Mr. Speaker, with your permission I would like to make a short statement.

Representatives of the South African and British Governments met in Cape Town from the 25th to the 27th January to discuss certain aspects of the Simonstown Agreement in the light of the projected withdrawal of the Commander-in-Chief, South Atlantic. The British team was led by Sir John Nicholls, Her Britannic Majesty’s Ambassador in South Africa, and included Vice-Admiral Sir John Bush, K.C.B., D.S.C., Vice-Chief of the Naval Staff, and other officials. The South African team was led by Commandant-General R. C. Hiemstra, S.S.A., S.M., and included Mr. B. G. Fourie, Secretary for Foreign Affairs, and Vice-Admiral H. H. Biermann, S.S.A., O.B.E., Commander Maritime Defence the Navy, and other officials.

The discussions took place on the basis of the traditional relations of friendship and co-operation which have always obtained between the Armed Forces of the two countries. In the light of the proposed reduction in the British naval presence at the Cape, recommendations were agreed upon for submission to the respective Governments to provide for the assumption by the Commander Maritime Defence and Chief of the S.A. Navy of greater responsibilities for the defence of the sea route around the Cape in the event of war. Agreement was also reached on the recommendation that the Royal Navy would continue to be represented by an officer of appropriate rank in Cape Town to maintain effective liaison with the S.A. Navy. Mutually acceptable arrangements relating to the use of the base facilities at Simonstown in the event of war were also agreed.

In the light of the foregoing. I wish to express my satisfaction with the outcome of the deliberations. In conclusion, I should also like to express my appreciation for the work done by members of our delegation.

Mr. Speaker, I move—

In my contribution to the motion before the House, namely that this Bill be now read a third time, I want to confine myself mainly to a discussion of clause 7 of the Bill—namely the clause in which the Minister proposes to authorize the Wool Commission to purchase packing materials or to finance the manufacture of such packing materials from its own funds, to store such materials and to make them available to wool-brokers. During the discussion of this measure at an earlier stage the hon. the Minister stated that such a step would contribute towards reducing the production costs of the wool farmer. The hon. the Minister submitted that it would contribute towards stabilizing the price. I want to say that if the hon. the Minister is of the opinion that such a step would reduce the production costs of the wool farmer, we on this side of the House support him wholeheartedly. I want to point out to the hon. the Minister that some time ago a survey was carried out among 137 wool farmers in the Eastern Karoo region and that that survey revealed that 10.6 per cent of the wool farmer’s expenses relate to packing materials, i. e. wool-packs and other deductions made by wool-brokers. This is therefore a most important item as far as the production costs of the farmer are concerned. Now it is proposed to transfer this function to the Wool Commission. I must say that the Wool Commission, with its financial means, is pre-eminently suitable for such a function. The Commission has R28 million in its stabilization fund. At an earlier stage the hon. member for East London (City) made a plea for more research into the right type of wool-pack, but the hon. the Minister was not prepared to listen to him. I hope, nevertheless, that the hon. the Minister will in fact instruct the Wool Commission to do more research in order to find the right type of packing materials.

Order! The hon. member should have raised these aspects during the Second Reading of the Bill.

That is true, Mr. Speaker, but this is a new function which is being entrusted to the Wool Commission. In any event, I want to appeal to the hon. the Minister to keep a close watch on the position in this regard. We have heard so frequently that steps which were to be taken would help to stabilize production costs and the market, only to find that it never happened. We therefore hope that if the hon. the Minister notices that it may mean higher costs for the wool farmer, he will draw the attention of the Wool Commission to the spirit which motivated the House originally to entrust it with the power contained here in clause 7. I just want to express that wish; for the rest we support the Third Reading.

In pursuance of the point just raised by the hon. member for Newton Park, I should like to bring one or two aspects of it to the attention of the hon. the Minister. Yesterday during the Committee Stage the hon. the Minister claimed that if the Wool Commission financed the manufacture or purchase of packs it would be possible to make a cheaper pack available to the producer, or that it might possibly result in a more stable price for the packs, or that it might even prove to be a method of stabilizing the market. If the hon. the Minister did not mean that, he may correct me, but the point I want to put to him is the following: The Government’s attempt to induce people to use the fibre of phornium tenex or hollyhock to manufacture containers does not suit the wool farmer because that fibre is too hard, and when it is mixed with the wool fibre it eventually gets into the fleece and damages it. Therefore the wool farmer as such cannot use that fibre. In view of the fact that at this stage we have to rely on the paper pack and/or the synthetic pack, I want to point out to the hon. the Minister that it is still possible at this stage to import unlimited quantities of jute into the country; and if in his view it will be necessary at some stage or other to stockpile supplies of fibre for use in the manufacture of containers, we want to express the hope, considering that he has already mentioned that it may prove to be a method of reducing the production costs of wool or of furthering stability because the container would then be cheaper, that he will also bear in mind that mixing jute with paper or mixing jute with synthetic fibres may reduce the price of the pack considerably. The fact remains that Australia is at this stage still packing 95 per cent of its wool in jute packs; for the industry throughout the world it is not so detrimental and if it means a saving for the farmer, and if it means that a smaller amount from the Fund established for stabilizing the wool market will be used for the purpose contemplated in the amendment, then we want to express the hope that the hon. the Minister will do everything in his ability, seeing that he said in the Committee Stage that it might be a method of reducing production costs or of securing a more stable price for the farmer, to see to it that supplies of jute will be imported while they are still freely available to us.

