately when, he said this would cut his arms off. I am sure the House wants to know what the Minister has in mind.

Just what the clause says.

That is what worries me, and added to that, certain amendments which have been rejected give it an even more sinister meaning. The Minister refused the amendment of the hon. member for Transkeian Territories on the basis that it was an unusual procedure, but it is not so unusual; it is no more unusual than it would be under the Public Safety Act. In fact, under the Public Safety Act, when you have a state of emergency, it is necessary to detain people, but when he does so, when it is obviously necessary in the interests of the safety of the State, then it was agreed by the Government that those regulations would come before Parliament and that they would lapse if not renewed. That is what the hon. member moved here, and it is more valid in respect of this than in respect of the Public Safety Act.

The provision is ludicrous. What sort of system do you have whereby the only way you can get witnesses is in the first place to lock up a person whom you want to interrogate and then keep him locked up until he has given evidence and then he is thrown to the wolves? That is what the Minister proposes to do, and this could have the reverse effect from the one the Minister desires.

You said the same about the 90-day clause.

How many people will offer evidence in respect of these offences if they know they may be locked up for six months at a time? It may have the reverse effect, and what sort of evidence will be produced, and what is the Minister’s answer to that? In the second reading he said: Look what happened under the 90 days; they were all held incommunicado and the evidence was accepted by the courts. Does he intend this clause to apply in the same way as that clause? If he does, the Minister has been less than frank with the House. The case the Minister made was a case for the protection of State witnesses, to prevent witnesses absconding, but not once has he denied that they were to be interrogated. I think the Minister owes this Committee a further and fuller explanation of how he intends to deal with it and how his arms will be cut off.

I have now had an opportunity of reconsidering the amendment moved by the hon. member for Pinelands (Mr. Thompson). It should be remembered that the principle adopted at the second reading is that likely witnesses may be detained at the instance of the Attorney-General without recourse to the courts. I am afraid that these amendments moved by the hon. member for Pinelands will vitiate the whole purpose of the clause, if accepted. In the circumstances I must rule the amendments out of order.

On a point of order, is it possible to address argument to you? Your argument is that if the amendments are accepted they would vitiate the clause. My submission to you is that £he effect of these amendments is to give a protection to the witnesses who are going to be detained and to give them an indemnity against being interrogated. I submit that in those circumstances the amendments would not vitiate the effect of the clause.

I was of the same opinion when the amendment was moved but on reconsideration I find that is not the position. The hon. member must therefore abide by my ruling.

The hon. member for Standerton (Dr. Coertze) professed to pay me a compliment by recognizing that I had made a statement, and by appearing to answer it. I accept the compliment whence it comes, but I certainly do not accept his arguments. I want to tell the hon. member that we are concerned, not as he tried to suggest, with assisting someone who is himself an evildoer, but to help someone who is no more than a person who may have evidence to give to escape the consequences of his innocent knowledge. [Interjections.] I know of no greater danger to liberty than this hon. member for Heilbron. There is such a thing as the liberty of the individual, which this hon. member completely disregards. To him the man is just a witness. I hope the Minister does not take that attitude. A witness is a human being, and a human being has rights. The fact that the State may be interested in using him as a receptacle as a container of information is a secondary matter. When we discussed the Bill at the second reading, the Minister told us about the various classes of witnesses whom he envisaged as coming within the ambit of this clause. He said there was the “frightened” witness whom he had no power to hold, and there was also the “absconding” witness who, he said, came within the category of witnesses who were needed in this final phase of the fight against trained saboteurs. I am not for a moment suggesting that what the Minister told us is without substance, but I do insist that there are people other than potential witnesses living in South Africa, and that for every one who may be a potential witness there may be a million who have nothing to do with the matter. What we have heard from Government members this Session proves the argument that freedom is indivisible, and that in taking away the liberty of this one potential witness he is taking away the liberty of many other people so that this becomes a negation of the rule of law. I hope no one sitting opposite will deny that.

Nonsense!

I insist that it is fair to argue that for every single person who may become a witness, there may be a million who have nothing to do with the case.

They have nothing to fear.

That is not the issue. I want to say to the hon. member for Boksburg that the cold wind of repression is already blowing through this country, because when the Minister and the Government refuse to concede the simple points that, first of all, Parliament should be in a position to judge how these powers have been used; and that, secondly, a likely witness, who is detained for a reason other than that he is himself suspected of an offence, should have the right to have his own medical and legal advisers and members of his family coming to see him, then I would like to know what deprivation of the liberty of the subject really means. I plead again, as I pleaded last week, that hon. members will at least do us the courtesy of being frank, because I understand simple language. [Interjection.] To me the clause means something very different from what the hon. member for Heilbron says, and also the hon. member for Standerton. With the most legalistic arguments, they set out to prove that this is in fact a contribution to the liberty of the subject! Can you believe it, Sir? They are giving the man his freedom by incarcerating him! If I were to say this is a madhouse, I would be ruled out of order, but sometimes I wonder about the sanity of arguments like that. I say again that we would understand plain language, and if the hon. member for Standerton stands up and says: We know this deprives the individual of his liberty, and we know it is a diminution of the freedom and the dignity of the individual, but we want this power regardless of the rights or wrongs of it I could understand it, and I would then argue quite differently. But as long as they profess to adhere to the rule of law, as they say they do, on the one hand, and destroy it with the other, it reminds me of what the late Winston Churchill said. He said he was looking for a one-armed adviser, and when asked why, he said: “Because then this man would not be able to tell him this on the one hand, and that on the other hand”. If only the Minister would give us a good reason why, e.g., it would be a danger for the State to allow a person who is not suspected of being an accomplice or of having committed an offence, but who is a person who is likely to give evidence, should be held incommunicado, we could begin to debate the matter more realistically.

But the Minister has told you over and over.

I should like the hon. member for Ceres to tell us why this deprivation of the liberty of a man likely to be a witness is reasonable, and how it contributes to our reputation as a country which adheres to the rule of law; and why it is unfair or unreasonable, as far as the safety of the State is concerned, to allow such a person to be seen by his family and his legal adviser and his medical adviser. Then I will be content, but I am sure that if the hon. member for Ceres gets up, he will evade that challenge just as other hon. members have done.

I should like to reply to the arguments advanced by the hon. member for Hospital (Mr. Gorshel). Since this hon. member has been in the hotel industry, his speeches always remind me of the definition of “jazz” music—“an erratic move from bar to bar”! He emphasized the fact that the Attorney-General can take steps against “any person likely to give evidence”, but he did not read any further than this because there have to be certain other factors besides. There have to be other factors present, such as “when there is any danger of tampering with or intimidation”, and it goes on further to say “or that any person may abscond, or whenever he deems it to be in the interests of justice”. So this does not hold good for just any person. He mentioned the fact that we are not considering the freedom of the individual at all; he gave the impression that the freedom of the individual was inviolable and should never be tampered with. But does the hon. member not know that there is also such a thing as civil duty which rests upon any person in any democratic country, and that the State can make use of this fact and deal with people accordingly?

Was your opinion in regard to civil duty the same in 1940 as it is now?

My opinion has always been the same. The hon. member for Germis-ton (District) (Mr. Tucker) made a certain name for himself here and he stood up in high dudgeon. What is the effect of all these appeals which we have received from the United Party to-day? They may think that the position is not as we make it out to be, but the effect here and outside the House is the same as it was last year when they opposed the 90-day provisions. When those provisions had their effect, those hon. members were absolutely silent and they have not had the courage to say one word during this Session in regard to the 90-day clause. I predict that once these provisions have had their effect, they will remain just as quiet next year as well. They now say with righteous indignation that we are accusing them falsely. But I say that the effect of their representations will not be in the interests of South Africa but in the interests of the saboteurs.

We are asked what sort of evidence will be adduced by these people, but what sort of evidence do we want? We only want evidence which will expose these saboteurs. If a man is willing to go to gaol his evidence will be accepted. If the evidence of the 90-day detainees was accepted when they were examined while they were being detained, then the evidence of these witnesses will be all the more acceptable. I cannot understand why hon. members are opposing these provisions.

I sincerely hope that no one on this side will be even remotely perturbed by the usual accusations which come from the Government benches whenever opposition to measures of this kind is offered. It is an old McCarthy tactic which does not affect me at all, and I sincerely hope it will not affect anyone on this side. I am referring to the accusation that when one opposes measures which are a clear abrogation of the normal liberties of the individual and which clearly undermine the rule of law, that one therefore must be in favour of sabotage and violence and Communism. That is an old McCarthy type of action which cuts no ice.

I want to come back to the Minister and take up with him this question of what he said to me during the second reading about the detainees under this clause being allowed to have their families visiting them. The Minister now says he was only referring to those people who asked for protective custody.

And those who will not be influenced.

Yes. I just want to read out his exact words. I discussed the case of those people who wanted protective custody and I said that after they had given their evidence the Minister was not much concerned with protecting them. I then went on to say this—

The Minister says that witnesses are open to influence, that they might be influenced by others. Will he tell us here and now whether these witnesses are going to be allowed to see their families.

Yes.

Regularly?

Yes.

According to the Minister, even those witnesses would be allowed to see their families, but he now appears to have changed his mind. He is going to choose the category of person who will be allowed to see his family, a witness who is locked up to suit the Minister’s requirements and who has stated that he will be prepared to give evidence in court. Now I have said before in this House, and I said it during the recess to the Minister personally, that certainly powers were abused under the 90 days’ clause, if not by the Minister himself, in that thousands of people were arrested and were subsequently discharged, but certainly by the police for whom the Minister has to take full responsibility. I said that the sort of law like the 90 days’ clause lends itself to abuse simply because it is done in secret. The light of the court is never thrown on the matter. After they are released these people are dead scared to talk, unless they are particularly brave people, because they know that they can be pursued thereafter by all sorts of powers that the authorities have, and therefore this sort of law lends itself to abuse and I am absolutely certain there were abuses since I have seen many affidavits which I also brought to the notice of the Minister. I am equally certain that this provision will also be abused because it is the same sort of measure. It lends itself to abuse. People will be held as witnesses throughout the length and breadth of the country. It is impossible for any real supervision to be exercised over what goes on in the places where they are kept, and they will be kept incommunicado. I attach no importance to the visit of the magistrate because as long as a man is in gaol he is in the power of the very people against whom he may wish to lodge a complaint and therefore he cannot speak freely. He knows that the minute the door slams behind the magistrate, any possible reprisal can be taken against him. He is not a free agent and he is unable to lay complaints. Therefore I say that this sort of thing, where a man is held incommunicado, in solitary confinement and away from human society, is one of the most devastating forms of mental torture, and he is not able to control his own actions. He is likely to give false evidence, and indeed, we have seen that people gave evidence in court which they later tried to retract.

And I suppose the Judges cannot decide whether it is false or not?

The man is likely to give false evidence because he knows he is likely to be pursued thereafter. Those hon. members do not have the slightest idea of what happens to people who are dealt with under the security regulations, how they lose their jobs and get endorsed out of areas and are pursued thereafter. The hon. member does not know the fearful powers of the authorities which can be brought to bear on these people. Habeas corpus was introduced for that very reason, to protect the individual against the overwhelming authority and power of the State, and it is a sorry thing that to-morrow will be the 750th anniversary of Magna Carta when the sacred writ of habeas corpus was enshrined in English law. It is a tragedy that in this country, the last vestiges of this absolutely fundamental right of the individual are destroyed, that is, not to be held by the State unless the State can prove him guilty in a proper court of law. And it is even worse now; it is not even the accused who is being held. That is bad enough in all conscience, for there is a chance that the accused may be acquitted, but this is a witness. No charges are made against him. And forget about this protective custody stuff. I have heard enough about it because the minute the man has given his evidence nobody cares what happens to him. This is a scandalous clause.

I want to deal firstly with the allegation made by the hon. member for Heilbron, who said that because we oppose a clause of this nature, we either encourage or support saboteurs and persons who undermine the safety and security of the State. That allegation in itself is so palpably false that I do not need to waste my time on it, but one aspect I do wish to deal with is this. Have the hon. member for Heilbron and other hon. members opposite ever thought what they and their Government are doing under this clause? What they are doing is to give the Attorney-General the right to arrest and detain for periods up to six months not persons who have been accused of any offence, but merely persons who are likely to give evidence for the State.

Are you pleased that Bob Hepple got away?

If the hon. member for Vereeniging had been in the House during the second reading he would have heard what I said about Bob Hepple.

I wish to revert to what I have just been saying. Sir, I ask the hon. member for Heilbron and other hon. members opposite whether they have stopped to think what they are doing in this clause. I have pointed out that they are giving the right to the Attorney-General to arrest and detain not persons who have been charged with any offence but persons who are likely to give evidence for the State. Sir, that is not the whole story. They are giving to the Attorney-General that far-reaching right without any recourse to a court of law, with no right of appeal, with no right of review. And, Sir, that is not the end of the matter either because the six months’ period is not a six months’ period. As in the case of the 90-day clause, at the end of the six months’ period a person placed in this position can be rearrested and re-detained for a further period of six months. I ask hon. members on the Government Benches to stop and think for a moment. Sir, what are we coming to in South Africa when, according to the Minister of Justice, we need a provision of this sort? Surely it has become obvious to Government members that the ways that they have adopted in the past are leading year by year to the adoption of measures of this sort which can only be described as totalitarian and which are to be found only in such states. They are not found in other democratic states.

You woud rather see a communist revolution here?

Year after year we find that more and more legislation of this kind is introduced here. Surely this must be an indication to Government members that they should do some rethinking; that they must change the basis of their policies which obviously give rise to this repressive legislation year after year.

You know that that is not correct.

If the hon. member for Fort Beaufort (Dr. Jonker) thinks that this is not correct, I hope he will get up and explain why it is not correct. Sir, I wish to revert to a further argument advanced by the hon. member for Heilbron. The hon. member says that this clause does not refer to any witness; that it refers to a witness who is in danger of being tampered with; who is in danger of being intimidated or who is likely to abscond and so on. The hon. member for Heilbron is not correct. It does not refer to such persons as a matter of fact. Normally it is a matter of fact whether a person is in danger of being tampered with. This clause gives the power to the Attorney-General to decide whether in his opinion a witness is in danger of being tampered with or being intimidated, etc. It is not simply a witness who is in danger of being intimidated; it is a person who in the opinion of the Attorney-General falls in that category.

Surely he would not form his opinion on nothing.

I am not suggesting that Attorneys-General would be male fide in their opinions, but human beings make mistakes. I think even the hon. member for Standerton will admit that he sometimes makes mistakes in a perfectly bona fide way. That is why it is particularly horrifying to see that no right of appeal or no right of review whatsoever is being given in this clause. Sir. I think it must be quite obvious to the Committee that I am both amazed and alarmed that the hon. the Minister has rejected every single one of the amendments which we have moved to this clause in order to limit, in what I believe is a most reasonable way, the very drastic provisions of this clause.

The hon. member for Durban (Musgrave) (Mr. Hourquebie) has advanced further powerful arguments in support of our earlier amendments. The hon. the Minister, however, has rejected them completely, except the last one moved by the hon. member for Port Elizabeth (South) (Mr. Plew-man) and it is to that one that I particularly want to address myself. The ground upon which these amendments have been rejected is the necessity to have the provisions contained in this Bill in the present serious situation. So far as the non-subversive aspects are concerned, the hon. the Minister discussed the serious situation which obtains in this regard when his Vote was under discussion here.

It seems to me that one can urge on two grounds that the amendment by the hon. member for Port Elizabeth (South) should be accepted. If this is a particularly serious period then surely one must assume that it will not go on forever; we cannot rest while it continues; we must restore the position to greater normality, in which case it would be possible to do away with this provision which is undoubtedly a bad provision. The amendment of the hon. member for Port Elizabeth (South) makes it possible to renew this provision from year to year instead of making it a permanent part of our Code. The hon. the Minister, much to everybody’s gratification, found that power useful in regard to the 90-day clause. This provision is similarly worded.

The second argument is that this clause deals not only with so-called security offences but also non-security offences such as murder, arson, childstealing, robbery and housebreaking. There too it can be argued that the situation is particularly bad, but there too we trust that the present position will not continue. Moreover, the hon. the Minister said in the debate on his Vote that 80 per cent of these cases were being cleared up. If one accepts that figure, there does not seem to be great difficulty in getting adequate evidence, in getting state witnesses and keeping them, in order to ensure trials before the courts and convictions, when justified. If that is the case at this time, surely we must look forward to a better time in that regard and we should not therefore make this provision a permanent feature of our legislation.

There is a further aspect so far as non-security offences are concerned and particularly where it has been possible apparently to clear up 80 per cent of the cases. Where one is making such a far-reaching change in our criminal code, I suggest that one must consult the legal fraternity—the Judges, the Bar and the Side-Bar. The Code is a delicate instrument; its many clauses are interrelated; and there are many ways of coming near to achieving a balance between maintaining our code as inviolate as possible and still meeting the fair requirements of the community in the tracking down of offenders. It may be possible, I suggest, if due consultation is had with those authorities, to reach a situation where that balance can be struck. I understand that the various Bars are indeed submitting suggestions to the hon. the Minister. They have doubtless not yet been considered because there has not been time to do so. The hon. the Minister who is in continual touch with the Judges has seen their reactions to certain suggestions put forward by a learned Judge for the amendment of our Criminal Code. All these matters are interrelated and all this holds out promise for affecting such cases as lawyers with a due concern for the administration of justice, would be prepared to accept.

Where the hon. the Minister feels that he cannot cope with the present situation without this power, I suggest that he should be able during the course of the next year to achieve a much better arrangement and one which will not have such farreaching effects. He could cover the situation by accepting the amendment of the hon. member for Port Elizabeth (South) and perhaps after a year’s operation, or earlier, this particular section could be suspended.

I just want to state for the umpteenth time what the underlying principles are. Hon. members had a great deal to say and suggested that this was a cardinal departure from our existing principles. Let us put that to the test and see whether that is so or not. What is the duty of the Department of Justice in all its various facets? Its duty is not only to see to it that the accused is brought before the court; its duty goes much further than that; it is also its duty to see to it that the witnesses are there. In other words to bring everybody who knows anything about the offence before the court on a given day so that the court can decide whether or not an offence has been committed. That is the fundamental duty of the Department of Justice. That is why we have had the position from time immemorial that an accused can be arrested and detained until he is tried: that is why witnesses can be subpoenaed and force-ed to appear before court. What is more, even in the days when the circumstances which obtain to-day did not obtain, our law provided that a witness could be arrested and detained. We all know those provisions. Under the old set-up if a witness was on the point of running away he could be arrested and detained until the case was disposed of, and he could be let out on bail. We have already discussed the question of bail. We heartily agreed that in certain circumstances the bail was not worth the paper it was written on. If Sisulu was worth R6,000 and Abram Fischer R10,000 and other lesser lights just as much or a little less, what does bail mean to us if such people have the Defence and Aid and Christian Action and everything that is Left on their side. Surely bail does not mean a thing to us in those circumstances. Particularly in view of the infiltration of saboteurs, because that is the main thing I am concerned with here, and considering the robberies that have taken place from time to time recently, it is my duty to bring everybody who knows anything about the matter, accused and witnesses, before the court. Obviously as far as the witnesses are concerned in 95 per cent of the cases it will not be necessary to take these steps. It is obvious that you are dealing here with an Attorney-General who is a responsible official an official with a status practically equivalent to that of a judge. Will the Attorney-General detain a man just for the sake of detaining him? It is obvious that we are dealing here with a most senior official.

He is a public servant.

What about it? Is he a scoundrel because he works for the State? Is he dishonest because he is the Attorney-General?

That was not what I said.

He forms part of the prosecution.

I am sick and tired of this type of accusation against senior public servants from back benchers on that side of the House. I think the time has arrived that we who sit in this House showed more respect to those officials than we have done hitherto. I do not think it behoves any member on that side of the House to use the privilege he enjoys in this House to make that kind of insinuation against senior public servants. Thank God, we in South Africa have never had reason not to be proud of the way in which our Attorneys-General have performed their functions. I want to state quite clearly that it is my duty and function in these circumstances—and the Department of Justice will carry out that duty and function—to bring everybody concerned, the accused and the witnesses, as far as it is humanly possible to do so before the court so that the court can decide whether there has been a contravention or not. It is very easy for hon. members opposite to talk; they carry no responsibility in this connection. When it suits them outside they are very fond of criticizing, and I refer in particular to the hon. member for Durban (North) to whom I also referred in my second reading speech, who, when my Vote was under discussion and when they had every opportunity of substantiating in this House the kind of insinuation they have been making outside in the past, sat with his mouth shut and did not say a single word. Nor has he said a single word in this connection throughout the entire Session. But now, when we cannot test it, because this measure must still come into operation, it is easy for those hon. members to talk. When these things in respect of which the hon. member for Durban (North) had precisely the same doubts and in respect of which the hon. member for Durban (Musgrave) sowed precisely the same suspicion, had to be analysed and discussed we did not hear a single word about them. Can hon. members opposite blame the country for adopting the attitude towards the Opposition which it does adopt? Can hon. members blame the people outside for judging the Opposition as they are judging them at the moment? I say my duty and function is to bring the accused and the witnesses before the court with due consideration to all the circumstances and I shall perform that duty in spite of the Opposition.

Sir, this Minister is known as one of the best debaters on the Government side; as one of the best Ministers for stating the Government’s case, but I say that he has failed miserably in justifying his attitude on this clause. We have never heard the Minister as weak as he has been on this clause. Sir, it does not help him to say that he is sick and tired of our criticizing the Government or the Department or him as Minister. There was no criticism against the officials.

Of course there was.

Of course there wasn’t. The hon. the Minister did not listen to the interjection made by the hon. member for Musgrave. The hon. member did not criticize the Attorney-General. All he said was that the Attorney-General must take instructions from the Minister. The Minister cannot deny the fact that he can give instructions to Attorneys-General. Of course, it is within his power to give instructions to Attorneys-General. What right has the Minister to take exception to a remark like that? The Minister justifies the whole of this wide clause on the basis of the actions of saboteurs and political offenders, but this clause does not only cover political offences. It covers a host of other offences, and the Minister knows that perfectly well. The Minister says that he will not allow their legal representatives to see witnesses while they are being detained, because he knows what type of attorney is going to get instructions. Sir, how can he say that? These witnesses who are detained may be very decent people. They probably will be decent people. They may be people with big businesses, and they may want to see their attorneys in connection with business affairs, not in connection with the case at all. There is a host of things about which they may want to see their attorneys. How can the Minister assume that attorneys who receive instructions in these cases are going to be the bad types? Sir, we resent remarks of that nature.

The hon. the Minister says that he cannot accept my amendment because it is unnecessary; the regulations are going to be tabled in any event. I also understood him to say that the regulations would be different for the different witnesses: that different witnesses would be treated differently, but that it differential treatment. We want to know how the witnesses are going to be treated. We cannot see why these witnesses should be treated any worse than awaiting trial prisoners. Surely they must be treated better than a waiting trial prisoners. An awaiting trial prisoner can always see his attorney or his legal representative. He has special facilities; he can have food sent in to him; he has all sorts of privileges. Why cannot the Minister tell us what he has in view as far as these regulations are concerned. I cannot see why we cannot have those regulations before us in this House. We should have a chance to discuss them, if necessary. The Minister says that it is unnecessary because we have not been able to produce a single case in which he has abused his powers or where the Department has abused its powers under Section 90. He says that the hon. member for Houghton (Mrs. Suzman) has raised certain cases but that we have never done so. Sir, we have raised no cases here because although we have heard of such cases we have no proof. We know now that there are 14 cases pending before the courts, according to the hon. the Minister. We will only know what has happened when the complainants have given their evidence and when all the witnesses have been heard, but naturally we are not going to raise these matters here until we know the facts. That does not mean to say, however, that nothing irregular has happened. We know that certain cases are pending and we do not know what is going to happen in those cases. I say that as this clause stands now the powers taken by the Minister are far too wide. The Minister will have the power to hold witnesses incommunicado. He cannot come here and ask us to give him carte blanche. He cannot ask us to give him a blank cheque to do whatever he likes. I say that he is asking far too much. None of our amendments have gone too far. We have tried to assist the Minister because we know the difficulties. We have tried to assist him where we can. Sir, I resent the attitude of the Minister towards this side of the House.

The hon. member who has just sat down can kick up as much dust as he wants to. Instead of having improved the position as far as the Attorneys-General are concerned he has made it worse, because he now adopts the attitude that they cannot decide on their own . . .

I did not say that.

The hon. member must accept the consequences of his words. He said I knew the Attorneys-General were responsible to me and that they had to carry out my instructions. In other words, the insinuation is much worse now. The only fear hon. members opposite can have is that I will force the Attorneys-General to do something dishonourable. In other words, they are casting a very serious reflection on the Attorneys-General . . .

Supposing an Attorney-General does not agree with you?

Then he will tell me that. It is not my policy, just as it was not the policy of my predecessors, to interfere in any way in these matters and the hon. member knows that very well. The hon. member is now suggesting that the Attorneys-General are people who will be influenced by me to do something dishonourable.

I did not say that.

That is the essence of the hon. member’s argument. If that is not the case why does the hon. member refer to the fact that the Attorneys-General act on my instructions? If those instructions are honourable, if there is nothing wrong with them, why does the hon. member raise the matter? One only raises the matter when one is afraid that the Attorneys-General will be forced to do something dishonourable.

Why dishonourable?

That is the essence of the hon. member’s argument because if it is not dishonourable there can be nothing wrong with it.

You are only trying to score a debating point.

The hon. member looked for trouble and he must not become annoyed now that he is getting it. It is no good hon. members on that side running away from the attitude they adopted previously and saying that they did not raise any matters this year because they did not have any proof. They did not hesitate last year to raise matters which they could not prove. The hon. member knows that his leader, the hon. Leader of the Opposition, referred to torture at Potchefstroom. Hon. members will remember the statements issued by the hon. the Leader of the Opposition last year, a statement which interrupted my holiday in the game reserve, after Leftwich and others were arrested here in Cape Town. It was not only the hon. the Leader of the Opposition who issued statements but the hon. member for Bezuidenhout (Mr. J. D. du P. Basson) as well. I waited during this Session for these matters to be raised but they were not raised. I, do not think, therefore, that we shall ever hear anything about them again. That is the reason why I adopted the attitude towards the hon. members for Germiston (District) (Mr. Tucker) and Port Elizabeth (South) (Mr. Plew-man) which I did. Let them again next Session express the misgivings they are expressing here about the way in which this clause will be applied; let them move next year, by way of substantive motion, that this clause be repealed. If they do that I want to give them the assurance to-day, in the presence of the hon. Leader of the House, that the discussion on that motion will be given priority. I want to test hon. members.

Will you afford me that opportunity?

The hon. member has already tried that on numerous occasions and it was simply a waste of the time of the House. The hon. member for Houghton will, however, have an opportunity of taking part in the debate if the Opposition has the courage to introduce such a motion.

If they do not do so I cannot discuss the matter here.

Perhaps the hon. member knows the Opposition better than I do. I want to give hon. members the opportunity of raising this matter in the House next year. The hon. member for Musgrave (Mr. Hourquebie) has expressed grave doubts here. I shall apply this section during the recess and let us see whether the Opposition will have the courage next year to discuss it here. No, we shall never hear about it again, Sir. Can hon. members blame me for adopting the attitude I have adopted? Sir, I have carefully considered the amendments of hon. members but I know what the difficulties are that we are faced with.

Will you not also know it next year?

I shall still know next year what the difficulties are but whether the hon. member for Port Elizabeth (South) will be here to discuss them is another matter.

That is unimportant.

Yes, I know the hon. member is not of much importance but he is nevertheless a member of this House.

Why is the old bookkeeper making such a lot of noise over there?

My task and that of my Department is to bring the accused and the witnesses before the court. The hon. member wants to know how I am going to treat these people. Surely I cannot tell him now how I am going to treat them, except to state the broad principles, namely that they will be given proper food, that they will be given good medical attention, and this applies to all detainees. The hon. member says these people should get the same treatment as awaiting-trial prisoners in this sense that they should be allowed visitors. Surely I cannot allow them to have visitors freely because I shall then be defeating the entire object of their detention.

The object is to protect them.

Yes, to protect them physically and to see to it that they are not intimidated. Surely the hon. member knows that State witnesses are intimidated. Of what use would it be if I detained a person and allowed the intimidators to visit him and to threaten him that this or that would happen to his family if he gave evidence for the State? Of what use will that be to me? Surely one cannot even think of it. How often have witnesses not said in their evidence that someone or other had intimidated them? How often have our courts not ordered that a person should give his evidence under a nom de plume because of this very intimidation? I have given the figures and the hon. member for Standerton has again quoted them to illustrate our difficulty in that regard. Surely it is obvious that the minimum number of witnesses will be detained. It will only be in those cases, as the hon. member for Heilbron has indicated, which fall within the ambit of this clause. Listening to hon. members opposite one would think that the Attorneys-General are going to run through the streets like roaring lions looking for people to pounce upon and to put in gaol. Surely it is ridiculous to argue like that when we are dealing with the serious crimes which we are dealing with here. It is no good hon. members opposite agreeing on the one hand—the principle is the same—that an accused can be detained without allowing him bail and refusing, on the other hand, to make sure that the witnesses are there to give evidence against him. In that case we are simply wasting our time; then we might just as well drop the matter right here. Surely one cannot blow both hot and cold in respect of this matter.

I repeat what I have said, more particularly with reference to what the hon. member for Transkeian Territories has said, that I am sick and tired of the attitude which is being adopted that the Minister or the Attorney-General is of necessity a scoundrel who will abuse his powers or, who, for that matter, will not use his common sense. This clause makes it possible, in the most reasonable manner possible, that all witnesses will be available on the day the accused is tried. That is the reason I have adopted the attitude towards hon. members’ amendments which I have adopted.

Order! Hon. members must now advance new arguments.

I want to deal with two points made by the hon. the Minister. Firstly, the hon. Minister quite misconstrued what was said on this side of the House about the Attorneys-General. It is not for the hon. Minister to tell us that we must have more respect for such a senior official. Let me say to the hon. Minister that he should perhaps have a little more respect for the functions and the office of the Attorney-General. Unlike the hon. Minister, that gentleman is not in charge of the police. The Minister has a Commissioner of Police in charge of his police. The function of the Attorney-General is to present the evidence; to decide whether a prosecution should take place and to direct the prosecution on behalf of the State. That is his function. Am I right?

Yes.

Right.

Does the hon. member think I am asking for these powers without the Attorneys-General wanting them?

No, they don’t want these powers at all in this respect. The hon. Minister must realize that it is not part of the function of the Attorney-General to get that evidence. That is the job for the police and the police present him with the evidence. What is the Minister doing now? He is making the Attorney-General part of the Police Force and it is most undesirable that the Attorney-General should in any way be associated with the collection of the evidence. That is the function of the police.

Is he not in charge of the prosecution?

He is in charge of the prosecution—exactly; full stop. That is where it ends. It is his duty to present to the court fairly and honestly the evidence he has. It is also his duty to present to the court any evidence which is against his case, as the hon. member knows very well. The hon. Minister must not throw stones at us about the Attorney-General. He must consider what he is doing in respect of the office of the Attorney-General.

The last time I spoke in this debate I suggested to the hon. Minister that every amendment we had placed on the Order Paper was designed to ensure that witnesses that were detained in terms of this clause were detained for their benefit; that they were designed to see that there would be no interrogation in respect of this clause. I pointed out at the time, Sir, that the hon. Minister had not given us an assurance, even after I had spoken. I invited him to give the House an assurance that this would not be used for interrogation purposes. In other words, that he would only bring bona fide witnesses; that he would not put people in gaol in terms of this clause on the basis that he thought they would give evidence and then keep them there until he got it. In other words, I wanted an assurance from him that he would not use this clause for the same purposes for which the 90-day detention clause was used. The stated object of the 90-day law was to get someone whom you thought had evidence to give that evidence. You elicited that evidence from him. The hon. Minister has not given us that assurance. I have asked him twice to give us that assurance. Surely the hon. Minister can give us that assurance? If, after the third time, the hon. Minister does not give us that assurance then the interpretation that is placed upon this clause, and on the fact that the amendments from this side of the House have been refused, by any reasonable person must only be that the Minister does intend to use it for the process of interrogation. I hope the hon. Minister will now get up and give this Committee an assurance that he is not going to use it for that.

I have told you it means exactly what it says.

Yes, the hon. Minister has told us that it means exactly what it says. We can see what it says. Every member who has read this Bill knows what it says. What we want is an assurance that it won’t be used for that purpose. Surely the hon. Minister can give us that assurance. The hon. Minister has not dealt with this. What the Minister has said is that there are three kinds of witnesses: There is the person who wants to abscond, there is the person who is intimidated and there is the accomplice. We are not dealing with them, Sir. The principle having been accepted we say that if you have to protect a witness protect him but don’t bring forward a clause which you can use for the purpose of interrogation. That is the substance of these amendments. If the amendments were accepted not one word the hon. the Minister has said would be detracted from. Will the Minister give us that assurance? Will he give us the assurance that this will not be used in the same way as the 90-day clause has been used, namely, for the purpose of interrogation of witnesses?

The hon. member for Durban (North) (Mr. M. L. Mitchell) is now trying to put up a smoke screen in respect of this bad amendment of his. [Interjections.] Of course it is a smoke screen. He wants an assurance from the Minister that he will not abuse Section 215bis. The Minister was quite justified in taking offence at the insinuation that the Attorneys-General will abuse that section. I am pleased that he said the time had arrived for the Opposition to stop adopting such a belittling attitude towards senior officials.

The hon. member says the Attorney-General will now form part of the police. This is getting more interesting, Sir. If the Attorney-General does not do it must the Commissioner of Police do it then? Must one of the police officers examine them? Had we suggested that, Mr. Chairman, there would have been such an outcry from that side of the House that this roof would have collapsed. They would then have said that we were giving the police the same power which a Judge had and that they were not equipped for that.

The most suitable person to do so is the Attorney-General. [Interjections.] Who must it be if it is not the Attorney-General? The hon. member for Durban (North) is not against the examination. [Interjections.] If the hon. member for Musgrave would only apply the most elementary principles of logic he would not be making these stupid interjections. The point is this: The hon. member for Durban (North) is opposed to the Attorney-General or his representative doing the examination. He does not object to the examination as such. We heard that this morning. They object to the Attorney-General doing it.

Order! This clause has nothing to do with examination; I just want to draw the hon. member’s attention to that.

Sir, may I just say that the hon. member for Durban (North) says this section should not be abused for the purposes of examination. That is what he alleges. It is scandalous to think that the Minister and those responsible for the prosecution will abuse this clause. The Minister quite rightly took exception the way he did. What is more, the hon. member for Durban (North) is also illogical in his approach and in making that accusation; he agreed, for example, in respect of a previous clause, that examination, as such, was not per se wrong.

What makes the matter more ludicrous is the following: Let us assume that the Minister of Justice, the entire Department of Justice, have the mean object in mind of which the hon. member accuses them by implication, then his amendment still does not mean anything because it says that such a person should not be detained until such time as the court proceedings have commenced. It says—

If the Minister, the Attorney-General and everybody assisting him, are as mean as suggested, what is there to prevent them, if this amendment is accepted, from laying any charge, putting the case down for hearing on a date three or four weeks ahead and detaining the person? If they are meanness personified there is no reason why they should not withdraw that charge within three or four weeks and lay the real charge they originally wanted to lay after they have protected the witness against himself and against other people. In other words, if you argue on the basis on which the hon. member for Durban (North) argues his amendment is meaningless. That was why I made the allegation I did make earlier in this debate on this same clause to which the hon. member for Germiston (District) (Mr. Tucker) took such exception. Who will interfere with the witnesses? It will be those people who think they will be in danger because of the evidence that will be given. Therefore, if you object to the detention of those witnesses you are an advocate for those people who are charged with the crimes set out in the Schedule, and they are the saboteurs, those who commit sedition, murder and arson and those persons charged under the Suppression of Communism Act. Everybody who objects to this clause is an advocate for those people. Who else? The person who intimidates a witness. And the first person who will do so will be the person charged and who is in danger ...

Order! That point has repeatedly been made.

Mr. Chairman, you will forgive me for making it again. I just want to point out that this whole plea is a plea for the law-breakers in our country. That is what the Opposition is now doing.

I wish to say immediately that once again I regard it as scandalous that the hon. member for Standerton (Dr. Coertze) should make an allegation like the one he made immediately before sitting down, namely, that we were simply pleading on behalf of the saboteurs and those who wished to undermine the security of the State.

Whom the cap fits, let him wear it.

The hon. member for Heilbron can get up and make his own speech. I wish to make this very clear that we on this side of the House have made it abundantly clear, not only by our words, but also by our actions when we happened to be the Government of the country and had to fight a war while we were being undermined in this country, that we are more concerned even than this Government about the security of the State and the maintenance of law and order. I think it is high time that hon. members opposite, such as the hon. member for Standerton and others, stop making these false allegations against this side of the House.

Will the hon. member now discuss the clause?

Yes, Sir. I wish to deal with two of the arguments advanced by the hon. the Minister in support of this clause. I may say that these arguments were not dealt with by the hon. member for Durban (North) immediately after the Minister had spoken. The hon. the Minister said he was quite sure that next year, when Parliament reassembled, we would not hear any complaint against the way in which the clause had been operated in practice. He said we would not hear anything more about this clause. I would like to ask the hon. the Minister this: What sort of complaint can be laid against this clause, once it becomes law, other than that the Attorney-General has acted mala fides? The hon. the Minister knows perfectly well that if Parliament gives a discretion to a person, as this clause does—this clause gives the Attorney-General the right to decide, in his discretion, whether or not a witness is in danger or is likely to be intimidated and so on—the only complaint that one can make against that is that person has acted mala fides. That is not the case we make against the Attorney-General at all. In fact, we do not make any case against him. What we do say is that their opinions may well differ from the opinion of the Judge. So we ask why the hon. the Minister is not prepared to have some restriction; why does he, in particular, persist with sub-section (7) of Clause 7 which removes the jurisdiction of the court and the Judges? Surely it is not unreasonable, if the Attorney-General takes the opinion that a witness—not an accused person who has been arrested and detained—is in danger of being tampered with or being intimidated or of absconding, to give that person the right to go before a court or a Judge in Chambers and to ask the Attorney-General to place before that Judge the reasons why he holds that opinion so that the person concerned may meet the facts which are placed before the Judge? If the hon. the Minister is bona fides in his statement to the House that what he is concerned with here is, firstly, the protection of a witness and, secondly, to see that State witnesses appear at the trial, then I want to test the Minister’s bona fides. The hon. the Minister is very fond of testing the bona fides of this side of the House. If those are his reasons then I ask him to get up and explain why he has included sub-section (7) which removes the right of the court to adjudicate?

Order! I have already ruled that sub-section (7) forms portion of the principle adopted at the second reading. I have given hon. members ample opportunity of protesting against the clause but I cannot allow any further discussion.

I abide by your ruling, Mr. Chairman.

The next point I wish to make is this: Still dealing with the Minister’s allegation that we will hear nothing further about this clause and that we will not get any complaints the hon. the Minister surely knows full well that people who have been treated under such a harsh and far-reaching clause as this are afraid to complain. They are afraid to complain because they know of the vast powers which are given to State officials under this clause and other clauses to deal with them. I do not say that they are justified in this fear but I do say, Sir, that that fear exists and the hon. Minister must know about it. So if he does not hear of complaints it does not follow that there has not been either an abuse of the power or a wrong use of the power. I hope that we will have an end of these allegations against this side of the House that because the Minister does not hear of any complaints the laws he has passed in the past, laws which give vast powers to the State officials, have been properly used. It does not necessarily follow.

I would like to raise two points in connection with Clause 7 against the background of the Minister’s anger this afternoon about what he was pleased to call our “stofopskoppery”. He said the same thing on Friday. When we oppose an argument from the hon. the Minister or the Government side, it is called “stofopskoppery” and, of course, when we state our case it is alleged that we are trying to help saboteurs. I know that that is only a point of view, but I should like to tell the hon. the Minister that when his speech is stripped of all the verbiage, all the histrionics and so forth, the fact remains that he wants certain powers which, up to now, he has not justified. In order to distract attention from the real issue underlying all these amendments . . .

Order! Those arguments have already been advanced.

Yes, Sir, I just want to say . . .

No, the hon. member must not continue along those lines.

Mr. Chairman, I want to deal with two of the sub-sections and I say, that in order to distract attention from those sub-sections, all these allegations have been made against this side of the House, even by dragging in the red herring of the Attorney-General.