When the hon. the Minister replied to the Second Reading Debate, he confined his remarks more to the question of the Wool Commission holding stock of containers—woolpacks—rather than to the question of manufacture. This question of the availability of woolpacks, as well as the price of woolpacks, has a long history. It goes back to the post-war days when relations between our country on the one side and Pakistan and India on the other became strained. It became very difficult to import our packs from those two countries. Then the Department of Commerce and Industry, making use of the External Procurements Fund, bought woolpacks from whatever sources they could get them, and at a slightly later stage we began to import the raw jute instead and began to manufacture our own packs. But, Sir, as all woolgrowers know, those packs were not entirely satisfactory as regards their quality and, what is more, they were considerably more expensive than the imported packs. Although the quality later on improved, the question of the cost of the pack was never satisfactorily resolved. Last season or the season before, we began to use locally manufactured paper packs, but here again there was an increase in the price of the pack, and whereas last year the price of the locally manufactured woolpack to the broker—not to the producer but to the broker—was R1.78 the price of the paper pack, on the other hand, was R2.05 If this granting of power to the Wool Commission to manufacture our packs instead of having them manufactured by other bodies in this country, will lead to some stabilization in the price of those packs and will at least damp down any further increases, then we on this side of the House will support that. But we do want to appeal to the Minister to keep a very watchful eye on the whole situation, because we do not want a situation to arise where either the price of the packs will be increased considerably again or the funds of the Wool Commission, the accumulated levy funds, which are the producers’ fund, will be run down because they find it uneconomic to produce packs at a price not very much higher than the price at which they are being produced at the moment. Sir, with prices for wool on the auction markets certainly not at boom level and with the cost of production constantly increasing, the position of the wool producer to-day is that any means of lowering his production costs are welcome. It would be dangerous for us to allow ourselves to be led into a frame of mind where we believe that because the Wool Commission has R28 million or R30 million, or whatever the amount happens to be, in the Wool Stabilization Fund, that money could cheerfully be used for other purposes. I think the time may come when the producers would rather see some other means—not necessarily of cutting their costs—but of increasing the amount of money available to them—means perhaps such as cutting down on the rate of the levy which is paid. Sir, I merely want to repeat that we on this side of the House support this measure, provided the hon. the Minister will assure us that he will watch the position very carefully indeed and see that it will not be to the detriment of the Stabilization Fund, and that it will not lead to unnecessary increases in the price of woolpacks.

I think hon. members drew the wrong inference

altogether from a remark made by the hon. member for East London (City) during the Committee Stage. During the Second Reading Debate the hon. member asked whether the aims of the Wool Commission made allowance for their doing such business, and in reply to that I said: “Yes, that may be inferred from their aims”. But I set out the reasons for this step very clearly in my Second Reading speech. The reason I mentioned was that until now the Department of Commerce and Industry had purchased wool-bags and other bags through the Jute Controller and had made them available to the various industries when required, because there was the hazard that the supply of jute and also jute packs to South Africa could be cut off as a result of a boycott, and for that reason they had to store those supplies in order to ensure that supplies would be available in such a contingency. But in that respect the position has changed: Apart from jute packs one can also use paper packs, the raw materials for the manufacture of which are freely available in countries in respect of which we are not subject to boycotts. It is therefore felt by the Department of Commerce and Industry and also by the Wool Commission that it is no longer necessary for the Department of Commerce and Industry to store such large quantities of packs. All that is being done here is to enable the Wool Commission to finance the storing of wool-packs—regardless of whether they are manufactured from jute or paper—to keep them in stock and then make them available to the distributors of those packs. The reason for that is that it is very expensive storing those packs. It is felt that if the ordinary trade did that, the wool-pack would eventually cost the consumers more than it would cost them if the Wool Commission financed and stored the packs. For that reason they have now been authorized to store and finance the wool-packs or wool-containers, whichever the case may be, in order to enable the producer to obtain the packs at the lowest possible prices, without the middle costs which would arise if other firms did that. This does not mean that it will bring about a reduction in the production costs of the wool industry, but if it is not done the result may be an increase in the production costs. That is why we are giving this authority to the Wool Commission.

The hon. member for East London (City) mentioned the question of research regarding wool-containers and the type of container that would be the best for packing wool. Research is being undertaken constantly by the Wool Board, in conjunction with the C.S.I.R., with a view to finding the best container, one which would not shed fibres that would get into the wool. As a result of that research the Wool Board decided that the best container, one which causes the least contamination or adulteration of the wool, is a paper pack. They recommended that that was the container in which wool should be packed in order to prevent mixing of jute fibres with the wool. But there is no provision in this Bill prohibiting the Wool Commission from storing jute packs and making them available to the farmers. They are to store the type of container that they and the Wool Growers’ Association consider best. That is the type of container they must store, supply and finance.

We now come to the funds that may be affected. The concession which is made to the Wool Commission does not authorize that Commission to manufacture wool-packs. It is intended to promote the manufacture of woolpacks in order that a supply of packs may be made available. It is a matter of financial support for making available a supply of the packs which it can then sell in turn. That is the major object of this amendment. I want to give hon. members the assurance that as regards funds collected from levies, whether for stabilization or for administrative purposes, whether by the Wool Board or by the Wool Commission, it is the duty of the Minister—the Act compels him—to keep a close watch, together with the Marketing Council, on that expenditure and to see to it that it is utilized only for the purposes provided by the Act. In the past I enforced that very strictly, Sir, so strictly in many respects that members on the opposite side frequently attacked me here and said that I controlled the boards instead of the boards controlling the product. Only last year I heard that here, namely that when a price is fixed or determined or when a levy is imposed, the Minister is the ruler. Now the same members are saying: You are not ruling strictly enough. The hon. members who advanced that argument last year are now saying that I should make the Act of much stricter application to the boards. I am quite prepared to do that, Sir. When powers to impose levies are delegated to a board or a commission, powers which actually vest in Parliament and of which Parliament is actually jealous and in respect of which it expects the Minister to exercise supervision on behalf of it, I want to assure hon. members that I shall do so to the best of my abilities.

Motion put and agreed to.

Bill read a Third Time.

Mr. Chairman, I wish to move the following amendment:

In line 21, page 4, after “commission” to add “and he shall notify every such appointment in the Gazette”.

During the Second Reading debate which took place recently the Minister indicated what he considered to be the wisdom and the necessity for doing away with this particular provision regarding the publication of the names of this particularly important commission, in the Government Gazette. He was reported as saying in the Other Place, that it was a practice which was no longer being followed in appointments of that nature. Yesterday when the hon. member for Kensington referred to this matter, the Minister said that there were literally hundreds of commissions and he went on to say that in the interests of economy it had been decided that no longer was it necessary to publish the names of the members of commissions in the Government Gazette. I feel that the Minister has been guilty of the use of hyperbole in his statement. I say this because I believe categorically that I am correct in stating that in the last three years, from 1963-’66, I would be extremely surprised if there were more than 40 commissions mentioned in promulgations in the Government Gazette, either single names published for notification or the names of the whole membership of a commission. I know that if I were to develop further this matter on a question of principle, I would incur your displeasure, Sir, and it is not my intention to do so. I wish, however, to refer the hon. the Minister to the report of the Controller and Auditor-General on page 27 in which it is stated quite definitely that there were 17 commissions at present in operation, that is, other than commissions of a permanent nature. That is a lot less than the hundreds to which the hon. the Minister referred. In passing, I want to point out that the expenditure involved in those commissions amounted to approximately R 190,000 last year. The total expenditure listed in this report amounted to almost a third of a million rand. I believe that if so much money is being expended on appointing commissions to function in the interests of the State, it is in the interests of the State too that the man in the street should have ready access to this information in regard to the members of these commissions. The Minister indicated that measures and means did exist whereby the information could be disseminated. He said in his speech yesterday that the details were handed to the Press. Is it a natural conclusion to assume that, because the names are handed to the Press which has a certain amount of discretion in the matter, they will decide that the names of the members of a commission are of sufficient news value to be published? There may be large areas in the Republic where this news is not promulgated through the Press. Then the Minister went on to say that the information was also handed to the S.A.B.C. and then transmitted over the radio. That is a matter of “hearing” news. There is no possible means of referring to that news except by storing it in one’s memory and if a man is not there to hear that particular news announcement, the public of South Africa is not informed concerning that particular piece of information. Thirdly the Minister referred to the fact that this information was made available to the Department of Information. I have made it my business to find out on what basis this information would be available to the public under those circumstances. I believe that so far as the major cities are concerned, it would be possible for an individual who had an interest in history and who wished to know something more about the activities and the personnel of the Monuments Commission, to approach the Department of Information and I am sure that that department, with its usual courtesy, would make every endeavour to provide the information. But if a person does not live in a major city, it would necessitate writing to the nearest office of the Department of Information and I believe that it might be necessary in certain cases for the Department of Information to consult Pretoria to obtain that particular information in regard to the personnel of the Commission. I believe that the present system whereby any individual in South Africa has access to this information by reference, in a reference library, to the indices of the Government Gazette which are published every quarter and which indicate these items in index form, is something which should not be discontinued lightly. I should like to appeal to the hon. the Minister in the interests of the public and for their convenience that he should continue to make this information available via the Government Gazette.

Mr. Chairman, as I have said, this has until now been a matter of Government practice. I want to tell the hon. member that I shall undertake to submit the matter to the Government and to ask them whether they are prepared to change that practice. If they are prepared to do so, I shall announce the commission in the Government Gazette, this time without amendment, and then make the necessary amendment in the course of the following session. I hope that satisfies the hon. member. At this stage I cannot depart from Government practice, and I must therefore reject this amendment. It is a minor matter, but I shall handle it in this way and put it to the Government that this practice should be taken into review in respect of the Historical Monuments Commission.

Mr. Chairman, I think that we are grateful for that concession as far as it goes. I should like the hon. the Minister to submit this matter in a spirit of sweet reasonableness to his colleagues as we regard this as an important omission he has made in the Bill. There are several other omissions but we do not object to them. This is the only one to which we object. I hope that the hon. the Minister will be successful in making his suggestion.

Amendment put and negatived.

Clause, as printed, put and agreed to.

Clause 2:

Mr. Speaker, I move the amendment in respect of the provision which does not form part of the Bill as approved in the Senate—

In line 55, after “thereof” to ad “but any such member may draw from the funds of the commission his reasonable expenses for travelling and subsistence while engaged upon the business of the commission or of any such committee at a tariff which may be prescribed by regulation under section 12”.

Agreed to.

Clause, as amended, put and agreed to.

Clause 8:

I move—

In line 32, after “commission” to add “and of committees thereof”.

Agreed to.

Clause, as amended, put and agreed to.

I move—

Agreed to.

Clause, as amended, put and agreed to.

New Clause 5:

I move—

Agreed to.

Title.

I move—

In the twelfth line, after “nursery;” to insert “to increase penalties;”.

Agreed to.

Title, as amended, put and agreed to.

I move—

1. (a) the person in whose name the land is registered or, if such person is absent from the Republic or his whereabouts are unknown, his agent or legal representative in the Republic;
2. (b) in the case of State land leased under a lease which contains an option in favour of the lessee to purchase the land so leased, the lessee who has exercised his option to purchase the land;
3. (c) in respect of land under the control of a local authority, that local authority;
4. (d) for the purposes of sections 9 and 10, includes—
5. (e) any lessee of State land leased under a lease which contains an option in favour of the lessee to purchase the land so leased, who has not exercised his option to purchase the land;
   1. (i) any lessee of land leased for a period of ten years or longer; and
   2. (ii) any person who has purchased State land which has not yet been registered in his name;”; and.