Dealing with sub-section (1) of Clause 7 it is perfectly clear that, to summarize it, whenever the Attorney-General deems it to be in the interests of such a person, he may issue a warrant, etc., which means that the person is taken into custody. This point has to be considered very carefully in the case of a person, who, up to that stage, does not know why he is being taken into custody at all. It is said that he is taken into custody in his own interests. I want to suggest to you, Sir, with great respect, that if any person is to be taken into custody in his own interests, he should have the opportunity of voicing an opinion about it. Otherwise it amounts to the protective custody, which, as we know, was introduced in the 1930s in Germany.

Order! The hon. member is attacking the principle contained in the clause.

Am I not entitled to deal with sub-section (1)?

The hon. member may deal with sub-section (1) provided he does not attack the principle contained in the clause.

But, Sir . . .

Order! The hon. member must observe my ruling.

I intend to do so, but, Sir, I do not know whether I am going to attack it; I wish to discuss it, though.

That is why I called the hon. member to order.

May I not discuss it either? May I not refer to it?

I have already said that the hon. member can discuss subsection (1) provided he does not attack the principle.

Sir, I want to point to the difficulties that arise out of the adoption of this principle; I do not have to attack the principle. I can point to the consequences of the adoption of the principle without attacking it. In order to do so I want to illustrate the point by saying that a man taken into custody may or may not be required by the State. It may turn out that he has no information, in which case he does not even become a likely witness, let alone a witness. Surely in that case, particularly, he should be accorded some rights other than those the Minister is prepared to concede to him.

Order! I cannot allow the hon. member to continue on those lines.

May I not argue in favour of one of the amendments; any of the amendments we have placed on the Order Paper?

Order! The hon. member can argue on the amendments.

My amendment on the Order Paper has not yet been disposed of. I know that hon. members on that side have voiced their objection to it but we have not yet voted on it. May I speak to my amendment?

The hon. member may speak to his amendment on subsection (4).

In connection with the right of the individual who, as I have said before, may turn out to be not a witness and not even a likely witness, it may be found, after he has been held for a certain time, that he has no information in spite of the fact that the police have information which leads in a certain direction. They have this information, they have a warrant issued for his arrest and he is taken into what is called protective custody, which was called “schutzverhaft” in Germany, I think. He is found, despite all that, that he should not have been held at all, because he has no information, satisfactory or unsatisfactory. His detention can go on up to a period of six months. In those circumstances, surely, no member on that side of the House can argue that the State would have been prejudiced if the man had been permitted to consult with his legal representative; surely nobody can say that any damage would have been done . . .

Order! The hon. member has already advanced that argument.

I personally, Sir, or any other member?

The hon. member personally as well as other members.

Then I can only say that if I personally have advanced it, so far it does not seem to have made any impact on the hon. the Minister. I would therefore like to deal with the final point in my representations, which is the issue of the family. I accepted your ruling, Sir, but I have not canvassed that point yet. In introducing my amendment, I merely referred to the family. I do not want to discuss the definition of “family”. But let us assume the man is married and his wife wishes to have access to him, or, more important, from his point of view, let us assume he has to be in communication with his wife so that whatever interests he has left behind him . . .

Order! The hon. member has advanced that argument personally before.

Cannot I even talk about his family, Sir?

No, the hon. member cannot.

Well, I think it is very sad indeed if I cannot even discuss his family.

Order!

Amendment proposed by the Minister of Justice put and agreed to.

Amendment proposed by Mr. M. L. Mitchell put and the Committee divided:

AYES—48: Barnett, C.; Basson, J. A. L.; Basson, J. D. du P.; Bennett, C.; Bronkhorst, H. J.; Cadman, R. M.; Connan, J. M.; de Kock, H. C.; Durrant, R. B.; Eden, G. S.; Emdin, S.; Field, A. N.; Gay, L. C.; Gorshel, A.; Graaff, de V.; Henwood, B. H.; Hickman, T.; Higgerty, J. W.; Hourquebie, R. G. L.; Hughes, T. G.; Lewis, H.; Malan, E. G.; Miller, H.; Mitchell, D. E.; Mitchell, M. L.; Moore, P. A.; Oldfield, G. N.; Plewman, R. P.; Radford, A.; Raw, W. V.; Ross, D. G.; Steenkamp, L. S.; Steyn, S. J. M.; Streicher, D. M.; Suzman, H.; Taurog, L. B.; Taylor, C. D.; Thompson, J. O. N.; Timoney, H. M.; Tucker, H.; van der Byl, P.; van Niekerk, S. M.; Warren, C. M.; Waterson, S. F.; Weiss, U. M.; Wood, L. F.

Tellers: N. G. Eaton and A. Hopewell.

NOES—82: Bekker, M. J. H.; Bezuidenhout, G. P. C.; Botha, H. J.; Botha, M. C.; Botha, P. W.; Botha, S. P.; Coertze, L. I.; Coetzee, B.; Cruywagen, W. A.; de Jager, P. R.; Dönges, T. E.; du Plessis, H. R. H.; Froneman, G. F. van L.; Greyling, J. C.; Haak, J. F. W.; Henning, J. M.; Heystek, J.; Hiemstra, E. C. A.; Jonker, A. H.; Keyter, H. C. A.; Knobel, G. J.; Koornhof, P. G. J.; Kotze, G. P.; Kotzé, S. F.; Labuschagne, J. S.; le Roux, P. M. K.; Malan, A. I.; Malan, W. C.; Marais, J. A.; Marais, P. S.; Maree, G. de K.; Meyer, T.; Mostert, D. J. J.; Mulder, C. P.; Muller, H.; Muller, S. L.; Nel, J. A. F.; Nel, M. D. C. de W.; Niemand, F. J.; Odell, H. G. O.; Otto, J. C.; Pansegrouw, J. S.; Potgieter, J. E.; Rall, J. J.; Rall, J. W.; Sadie, N. C. van R.; Sauer, P. O.; Schlebusch, J. A.; Schoeman, B. J.; Schoeman, J. C. B.; Schoonbee, J. F.; Smit, H. H.; Stander, A. H.; Steyn, J. H.; Swanepoel, J. W. 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, 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 Zyl, J. J. B.; Venter, M. J. de la R.; Venter, W. L. D. M.; Verwoerd, H. F.; Viljoen, M.; Visse, J. H.; von Moltke, J. von S.; Vorster, B. J.; Vosloo, A. H.; Waring, F. W.; Webster, A.; Wentzel, J. J.

Tellers: W. H. Faurie and H. J. van Wyk.

Amendment accordingly negatived.

Amendment proposed by Mr. Hughes put and the Committee divided:

AYES—48: Barnett, C.; Basson, J. A. L.; Basson, J. D. du P.; Bennett, C.; Bronkhorst, H. J.; Cadman, R. M.; Connan, J. M.; de Kock, H. C.; Durrant, R. B.; Eden, G. S.; Emdin, S.; Field, A. N.; Gay, L. C.; Gorshel, A.; Graaff, de V.; Henwood, B. H.; Hickman, T.; Higgerty, J. W.; Hourquebie, R. G. L.; Hughes, T. G.; Lewis, H.; Malan. E. G.; Miller, H.; Mitchell, D. E.; Mitchell, M. L.; Moore, P. A.; Oldfield, G. N.; Plewman, R. P.; Radford, A.; Raw, W. V.; Ross, D. G.; Steenkamp, L. S.; Steyn, S. J. M.; Streicher, D. M.; Suzman, H.; Taurog, L. B.; Taylor, C. D.; Thompson, J. O. N.; Timoney, H. M.; Tucker, H.; van der Byl, P.; van Niekerk, S. M.; Warren, C. M.; Waterson, S. F.; Weiss, U. M.; Wood, L. F.

Tellers: N. G. Eaton and A. Hopewell.

NOES—82: Bekker, M. J. H.; Bezuidenhout, G. P. C.; Botha, H. J.; Botha, M. C.; Botha, P. W.; Botha, S. P.; Coertze, L. I.; Coetzee, B.; Cruywagen, W. A.; de Jager, P. R.; Dönges, T. E.; du Plessis, H. R. H.; Froneman, G. F. van L.; Greyling, J. C.; Haak, J. F. W.; Henning, J. M.; Heystek, J.; Hiemstra, E. C. A.; Jonker, A. H.; Keyter, H. C. A.; Knobel, G. J.; Koornhof, P. G. J.; Kotze, G. P.; Kotzé, S. F.; Labuschagne, J. S.; le Roux, P. M. K.; Malan, A. L; Malan, W. C.; Marais, J. A.; Marais, P. S.; Maree, G. de K.; Meyer, T.; Mostert, D. J. J.; Mulder, C. P.; Muller, H.; Muller, S. L.; Nel, J. A. F.; Nel, M. D. C. de W.; Niemand, F. J.; Odell, H. G. O.; Otto, J. C.; Pansegrouw, J. S.; Potgieter, J. E.; Rall, J. J.; Rall, J. W.; Sadie, N. C. van R.; Sauer, P. O.; Schlebusch, J. A.; Schoeman, B. J.; Schoeman, J. C. B.; Schoonbee, J. F.; Smit, H. H.; Stander, A. H.; Steyn, J. H.; Swanepoel, J. W. 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, 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 Zyl, J. J. B.; Venter, M. J. de la R.; Venter, W. L. D. M.; Verwoerd, H. F.; Viljoen, M.; Visse, J. H.; von Moltke, J. von S.; Vorster, B. J.; Vosloo, A. H.; Waring, F. W.; Webster, A.; Wentzel, J. J.

Tellers: W. H. Faurie and H. J. van Wyk.

Amendment accordingly negatived.

Amendments proposed by Mr. Gorshel and Mr. Plewman put and negatived (official Opposition and Mrs. Suzman dissenting).

Clause, as amended, put and the Committee divided:

AYES—84: Bekker, G. F. H.; Bekker, M. J. H.; Bezuidenhout, G. P. C.; Botha, Fl. J.; Botha, M. C.; Botha, P. W.; Botha, S. P.; Coertze, L. L; Coetzee, B.; Cruywagen, W. A.; de Jager, P. R.; Dönges, T. E.; du Plessis, H. R. H.; Froneman, G. F. van L.; Greyling, J. C.; Haak, J. F. W.; Henning, J. M.; Heystek, J.; Hiemstra, E. C. A.; Jonker, A. H.; Keyter, H. C. A.; Knobel, G. J.; Koornhof, P. G. J.; Kotze, G. P.; Kotzé, S. F.; Labuschagne, J. S.; le Roux, P. M. K.; Malan, A. I.; Malan, W. C.; Marais, J. A.; Marais, P. S.; Maree, G.; de K.; Meyer, T.; Mostert, D. J. J.; mulder, C. P.; Muller, H.; Muller, S. L.; Nel, J. A. F.; Nel, M. D. C. de W.; Niemand F. J.; Odell, H. G. O.; Otto, J. C; Pansegrouw, J. S.; Potgieter, J. E.; Rall, J. J.; Rall, J. W.; Sadie, N. C. van R. Sauer, P. O.; Schlebusch, J. A.; Schoeman, B. J.; Schoeman, J. C. B.; Schoonbee, J. F.; Smit, H. H.; Stander, A. H.; Steyn, J. H.; Swanepoel, J. W. 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, P. S.; van der Spuy, J. P.; 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 Zyl, J. J. B.; Venter, M. J. de la R.; Venter, W. L. D. M.; Verwoerd, H. F.; Viljoen, M.; Visse, J. H.; von Moltke, J. von S.; Vorster, B. J.; Vosloo, A. H.; Waring, F. W.; Webster, A.; Wentzel, J. J.

Tellers: W. H. Faurie and H. J. van Wyk.

NOES—48: Barnett, C.; Basson, J. A. L.; Basson, J. D. du P.; Bennett, C.; Bronkhorst, H. J.; Cadman, R. M.; Connan, J. M.; de Kock, H. C.; Durrant, R. B.; Eden, G. S.; Emdin, S.; Field, A. N.; Gay, L. C.; Gorshel, A.; Graaff, de V.; Hen-wood, B. H.; Hickman, T.; Higgerty, J. W.; Hourquebie, R. G. L.; Hughes, T. G.; Lewis, H.; Malan, E. G.; Miller, H.; Mitchell, D. E.; Mitchell, M. L.; Moore, P. A.; Oldfield, G. N.; Plewman, R. P.; Radford, A.; Raw, W. V.; Ross, D. G.; Steenkamp, L. S.; Steyn, S. J. M.; Streicher, D. M.; Suzman, H.; Taurog, L. B.; Taylor, C. D.; Thompson, J. O. N.; Timoney, H. M.; Tucker, H.; van der Byl, P.; van Niekerk, S. M.; Warren, C. M.; Waterson, S. F.; Weiss, U. M.; Wood, L. F.

Tellers: A. Hopewell and N. G. Eaton.

Clause, as amended, accordingly agreed to.

On Clause 10,

I want to say at once that we have no objections to this clause. I wonder whether the hon. Minister would indicate to us why he has framed it in this way and what is the difference between “kidnapping” and “childstealing” and whether he has considered putting in the offence of plagium, which would include manstealing and woman-stealing and childstealing. I hope the Minister has this information available. I have not before seen the crime of childstealing, which is “kinderroof” in an indictment as kidnapping.

In essence there is really no difference between the two, except that Roman Dutch Law differentiates between the two. What we are dealing with here are not statutory offences but common law offences and according to our common law they are two separate crimes although it is really very difficult to differentiate between the two.

Clause put and agreed to.

On Clause 11,

This is a clause which of course we are delighted to see, the clause that removes the compulsion for whipping for certain offences from the courts and gives back to the courts in respect of the offences set out in a previous clause a discretion, or a discretion anyway for inferior courts only in offences set out in a previous clause. Now the hon. Minister announced in February in this House, in answer to a question, that the Government had decided to abolish corporal punishment. The way in which it is done is very simple—a one-and-a-half line clause. Now since this announcement, one Judge in the Cape said he was not going to order compulsory whipping any more, but I am quite sure that other courts, and certainly all the inferior courts, as the law obliges them to, have inflicted compulsory whipping on persons convicted of various offences. Perhaps the hon. Minister can tell the Committee why, the announcement having been made in February indicating that the Cabinet had taken that decision before that date already, why it has taken so long for this clause to be presented for the consideration of this House.

May I ask another question? Like the hon. member who has just sat down, I am very glad indeed that this clause has been introduced and that the sentences for which compulsory whippings were previously prescribed no longer exist. I think this is very timely, Sir, because we were getting to the stage in this country where there were far too many cases of whipping, and the total number of strokes had risen by June 1964 to 79,000. It is true that not all these were administered in terms of compulsory whipping. A lot of those were administered through the ordinary jurisdiction of the courts. The question I would want to put to the hon. the Minister is this: Does he not think it is time that we should revise our whole attitude towards the imposition of sentences of whipping, in particular as far as juveniles are concerned? I think the hon. Minister ought to consider this, because I think experience has shown that the infliction of these sentences has not acted as a deterrent. I do not think there is any evidence whatever to prove that whipping has acted as a deterrent. I think to judge by the number of additional crimes and the number of additional whippings imposed as far as juveniles are concerned, by the number of canings that have been administered, there is no evidence that it deters people from committing crimes. I hope the hon. Minister will consider this and consult with his authorities on penal reform, and generally speaking, with his law-advisers, to see whether he cannot encourage the laws in this country to take a different direction altogether and to act more on the rehabilitative side than the curative side.

As far as the question put by the hon. member for Durban (North) (Mr. M. L. Mitchell) is concerned, that matter naturally had to wait until the Criminal Procedure Amendment Bill could be introduced and it was not possible at that stage to introduce that Bill. I could not introduce a special Bill just for that purpose. But it has been incorporated in this Bill. As far as the hon. member for Houghton is concerned she was not right, of course, in saying that corporal punishment did not serve any purpose whatsoever. On the contrary, I have already told hon. members that I have had this question very thoroughly examined and I also said during my second-reading speech that it had served a particularly good purpose in respect of the receivers of stolen property and I trust the courts will continue to impose corporal punishment in respect of this kind of crime. For the rest it was also very clear from the investigation that corporal punishment served a good purpose in respect of first offenders. It is only in the case of hardened criminals that corporal punishment does not always have the desired effect but it does in some cases, however. There is a certain type of bully, for instance, who understands only one language and it is that language. It has a very salutory effect on him. It varies from individual to individual, however. But simply to say that it serves no purpose is contrary to the facts and also to the results of the investigation. I personally know of numerous cases where all other methods had failed but where corporal punishment was successful. I repeat, however, that different individuals react differently. As far as I am concerned, this is a recognized form of punishment, not only here but in many other countries, and I am quite prepared to leave it to the discretion of the courts.

Clause put and agreed to.

On Clause 16,

I move—

In line 42, after “bail” to add “or under Section 215 bis issued a warrant for the arrest and detention of a witness”.

I move—

This is an important clause in that “Part IIbis” lays down the offences which apply in respect of Clauses 6 and 7. The definitions of crimes as set forth in this clause are very wide indeed, especially in regard to Communism. There is a multitude of offences under the Suppression of Communism Act, and we feel that it is quite wrong that these stringent provisions of Clauses 6 and 7 should be applied to all those offences under the Suppression of Communism Act, and therefore I move that the offences to which it will apply, will only be those in which respect an overt act has taken place.

I am quite prepared to accept the hon. member’s amendment, provided the hon. member also adds (d )bis and (d )ter. These are offences in respect of which a minimum sentence has been laid down and if the hon. member is prepared to add those, I am prepared to accept this amendment.

Yes, Sir, I accept that.

Amendment proposed by Mr. Hughes, with leave, withdrawn.

I now move—

In line 48, to omit “any provision” and to substitute “the provisions of paragraph (a), (b), (b )bis, (b)ter, (c), (d), (d )bis or (d )ter of Section 11”.

Amendments proposed by the Minister of Justice and by Mr. Hughes put and agreed to.

Clause, as amended, put and agreed to.

Clause 18 put and agreed to (Official Opposition, Mr. Barnett and Mrs. Suzman dissenting).

Title of the Bill put and agreed to.

House Resumed:

Bill reported with amendments.

I move the amendment standing in my name—

As I pointed out in the second reading, we have no objection to the offence being to carry or knowingly to display any of these articles, but I submit that a man may unwittingly be in possession of some document or an emblem. I submit that being in possession of it goes too far, because he may unwittingly be in possession of such an old document or photograph.

I would have liked to accept the amendment but there are various reasons why I cannot, one being that if I were to accept it as it stood here it would practically be meaningless because for all practical purposes it would be impossible to prove that he knew about it. In that case the onus rests on you and it means that you are only creating an assumption. The hon. member will remember that we were faced with the same problem in respect of gold, dagga and liquor. He must just leave it to the common sense of the public prosecutor. There have been cases in the past where we have had to leave it to the common sense of the prosecutor. In the case where the person obviously knows nothing about it he will not be prosecuted but simply to accept it will create an impossible position for us. We have had cases where persons would otherwise have been found guilty but were not because we did not have this section. I am informed that the moment we insert “knowingly” we might just as well leave the section out.

I appreciate that difficulty, but I want to point out that the punishment is very severe. There is no fine, but only imprisonment of up to ten years.

The same applies to the gold law. We must just leave it to the court.

But being in possession of an emblem of an unlawful organization is not as serious as being in possession of gold or dagga.

The same applies to literature.

Yes, but I think the punishment is far too severe.

The court may suspend the sentence.

My objection is that there is no fine, but only imprisonment.

I agree with the hon. member for Transkeian Territories that this is far too wide. I do not only object to a person’s being “in possession of” it, but being “in any way associated with” it makes it a very far-reaching clause indeed. It is quite possible that a man who for years has had nothing to do with an unlawful organization may have in his possession a pamphlet of which he is not even aware, or some letter which associates him with previous membership of such an organization. I think this is a very harsh clause indeed. It means that anyone who at any time had anything to do with an unlawful organization, which was lawful at the time he was a member of it, would have to go through his possessions with a fine comb to make absolutely certain that not the slightest evidence can be found of any association with such a body in the past because it can land him in the most serious trouble.

Amendment put and negatived, (Official Opposition and Mrs. Suzman dissenting).

Clause, as printed, put and agreed to.

Clause 2 put and negatived.

On Clause 3,

I want to point out that where the word “and” appears it should be “or”.

Thank you. I will go into it.

Clause put and agreed to.