Agreed to.

Clause, as amended, put and agreed to.

Title.

I move—

Agreed to.

Title, as amended, put and agreed to.

Mr. Chairman, I should just like to reply to a point raised yesterday by the hon. member for Transkei. I did not have an opportunity to reply to him then. The policy will be that in respect of civil actions the records will be kept for ten years, while in criminal actions the records will be kept for five years at the seat of the magisterial district concerned. After that they will be sent to the Archives. If a person wishes to consult a record at any time, he will have to apply to the magistrate’s court, in which event the magistrate will put the necessary machinery into operation to get the required documents back from the Archives with a view to inspection at the seat of the court.

I think that answers the hon. member’s question.

Mr. Chairman, I trust that the Minister will see to it that magistrates are instructed on these lines, because the magistrate told the attorney I referred to yesterday to apply himself to the Archives. I hope that the hon. the Minister will take steps to see that magistrates know it will be their duty to obtain the required copies from the Archives.

There is also provision for the Secretary for Justice to arrange for the destruction of records. He may order certain records to be destroyed. At what stage will he order records to be destroyed?

Mr. Chairman, the periods to which I have just referred will also apply in this case. In respect of criminal records the period is five years and in respect of civil records it is ten years. But the destruction of records will not be proceeded to lightly. The matter will be investigated very carefully before it is decided that a record should be destroyed. As regards the other point raised by the hon. member, I want to inform him that the magistrate who told the attorney that acted in quite the wrong way. Under no circumstances will the Archives ever hand a record over to a private person.

In regard to the destruction of records, I should like the hon. the Minister or the Secretary for Justice to bear in mind that there are certain records that are more valuable than others, for instance judgments on rights of way. Records of that nature, I submit, should be kept. Ordinary debt-collecting cases, unless there is some dispute about an important article. I understand could be destroyed instead of cluttering up the Archives. But there are other judgments, one for instance which I did mention, which are of much higher importance. I hope that those records will be kept for longer periods.

Clause put and agreed to.

Mr. Chairman, we raised certain objections to the principle according to which the onus of proof was placed on a person whose goods had been conveyed illegally. I should like to have the assurance from the hon. the Minister that a person who uses, for example, an authorized transportation firm, duly licensed, advertised and known as such, for the conveyance of goods will not be prosecuted if that firm, without the knowledge of the owner of the goods, for instance uses an unregistered vehicle or undertakes transportation outside its area. As the clause reads at present, the onus of proof rests entirely on the owner of the goods which have been conveyed. If it is clearly a case where a person and the haulier have been contravening the law together, it may possibly be acceptable that he has to adduce proof that he did not commit that offence intentionally. But if a person takes the trouble to ascertain that he is dealing with an authorized firm, does he have to take further action and ensure that the particular journey which that firm will have to undertake will be authorized, that there will be a certificate for such a journey and that the journey will be legal? If not, this clause may go much too far. At this stage I shall leave the matter at that and wait to hear what the hon. the Minister has to say about it. If he can satisfy us that there is no possibility of an unfair penalty being imposed on a person who has acted in good faith, then this clause is acceptable to us.

My reply to the hon. member is as follows. We know our Judges and our magistrates as being very reasonable people and they are perfectly capable of forming a fair judgment if someone was to allege in court that he did not know that he was committing an offence. We can leave this matter entirely in their hands with absolute confidence. In this connection clause 3 (1) (b) is very clear. It reads as follows—

How can he prove that? What proof is there? His word?

His word. If he is able to plead ignorance, it is for the magistrate or the Judge to form an opinion. Of course, it is possible that evidence may be led that a person did in fact know that he was committing an offence. If such evidence can be led, it would be led by the transportation inspection section concerned. It is very doubtful whether a person will be prosecuted if he has advanced the plea that he did not know that he was committing an offence. The hon. member need have no fear. I am just as afraid than an innocent and honest person who really did not know that he was committing an offence, I repeat, I am just as afraid, that such a person will be found guilty whereas he is not guilty.

However, I am convinced that these officers will act with so much discretion that the really innocent and honest people will never land in court and be prosecuted. The people about whom the hon. member and I are both concerned are those people who deliberately commit this offence. The hon. member and I are both concerned about that. Those are the people we want to catch, but if we are now going to amend the Act in such a way that things will be made easy for them, we shall simply not be able to catch them.

Yesterday the hon. member expressed his concern about the onus of proof which will now rest on the person. But surely that principle is already embodied in the Act in section11(1) and in addition it is also embodied in clause 3 (1) (a), which meets with the hon. member’s approval and to which he has no objection. I really think that our approach is entirely the same. We will not land honest and innocent people in trouble and we do not want that to happen, but in our eagerness to avoid that, we must not leave a loophole in the Act through which the dishonest person who commits an offence can find a way out.

Clause put and agreed to.

Clause 5:

Clause 5 (2) has the effect to make the legislation of retrospective effect. This means, inter alia, that if a person already has three convictions against him and is subsequently convicted he will have to pay the maximum fine immediately. Under the circumstances I want to move the following amendment—

If this amendment is accepted, it will mean that a person will have at least three chances. I think that will be fairer.

The hon. member for Kroonstad discussed this matter with me and I am prepared to accept this amendment. In view of the considerably heavier penalties we are imposing I regard it as being no more than fair and just to give hauliers a completely clean bill. Therefore I am prepared to accept the amendment.

Amendment put and agreed to.

Clause, as amended, put and agreed to.

Clause 6:

We take strong exception to the powers provided in this clause for the confiscation of a vehicle by an authorized officer merely upon reasonable suspicion of commission of an offence. We do so because it opens the door for injustices which may be done even in good faith. The authorized officer may act in good faith but he may in so doing do an injustice which could harm the person concerned beyond any chance of making up his losses. I quote as example the case of a person who makes his livelihood from transport; who owns one vehicle and whose sole income is derived from the conveyance of goods on that one vehicle. He may through an error or through a malicious report be arrested and have his vehicle confiscated. He may be entirely innocent, and yet during the many months which it may take for that case to come before the court and be finalized, that person is going to be without any income whatsoever because the means of his livelihood will have been taken away from him—not by the decision of the court but merely because of the suspicion of an official who for some reason or another feels that he is justified in confiscating and impounding that person’s vehicle. The sentences which we have just increased in clause 5 are very powerful deterrents. We have increased the fine from R200 to R 1,000, a five-fold increase, and we have provided for imprisonment up to a period of 12 months. But in addition to a fine of R 1,000 and/or imprisonment, there is also the punishment of the permanent confiscation of the vehicle and the goods conveyed on it. If a person has committed an offence and has been found to be guilty by a court and the court then takes his vehicle away from him, we accept that as a legal punishment and as a deterrent to the growing illegal traffic on our roads. Therefore we have accepted that; we have made no objection to the confiscation by a court on finding a person guilty, because then the person will have asked for it; he will have known what the law is and he will have committed an offence and will therefore have earned any punishment which may be imposed on him. But to impose what in effect amounts to the same punishment—the taking away of the vehicle—before the person has even been tried is in our view totally indefensible. Sir, everyone is human; everyone makes mistakes. It is quite possible that in dealing with the many hundreds and hundreds, if not thousands of cases which undoubtedly fall within the scope of this Bill, there can be a small percentage, even if it is 1 per cent, of error and unjust suspicion. Even if it is only 1 per cent, it is more than enough to justify our objection to this clause. I therefore wish to move—

We feel that this paragraph is unnecessary as an additional deterrent. If a person is going to be found guilty by a court eventually, then he can lose his vehicle entirely, and it is not going to be an additional deterrent if it is possible for that vehicle to be held for two or three months pending the trial. It is a far worse deterrent if the person concerned knows that his vehicle may be taken away altogether. If there are goods involved—and that may well be the Deputy Minister’s argument—and the person concerned is warned by the authorized officer that these goods are subject to confiscation and should not be disposed of in the meantime and despite that warning he disposes of the goods, then the magistrate will obviously take that into account in determining the sentence. Therefore we feel that there is more than enough deterrent provided in the fine, the imprisonment and the confiscation powers now incorporated in this Bill, to deter people who engage in this traffic. The deletion of this paragraph will in no way weaken the effect of this Bill in putting a stop to illegal transportation. I would plead with the hon. the Minister to accept the deletion of this paragraph so that we will not impose a possible hardship and injustice on people who ultimately may be found not guilty and would have no compensation for what they had suffered through the action of an official. I move.

Mr. Chairman, unfortunately I cannot accept the amendment of the hon. member for Durban (Point), because if I did accept it, it would mean that it would simply not be possible to confiscate goods. How is one going to confiscate goods if one cannot impound them? I may give the hon. member the assurance, however, that these regulations will be drawn up with the utmost care so as to ensure that the greatest measure of caution will be exercised. Only senior officers, apart from transportation inspectors, will be used as authorized officers in impounding such goods, but not all officers will necessarily be appointed as authorized officers to impound such goods because of the fact that they are traffic inspectors.

But that is not in the Bill.

That is laid down in the regulations and it is also in the Act.

In terms of this Bill every member of the Railway Police Force becomes an authorized officer.

Yes, but I was speaking about traffic inspectors. Only police officers and officers authorized and appointed by the National Transport Commission are authorized officers.

If it should happen, and it can happen, that a court finds a person not guilty after his property, especially his vehicle, has been seized, what compensation will the Department offer him for the tremendous losses suffered by him?

If he is found not guilty, this is a matter about which the court will decide.

But what about the losses suffered by him in the meantime?

The court will have to decide about the losses suffered by him. [Interjections.] But that is the position to-day. I am sorry, but if I were to accept this amendment, how is it going to be possible for one to seize goods if one may not impound such goods? Can the hon. member give me the solution? How can one confiscate if one cannot impound? I can give you the assurance that we are fully aware of the full implications and all the hardships which this may entail and I can give you the assurance that it is virtually sure that, as far as the offender is concerned, he will have to commit repeated offences before his goods will be seized.

Write that into the Bill.

Why should we insert that in the Bill? I think that that will make the position quite impossible and I am not prepared to accept the amendment.

Mr. Chairman, we want to protest very strongly against this clause and against the attitude adopted by the Deputy Minister. The principle we are now being asked to accept is that a person, before he has been found guilty, may be punished provisionally for a crime which has not been proved. We are being asked to approve a principle of imposing a provisional punishment on a citizen of South Africa before he has been found guilty. It is not unknown that the police may take action against a citizen of South Africa with utmost care and with legitimate suspicion and that the court may then find him not guilty. Particularly in the case of a haulier who owns one lorry it is likely that such haulier will suffer losses if that lorry is impounded for months before he is found not guilty. He is a small haulier who is entirely dependent on that vehicle for his livelihood. He is without the vehicle for months. He is found not guilty and the Minister says that the court will compensate him. The court has no right to compensate him. The court has nothing to do with that.