On Clause 4,

We shall oppose this clause. As we indicated in the second reading, we have strong objection to it. The Minister justifies the clause for one reason only, and that is to keep one man in gaol after he has served his sentence. We are told that this provision has not been abused and that only one man has been so detained during the past two years. I say that is all the more reason why this clause should be scrapped. When the provision was made in the original Act that this clause should be renewed every year, it was done for the very purpose that there may not be necessity for the clause, and it has been proved during the past two years that there is no further necessity for it. In dealing with other clauses the Minister has said that unless it has been abused there is no reason why he should make provision for the clause to be introduced every year. I say that the contrary applies here, and because he has not proved the necessity for having this clause he should abolish it. He can deal with this one man, Sobukwe.

I cannot keep him on Robben Island or in any prison otherwise.

But the Minister can banish him.

How long do you think he will stay there? I have considered that.

Surely he can be watched wherever he is. This is a blot on our Statute Book. It is the harshest provision the Government has ever introduced, and I think it is a shame to keep it on the Statute Book when in fact it deals with only one person.

I need not say much more about this clause because I devoted a great deal of my time to it in the second reading. I disagree with what the hon. member for Transkeian Territories has said. Whether it is one man or ten or 100, the principle is bad, that the Minister should take it upon himself to keep a person in prison after he has served his sentence. I do not think this clause should be retained. The Minister can keep a man in gaol endlessly, and for as. long as he wants to do so, we will have this clause on the Statute Book. There is no excuse for keeping a man in prison after he has served his sentence. It is contrary to all the tenets of the rule of law to have this clause on the Statute Book. I asked the Minister earlier whether he would consider allowing Sobukwe to leave the country, and he said no, because he was convinced the man had not changed his mind, but can he not at least keep him in another prison so that his wife can visit him? She lives in Johannesburg, where she works in a clinic in Moroka, and she has to travel all this distance to visit him, and it is expensive. The least the Minister could do is to keep this man in a prison where she can have access to him frequently.

Hon. members will remember that when we discussed this section during the second reading I pointed out, inter alia, that the representative of the International Red Cross visited the person concerned on two occasions and reported on his detention. You will remember, Sir, that I said at the time that I believed the Red Cross should publish that report. In other words, I stated clearly, and the Leader of the Opposition agreed with me, that we had no objection to the Red Cross publishing that report. To my sorrow I read in various newspapers “that I issued a challenge to the International Red Cross to publish the report”. I never issued a challenge nor do I issue one now. I am merely giving them my permission to publish that report, for the reasons in principle I stated at the time. But certain people, either deliberately or through sheer stupidity, said I had issued a challenge. It can only be to bedevil our relationships once again, I can think of no other reason. I just want to say quite clearly that there was never any question of a challenge.

As far as the attitude of the hon. member for Houghton is concerned, I can only say that I have decided, after having thoroughly considered the places at my disposal where I can detain such a person, that the best place is Robben Island, firstly, because that is the safest place to keep such a person, and, secondly, because it is pre-eminently the place where I can allow such a person the maximum amount of freedom in the circumstances. If I were to detain him anywhere else it would be impossible to grant him the privileges he was enjoying to-day. I believe, therefore, that it is in his own interests that he be detained there. As far as visits from his wife are concerned she can visit him at any time. I have never yet refused her a permit to go and see him. It is a pity that it costs her a lot of money but she sees him every day she is here.

Can’t you give her a free pass?

Unfortunately there is no provision for that in the regulations but I can follow the suggestion up for what it is worth without committing myself. I can only say that the treatment he gets compares very favourably with that received by any person detained in the past in South Africa. I do not want to rake up old stories but I have personal experience of that and I shall not do to Sobukwe what was done to me.

As far as the hon. member for Transkeian Territories is concerned, I can just tell him that if I were to confine him to any other area in terms of other measures, that would be the last we would see of him. He will not stay there and it is impossible, from a practical point of view, to guard anybody the whole time if he really wants to run away.

I feel very unhappy about this clause. I think most members of the House do, and certainly most people in the country. I am encouraged to intervene in this discussion because of the attitude of the Minister in the second reading. He also does not like it. He feels he is called upon to enforce this law, but he made it clear that he was unhappy about it. I should like him to release this man. There are many laws in South Africa that people regard as contrary to the rule of law, but one can offer an explanation to people in other countries and explain our special circumstances, but I cannot justify retaining a man after he has served his sentence.

Order! That principle has been accepted in the second reading. The hon. member must resume his seat.

May I not continue my appeal to the Minister?

No.

On a point of order, may I assist the hon. member? I do not think the hon. member is attacking the principle. He is pleading for a specific person, which does not conflict with the principle.

Then the hon. member must confine his remarks to this particular person.

Thank you. In applying this principle, I understand that this prisoner is defiant and unrepentant, recalcitrant and difficult to deal with. There is nothing new in that. There are three kinds of prisoners, as the Minister knows. There is the type he has described, like Sobukwe, and there is the cringing type, and then there is the man who is indifferent. We have had men in our history, the highest in the land, a former Minister of Justice, who said the following—

Is not that what Sobukwe is saying, that if he gets out he will act in the same way? But why not let him try to? The Minister can deal with this man when he gets out.

The hon. member misunderstands me. This man’s attitude is that he wants to carry on where he left off. And where did he leave off? At organizing a revolution, the shedding of blood and murder. Fortunately for him those things did not take place after his arrest but he is the leader of that organization. All his followers were given long terms of imprisonment, ten and 15 years, and some were condemned to death. It is not unreasonable, therefore, to detain him longer. I appreciate the problems the hon. member has mentioned and that is why I go out of my way to treat him as fairly as possible. I can also add that he does not give us any trouble. He is a model prisoner as far as that is concerned but that does not make him any the less dangerous, as he himself says.

Has the Minister not broken the back of his organization?

Yes, but if I let him out he will start another organization. I am not prepared to take that chance.

Clause 4 put and the Committee divided:

AYES—86: Bekker, G. F. H.; Bekker, M. J. H.; Bezuidenhout, G. P. C.; Botha, H. J.; Botha, M. C.; Botha, P. W.; Botha, S. P.; Coertze, L. I.; Coetzee, B.; Cruywagen, W. A.; de Jager, P. R.; Diederichs, N.; Dönges, T. E.; du Plessis, H. R. H.; Frank, S.; Froneman, G. F. van L.; Greyling, J. C.; Haak, J. F. W.; Henning, J. M.; Hertzog, A.; Heystek, J.; Hiemstra, E. C. A.; Jonker, A. H.; Keyter, H. C. A.;. Knobel, G. J.; Koornhof, P. G. J.; Kotze G. P.; Kotzé, S. F.; Labuschagne, J. S.; le Roux, P. M. K.; Malan, W. C.; Marais, J. A.; Marais, P. S.; Maree, G. de K.; Martins, H. E.; Meyer, T.; Mostert, D. J. J.; Mulder C. P.; Muller, H.; Muller, S. L.; Nel, J. A. F.; Niemand, F. J.; Odell, H. G. O.; Otto, J. C.; Pansegrouw, J. S.; Pelser, P. C.; Potgieter, J. E.; Rall, J. J.; Rall, J. W.; Sadie, N. C. van R.; Sauer P. O.; Schoeman, B. J.; Schoeman, J. C. B.; Schoonbee, J. F.; Smit, H. H.; Stander, A. H.; Steyn, F. S.; Steyn, J. H. Swanepoel, J. W. 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 P. S.; van der Spuy, J. P.; 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 Zyl, J. J. B.; Venter, M. J. de la R.; Venter, W. L. D. M.; Verwoerd, H. F.; Viljoen, M.; Visse, J. H.; von Moltke, J. von S.; Vorster, B. J.; Vosloo, A. H.; Webster, A.; Wentzel, J. J.

Tellers: W. H. Faurie and H. J. van Wyk.

NOES—46: Barnett, C.; Basson, J. A. L.; Basson, J. D. du P.; Bennett, C.; Bronkhorst, H. J.; Cadman, R. M.; Connan, J. M.; Durrant, R. B.; Eden, G. S.; Emdin, S.; Field, A. N.; Gay, L. C.; Gorshel, A.; Graaff, de V.; Hickman, T.; Higgerty, J. W.; Hourquebie, R. G. L.; Hughes, T. G.; Lewis, H.; Malan, E. G.; Miller, H.; Mitchell, D. E.; Mitchell, M. L.; Moore, P. A.; Oldfield, G. N.; Plewman, R.P.; Radford, A.; Raw, W. V.; Ross, D. G.; Steenkamp, L. S.; Steyn, S. J. M.; Streicher, D. M.; Suzman, H.; Taurog, L. B.; Taylor, C. D.; Thompson, J. O. N.; Timoney, H. M.; Tucker, H.; van der Byl, P.; van Niekerk, S. M.; Warren, C. M.; Waterson, S. F.; Weiss, U. M.; Wood, L. F.

Tellers: N. G. Eaton and A. Hopewell.

Clause accordingly agreed to.

On Clause 5,

I move the amendment as printed in my name—

The hon. the Minister’s amendment will be accepted by this side of the House but it does not remove from this clause the objections that we have to it. Quite apart from the fact that the hon. the Minister’s amendment will now make it possible for the Press to reproduce what world leaders, who do further the aims and objects of Communism, may say, it has another connotation, as the hon. the Minister agreed at the second reading, and I would like the Minister to indicate to the Committee exactly what he has in mind in respect of this clause. Sir, I put it to him before that in terms of this clause, in terms of 10 quin, he could name somebody, whereupon nobody would be able to reproduce what that person said. The position at the moment is that if the Minister bans anyone from attending gatherings and therefore from addressing gatherings under Section 5 or Section 9 of the Principal Act, the prohibition on publication or reproducing what that person says is automatic. The Minister also has the power, without banning someone from attending a gathering or addressing a gathering, to name him whereupon publication of what he said is prohibited. I hope the hon. the Minister will indicate what his attitude is but it seems to me to be anomalous, if the Minister puts a man’s name on the list, which he can only do if he is satisfied that that person advocates, encourages, defends, etc. Communism, because he feels that some restriction should be placed upon the reproduction of what he said, that the Minister, exercising his powers in terms of this, nevertheless allows such a person to attend and address a gathering, if he feels that he is such a person. Sir, the hon. the Minister says that I am quite right and I hope he will indicate why it is that he wants this power and in respect of whom he is going to apply it.

I do not want this power. It is just by chance that it has been formulated in this way but it means nothing. To be quite honest, if I should act in the way in which the hon. member is scared I will, it would, of course, be in the person’s favour. The hon. member knows that a prohibition on publication only follows upon a prohibition on attending any gathering. It would, of course, be much easier for the person concerned if he were only prohibited from attending a gathering without any prohibition on publication; he would find that less irksome. It is not my intention to exercise this power in practice and if the hon. member wants to move the deletion of the words “is of” I will be quite prepared to accept it, so that it will only apply to people who live here, namely the Slovos and the Wolpes. If the hon. member wants those words deleted in respect of persons residing here I am quite prepared to do so.

I should like to move an amendment to the hon. the Minister’s amendment, if I may.

Of course, this is not a police state.

I then move as an amendment to the Minister’s amendment—

To omit “is or”.

That would meet our case.

Agreed to.

Amendment, as amended, put and agreed to.

Clause, as amended, put and agreed to.

Clause 8 put and negatived.

Remaining Clauses and Title of the Bill put and agreed to.

House Resumed:

Bill reported with amendments.

I move as an unopposed motion:

In Clause 1 in lines 42 and 43, page 4, to omit “cancellation of registration or making available” and to substitute “availability”; and in line 45, after “efficacy” to insert “thereof”.

Agreed to.

Amendment, as amended, put and agreed to.

First amendment in Clause 3 put and agreed to.

Remaining amendment in Clause 3, made in Committee of the Whole House, put.

I move—

In Clause 3, in lines 69 and 70, to omit “the speciality of physician” and to substitute “a speciality in medicine”.

Agreed to.

Amendment, as amended, put and agreed to.

I move as an unopposed motion:

In Clause 3, in line 5, page 6, after “two” to insert “or more”.

Agreed to.

Remaining amendments put and agreed to, and the Bill, as amended, adopted.

I move—

This Bill has now reached the stage where it is accepted by all sides of the House, that it is breaking new ground; it is creating an opportunity for us in this country to register our own drugs. On the other hand, we are ill equipped to do so. We do not have the laboratory facilities nor have we the personnel. We will be largely dependent on the decisions of other countries as we were before. But the Bill does introduce a new principle which may have far-reaching effects upon the proprietary drug trade in this country in that the principle is that this new Drug Council will have the power to check the veracity of the claims which are made for medicines advertised in the Press. There are two forms of advertisement. The one type of advertisement appears in the medical, chemical pharmaceutical and veterinary journals, and the other is the type of advertisement that appears in the lay Press. I am referring now to the advertisements in the lay Press for various pills and potions and ointments, etc. All sorts of extravagant claims have been made in the past for these drugs although they were limited some years back by law which prevented the advertising of claims for curing cancer and for curing venereal disease. That was done some years back. This control council will now have the power to check the claims of these patent medicines. Its effect may indeed be far-reaching. From the medical point of view we feel that such control is excellent. We are not afraid of the control of ethical preparations which are preparations made by the great pharmaceutical houses. Those houses are forced in practice to maintain the highest standards possible because if any of them were to put a poor quality drug on the market the profession would soon show them where they had fallen down and their name would be very bad. These great pharmaceutical houses attach great importance, and very rightly so, to their prestige and their standing with the medical profession. If their drugs are not up to standard they will soon discover that they are not prescribed. But these potions, lotions and pills which laymen take for various illnesses, imaginary or otherwise, will now largely be controlled. It has been a long and hard battle for the Department of Health to obtain this control and in this Act they have succeeded indirectly in doing so. I think this effect will come as a great surprise to a great many people in this House and outside.

I believe that the intention which activated the promulgation of this Bill has been the interest and welfare of John Citizen or Jan Burger. I believe, to a large extent, this Bill will have that effect. It will control in many ways the issue of drugs which, in the past, could and have been abused and it will, I believe, to a large extent control the unethical and undesirable advertising which has been foisted on the public for many years.

While dealing with this question of advertising I want to refer to the undertaking the Minister has given. I trust that, when it comes to the framing of regulations, it will be possible to take into consideration the difficulties which have been outlined to him both in the second reading and in the Committee Stage in regard to certain administrative problems concerning this clause on advertising as the Bill stands at the moment.

There is one aspect which disturbs me in the passing of this Bill and that is in regard to the registration fee. I must reiterate that I believe a section of the public should not have to be responsible for the financial arrangements concerning this Drugs Control Council. I believe it is a responsibility which should be shared by the taxpayers and that it should be financed by the State on that basis. I realize too that since the draft Bill was gazetted the Minister and his Department have been approached by many interests who have expressed certain anxiety as a result of the gazetted version of the Bill. I believe the Minister and his Department have shown a sympathetic understanding of many of the difficulties placed before them by various interests. I would like to express my appreciation to the Department and to the legal draftsmen for the able manner in which they have dealt with the many representations that have been made to them. They have been made on the basis of consultation and negotiation and I believe that the Bill, as it stands, is all the better for the representations which have been made. I believe that in all this diversity of representation the interests of the public have been of paramount importance. I think we shall see that as far as the sale of medicines to the public is concerned the interests of the public will be maintained.

Arising out of the acceptance of Clauses 14 and 18, we find that both the medical profession and the pharmaceutical profession will enjoy privileges which to a large extent they have enjoyed in the past. They operate under the Medical, Dental and Pharmacy Act, and I believe it is right that this Bill should in no way impinge upon the activities that are provided for in that Act.

There is one question I would like to ask the hon. the Minister arising out of these two clauses and the effect of the Bill in general, and that is what the approach will be by this Council to individuals who are not registered under Act 13 of 1928, the Medical, Dental and Pharmacy Act, and who do not enjoy exemptions under this new Bill in Clauses 14 and 18? I am referring particularly to individuals such as herbalists, “nyangas” and medicine men because I believe that the definitions set out in this Bill, particularly with regard to “drug” and “to sell”, could very well bring these people within the ambit of the Bill, to this effect that, if they wish to continue their operations, they will be required to register their remedies. I believe, too, that there are certain aspects in regard to the activities of these particular people which may be contraventions of other pieces of legislation. I shall be pleased if the Minister could give me his impressions as to how he feels they could be dealt with under the provisions of this Bill.

We know that this Council, when it is formed, will have a colossal task. I believe that its task will be eased if one accepts the principle of blanket exemptions of certain drugs which have enjoyed almost international recognition, drugs which are included in the British pharmacoepaeia, and in certain other recognized formularies in the Republic. I feel that will be very necessary because it would not be desirable for this Council to be bogged down with detail in the initial stages. Only recently I was reading a report of the Dunlop Committee in Great Britain which undertakes a similar type of work. I understand that one particular firm’s product was submitted to the committee and that the evidence submitted with the application stood five feet one inch in height. If this council is to be faced with all this amount of information before it can register a drug its time will obviously be more than occupied and a considerable delay is likely to arise. I also understand that in the United States the position in regard to the registration of new drugs is causing a certain amount of anxiety to the extent that a delay of as much as 18 months has been occasioned in an application received for a new drug. Certain manufacturers in the United States are expressing anxiety because they feel that it is interfering with research on pharmaceutical products. I know these are problems which the council will have to face but I do hope it will face them in a realistic way and accept wherever possible, authentic information which is available to the council from other countries.

I believe there are a few minor points which could possibly be clarified. I am referring particularly to the question of an approved drug and the power given to the council to allocate another name to an approved drug. I believe the Minister could possibly consider some amendment of that situation in the Other Place which would overcome an anxiety which I know exists in certain spheres of pharmaceutical activities. But I believe that this Bill, while it may not bring down the price of medicine to the public, will more than compensate the public in the security which it will offer them once it has been put into full operation.

Those of us who have participated in the discussion on this Bill are all convinced that we have been dealing with really important legislation. In actual fact we are simply following in the footsteps of the rest of the Western world and the various countries which have taken drastic measures to control drugs. America was one of the first countries to do this and England followed her example. This work was to a very large extent experimental; it was pioneer work. Many difficulties have already been ironed out but there are still many which will have to be resolved. I do not think that we can say for one moment that this Bill is in the form in which it will remain for all time. Amendments will have to be effected from time to time and possibly, fairly soon. There are already problems facing us, problems to which the hon. member for Durban (Berea) (Mr. Wood) referred. There is the problem in connection with the “nyangas” and herbalists of the Bantu, persons in whom the Bantu have great faith. It would, of course, be wrong for us to put an immediate stop to their activities. There is the problem of the homeopaths. The homeopaths came to see me to find out what their position is. When it was put to them that exceptions could be provided for in terms of the Bill but that it was a principle of the Bill that any drug which was effective would be allowed, they were so convinced of the value of their own medicines that they said that they would not ask for special treatment but simply wanted the right to prove that their medicines were effective. They fall, therefore, under the law as it is to-day. They may or may not have a case. If there are any problems in the future we shall have to combat those problems by way of amending legislation.

I want to thank all the hon. members who participated in the debate, and the Department particularly, for all the time and energy which they have devoted, to this matter. Because this is pioneer work it has been very exacting and has required a great deal of study and research. I also want to make use of the opportunity to thank hon. members on both sides of the House for their valuable contributions and for their willingness to assist in placing this legislation on the Statute Book.

Motion put and agreed to.

Bill read a third time.

Precedence given to Orders of the Day Nos. X, XI, XIV, XV, XIII and XVII in that sequence.

I would like some information from the hon. the Minister as to what is intended in sub-section (6). I am referring to the proviso. This sub-section (6) deals with the loan portion of the tax payable by the taxpayer and it goes on to say this—

Now without some explanation this seems to me a strange provision, and I would like to know whether this power can be exercised by the Secretary against the wish of the person to whom the levy is refundable. Because as the proviso now reads, it is certainly wide enough to invoke its provisions regardless of what the wish of the person himself may be. If that is so, it is an unwarranted invasion of the rights of the individual. But before proceeding further, I hope the hon. Minister will explain that portion of the clause.

I think as far as I read the clause, a person who is entitled to have the money paid to him, the loan portion, can request the Secretary to do so and in normal circumstances the Secretary will pay it over. But there may be circumstances which make it undesirable for the Secretary to make such a payment even if the instructions are given when he has a doubt as to the identity of the person who has given the instructions —whether he is really the owner. I think this is merely ex abundante cautela to give him an opportunity of not automatically paying over. His discretion is a discretion which naturally will be exercised in a judicial manner. In addition, I want to say that this is not anything new. There was a similar provision on previous occasions when we had the loan levy. The object is to allow the Secretary to pay the loan levy to the widow or a dependant of the deceased taxpayer if in terms of the will the levy accrues to him or her.