Sir, if one can be absolutely convinced in one’s mind that the police never make a mistake or that the inspectors never make a mistake, it would be a different matter. But why go to court then? Why then afford the person an opportunity of proving his innocence if it is not expected that in certain cases he will be able to prove his innocence? It is really a terrible thing which Parliament is now being asked to do, namely to punish a man provisionally before he has been found guilty. Mr. Chairman, if one only had the assurance that this Minister and his Department would always be so concerned about the innocence of people — if that had been proven in court—it would have been a different matter. But the Minister knows as well as I do that there are many cases where people are found not guilty by the courts but are nevertheless punished by the Minister in another capacity, administratively for example, on the South African Railways. Surely we cannot be asked to do something like that. Sir. The Minister’s reply was completely unsatisfactory. The Minister wanted to tell us that the court could compensate a person. That is not true. There is no compensation for a person if he has been punished in this way already. If that person is proved to be not guilty that innocent person has already been punished. Is this the principle the Minister wants us to accept? We are grateful that the hon. the Minister said that this would only happen in the case of more than one conviction but that is not written into the legislation. Is the Minister prepared to accept such an amendment or will he undertake to move such an amendment in the Other Place? Will the Minister agree to move an amendment either here or in the Other Place that this provision will only be resorted to after a first, second, or third conviction, as he deems fit? He said that that would be his policy. Will he incorporate his policy in the legislation? We do not know what a future Minister may do. If he does this, we shall not be happy, but it will be easier for us to swallow this provision.

Mr. Chairman, like us the hon. members are also concerned about what may happen but we should remember that the present Act already contains a provision in terms of which a person’s vehicle may be seized. This is what those two hon. members are so concerned about. They are not concerned about the load to which this new provision relates. What we are doing is merely to make the Act applicable to the load as well. That, however, is not the argument advanced here by those two members. They are now concerned about the provision which is already contained in the Act, namely the provision relating to the vehicle. We are effecting no change in respect of that. What they objected to is something which could have happened throughout the years and it has not happened. To us that is sufficient proof that those fears do not exist. [Interjections.] Mr. Chairman, at the moment hon. members cannot deny that it is possible to seize a vehicle.

After conviction.

Mr. Chairman, how does one seize a vehicle if one does not take the person to court? [Interjections.] Those hon. members have been caught on the wrong foot. I want to point out that no injustice is being done in this case. It will not be possible for these officers to do whatever they like whenever they like. These are not the only Government officials in whom such powers will vest. These powers have been conferred by various Acts. I am not a jurist but I know that if a police officer suspects me of having stolen goods he may seize those goods. In such a case too, my case may perhaps be brought to court after a period of two or three months and in the meantime I shall not have the use of those goods. If the bananas have become rotten and inedible in the meantime, as may be the case in Durban, I cannot make those bananas fresh again if it is eventually proved that I did not steal them. This principle is one which already exists in legislation, namely that goods may be seized on suspicion. It is an old principle of law. That is also the case where there is merely a suspicion that one has stolen goods in one’s possession. Those goods may be seized and eventually it may be proved in court that one did not steal them and one may be found not guilty. This power is not one which officials who have been clothed with it will use arbitrarily and lightly. They are sensible people and I assume that the constable or the inspector will ask the driver of the lorry which he stops between Durban and Pietermaritzburg what he is carrying on his lorry. He will ask whether the lorry has a load of perishables and will act accordingly as he is empowered to do by regulation. If the driver has bananas on his lorry he will tell him to go and unload his lorry. If the driver maintains that it is his lorry and that it is his means of livelihood then there is no reason why it cannot be prescribed by regulation that that person may do something else with the same lorry the next day and appear in court a week later. I want to make it very clear once again that the principle that a vehicle may be seized has always existed. Why are hon. members complaining now?

Mr. Chairman, I think that we have seldom seen in this House a poorer performance by the Deputy Minister and by a front-bencher to justify a clause for which there is in fact no justification whatever. The hon. member for Parow said that the principle is the same as the principle which exists in the law as it stands to-day. He is of course quite wrong and he ought to know that.

You prove the contrary.

I am about to. Mr. Chairman, the position is perfectly simple. The clause which exists in the law at the moment empowers a court after convicting a person to confiscate. This is an entirely different principle to the principle which the Government now wishes this House to introduce, namely to empower an official or a policeman to confiscate a vehicle or goods merely on suspicion—no matter how justified that suspicion may be—and, what is more important, before a charge and a conviction has been made against the persons concerned and before even the Attorney General has considered the matter. This is an entirely different principle and one which does not exist in this Act as it stands at the moment. I doubt very much whether it exists in any other law which has been passed by this House. It is a principle which is thoroughly bad for the reasons given by the hon. member for Durban (Point) and the hon. member for Yeoville. The main reason why it is so bad is that an official ought never, whether that official be specially appointed to enforce this Act or whether he be a policeman, to have the power to act as a court of law and that is what this clause does. It gives that official the power to decide whether in his opinion he considers that there is reasonable justification for confiscating either a vehicle or goods. Having decided that, he is then empowered, without even having to consider any arguments which may be advanced by the consignor or the owner of the goods, to immediately confiscate those goods. It has been pointed out that that confiscation could have very serious effects because it could be many months, indeed it could be several years, before a trial is finally concluded in a court of law and the matter has been disposed of by a Court of Appeal, if the matter should go on appeal.

To say therefore that no injustice is being done or can be done under this clause as is suggested by the hon. member for Parow and as was suggested also by the hon. the Deputy Minister, is quite frankly nonsense. The very gravest injustices can result and are very likely to result as a result of this clause. There is no satisfactory explanation given to this House to warrant the introduction of this clause. The only explanation that we have been given by the hon. the Deputy Minister is that it would be impossible to confiscate goods unless it is done there and then. That is no explanation. It is certainly no explanation for the confiscation of the motor vehicle. Certainly, if the Government is so anxious that the goods which are being conveyed should be confiscated as part of the punishment, that provision already exists in clause 5 in the sense that the court may order confiscation after conviction. If at that stage it is difficult or impossible for the court to order the confiscation of those very goods which were on the vehicle, surely the way to overcome that difficulty is to give the court the power to assess the value of the goods which were being conveyed and to order an extra fine of the equivalent sum. But to suggest that because of the difficulty in confiscating goods at a later stage, this justifies these stringent, extreme provisions, is quite nonsensical and illogical. Frankly, Sir, until such time as we have had a satisfactory explanation from the Government as to why this provision is required, we are even more convinced that the provision has no justification.

Mr. Chairman, the hon. Opposition seems to be forgetting that this clause also provides for the power to prescribe how motor vehicles or goods which are thus held shall be dealt with pending the institution of criminal proceedings. The necessary regulation to prescribe how motor vehicles or goods which are confiscated shall be dealt with pending the institution of criminal proceedings, will be formulated—and in that respect I give this House my undertaking—so as to follow the provisions of subsections (1), (2), (3), (4) and (5) of section 50 of the Criminal Procedure Act of 1955. That means the following—

After the authorized official has convinced the magistrate that the goods should be further detained, he shall order accordingly, but if the official fails to convince him of that, he may order the goods to be released immediately. It is therefore in the discretion of the magistrate.

Mr. Chairman, I want to ask the hon. the Deputy Minister whether he is then prepared to include that provision in the Bill. It is quite easy to do that. Here we have an undertaking from the hon. the Deputy Minister that he will include it in the regulation. But he will not—this side hopes not—remain a Minister for ever. Those regulations can be amended by any Minister at any time. The assurance given here by the hon. the Deputy Minister will be worthless once he is no longer there. We can keep him to his promise, we can attack him, but if it so happens that he becomes our ambassador in London to-morrow, or high commissioner in Umtata, and if we get another Minister in his stead, his assurance will be worthless. If that is indeed the intention of the hon. the Deputy Minister, will he be prepared to make an amendment in the Other Place to provide that when a vehicle is seized it shall be handed over to a magistrate for his decision in terms of the provisions referred to by the hon. the Deputy Minister? If the Minister would include such a provision, we could accept this clause. It is quite easy—it is a very simple amendment.

Cannot the Act also be amended?

Yes, but then it has to be brought before Parliament and Parliament has to decide on it.

Does Parliament not retain control over the succeeding Ministers?

No, Mr. Chairman. In practice Parliament never has control over such minor points of administration. In theory that may be the case, but in practice it is impossible.

The hon. the Deputy Minister also said that he would appoint only high-ranking officials to exercise those powers. Now I challenge him to tell us what remuneration those high officials receive. How senior are they in the Public Service? Because, Sir, I have the statement of the sub-department here, and it appears that the persons who do this kind of work, these inspectors, are not senior officials of the Department. What is more, Mr. Chairman, is the fact that over and above the officials appointed by the Department, any constable and any railway policeman —even a newly appointed man with only a few months’ experience —will also have this power. But if the procedure which the Deputy Minister has now promised will be followed by way of regulation, were included in this Bill we would have no complaints in that respect. If a magistrate is to decide in the matter, this side of the House is satisfied.

Mr. Chairman, there has been mention of a representative in London. I also want to make a recommendation regarding someone to be sent to London to the court of Queen Elizabeth, and that is the court jester sitting over there in the guise of the hon. member for Durban (Point).

Let us see this matter in the correct perspective. Surely this clause deals with certain powers of regulation which are conferred. It is the position that a vehicle and its goods will be seized. If there is no legislation providing how they are to be dealt with, it is to be supposed that the persons concerned will remain standing there in the road where the goods were seized, because no provision has been made as to how they are to be dealt with. Surely it is essential that the manner in which they will be dealt with shall be prescribed. There is no mention of confiscation here, as the hon. member for Musgrave alleges. The measure does not mention confiscation at all. It simply provides that if such a vehicle and its goods are seized, they shall be dealt with in such and such a manner, pending the subsequent proceedings. If the case is heard and the accused is convicted, then and then only can the goods be confiscated in terms of another section of the Act. That is fully in accordance with our law. Up to that point there is no question of confiscation. The same applies to persons who are arrested. There are certain regulations prescribing what shall be done if a policeman arrests a person. The regulations provide how he shall deal with the prisoner. He will either lock him up in a police cell, or he will take him to a prison, or the prisoner may be brought before a magistrate and released on bail, etc. There are regulations prescribing how a person who has been arrested shall be dealt with. Similarly, there have to be regulations in this particular case prescribing how those goods and the vehicle shall be dealt with. As I understand this measure that is all it amounts to, and surely that is quite simple.

Mr. Chairman, I do not think that the hon. member for Heilbron heard the hon. the Deputy Minister. It is quite clear from the last speech of the Deputy Minister that he accepts the argument of the hon. member for Durban (Point). He accepts that this is so, and he hoped that he might be able to deal with the matter by regulation. In other words, he accepts exactly what has been said here as being the position. But the hon. member for Heilbron seems to have missed this point altogether. The hon. member for Heilbron shows the same sort of legal eptitude as does the hon. member for Parow, two learned legal hon. members.