I would be happy with the hon. Minister’s explanation if that is what the proviso actually says, but it does not say that. If the proviso had said that at the request of the person the amount may be paid out to someone else, that would be clear. But it does not say that. It says “provided that if in the opinion of the Secretary the circumstances of the case warrant such action”, without any approach from anybody else. I think this is not clear at all. If the clause said what the hon. Minister is reading into it, it would be perfectly all right, but that is not what it says.

There has never been any trouble in the past. This clause is simply a repetition of a previous clause on the subject.

Yes, the hon. Minister explains it that way. I do not know whether it has caused any trouble in the past or not. That is not within my knowledge. But even if that is so, then surely we should put it right here even if it might not have been right before. I am not going to pursue the matter as this stage. Naturally I have not had the opportunity of devising a suitable amendment to meet the point, but I hope the hon. Minister will undertake to look into the matter again.

Clause put and agreed to.

On Clause 5,

I wish to refer to Clause 5 (b). On the face of it, the new definition for taxation purpose of a “married person” appears to be more satisfactory than the old one, but I would still like to ask the hon. Minister a question: Does this new definition permit of deductions being made in respect of a child or children from the income of either party, if it can be proved that they have not been living together for some time, or are legally separated or divorced, or not? I would be glad if the hon. the Minister could explain this provision in greater detail. For instance if a married couple are not living together, or the man has deserted his wife, which happens in many cases, as the hon. Minister knows, leaving her in charge of the children, and she goes out to work and does not know where he is, does the husband then continue to have deductions for the maintenance of these children taken from his income-tax assessment, Mr. Chairman—even when he is evading his financial responsibilities? Or is the position now to be that if a wife or a husband deserts the other that the party who retains the children and is left with the responsibility for their maintenance is the one who then benefits from the deductions for taxation purposes under the Act? If course, that should be the case if the situation is to be fairly dealt with.

I ask this question because very many women find themselves unfortunately in this position. They are deserted by their husbands. They are obliged to go out to work. The husband probably goes on handing in his income-tax assessments demanding rebates for three, four or five children, whereas in fact, he does not maintain the children at all. I gather, the Commissioner of Inland Revenue has no right to tell either the husband or the wife where the respective parties are once they have deserted each other. I think this point should be clarified, because I would very much like to know from the hon. Minister whether our law in South Africa prohibits a wife who is earning, but is living apart from her husband, from receiving the benefit of these income-tax deductions in respect of the children if she is earning money and looking after them, and the husband is not.

This amendment should be read together with the amendment to Section 7 of the principal Act introduced by Clause 8 of this Bill. In terms of that, the income of the woman who is living apart from her husband in circumstances indicating that the separation is likely to be permanent, will no longer be deemed to be the income of her husband but will be taxed in her hands. Now in terms of the amendment to the definition of “married person” introduced by this clause, spouses who are permanently living apart will be normally regarded as unmarried persons. Both such persons will, however, be entitled to the rebates for children of the marriage where such rebates are applicable in terms of the principal Act. They receive the rebates but not deductions from income. Both parents are entitled to the rebates. The whole position was explained in the memorandum which explained the impact of this particular clause.

I might add, reading from the memorandum: The provision of the definition of “married persons” in regard to spouses who were separated by written agreement entered into not later than 21 March 1962 or under an order of judicial separation granted in consequence of proceedings instituted not later than that date, remain unchanged. In other words, both the spouses when they are regarded as unmarried—that is in terms of (b) (a)—each party receives rebates but not deductions from income. Both parties are entitled to the rebate. That is the change that is being brought about now.

With respect, I do not think the hon. Minister’s reply clarifies anything very much. The position in regard to rebates I can understand, but it seems to me to be quite inequitable, to say the least of it, that where a woman for instance has been deserted by her husband and goes out to work for the specific purpose of maintaining her children, that she should not receive the actual income-tax deductions when her income is being assessed for taxation purposes. I cannot for the life of me see why that is not incorporated in this Bill, and if it is not included, something should be done about it in future. On the face of it this is a very unjust position vis-à-vis many of these women who have to cope with situations of that kind. I know quite well that the hon. Minister will reply to me and say that in law the taxpayer is always the husband. I wish to discuss that issue with him under another clause in a minute, but if, in fact, as the Minister says, they are considered to be unmarried persons in terms of this new definition for taxation purposes, then I would like to remind the hon. Minister that if a single woman in South Africa has an illegitimate child, she has all the rights and status in law with regard to the guardianship of that child and with regard to income-tax benefits, all tax reductions, rebates—the whole lot, that is if she has an illegitimate child and is unmarried. We have this extraordinary anomaly whereby if a woman is married and has children of the marriage and the marriage for one reason or another breaks up, or the couple is separated, or the one deserts the other, she is not entitled to mere benefits in law because she has no status as a taxpayer to receive these deductions. I put it to the hon. the Minister that it is time that this situation was clarified and changed.

The hon. member knows that this is a concession on the previous provisions when they were not regarded as single persons, even when separated, and they were not entitled to any rebate. We have gone a long way, but Rome was not built in one day, and these things come gradually. They come in due time. As I have explained, the married woman who is separated is regarded now as an unmarried woman and she receives all the deductions to which any taxpayer is entitled. She is assessed as a separate person, from her husband, and on her own income alone. We have gone a long way to assist the married woman under these tragic circumstances.

Clause put and agreed to.

On Clause 6,

I would like some explanation from the Minister in regard to Clause 6, simply because the provisions of Clauses 25 and 26 are as far as I can see qualified entirely by the provisions of Clause 6, which contains an amendment to Section 5 of the principal Act. The White Paper merely says that the amendments introduced by these clauses to the first and second schedules of the principal Act, are consequential upon the amendment of Section 5 of the principal Act introduced by Clause 6. I realize that, but I want to know what it means. It seems to me that those two clauses are precisely as they were except for the fact that they are now conditioned by this Clause 6. Therefore the effect of Clause 6 is what matters, and I seek to understand the meaning of Clause 6 in its relationship and its meaning in regard to the other two clauses.

Clause 6 makes some attempt to alleviate the position of the married woman who is working. Although we welcome the principle that there should be alleviation in the taxation of the joint incomes of the married woman and her husband, there are two things we do not like about the detail. One is the formula. The examples of the formula deal with round figures and it may be that the differences are greater in the split amounts, but we find that only in two categories of joint incomes, the incomes of R6,000 and R8,000, is there any real material saving. Up to a joint income of R5,000 per annum the saving is R16 on a present tax liability of R278, which is really infinitesimal. On R6,000 the saving is R130 on R478, and R240 is the saving against the present tax of R 1,088 on an income of R8,000. So really the relief granted to those people earning below R6,000 is negligible. I know the Minister will say they do not pay very much tax up to that point, but to people earning R3,000 a year R89 is a fairly high tax and for people earning R5,000, R278 is also fairly high. The second point is that after the R8,000 you start diminishing until the tax relief disappears altogether. In other words, where there is a saving now on R8.000 of R240, on an income of R8,500 the saving is R46 and on an income of R9,000 the saving is R9. We said in the second reading that one of the groups we thought was entitled to some reduction was the woman in the higher income group, the professional woman whom we need very badly. I know we cannot charge anything this year, but I hope the Minister will tell us that next year he will consider a change in the formula so that there is a more equitable distribution of saving, particularly where there is a joint income of more than R8,000.

On the point raised by the hon. member for Parktown (Mr. Emdin), the reason why the saving only becomes extensive when the salary exceeds R5.000 is really found in the Schedule to the Bill. The hon. member will see that on the first R600 the rate of taxation is 6 per cent. From R600 to R 1,000 it is 7 per cent, between R 1,000 and R 1,200 it is 8 per cent, between R 1,200 and R2,400 it is also 8 per cent, and up to R3.000 it is 8 per cent. Then from R3,000 to R4,600 it is 9 per cent, and it is 10 per cent between R4,600 and R5,000. That is a gradual weighting of the amount of tax payable. But then he will see there is a jump from 10 per cent to 20 per cent from R5,000 to R6,000. The reason for this is still a legacy that we have from the old supertax. We have already on two occasions tried to reduce the bulge but it is still there, and because of that it means that the persons in that category will naturally have a much bigger direct benefit than those in the category where they only have to pay 7 per cent to 10 per cent of their income. I have certain figures here which show the difference. For instance, with a joint income of R2,500, R 1,500 for the husband and R 1,000 for the wife, the saving is R4, but that means a saving of 8 per cent. With an income of R4,000, where the husband has earned R2,800 and the wife R 1,200, the saving is 4 per cent. With an income of R5,000, where the husband has R3,000 and the wife R2,000, the saving is 6 per cent on the tax. Then when you come to R6,000, where the husband has R3,000 and the wife has R3,000, you find that the tax saving is 27 per cent, and on R8,000, where the husband’s income is R5,500 and the wife’s R2,500, it is 22 per cent. That is the reason; we still have that bulge. It will certainly be the task of the Department in future, when there is an occasion to do this, to make that graph more equal so as not to have that bulge in the middle. I am afraid I cannot give any undertaking that I will raise the level of R8,000. We are making it taper off at R8,000 now. We do not want a salary just above R8,000 to have no concession whatever. So after R8,000 it tapers off gradually until about R9,500. In other countries where similar methods have been employed, they have often distinguished between earned income and unearned income. Unfortunately we do not have that distinction here. We do not want people where the wives are not working but have an unearned income of their own, to have the benefit of this. But it is one of the matters we will continually have in mind to see what can be done.

As far as the hon. member for South Coast is concerned, the effect of the amendments in Clause 5 is merely to preserve the rating benefits of plantation farmers and others and to ensure that there is no double calculation for rating purposes. They lose nothing by this. That is the whole object of it.

To preserve the benefit to the taxpayers against the income of the wife, if they are divorced or separated.

No, I think it merely preserves the existing position.

Clause put and agreed to.

On new clause to follow Clause 6,

I move—

That the following be a new clause to follow Clause 6:

1. 7. Section 6 of the principal Act is hereby amended—

   1. (a) by the substitution in paragraph (a) of sub-section (1) for the word “sixty-two” of the word “seventy-five”;
   2. (b) by the substitution in paragraph (c) of that sub-section for the word “thirty-four” of the word “fifty” and for the word “thirty-nine” of the word “seventy-five”; and

   3. (c) by the addition of the following paragraph to that sub-section:

      1. “(g) in respect of any married woman whose income from her employment is included by her husband in his return of income as taxpayer under sub-section (1) of Section 68 a sum not exceeding a sum equal to 40 per cent of such woman’s income but subject to a maximum deduction of R600.”

This amendment asks for an increase in the marriage rebate, and an increase in the rebates for children, and a rebate of 40 per cent on the wife’s earned income subject to a maximum reduction of R600. I have pointed out before that the marriage rebate was R62 in 1948. It dropped to R52 in 1952, went back to R62 the following year and it has remained at that figure ever since. We are now asking for it to be increased to R75, which I think is eminently reasonable. Children’s rebates are at present R34 each for the first two, and R39 each for any following children. In 1948 it was R20 per child, in 1956 it was R28, and in 1959 it was R30 and R34 in 1960, and it has remained at that figure ever since. I think those increases have been miserable and I am now asking for R50 for each of the first two children and R75 for each of the following. Marriage allowances are made to encourage marriages and children’s allowances are made to encourage the production of children, and how these miserable allowances can be held to encourage either marriage or children I do not know. I pointed out last year that if you had to buy a boy a shirt, a pair of shoes and a blazer and a pair of shorts, it would cost the parents roughly R7.70 more in 1964 than it would have cost in 1956. That is only a portion of his clothing, and the additional allowance given to the parent for the child has risen only from R28 to R34, an increase of R6. I cannot see by any stretch of the imagination how this encourages people to have more children.

The Minister, in the White Paper he issued, gives the information that the food index alone over the 12 months to the end of 1964 increased from 119.3 in 1963 to 124.8 in 1964, i.e. 5.5 per cent, and over the previous ten years the total increase in food costs were 18.5. I wonder how many rands that extra cost of food works out for the ordinary man now. What is the position of the taxpayer, the cost of clothing and food has increased. The married man’s allowance for his children remains unchanged at what was originally a very niggardly allowance, so while the Minister is soaking the taxpayer to the extent of untold millions, he leaves these people to whom we are appealing to have more children in this position. No relief has been given although the cost of living is going up.

Now I come to the most important matter. For years we have asked for relief to be given in regard to the earnings of married women, and I will not go over the arguments in detail again, but we appeal to married women to go to work because of the shortage of manpower which is creating inflation and we say it is their patriotic duty to work, and a grateful Minister of Finance promises them tax relief to meet the expenses to which they are bound to be put. There is the question of keeping servants and sending children to créhes or nursery schools, and it all costs money. This year the Minister has met this position in an utterly futile manner. The figures quoted were issued by his own Department. He cannot tell me that his Department fixed on examples which were not reasonable and fair. They are a very round cross-section, but the Minister is not ashamed of the allowances any more; he seems to be quite proud of giving people R3 per annum. In conclusion, the only argument the Minister has given us against our contention that these allowances are farcical was to say that these people paid very little income tax, but that is so because they earned very little. I hope he finds a better excuse this time, if he intends to refuse my amendment.

Business suspended at 6.30 p.m. and resumed at 8.5 p.m.

Evening Sitting

I would like to support the amendment which was moved by the hon. member for Benoni before the House adjourned this evening. In practically every clause in the Bill now under consideration—particularly in Clause 6—and in every income-tax Bill that has passed through this House, a person called “the taxpayer” is referred to. Now, as the hon. the Minister well knows, “the taxpayer” can mean any male, married or unmarried, any single woman, any divorcée, any widow, any widower and, in terms of the amendment to Clause 5 with which we have just dealt, it can now also mean either a man or a wife who are not legally separated or divorced but who are no longer living together. In fact, Sir, this definition of “a taxpayer” includes everybody except a working married woman or any married woman.

Now, as is the case with so much of our legislation in this country, in spite of hard-won improvements in recent years, once a woman in this country gets married she thereafter has no status whatsoever in the eyes of the law, including this business of payment of taxation. And the funniest thing of all is that, though technically speaking she is not a taxpayer, she is nevertheless, in terms of the P.A.Y.E. tables, taxed very heavily indeed. What is so extraordinary to me and to many other women in the country is the fact that this lop-sided principle—if you can call it that —applies to many other things as well. For instance it applies to the guardianship of minor children in any marital dispute. I want to tell the hon. the Minister that, in relation to taxation and the guardianship of minor children and various other matters, if a single woman has an illegitimate child, she has all the status and all the standing in law for taxation purposes, and all the rights that go with it, of a single person. She has, of course, all the rights of guardianship over her minor child or children. A woman who has married, on the other hand, whether in or out of community of property, has no automatic rights in law as far as the guardianship of her minor children is concerned, and she has hardly any status in the eyes of the law as a taxpayer. The same thing applies to the contractual capacity of married women. If you are a single woman you can open a banking account, you can deal in stocks and shares, indeed, you can do anything you like in that direction. But once you get married in South Africa, for many legal purposes—taxation being one of them— then the unfortunate woman becomes in effect a sort of zombie. There are no two ways about it.

Mr. Chairman, I should now like to deal with the so-called “concessions” made by the hon. the Minister in his budget proposals to married working women. In order to have some basis for my argument I want to take my own case as an example. I am not ashamed to deal with it before the House because it is relevant to the position of the majority of working women in South Africa to-day. I have no legal standing as a taxpayer. None whatsoever. Now, Mr. Chairman, my basic salary—and that of my colleagues—is R4.000 per year. My male colleagues, be they married or unmarried, pay anything between R300 and R350 per year by means of employees’ tax deduction certificates. These certificates are issued under the P.A.Y.E. system. I concede that pension contributions are taken into consideration when calculating how much has to be deducted from their emoluments. But I as a working woman, I as a member of this House, having working equality with all the other hon. members here, do not pay R300 or R350 but I pay as much as R720.48 per year. More than double.

Can we not meet your case by reducing your salary? [Laughter.]

Mr. Chairman, I am not prepared to pay any attention to the hon. member for Vereeniging. I am arguing the case of the women in this country, and for this purpose I am using my own position as an example. If I were a man, Sir, single or married, my basic income would have to be R5,800 per year before I would pay the income tax which I am at present paying on a basic salary of but R4,000 a year. We all do the same work. We all face the same hazards. And I would like to know, with respect, what it has to do with the Government, what it has to do with the hon. the Minister, and what it has to do with the Commissioner of Inland Revenue how much money my husband is earning, one way or the other. We think this system is antiquated. We feel it is completely out of date. All the married women in this country feel the way I do about the present system.

Mr. Chairman, no-one is keener than I on maintaining the family unit in South Africa. For sociological and for many other reasons it is vitally important that the family unit should be preserved. But let me say to the hon. the Minister—in case he has never been told this before—that the majority of women in South Africa, married or single, are very tired of the old paternal approach to matters of this sort. The present system is completely out-dated and completely out of keeping with circumstances obtaining in the Republic today.

I now want to ask the hon. the Minister a rather pertinent question, and I hope he will be courteous enough to give me a reply. Now, Sir, it is, of course, true that no woman—myself included—has any status in law as a taxpayer. When my income and that of my husband have been jointly assessed—and I know they can be separately assessed if we so desire —but the total is used for income-tax deduction purposes—any refund, including a refund on my salary, is paid to my husband. If my husband works as a shunter on the Railways, and I am a member of Parliament if there is any rebate payable on what I have paid under P.A.Y.E. it is paid to my husband and not to me. The hon. the Minister will say to me, “Oh, but when it comes to the question of refunds, your income and that of your husband are jointly assessed, and a repayment will be made because either you or your husband has had too much deducted under the P.A.Y.E. system.” Presumably the over-payment is made by me. But, as I said earlier, Sir, the refund is paid not to me but to my husband. Now, Mr. Chairman, will the hon. the Minister tell me on what grounds the payment is made to him and not to me?

Mr. Chairman, this is a question which the hon. the Minister should attempt to answer. Because I want to tell him that thousands of women in this country feel very strongly on this issue.

I should like to ask the hon. the Minister a further question. If in the eyes of the law am I not a taxpayer, can the Minister tell me by what right the Government evades the law by taxing me as an individual at double the rate prescribed under the P.A.Y.E. tables, as is happening at the moment? I want an answer to this question, Mr. Chairman. The basic contributions under the P.A.Y.E. system are fixed and are based on schedules worked out by the Commissioner for Inland Revenue. The Minister cannot come back and tell me he is taxing me in his individual capacity, because of course he is not. These deductions are made in terms of the existing law, deductions which I think are illogical and quite crazy. Although I have no status as a taxpayer, yet the hon. the Minister taxes me at double the rate as prescribed in the P.A.Y.E. tables. And the Minister must not come and say that the deductions are made in respect of both my and my husband’s incomes, because the P.A.Y.E. deductions from my income have nothing whatsoever to do with my husband’s income. I pay double the amount paid by other members in this House. No doubt the other hon. lady members pay the same.

I wrote to the hon. the Minister about this matter and received a very courteous letter in reply from his private secretary. I wrote to the Minister in order to have something in writing on this specific subject, not for my own benefit, but for the benefit of all the working married women in South Africa who are worried by these issues. I want to read two extracts from the reply—

But, Sir, there is no “probable liability” at all. When the R720 odd was deducted from my salary this year in terms of the P.A.Y.E. system, the Commissioner for Inland Revenue had no access to figures relating to my husband’s income whatsoever. He did not know what my husband earned. Therefore he cannot talk of “probable liability”. These deductions are fixed and, with respect, I really think the hon. the Minister and his Department have sucked the figures out of their thumbs.

I quote further from the letter—

Well, Mr. Chairman, that simply is not true. This paragraph I have just quoted does not mean a thing, with great respect to the hon. the Minister and his Department. [Time limit.]

I want to support the hon. member for Wynberg in her plea. It would appear to be that the difficulty is caused by the original tables framed under the P.A.Y.E. system. Because when the tables were originally drawn up those responsible for them estimated the tax that would be payable by the joint income of the husband and wife. I submit that when the tables were computed it was assumed that in general the income of the husband would exceed that of the wife. An examination of the tables will confirm my view. I think it is generally conceded that when drawing up tables of this sort one has to base the estimated joint income on certain assumptions, and not unnaturally the Fiscus will err on the cautious side. The whole object of the P.A.Y.E. system was to deduct the correct pro rata share of the tax payable each month to avoid an additional assessment at the end of the financial year. The State wanted to have an amount in hand at the end of the financial year which would be paid out to the taxpayer rather than having to ask the taxpayer to make an additional payment. That would seem to have been the objective when these tables were drawn up.

Now, Mr. Chairman, when framing tables of this kind it is just impossible to provide for every case. I think the case put forward by the hon. member for Wynberg is a case where the husband and wife each has the same income or where the husband earns less than the wife. In a case such as that there is a very definite hardship, because the wife has heavy deductions made from her salary each month, at the end possibly a substantial sum is to be refunded, and that refund is payable to “the taxpayer” who, according to the law, is the husband. That, Sir, is where the difficulty comes in, and that is why the hon. the Minister is receiving complaints from women taxpayers all over the country. I do not know just how brave the Minister of Finance is, but if he thinks he can challenge all the working women of South Africa, well, then he will have quite a fight on his hands! And, Sir, I think he will lose! I do not think I need remind the hon. the Minister that “Hell hath no fury like a woman’s scorn”.

I strongly advise the hon. the Minister to go into the matter to see if some relief cannot be given in deserving cases. When the hon. the Minister introduced the P.A.Y.E. system he said it was experimental. He indicated that there would inevitably be a certain amount of teething trouble. It would appear that not only has the system experienced teething troubles, but more than that—the hon. member for Wynberg has sunk her fangs into the hon. the Minister, and in the circumstances I think that gentleman had better think again. The instance mentioned by the hon. member is one of the teething troubles. Onerous deductions are made from the woman’s income, as the principal salary earner, and it is one of the snags which the system has run into. Earlier on the Minister referred to the bulge which had to be adjusted. Well, not only has the bulge to be adjusted but some other adjustments will also have to be made so that the figure can in all respects be as attractive as possible. For these reasons I support the hon. member for Wynberg and I appeal to the hon. the Minister to have another look at this problem.

To finish my quotations from the letter received from the private secretary to the hon. the Minister, addressed to me, I read the following excerpt:

That paragraph is, with respect, utterly meaningless. No notice is taken of my husband’s income when my deductions are made. This paragraph means absolutely nothing. The amounts deducted from my salary are not decided upon because the Commissioner for Inland Revenue knows what my husband’s income is. All working women are assessed as individuals for the first time in this country’s history under the P.A.Y.E. system. And I say that on that basis we are being discriminated against because our deduction rate is double that of anybody else’s.

I adhere to what I said earlier on. It seems to me that the basis of these deductions is completely unrealistic, it is entirely hypothetical, and something should be done about it. I want to tell the Minister that where the Commissioner or his private secretary talks about our deductions being “generally speaking, commensurate with our share of the combined taxable income”, and so on, he is totally out of touch with what is taking place in the country as far as working women are concerned.

Now, Mr. Chairman, I have a few things to say about the concessions made by the hon. the Minister in his budget. I am sorry I have to say this, but I was sent by the hon. the Minister’s private secretary a copy of an article written by the Commissioner for Inland Revenue for the National Council of Women News for 1963, in which he said that the greatest bulk of taxpayers in South Africa, namely 96 per cent, fell within the category R0-R6,000. Presumably he was referring to the lower income bracket of anything from Rl,200 to R6,000 per year.

If a woman goes out to work in order to help her family, what relief does she receive under the Minister’s new budget proposals? The hon. the Minister himself said the other day that the concessions were small. He admitted it. The hon. member for Pretoria (Central) made a great fuss and said—what about the rebates in respect of children and suggested that these rebates had been forgotten.

When did I say that?

Yes, the hon. member did say that.

When?

On Saturday.

I never even referred to it.

I can produce the report of the debate to the hon. member if he would like to have it.

I never spoke about children’s rebate at all.

Mr. Chairman, the fact of the matter is that a married couple with one child starts paying income-tax on a joint income of Rl,402, and in terms of the Minister’s tax concession to working married women they receive no relief at all. With two children they pay income-tax on Rl,826.

Order! The hon. member must confine herself to the clause under discussion.

But I am talking on the amendment moved by the hon. member for Benoni who asked for a higher rebate rate for children and married working women. A couple with three children start paying income-tax on an income of R2,314, which means they receive a maximum rebate of R4. With four children they start paying tax on a figure of R2,802, and in that case they receive a rebate of R3. On a joint income of R4,000 they save R8 and on R5,000 they save R16.

The working people in South Africa are today suffering the hardest under the ever-rising cost of living. They are trying their level best to keep their children at school as long as they possibly can so that they can send them out into the world, into South African society, with a decent education behind them, with civilized standards and a civilized education as an all-important part of their background. As the hon. member for Benoni rightly said, these are the people who are suffering most, and they get no relief at all.

My final point is how the concessions by the hon. the Minister affect the employment of women in South Africa. Mr. Chairman, if more women—and they will of necessity have to be married women—are to be brought in to help solve our labour problem, the labour shortage, there will, without doubt, have to be adjustments made to the Income Tax Act so that they are not penalized by the high income-tax deductions which are causing so much dissatisfaction at present. I cannot emphasize enough that the usefulness of these married women will be absolutely nullified if the present discriminating P.A.Y.E. deduction system is to continue. All the appeals which we have had from time to time from the hon. the Deputy Minister of Education for women to enter the labour market to a much greater extent—because of the present manpower crisis—will simply fall on deaf ears. They will be ignored unless there is a real inducement —as exists in countries overseas—in terms of the equalization of taxation rates for women. And if the hon. the Minister does not believe me, perhaps he will listen to the considered opinion of the deputy economic adviser to the hon. the Prime Minister. On 10 March of this year this gentleman, Dr. P. J. Riekert, made a speech to the Institute of Professional Management in Pretoria. He was talking about the taxation of married women, and amongst other things he said the following:

Dr. Riekert is, of course, quite right. The important thing is that our production should be increased, but production will never be increased and these women will never be drawn into the labour market unless something is done to equalize the payment of taxes.

Mr. Chairman, if you study the taxation systems in countries all over the world you will find that this system of a joint assessment is out of date, is completely antiquated, and it is time we in this country had separate assessments. In Canada, in New Zealand, and in Australia couples are separately assessed. In the United States and Germany they are jointly assessed, but they can opt for the other system if they so desire. In the United Kingdom, as was pointed out by other hon. members, two-ninths of a married working woman’s income is tax-free up to a certain maximum sum. I want to emphasize that, instead of encouraging our women to make a contribution to the country’s rapidly expanding economy, our taxation system is doing exactly the reverse. I know of many, many instances—and I am sure other hon. members also know of instances—where a married woman possessing considerable professional and technical qualifications, remains at home instead of going out to work. She does not sit at home because she has children to look after or because she has cooking to do, because her children may well be grown up and have left the house. She stays at home because the incidence of super-tax levied on a joint income does not make economic sense for the provisional taxpayer. The hon. the Minister knows that very well. Added to the man’s income—as the wife’s income has to be in this country—the wife’s earnings in fact form the top slice of the husband’s earnings and thus makes the income liable to the highest rate of taxation applicable to him. Under these circumstances it just is not worth while for the talented woman to enter the labour market where she is so sorely needed. The whole picture which presents itself is that it is not worth while for the poorer working woman to go out and work and it is also not worth while for the wealthier woman to enter the labour market. Because in the latter case, if the husband earns for example R12,000 a year and she earns R1,000 per year he has to pay 51 per cent in taxation. If the husband earns R18,000 a year and his wife is a medical doctor earning, say, R 1,000 per year by helping somewhere, he has to pay as much as 64 per cent of his income in taxation. That is because of the incidence of super-tax. That is no inducement for the woman to work. I want to tell the hon. the Minister that under these circumstances by no means can he be considered to be the blue-eyed boy of the working married women in South Africa to-day. In fact, Sir, we are after the hon. the Minister’s blood —I want to put it quite candidly! [Time limit.]

I want to support the hon. member for Benoni as regards the two proposals made by him, namely an increase in the rebate for married women, and children’s allowances. I know the hon. the Minister is likely to come back at us and tell us that the rebate has no relation to the income on which tax has not been paid because of the rebate. We concede that that is so. The amount which is tax free because of the rebate, which is a deduction from the tax as calculated, can be fairly substantial. But there has been no change for a considerable period of time. I suppose the only thing that has not gone up in this country over the past few years have been these rebates. I accordingly plead with the hon. the Minister to give this matter some consideration.

Regarding relief for married women, the hon. the Minister when replying to speeches on another clause in this Bill mentioned that the major object of the special allowance for married women was the ironing out of the bulge. This is in fact happening.

That is not the object. It is as a result of the bulge that your biggest benefits are over the R5,000 mark.

What it does in effect is to give relief only in the bulge.

No.

Well, I do not regard amounts of R3 and R4 as being substantial relief. As the hon. the Minister said, he has been trying to iron out this bulge, and he also tried to do the same thing last year. I suggest that the ironing out of the bulge should proceed with greater rapidity so that we can forget about that aspect and come to deal with the facts of the married woman and her income. The hon. the Minister also said that in some countries the income of a married woman was treated differently, depending on whether it was earned income or unearned income, but that he did not at this stage want to introduce that system in this country.

I said we did not have that system here.

Well, I do hope we will have it very soon. Because I think the principle of differentiating between earned and unearned income in so far as a married woman is concerned, is a good and a sound principle. Because it not only helps the taxpayer whose wife is working, but also the country by inducing the wife to work and thus alleviating the manpower shortage.

In any case, Mr. Chairman, I think it is a better system than ours, because if that system is applied to the figures given by the Department, it will for example be seen that on an income of R3,000 there would be a saving of R54. On R4,000 the saving would be R66. On R5,000 the figure would likewise be R66, but this would be because of the similar percentages of tax we have in our bracket system of income tax. On R6,000 the saving would be R126 which about equals the figure which obtains under our present system. On R8,000 the figure would be R198, and thereafter there is a slow climb. I think that system would be more equitable, more correct, and the principle of a deduction from the earned income would be a better one.

The hon. member for Wynberg has dealt at fairly great length with the question of the taxation of a married working woman, and I do not wish to deal any further with that subject. I would, however, suggest that perhaps the time has come when the entire question of the taxation of women—married women, single women, widows—should be examined. Because, Sir, there are undoubtedly a number of anomalies under our taxation system, and we receive complaints from time to time. I for one have received a number of complaints from spinsters—I think that is the correct word—who complain that a widow having no children is in a much better position than a spinster. This is perfectly true. It can be said that the fact that the widow receives preferential treatment is because she might be considered as having reverted to the single state, only because her marriage has been dissolved through causes fortuitous, and has no children born of the marriage. What I am suggesting, Mr. Chairman, is that the whole position of the married woman vis-à-vis taxation should be thoroughly examined in order that some of the existing anomalies could be ironed out and so to bring about a more equitable and more fair method of taxation because the existing system is creating many, many problems.

Mr. Chairman, we have the peculiar position that an amendment has been moved to Section 6 of the principal Act, a section which is not even mentioned in this Bill. That makes things very difficult for me. I do not know whether an hon. member can come here and move amendments to any section of the principal Act.

In any case, this has been a very interesting debate and it has made me a much wiser person—something which is very essential in the case of a Minister of Finance. One of the things it has taught me is that you should rather not make any concessions at all because the minute you do so you get the sort of argument we have had this evening. The fact of the matter is that I have made a concession which will mean a loss in revenue of Rl,700,000 within a period of a year. What thanks do I get for it? What I am getting here is the peculiar logic of a woman! It has really been a revelation to me.

On the one hand the hon. member for Wynberg complains that she has no status as a taxpayer. I have always been under the impression that it is the aspiration of everybody not to have any status as a taxpayer! But that hon. member complains about it. But in the same breath she says she is paying too much. Therefore, although she has no status as a taxpayer she must now, for the first time in history, pay income-tax. Whether she has status or not she seems to forget that her husband has been paying tax on her income all this time. All that is happening now that she is earning separately, is that she has to make periodic payments on her earnings. That is the only difference. Our income tax laws are based on the family as a unit. It is the income of the family that is taxed. We have gone out of our way here not to tax an amount less than the family income but to say that the rate of taxation will be lower if the wife also works. That is the principle and not that they will pay tax on less than their joint income.

The hon. member now complains and says she has to pay more income-tax than any other member of this House.

No, I did not say that.

I am pleased to hear that otherwise I would have had to deal with that. In any case, the fact of the matter is that every woman who is a Member of Parliament and every man who is a Member of Parliament who have the same income pays—apart from the concession which makes a small difference—the same income-tax on the same joint income. The only change the P.A.Y.E. system has brought about is in respect of the direct tax liability of the wife. The hon. member for Pinetown complained and said the tables were the cause of all the difficulty because they were compiled with the definite object of not making it necessary for the taxpayers to have to pay a further amount to the tax collector at the end of the taxation year. To avoid that the scale applicable to the wife’s income has been raised. That is how the hon. member argues. What are the facts? Experience has taught us that in more than 50 per cent of the cases the wife pays too little in relation to the joint income and that in the long run the husband has to pay in that shortfall. It has been the poor husband who has had to fork that out.

What about the other 50 per cent?

I was particularly interested in that fact and I inquired from time to time from my Department what they were experiencing. I asked them whether a great many had to pay in at the end and they said “yes”. In spite of the P.A.Y.E. tables many of the married people had to pay in. The position is not the reverse as the hon. member has said.

I want to return to the hon. member for Wynberg. It is not a case of her husband paying so much less because she is paying so much; jointly they are paying the same. If she wants to pay only her share she is at liberty to apply for permission to do so. She will then be able to pay out of her own pocket the tax on her share of the joint income and her husband will pay the balance, but jointly it will have to be exactly the same amount of tax it is now when they are taxed as a family unit. But if she wants it the other way about she can always ask for it.

That brings me to another point which is also interesting and that is the amendment of the hon. member for Benoni (Mr. Ross). I do not know whether it has anything to do with the name of his constituency but the hon. member is always sad when he moves an amendment dealing with taxation! It may be that there is some connection between the origin of the name Ben ’Oni and the attitude of the hon. member. In any case his amendment this year is precisely the same as the one he moved last year. I then had to tell him certain things and I am sorry that I have to repeat them now. Because the question has been repeated I have to repeat the reply although I shall tell him something additional this time, something I did not tell him last year. He asks me to raise the basic rebate from R62 to R75. I had it calculated out last year and I again had it calculated this year. That would mean a sacrifice of R6,000,000 in revenue. If the allowances in respect of the first two children were increased from R34 to R50 and in respect of the third child from R39 to R75 it would mean a sacrifice in revenue of R16,500,000. In other words, it would mean a sacrifice of R22,500,000 in revenue. It is a little more than the amount arrived at last year. I now want to say something which is new. The hon. member complains and says the price of everything has gone up and that this small amount of R34 per child and R39 in respect of the third child means nothing. But this is a rebate on the actual tax payable. It represents a much bigger amount in respect of the taxable income. It means that R428 is allowed in respect of each of the first two children and R488 in respect of every child over and above two. It represents R 1,832 in respect of four children. That is the difference in the taxable income. The amount mentioned here is the rebate allowed on the actual tax payable. With that money the parents can buy many of the shoes and much of the clothing the hon. member has referred to. Let me ask the hon. member an even more reasonable question: He pleads for the taxpayers. Does he want them to be given greater concessions, particularly those who are married and who have children? But what about the citizens of South Africa who are not taxpayers and who are hit equally hard by the increased prices the hon. member has mentioned? Must they now be discriminated against because the hon. member wants those people who pay income-tax to receive benefits and the others not? Our income-tax machinery has not been devised for the purpose of social upliftment work. This is already an infringement of that fundamental principle. I was party to its extension but it is contrary to that principle and it means that those who are so poor that they do not even pay income-tax get no relief whereas those who do pay are given relief. I am sorry, therefore, Mr. Chairman, but in the circumstances I cannot accept the amendment. Nor do I think it was seriously intended; it is merely one of those things one must expect this time of a session.

Proposed new clause put and negatived (Official Opposition dissenting).

On Clause 12,

The amendment to the three sections referred to in this Clause might lend some economic respectability to the Government’s former border area development. But the Minister is certainly now taking upon himself a still more invidious task than existed under the Act after the 1964 amendments. I think the hon. the Minister will agree that the fundamental fiscal principle is that the basis of a taxation formula should be certain, should be ascertainable from the taxation measure itself and should be capable of calculation by the taxpayer. It should not be in the hands of the fiscus, therefore, to determine along some arbitrary or even capricious lines. But that I think is likely to happen in regard to the position as now set out in these three sections because the basis on which the Minister may exercise his discretion of allowing deductions in respect of types and places of business is left completely undefined. Selection will have to be made on some arbitrary basis.

The effect of the amendment is that the Minister now becomes the purveyor of tax relief in one form or another, tax relief which is going to be arrived at on some arbitrary basis instead of being in accordance with some defined legislative direction. The first position as regards what is allowable as a deduction is difficult enough but the position is being made more difficult because we now have this completely vague concept that it can be applied in an area which, in the opinion of the Minister, is an “economic development area”. Where and what such an area is going to be is not disclosed at all. The former position was at any rate that you could localize the position—it was a Bantu area or an area joining a Bantu area. There was some form of definition in that regard, vague as it might have been. The lack of definition of “economic development area” makes the position now worse than it was before and leaves it, as I say, to the Minister to determine as he will apparently deem fit. It is for that reason that I move the following amendment—

To add the following sub-section at the end of the proposed Sections liter and 11-quat, respectively:

1. (3)

   1. (a) For the purpose of this section “economic development area” means any area which the Minister may, and is hereby empowered to designate and define as such by notice in the Gazette.
   2. (b) The Minister may in like manner withdraw a notice issued under paragraph (a).

and to add the following as a paragraph (b) at the end of sub-section (2) of the proposed Section 11 quin:

1. (b) “economic development area” means any area which the Minister may, and is hereby empowered to designate and define as such by notice in the Gazette and in respect of which he may in like manner withdraw such a notice.

In regard to 11 quin the formula has to be slightly different to fit into the section itself but covers the same concepts, namely, that there will be a definition of the area by the Minister published in the Gazette.

I think this is a safeguard of publicity which the hon. the Minister should well consider. Its acceptance would mean that the potential taxpayer will at any rate know in which area this tax benefit is going to apply. There will therefore be certainty in regard to that. It seems to me that in the circumstances it would be relatively easy, and certainly administratively possible, to define the area so that people can know precisely what areas have been designed for this form of tax relief. It is a safeguard of publicity and is one of the strongest ones a parliamentary system can offer. I hope therefore that the hon. the Minister will see fit to accept the amendment. It leaves him free, firstly, to define the area and secondly, if circumstances bring about a need for change because it is no longer an area which should be defined as an economic development area the proposed new sub-section will allow him to change it by withdrawing the notice.

During the second reading of this Bill I referred to the general description of “economic development” and indicated to the Minister that it was a further expansion of the definition introduced last year in regard to border development in Bantu areas. I also indicated to him that I regarded it as undesirable that the question of economic development should be undefined. During the course of his reply the hon. the Minister assured us that he would consult his colleagues, either the Minister of Indian Affairs or the Minister of Coloured Affairs or the Minister of Bantu Administration, and that it would only be after such consultation and after he had gone into the matter thoroughly that he would give the allowances. We appreciate the Minister’s assurance in that regard but that does not go far enough. We think it should be put beyond any doubt and that the whole of the outside world should know which areas are regarded as areas for economic development and which not. It should not just be a matter of negotiation between the parties concerned and they should not only learn about it through the ordinary commercial channels. This amendment would place the matter beyond any doubt. It would give all parties concerned the opportunity of knowing that a particular area had been so defined and publication in the Gazette would give full publicity.

Take for example the development of Hammarsdale in Natal. Hammarsdale is regarded as a border area and in terms of this Bill Hammarsdale will now be regarded as an area for economic development. The factories established a year or two ago will be receiving the allowance as contemplated by this Clause. New factories which are contemplated will have to apply for it but they well know that factories coming under the jurisdiction of the general plan of development organized by the I.D.C. will receive the benefits provided under Clause 12 and therefore get a general reduction in terms of Section 11 of the principal Act. Right next door to Hammarsdale you find Cato Ridge where there has already been development but which is not, as far as I am aware, recognized for taxation purposes as a development area although there is extensive industrial development. It is very easy for persons investing, persons who are not familiar with our boundaries, to assume that, because they invested in an area such as Cato Ridge which is a couple of miles from Hammarsdale, they are entitled to the tax deductions under Section 11 of the principal Act, as amended by Clause 12 of this Bill. With no publication in the Gazette they may be induced to buy property and invest money in that area only to discover after they have established their business that they were not entitled to the deductions contemplated. For that reason I think it is desirable that the fullest publicity be given to it. Persons investing in any industrial area should know beyond any possible doubt what the boundaries of a proposed development area are. I suggest that the amendment moved by the hon. member for Port Elizabeth (South) (Mr. Plewman) in no way departs from the principle established by the Minister in this Clause but that it enables the investing public to know without any doubt which are the affected areas so that, when arranging their affairs, they will know to what deductions they are entitled. It should not be necessary for them to approach the Minister’s Department to ascertain whether or not a particular area falls within the ambit of Clause 12 of this Bill. They should be able to learn from the Gazette to which deductions they are allowed.

The White Paper, in dealing with Clause 12, says that any references in those sections to Bantu areas or areas adjoining Bantu areas are replaced by references to economic development areas and that references to recommendations by the Secretary of Bantu Administration and Development and the Secretary for Commerce and Industries have been deleted. That follows the wording of the new proposed section in the Act. I agree entirely with my colleagues that publicity must be given to this. The question of these economic development areas, as they are now to be called, is of tremendous importance and has caused great concern throughout the country. In his second-reading speech the hon. the Minister gave us his reason for removing the request to consult with Bantu Administration and the Minister of Economic Affairs as being because he, and he alone, intended centralizing the economy of the country in his own hands. He said everybody could give their views as to what they wanted to do but that they could not do it without his approval. But if there is going to be no publicity and the question of consultation is going to be removed entirely and the Minister is going to act on his own it may lead to better conditions, but, I think probably to much worse conditions.

We need only think what has happened during the last couple of years in regard to these areas. I know in what position I found myself, as a businessman, this year in trying to find out what benefits were really accruing to these economic areas and whether such benefits would constitute unfair competition against existing industries. The most important thing in these areas is the question of wages so I approached the Minister of Bantu Education. He told me that he was educating a large number of Bantu as tradesmen in various trades. I asked him what their wages would be and he said: “Wages have nothing to do with me: I educate them and then when they go out into the world they just get paid according to the laws of the land.” So I thought the next man to speak to about this would be the Minister of Bantu Administration. I asked him how much he was going to pay these men when they were brought into these new economic development areas and he told me that it had nothing to do with him.

Order! That has nothing to do with the clause.

Sir, with all due deference, the White Paper says the references to recommendations by the Secretary for Bantu Administration and Development and the Secretary for Commerce and Industries have been deleted. I am talking on the question of whether or not it is wise to delete these recommendations. So the Minister of Bantu Administration told me that he had nothing to do with the question of fixing wages. In the last resort I went to the Minister of Labour. I am only pointing out to the hon. the Minister the trouble he would be saving himself if he knew what these other colleagues of his were doing. The Minister of Labour gave me such an evasive reply that I have had to put a further question to him to which I have not yet had a reply. With all these complications, different lines of thoughts and desires to split the country into several economies I am entirely on the Minister’s side when he says he wants to see the country kept on the basis of one economy. But I am not entirely happy when he says he should not consult his colleagues. I think he should consult them—the ones who were mentioned before—and if he gets the same kind of advice from them in future as he got in the past he should ignore it entirely. But he should give publicity to the areas which he proposes to make economic development areas because the man in business and the industrialists are entitled to know something of what is going on.

It is an interesting statement that I must ask for advice only to reject it! That is the crux of the argument of the hon. member for Benoni (Mr. Ross) on this point.

I want to return to the hon. member for Port Elizabeth (South) (Mr. Plewman). I want to say at once that I have a measure of sympathy with the principle he has mentioned. Before stating what my reaction is to it, however, I just want to point certain things out to him. I feel more or less like the youngest Judge on the Bench who said: “I concur with the judgment of the Chief Justice for the reasons advanced by the senior Judge under him.” I am inclined to support the principle but perhaps not for the same reasons.

In the first place it is not the tax which is not clear here. The hon. member has no reason to complain that it is not clear what the tax is but it is not clear what concessions they are going to get. Those are two totally different things. In fact that is also the position under the existing legislation and it will continue to be the position under the new legislation although we have defined it. Because if any business falls within that prescribed area, it does not automatically become entitled to these benefits. If he is granted any benefits, with or without advice, it does not necessarily follow that he gets all of them. I said during the course of my second-reading speech that we give the inducement allowance in some cases. In some cases we give it in respect of the machinery alone and in some cases also in respect of the buildings. In some cases we give assistance in respect of the buildings that are erected for the employees; in some cases we give a concession in respect of water and electricity. But it is not and it cannot be stated clearly in any law to what extent concessions will be granted in any particular case. Whether or not this amendment is accepted that will continue not to be clear. That is the position at the moment and that will be the position even when we have a clear definition. For reasons of my own I would like to have these economic development areas to be clearly defined. I think the equivalent is the depressed areas (agtergeblewe gebiede).

These are not depressed areas.

Depressed or under-developed areas. That is really the object of this concession. The object is not to confer benefits on areas which are already in a position to compete with other metropolitan cities but in order to bring those which do not enjoy the same benefits in various respects more or less on the same level as the metropolitan areas.

I repeat that had it been possible I would very much have liked to have had these areas circumscribed more clearly. As far as the principle is concerned, therefore, I am fairly sympathetically inclined towards it but it is not so easy in practice and it is certainly not possible at this stage to find a definition. I do not even know whether it will from time to time be possible to define them in the Gazette as the hon. member has suggested. I am prepared to consider the matter. I shall do so during the recess and, if it is possible, even if there is no legislation yet, I shall announce by way of notice to which areas it will be applicable. But, as I have said, it is very difficult because everybody will then expect the same concessions as those given to somebody else. It gives them wrong ideas. I cannot say, therefore, that I will do it. All I can say is that I shall consider it.

In any case, Mr. Chairman, the way in which the amendment is worded is not right. It is undesirable that reference should be made three times to the same thing in one Act. It is unnecessary repetition. Even if it is necessary I cannot accept it in this form. I think we shall have to have one clause which covers the whole position and not a repetition of the same thing in every clause dealing with it. My reaction, therefore, is that I shall consider it and, if possible, come with legislation next year.

I am pleased that the hon. the Minister recognizes the need for clarity in this regard and for some definition of what he now describes as an economic development area. It is no good giving a concept a name in this case; you must also give it a local habitation. That was the object my amendment was designed to meet. I accept the hon. Minister’s assurance that he will endeavour to meet the difficulty administratively at first and possibly adjust the law later on. It was obviously a difficult clause in respect of which to move an amendment because you had to repeat the same amendment three times and not only once. However, I accept the Minister’s undertaking and with the leave of the Committee I wish to withdraw my amendment.

Amendment withdrawn.

Clause, as printed, put and agreed to.

On Clause 13,

The same matter arises in regard to this clause. In view of what the hon. the Minister has said on the previous clause I do not intend moving the amendment standing in my name.

Clause, as printed, put and agreed to.

Remaining Clauses, Schedule and Title of the Bill put and agreed to

House Resumed:

Bill reported without amendment.

I move—

That the Bill be now read a second time.

This is the first annual Amendment Bill since the coming into operation of the Customs and Excise Act of approximately 780 pages passed last session. The amendments are of such a nature that I find it difficult to find one which is of sufficient importance to warrant special explanation.

The amendments to the Schedules represent to a great extent the ordinary recommendations of the Board of Trade and Industry for the protection of local industries. These provisions have already been in operation for a considerable time and have been fully explained in the reports which have been Tabled in the House.

I want to say a few words about Schedule No. 3 which deals with industrial rebates. The old Schedule was drawn up on a totally different basis. Broad descriptions were used and those materials which were not entitled to a rebate were left out. The pattern of industrial rebates has, however, become so complicated that we had to find another basis.

In the new Schedule those materials which are permitted are specifically set out with reference to the relevant tariff headings in the taxation schedule. It was not possible to determine exactly what specific materials fell under the broad descriptions and the Department had to rely on industrialists to a great extent to inform it of mistakes and omissions. Industrialists readily responded to the call and with their assistance we now have a rebate schedule which will solve many of our problems in future.

We support the second reading of this Bill. There are no new principles involved. As the hon. Minister has said, there is a new presentation of the schedules and many of the complications of the previous schedules have now been eliminated as a result of the new form of presentation. The hon. Minister gave us an advanced copy of the proposed Bill and we suggest that this Bill should best be discussed during the Committee Stage.

Motion put and agreed to.

Bill read a second time.

House in Committee:

On Clause 19,

I move the following amendment—

The reason for this arises as a result of an amendment that I want to move to the Fourth Schedule. Item 407.01 is an item which deals with the bringing back to the Republic, and into the Republic, used apparel. At the present moment the position is that one coming back from overseas, or coming into the Republic as an immigrant or as a tourist is entitled to bring into the Republic, with a 100 per cent duty rebate, any used apparel. Now in the Fourth Schedule there has been a change and on page 146 the provision is now—

Now the position would be that in terms of this item of which the date of introduction is fixed in Clause 19, it would mean that a person coming back from overseas, who sends part of his baggage -back by ship if he is returning by plane and that baggage consists only of used wearing apparel or recreational or sporting equipment would have to pay duty on those items. I am sure this is not the intention. The same would apply to an immigrant coming to this country who sends his sporting equipment or wearing apparel on before he leaves and who does not arrive at the same port at the same time. The same would apply to a tourist coming to this country, who may come for two or three months and who sends quite a lot of his goods, in terms of this definition, ahead of him. Therefore I move the amendment I have already mentioned and will move a further amendment when we come to deal with -this Schedule.

I am glad that the hon. member for Parktown (Mr. Emdin) has drawn my attention to this point. It seems a reasonable request and it seems to be one of these points that have been overlooked. I am quite prepared to see that the change is made. But I don’t think it is necessary to have an amendment for that purpose. It can be done by notice in -the ordinary way, a notice which is issued simultaneously with the Act and which will have the same effect. If the hon. member is prepared to accept this suggestion, his amendment becomes unnecessary, but it will achieve the same object.

There is only one thing that worries me about not amending the Act and the Schedule in that if it is done by notice, you will have an Act as printed which a lot of people will read and take to be the law. At the same time you will have a notice which can be published to amend it. I understand that there was somewhat of a problem, but I am advised that that problem really does not arise and that an amendment is quite feasible. We will -help the hon. the Minister as far as possible.

I think that the problem that the hon. member has referred to, namely, that you have the Act and then a notice elsewhere is really no problem. It is published under this Act as soon as it has been passed. Continually throughout the year the Act is being amended by such notices. It is a customary thing and at the end, next year, it becomes incorporated. But in practice those notices are brought to the attention of the customs officials and they are after all the important people. They are the people who would make you pay for those articles, and they will know what the real position is. So I do not think it is a real problem.

With leave, the amendment proposed by Mr. Emdin, was withdrawn.

Clause, as printed, put and agreed to.

On Schedule No. 1,

I would refer the hon. Minister to page 86 of the Bill Item 104.30.40. I rise to propose an amendment to this item and I am sure that I am going to have a great deal of sympathy from the hon. Minister in respect of the amendment. I move—

What the Minister proposes here is an alteration of the whole basis on which tax was assessed on pipe tobacco in the original Schedule laid down in the Act of 1964. Under the existing scheme of taxation clear distinctions are made between two types of tobacco. Ordinary pipe tobacco was taxed at the rate of 15 cents and tobacco of the value of 39 cents or above sold in bulk lots of 10-lb. packages was taxed on the rate of the package as a whole, the reason for that being that those consumers of pipe tobacco who belong to the lower income groups had the habit of purchasing their tobacco supplies in loose quantities of 1 oz., i oz., or half a pound as the case may be, but the whole trend in regard to pipe tobacco smoking to-day, especially in the lower income groups have been a greater appreciation of the quality of the tobacco, both by an improvement in the blending and the quality, etc., and as a result of this in-ceased taste as far as tobacco smokers are concerned, manufacturers have found that it is desirable to package pipe tobacco. So purchases are made of the same quantities to-day in neatly packed quantities from an ounce upwards. The Minister has stated when the matter was under consideration in Ways and Means that this was a simpler method of taxation. Mr. Chairman, I have had an opportunity of going into the issue since we considered it in Ways and Means and it is quite clear that by the application of what the Minister proposes here, there is going to accrue to the Treasury additional revenue. Now, Sir, if it is realized that the item 104 in Customs and Excise that we are dealing with here renders the Government something like R65,000,000 in taxation, roughly a third of the total revenue accruing to the State from excise duties, then the amount taken out of the pockets of the small man in South Africa by this formula will be realized. There is another aspect about this matter. Apart from the disadvantages in the case of the consumers of cigarettes and pipe tobacco (in this case pipe tobacco), there is also through the application of this method of taxation a distinct disadvantage as far as the producer is concerned, because obviously with the improvement of blending and the thousands of rand spent on research as far as the production and the blending of tobaccos are concerned in order to improve the internal market, the effect has been of these increased taxations that an amount is taken from the smokers in South Africa by the State as far as taxation is concerned, and this in turn results in a reduction in internal consumption, which primarily hits the lower income groups. To show how bad the situation is, I can mention that we consume in South Africa (in round figures) something like 22,000,000 lbs. in weight of pipe tobacco per annum, and we sit to-day in South Africa with over 22 months of supply, nearly two years’ supply of unsold pipe tobacco, all as a result of these excessive taxations imposed by the hon. the Minister in recent years as far as tobacco is concerned. The effect of my proposal is this: It is clear that in the revenue proposals of the hon. the Minister in the current year’s estimates the Minister anticipates an increased revenue of something like R4,250,000 from the pipe smokers of South Africa, and in the amendment that I proposed by a reduction of 5 per cent on the gross and 15 cents per lb. on the net, there is a reduction in taxation in regard to the lowest priced tobacco which is being used by the lower income groups. The hon. the Minister sits with a vast surplus of revenue, primarily accruing through indirect forms of taxation, of excise duties of this nature on the internal market. The effect of my amendment is to give at least something back to the pipe smokers of South Africa and I expect some sympathy from the hon. the Minister in these proposals. The Minister himself is a pipe smoker. I see the hon. Leader of the House is also listening to me with a great deal of sympathy because he himself too is a pipe smoker, and I hope that other hon. members who may be pipe smokers in this House will support my amendment. But putting aside their selfish interest and their adhesion to the tobacco weed, I hope that they will raise their voices in support of this amendment: (a) in the interest of the tobacco producers in South Africa and (b) in order that the little man, the chap in the lower income group, can at least enjoy his pleasure at the cheaper rate than is the case at present with the existing rate of taxation.

If the hon. Minister of Finance paid any attention to the plea of the hon. member for Turffontein, he has remained singularly unmoved. Even the appeal to his pipe-smoking instincts has made no difference whatsoever. I feel therefore that it is necessary to add to the plea which the hon. member for Turffontein has made, for all kinds of reasons. The first one is that pipe tobacco is something which a man who smokes a pipe regards as part of his essential equipment in life. Mr. Chairman, you cannot convince a pipe smoker that he must go without his tobacco. Therefore the hon. Minister plays from strength—he puts up the cost of this tobacco to the smoker, well knowing that, willy-nilly, the smoker is going to pay for it. Is that right? Silence means consent. The hon. Minister regards himself as a product of democracy— having, I think, reached the level of plutocracy he may smoke more cigars than pipe to-day— and so his recollection of pipe smoking may not be as clear as mine; but I say that we cannot afford to allow the pipe smokers in South Africa to be mulcted of this large sum of money at a time when our prosperity points the other way. The point that the hon. member for Turffontein made about the enormous stock of tobacco which is unsold, and which I think will appeal to the heart of the hon. member for Brits: 22 months’ consumption of pipe tobacco . . .

He has not got a heart.

Of course—I forgot that he is a Whip as well—but 22 months of tobacco would go up in smoke inside two months if the price of pipe tobacco could be reduced. What would that do for the producer of pipe tobacco?

Order! The hon. member must discuss the amendment.

Sir, we do not want to talk about the effect of smoking on health, because I know that the hon. member for East London (North) (Mr. Field) would be at me in a trice. It has nothing to do with that. If a man decides to smoke . . .

Order!

I think the amendment which seeks to obviate this dire possibility of a price increase as far as pipe smokers are concerned, is a reasonable one. It will help the producer. It will not seriously deplete the resources at the disposal of the hon. the Minister of Finance, and I sincerely hope that he will tell us that he will accept the amendment moved by the hon. member for Turffontein.

The hon. member for Turffontein (Mr. Durrant) has made a most stirring appeal, an appeal which was intended to soften the hardest of hearts. The only difficulty with that appeal is, however, that it has no foundation. That is a fatal defect because the most perfect plea in the world means nothing if it has no foundation. May I explain to the hon. member that the excise duty on pipe tobacco in respect of which he has made this plea, is an average of 25 cents per lb. in comparison with an excise duty of something like 185 cents per lb. on local manufactured cigarettes. Why does he not make an appeal on behalf of the poor cigarette-smokers who are ruining their lungs with their smoking? Those who smoke a pipe only pay 25 cents but a plea has to be made on their behalf! The hon. member goes further. His other plea was based on an even weaker foundation because that was practically the crux of his argument. He says this provision will mean a higher tax than before. The position is that the minimum of 18 cents per lb. is actually half a cent per lb. less than the tax payable in the past. It is actually less than it was. I am not even talking about what the tax on imported tobacco was when it was still calculated on the actual weight and not on the net weight, but about the excise duty. The minimum of 18 cents is half a cent less than it was in the past. I am sorry but I cannot accept such an unfounded amendment.

The hon. Minister rejects the plea because he says I have no foundation for the plea that I have made for a reduction of the taxation that the Minister proposes here in this Bill. Of course I have a very good foundation for that plea. I think it is justifiable to say that when you sit with a Budget surplus of some millions of Rand, which comes out of the pockets of the taxpayers, surely something can go back to the taxpayers as far as their normal daily pleasures and their normal daily life is concerned. Has the hon. Minister not realized that there is a foundation for the plea for the re-introduction of taxes at the price levels that existed three or four years ago before the Minister raised the excise on tobacco? Is there no foundation for such a plea? Is there no foundation for the plea when the Minister sits with millions of Rand of surplus that at least something should go back to the little man? You see, Sir, when the Minister of Finance says there is no foundation for a plea for relief of taxation, especially the lower income groups, then it is clearly indicative of how much out of sympathy the Minister, as representing the Government has become with the interests of the little man in South Africa.

Of course you do not smoke. But are you a tobacco farmer?

I do not take the selfish approach of the hon. the Minister as an ex-smoker. If the hon. Minister asks what is my interest, I will tell him. He should ask the hon. member for Brits of the terrible plight of the tobacco producers in South Africa, who are mostly small farmers. The Minister of Transport should consult the Chief Whip of his party. He is well informed as far as this subject is concerned. May I remind the hon. Leader of the House too that his Chief Whip only the other day made a plea that there should be no tobacco imported from Rhodesia, because he is well aware of the need to overcome the present surplus. The hon. member for Brits has the interests of the tobacco farmers at heart because he is well aware of the need to give a spurt to the tobacco-growing industry in South Africa in order to produce more and to produce at better prices and to produce a better quality tobacco. Obviously, if the internal market is being damaged in a manner of this nature, then surely there is sufficient foundation for me to plead for a reduction in the tax on tobacco.

The hon. Minister says in the second place: Why don’t I plead for the cigarette smokers? May I say to the hon. Minister of Finance in the first instance that I am prohibited in terms of the rules of the House from making an actual proposal in respect of this Bill. I would do so if I could. But I also want to remind the hon. Minister of Finance that his memory is a little bit short, because I recall very well how in the course of this Session I have made two such pleas as far as the smokers of South Africa are concerned. The facts cannot be escaped that according to the White Paper as far as the estimates are concerned that the Minister tabled in this House, that the Minister is taking out of the smokers of South Africa no less than R65,000,000 in taxation, indirect taxation, an increase this year of something like R4,300,000 over the previous year. This constitutes over one-third of the total revenue accruing to the Minister’s department through excise.

Order! The hon. member has advanced the same argument already. He must not repeat arguments he has used previously.

The point I am making is that a reduction of the 55 per cent to 45 per cent and the reduction of 18 cents to 15 cents per lb. net, in fact would mean a loss of revenue to the hon. the Minister as a near estimate . . .

The difference of 2¾ cents per lb. of tobacco . . .?

It will come to more because the 18 cents here is fixed at 50 per cent of the actual value of the lowest price tobacco of 39 cents. If the hon. Minister looks at item 104.30.40 in the present schedule, he will find that there are two classes of pipe tobacco, but the Minister is making it one now and he is rejecting item 45, but the Act reads clearly “pipe tobacco of the value not exceeding 59 cents per lb. and sold only in immediate containers of 10 lbs. or more . . . taxation 50 per cent”. In other words, the 18 cents here was arrived at at 39 cents of the bulk value of tobacco. But the Minister is making it the net value now, whilst before it was on the bulk packing. The hon. Minister cannot escape the fact that he is going to get additional revenue out of this formula. I have taken the trouble to check it, and I think it is a self-evident fact. My proposal would be to not in fact return to the position as it was before, but to give taxation relief, with a possible loss of the R4,300,000 that the Minister estimates he will get in additional revenue this year from the smokers.

The indirect taxation is still less than 6 per cent of your total national income. Show me any country in the world where that is the case?

What kind of argument is that? You can apply that argument to any plea for taxation relief when it comes to ask for taxation relief for the lower income groups. That sort of reply will affect any item that is taxed here, but the Minister cannot escape the fact that my amendment asks for taxation relief as far as the lower income groups are concerned, and it is on that that we make the plea.

Amendment put and negatived.

Schedule No. 1, as printed, put and agreed to.

Remaining Schedules and Title of the Bill put and agreed to.

House Resumed:

Bill reported without amendment.

I move—

Mr. Speaker, the National Parks Act of 1962, being a summary of the original Act of 1926, established five national parks, namely, the Kruger Game Reserve, the Kalahari Gemsbok Park, the Bontebok Park, the Addo Elephant Park and the Bergkwagga Park. Since then the Golden Gate Highland Park and the nucleus of the proposed Tsitsikama Forest and coastal park have been proclaimed and consideration is being given to the establishment of a national park which will include the Aughrabies Waterfall.

Mr. Speaker, the object is not at all to establish national parks in unlimited numbers but the aim of the National Parks Board, as a matter of fact the object why it has been established, is to protect outstanding areas where peculiar natural life and phenomena are to be found for the benefit and pleasure of the present and future generations. One such area which has in the main remained undisturbed is the Tsitsikama Forest where indigenous forest is still to be found thanks to the protective measures taken by the Department of Forestry. Fortunately the adjoining coastal area is also reasonably untouched and is, therefore, as such pre-eminently suitable for the protection of marine life.

Mr. Speaker, South Africa has a coastline of approximately 2,000 miles and the present generation may perhaps not think it is particularly necessary to set aside a stretch of coast line so as to protect nature. In point of fact, however, there are really very few accessible coastal areas left which have not yet been developed into sea-side resorts with due consideration to the effects on natural life. It has consequently been decided to proclaim as a park a stretch of land of approximately 36 miles from the estuary of the Great River in the district of Knysna to the estuary of the Eerste River in the district of Humansdorp. The park will also include a portion of the Storms River Forest Reserve known as “Die Plaat”, measuring 399 morgen, and two camping sites. The one camping site is at the estuary of the Groot River and comprises 73 morgen and the other is at the estuary of the Storms River and comprises 85 morgen.

A coastal park will not, however, serve its purpose unless it includes a portion of the adjoining coastal area so that the marine plant and marine life can be protected and preserved. The National Parks Act does not, however, make any provision for the inclusion of the sea-shore and the sea in a park and the necessary power is consequently sought in this Bill.

Mr. Speaker, you will notice that the Bill lays down that the Sea-Shore Act and the Sea Fisheries Act will not be applicable to a park. That is essential since dual control will only lead to clashes. In order to ensure, however, that the proposed inclusion of a stretch of sea-shore does not effect the vested rights of professional fishermen it provides that the seaward boundary of a park will be determined in consultation with the Minister of Economic Affairs. The Sea Fisheries Division will then be in a position to attend to the interests of the fishermen and the industry.

Mr. Speaker, I have already referred to the possible establishment of a national park at the Aughrabies Waterfall. Before it is decided, however, that a new park is essential a great deal of investigation has to be conducted but, strictly speaking, the Parks Board is only entitled to incur expenditure within the boundaries of a park. It is consequently necessary to empower the board to conduct an investigation like the one in respect of the Aughrabies.

Mr. Speaker, the Bill also provides for the granting of exemption or partial exemption from payment of the ordinary fees payble by visitors to a park to members of the Parks Board and certain other people. Members of the board receive no remuneration but their travelling and accommodation expenses are paid while attending to the business of the board. In order to carry out his duties properly it is essential for a member of the board to pay regular visits to the various parks. If such an official visit forms part of the inspection by the board it obviously does not cost the member anything but if he goes there as an ordinary visitor he will be liable to pay the ordinary admission and accommodation charges if the board does not grant him exemption. Such exemption has hitherto been granted by the board but it now appears that the Act makes no provision for this and the necessary power is now consequently granted.

You will notice, Sir, that there is also reference to exemption to other persons. This refers, in the first instance, to those people who years ago purchased life membership certificates from the Parks Board which entitled the holder to free access to a park. Those certificates were offered for sale to get funds in hand quickly; the first series cost R50 each and the second series R100 each. This was discontinued, however, and to-day there are only 162 such certificates. These certificates give the holders a contractual right and it is necessary that the board be empowered to give exemptions accordingly.

Secondly, Mr. Speaker, it is customary to confer the same privilege on the dependants of a member of the board otherwise a visit to the park and the fact that he serves on the board may place an unreasonable financial burden on his shoulders. The object of the provision is, thirdly, to empower the board to exempt or partially exempt former members of the board who have served on the board for at least three years from the payment of admission and accommodation fees. Persons who, in the opinion of the board, have done deserving work on behalf of the national parks in promoting the cause of the Board and who are made honorary life members fall in the same category. With a view to strict control of such concessions it is provided that the board must beforehand obtain the approval of both the Minister of Lands and the Minister of Finance.

I want to explain another provision of the Bill and that is the one which gives the board the power to make and to sell Bantu beer. The Parks Board employs on the average 1,600 Bantu in the Kruger Game Reserve. In order to prevent their brewing unhealthy and dangerous brews it is the intention of the board to brew Bantu beer for sale to these employees. The proceeds will mainly be utilized to provide necessary amenities to these employees. To start with a central brewery will be erected at Skukuza from where the beer will be distributed to field ranger posts and Bantu residential areas. The Department of Bantu Administration and Development has no objection to the intention of the board to supply beer. The National Parks Act already makes provision for the supply of liquor in a park but that does not cover the brewing and selling of Bantu beer.

There are shops and restaurants in the park which sell goods and provide a service for the comfort of visitors. From the nature of things the employees of the Parks Board are also allowed to buy goods from these shops and to have meals at these restaurants. The Board wants to meet its employees, however, by granting them a 10 per cent discount on the purchase price of all goods and a 25 per cent discount on meals. It is consequently provided that an official will be entitled to these privileges which the board regards as reasonable and fitting.

Mr. Speaker, I recommend this Bill and move its second reading. In moving the second reading I want to point out to hon. members that this is an asset in South Africa in respect of which we must not only think of the material side but of attracting people to South Africa. We are offering them something which no other country in the world can offer them and if we can attract them to South Africa we hope they will be better able to understand us and our problems and that they will perhaps return as ambassadors to state the case of South Africa and to tell the world that South Africa is not what it is usually presented to be. Sir, you will notice that there is an amendment on page 591 which I moved and which was contained in the Bill as originally printed but deleted in the Other Place as a result of the Financial Relations Act.

I should like to say at once to the hon. the Deputy Minister that we on this side of the House will support his Bill. I do not want him to be left in suspense and think that we are going to oppose it. There are, however, quite a number of points which will require some little discussion. In the main, I think they are matters which can be dealt with in the Committee Stage.

The Minister, in introducing the Bill, dealt with certain areas which it is proposed to claim as national parks and amongst others he dealt with the possibility of proclaiming the Aughrabies Falls. We support that measure warmly indeed, and we would go further and say that we hope the board will be able to prevent it from being commercialized hereafter. Because of the lack of water in South Africa, it follows that a natural waterfall of the dimensions of the Aughrabies Falls, which contains a certain reliable amount of water, provides a very tempting prize so far as the State is concerned, or other interests which may want to harness that power. It has been found in other countries that it is almost impossible, when once development has taken place at such large waterfalls, ever to get the falls back again into public ownership without changing their character and appearance by works associated with the provision of water power. We hope the Aughrabies Falls will be spared that and that adequate water power will be forthcoming from other sources which may be created from time to time in connection with the dams being built by the Department of Water Affairs, but that these falls will be spared for posterity, to see them in their actual beauty. The Deputy Minister quite rightly emphasized the value to South Africa of the tourist trade which is coming to us from other countries. He went on to say that they are not interested in concrete, bricks and mortar and buildings and towns, but that a far greater attraction to them was the natural life and conditions to be found in our reserves. We agree with him. We think that as the years go by there is no doubt that the natural resources, not only the scenery and the setting of some of the magnificent scenes we have in South Africa, but the wild life as well and the flora of this country will become more and more an asset of inestimable value. I remember a few years ago, in connection with one of our parks, where I was in the company of an American professor of botany and we came to an area where the impala lilies grew. They were in full bloom. The plants were from three feet to five feet high because for decades they had not been cropped. The American looked at this for a few minutes and said to me: “You know, I could go back to America and get a dozen scientists now who would come to South Africa for no other purpose than to see this show of wild flowers you have here”. When I think of that and I think of the flower show we have in Namaqualand and what we have to offer in that regard, and what other countries have lost—and this is the emphasis I want to put on the matter, that while the chance presents itself and the country is in the mood to take advantage of the desire exhibited by the board and the Minister to proclaim certain areas while we can, we should do it. In 20 or 30 years’ time development will have taken place and these areas will be gone for ever. Let us use them while we can.

That brings me to the proclamation of the Tsitsikama Ocean Reserve. This Bill makes special provision to deal with the proclamation of that reserve, no longer only associated with the land and the rivers, etc., but it makes special provision for proclaiming a reserve on the seashore, including the sea for a mile out. The Deputy Minister will recall—I do not want to be hard on him—that he was one of a party which camped on the beach once in Zululand to avoid paying park fees.

It was not I.

Well, I do not want to cast reflections and I want to apologize for any reflection that might have been cast on him. I would not have blamed him, because it was felt by people who came to that particular part of the beach that they were entitled to do it. It is the area just north of Sordwana Bay. There is an area where there are virtually no inhabitants and where there is a stretch of coastline which can be proclaimed with little hurt to anybody. I do not want it proclaimed under the National Parks Board. I would sooner that he gave it to the province so that it falls under the Natal Parks Board, but that is not the point. The point is the protection which can be given to that area. It is quite clear from what we have in the Bill before us that in an area like the Tsitsikama Reserve it in the intention of the Government that the Board shall provide for accommodation for tourists. That is quite clear from the fact that the board, in terms of Clause 3, will be permitted to build breakwaters, sea-walls, boat-houses, landing places, mooring places and oceanariums, etc. I do not expect they will build these things for any other purpose but to provide access to the beach. But in regard to the Tsitsikama Reserve I want to put to the Minister—and any other coastal reserve which may hereafter be proclaimed—that he should try to use his influence with the board to have a relatively large proportion of the area set aside as what we in our ordinance in Natal call a nature reserve. That is to say, it is not a place of public resort where the public has an unfettered right of entrance. There are such places. We have places of public resort, game reserves and nature reserves. A place of public resort is a place where people can go to enjoy themselves and where the emphasis is laid on the provision of amenities and facilities for people. In the case of a game reserve, one can go there, but one is strictly limited as to what one can do. In the case of a nature reserve, it can be limited to permit, although we have never reached that stage, but we have exercised a veto right against certain people who have abused the right to enter a nature reserve; because in a nature reserve we want the whole of the ecology of the area to be left undisturbed. Unfortunately we are learning in South Africa what other people have learnt the hard way elsewhere, and that is that it is doubtful whether any area, even of the magnitude of the Kruger National Park, can continue to function for the delectation and the interest of the public if it is left entirely to itself. Even the Kruger National Park is not complete; it is too small, and while in the course of time no doubt a certain equilibrium will be achieved as between the various types of fauna and flora, nevertheless in the intervening period, while evolution is taking place, heaven only knows what will happen to that park, so that man must interfere willy-nilly to try to reserve what he believes will interest tourists and generally provide for the delectation of the people who visit the area, while keeping the balance between certain types of mammals and also the flora. In regard to our seaside reserves, I believe it is more than ever necessary to keep certain large areas as nature reserves where the public will not be allowed to go and picnic and disturb the whole ecology of the area, but where the basic emphasis will be laid, as it is here in paragraph (2) of the Bill in the new Section 4, which says the object of the constitution of the park is the preservation and study therein of wild animals, marine and plant life and objects of geological, archaeological, historical, ethnological and oceanographic and other scientific interests, and then at the end of it comes the benefit and interest of visitors to the park. I agree with that entirely. When we put right at the start of it the study, I say that our scientific people cannot study adequately in an area where the emphasis is reversed and where people are there in such numbers that it is looked upon as an area for the enjoyment of visitors. Then the character of the area changes completely because of the vast number of people who go there and venture upon all the activities which human beings do enter upon. Let us try and keep it as close to nature as we can while providing a portion of it, that portion which may be set aside for breakwaters and little harbours and landing stages, etc., for the enjoyment of people, but once again preserving a portion of the sea-bed itself from the high-water mark—not the low-water mark—to the one-mile limit so that there is again a basis for marine biological study to take place in that area where human beings will not be allowed to go with spear-guns and all the rest of the contraptions which mankind has devised for the capture of fish and the taking out of molluscs, etc., but where it can be kept as far as possible for the purpose of study as nature has left it with us. It can be of incalculable value.

I read an article the other day in regard to some of the research done in America, where an effort was made by scientists to find a part of the original prairie in the west of America among these millions of acres. They tried to find a few acres of land because they wanted to see whether the vegetation had changed in order to try to determine the basic fertility of their wheatlands, and do you know, Sir, that they could not find any? Eventually they got a bit in a cemetery, and because it was enclosed by the wall of the cemetery the basic prairie fauna and flora were found there, and it was the only piece they could find. We have therefore had our warning. We should preserve areas of land where the scientists can go for study purposes, and those areas should be disturbed as little as possible by human agency. Then they can do definite scientific research. They can do incalculable services for the benefit of our own agriculture and our scientific approach to the fertility of our soil and the protection of our crops from various types of insects, etc. It has been found in the past on more than one occasion that such areas are the only remaining harbourage for insects which have been bred and used for the purpose of parasitizing other insects which are detrimental to our crops. The beneficial ones have been wiped out and a nucleus of them has been found here and there in these protected areas where they could be studied so that we could use biological means of combating parasites instead of this everlasting spraying with some of the new insecticides, of which the end has yet to be seen. We see occasionally in the papers that people have been poisoned because they used receptacles in which insecticide had been stored, or they ate fruit which was not adequately washed. That type of thing is destroying much of our wild life. I cannot expand on that now, but I merely say that the areas proposed to be established by the Deputy Minister are areas which are not simply places where people can go and enjoy themselves and see the scenery and the wild animals, but they are centres where serious scientific studies can be made which can be of incalculable value to our agriculture.

I want to refer to one or two matters here. In paragraph (3) of the new sub-section (b), the board may authorize an investigation as to whether or not it is desirable that any area should be declared as a park or to have any land included in the park. This is a very desirable provision, but I want the Minister to tell us in his reply why they want the board to do this. In the past there was an advisory committee on national parks. I remember Dr. Bigalke Snr. was in charge of the National Zoo in Pretoria, and he was chairman of that advisory body, a body of scientists which used to advise the Government specifically on this kind of thing. There were zoologists and botanists and various types of scientists who were appointed to that body, and they examined areas referred to them by the Government and made recommendations. I am just wondering why the Deputy Minister is moving away from this scientific approach and is now bringing in for the first time, as far as I know, the board itself as the investigating body which is to make recommendations to the Minister. I have no objection to it. I only want to know why this change has been made.

I think I can give you an acceptable answer.

Then in Clause 4 (4) it says that different ceiling prices may be fixed by the board for the Bantu beer sold to different classes of persons. Perhaps the Deputy Minister will say whether the intention here is to sell cheap Bantu beer to the Bantu employed in the parks.

That is the intention.

We have no objection to that, but I wondered, when I saw it, whether he was going to let tourists have it at a little below the normal selling price.

I go on to paragraph (7). Here I want to put this to the Minister. We are considering the possibility of adding the Tsitsikama coast reserves, and we have now imported into a specially protected group of animals certain animals which have a marine existence. The new ones added to the large number of other ones are the albatross, the whale, the porpoise, sea elephant or sea leopard, and they come into that particular clause where there is no option for the Judiciary. A person who has injured these animals shall be liable on conviction to a fine of not less than R400 and not more than R800. When this clause came up in the previous Bill where the various mammals referred to in the existing Act were concerned, there was quite a bit of discussion about it. Many hon. members were very unhappy because, e.g., one of the animals in the existing law was a roller, and there are two types here, and to think that a man can be fined R400 for deliberately killing a roller seems to be severe. But the great difficulties were pointed out. The great difficulties in dealing with people, who, in a small minority, will go into game reserves and nature reserves and think it is a fit field for them to destroy all the wild life they find there. We are continually having to deal with it. Now the Deputy Minister adds a further group of animals, like the albatross, whale, etc., which I mentioned. What I want to propose to him is that he should give the Latin names if he wants to get a conviction in a court of law. I think it would pay the Deputy Minister to put in these scientific names. Curiously enough, all these things have scientific names, and as the old lady said, it is wonderful the way nature found a knowledge of Latin so useful that all the animals were able to name themselves in Latin. Let us take, e.g., a sea elephant and a sea leopard. I wonder, if a sea elephant or a sea leopard appeared on the beach, how many members of this House would distinguish between them. If there are a large number of sea birds, how many hon. members would be able to say that is an albatross, and that is a skua? We have colloquial names for these things. Where we are dealing, in terms of the principal Act, with an elephant or a rhinoceros or a hippopotamus, there is not much difficulty because they can be fairly easily described in the law, but where we are dealing with marine animals difficulty arises the moment you go to court and have to bring evidence to prove that that bird was an albatross and that particular animal was a sea leopard, and when you get to a porpoise you are in even greater difficulty because scientifically a porpoise is a whale and the whole of the dolphin family make the position of the man who wants to describe a porpoise very difficult. So I want to suggest to the Deputy Minister that if he is going to get convictions, he should consider getting a scientific description of these marine animals and have that put in the Bill. Because there are many people who would want to damage these animals. I am quite sure of that from my own experience in Zululand.

Now I want to deal with Clause 8. The spirit of the new sub-section (2) we have a great deal of sympathy with. It rather follows the lines of a similar provision that the Minister of Justice put into one of his Bills. It provides that any officer designated by the board may within a park or at a place within one mile of the boundary of the park search without a warrant any premises, place, vehicle, vessel, ship, tent or receptacle of whatever nature if it is on reasonable grounds suspected that he may find there any animal or article which affords evidence of the commission of an offence under this Act, and he may seize any such animal or article found, and provision is made for the confiscation of the vessel or vehicle. My point is that we have great sympathy with this provision in regard to the one mile, but here again the question arises as to the evidence which can be adduced in court with a view to getting a conviction, not only in regard to vehicles but also vessels. The number of people who can adequately judge by eye how far a vessel is off-shore from a given point, you can count on the small toes of one foot. It is a very difficult thing to do. You only have to see people shooting across water with an ordinary rifle to realize how little they can judge the distance. So what you get here is an argument and not a conviction, and where it comes to the land and you have such animals in a vehicle it is clear that evidence must be adduced to show that if a corpse or skin or part of an animal is found in a vehicle it was perhaps captured or destroyed within the boundary of the park. It is no good searching the vehicle a mile outside the boundary.

Business interrupted in accordance with Standing Order No. 23 and debate adjourned.