What the hon. member for Heilbron forgets is this. When he talks about the police and the things they do when a man is arrested—all prescribed by regulation—he forgets that the law says what in the end must happen to him. The law says how far they can go, and no further. But this measure gives the police all the powers in the world. In the same way the hon. member for Parow says that there are provisions like this already in the law. But they are certainly not in this Act. All the provisions that there are for the confiscation of goods and motor cars—for example as regards the dagga laws—allow the police to confiscate the dagga and the car on the turn if they find the dagga in the car. And this is the cardinal difference between this provision and all the other provisions relating to confiscation before conviction. If the hon. the Deputy Minister would look at this clause—he is looking at it but he is talking about it to someone else—he would see that it does not say “anyone suspected on reasonable grounds of carrying on unauthorized motor carrier transportation”. It says “suspected on reasonable grounds of having been used”. When? At some time in the past? How can one have reasonable grounds for suspecting that it might have been used? You may in fact have seen him using it. He might in fact already have been convicted for the offence in relation to which you suspected he had used it. This is quite unique. I wonder if the hon. the Deputy Minister would tell the Committee whether he knows of any other provision in the law which allows for confiscation before conviction where the offence was not committed in the presence of the person doing the confiscation.

You are kicking up dust because you are afraid of the Suppression of Communism Bill.

Let us consider the effect of this. When you find a person in possession of stolen goods or dagga in a motor vehicle, you immediately impound the dagga and the motor car. And this is your evidence. You then go straight to court and the matter can be over as soon as you can get a hearing. But what is going to happen in this case? The delays which could result if this clause is passed in the form in which it is now could be quite incredible, because you do not have any evidence. The police now have to justify what has been done. The confiscation has taken place on the suspicion that an offence was committed some time in the past. Now they have to try and find out when it happened and obtain the evidence relating to it. So this is unreal and it is quite unparalleled. I do hope that the hon. the Deputy Minister will at this stage accept the amendment of the hon. member for Durban (Point). By the time the Bill is dealt with by the Senate, perhaps the hon. the Deputy Minister and his Department might have arrived at some formula such as the one which the hon. the Minister mentioned. The hon. the Deputy Minister seems to agree with us that this clause should not be applied in the form in which it appears now. Then the matter can be dealt with by the Senate and come back to us in an acceptable form. What is quite interesting is that the hon. the Deputy Minister agrees with us that in the form in which this provision is printed here, it should not become part of the law.

Order! Before I call upon the next member, I wish to point our that the same arguments have been repeatedly used, and unless I hear new arguments, I will call upon the members to take their seats and will put the amendment to the vote.

I do not know whether I can throw much new light on the matter; perhaps the matter could be clarified to some extent. The position is that in our law this principle has of course been adopted in various cases, namely that articles are not confiscated but seized before actual conviction. One of the hon. members who spoke before me mentioned the case of the car being seized when their is suspicion that an offence has been committed in respect of dagga. He stated that in that case the dagga was actually found but I must point out that the case still had to come before the court and that it had to be proved that it was dagga—it might not have been dagga. The police officer on the road might have thought that it was dagga; it might have been lucerne. So he is not sure but to his mind a crime has been committed. So he has the right to seize that vehicle until the matter is brought before the court. We have of course the very clear example where a person is arrested, when it is thought that he has committed an offence, before he is convicted and is put into gaol, which is much more severe, of course.

He can get bail.

Yes, in some cases he can get bail, while in others he is not allowed bail. When the prosecutor thinks he may abscond he is not allowed bail. So we have these examples, and in this case I must point out that we are dealing with exactly the same position where there is this suspicion on reasonable grounds that an offence is being committed.

That is not what it says.

Yes, it says so. It says “on reasonable grounds of having been used in connection with the carrying on of unauthorized motor carrier transportation”.

Not “is being used”. It says “having been used”.

It says “to seize any motor vehicle suspected on reasonable grounds of having been used in connection…”

Having been used in the past.

It means that the motor vehicle has just been stopped. What else can it mean? It does not mean that the crime was committed the previous day. The person is caught on the spot with the vehicle carrying the goods. If it happened in the past, the goods would have been offloaded already. So this is clear, and we can get to the point. The only point remaining—and this is perhaps the clarification—is whether the regulations are sufficient to cover an innocent person, or whether it should be in the law as in the Criminal Procedure Act. I think that is the whole point at issue here. And that is what the Minister decided, after discussions with his Department, namely that, as you will notice here, the matter had to be dealt with by regulation. It will be published in the Gazette, notice thus being given to all. If the hon. the Minister here gives the assurance that they will in this connection follow the lines adopted in the Criminal Procedure Code, I think it should satisfy all of us.

Mr. Chairman, I do not want to follow the hon. member for Omaruru except to say that when a man with the distinct legal acumen of that member has so much difficulty in defending a simple matter, there must be something wrong with it. Earlier the hon. the Deputy Minister said that this terrible power would only be applied after the first conviction, and not in the case of a man who does not have a record. I asked him whether he would consider including that in this Bill as an amendment either now or in the Other Place. The hon. the Deputy Minister has not answered me. I will be most grateful if we could know from him whether he is willing to make that at least part of the law. Otherwise he has two questions to answer to the Opposition. The one is by the hon. member for Durban (Point), namely whether he will include the assurance that he gave about the application of the Criminal Procedure Act to this case, and the other is whether he will embody his own undertaking—his own distinct undertaking—into the law, namely that this power will only be used after the first conviction or more.

Mr. Chairman, the hon. member must be fair to me. I said that goods in a motor vehicle would be held only after it had been ascertained with virtual certainty that such a person had committed repeated offences. As regards the question put to me by the hon. member for Durban (Point), I think the regulations, which will embody the first five sections of the Criminal Procedure Act, will deal adequately with the matter. Regulations have to be promulgated as to how a motor vehicle or goods which are seized shall be dealt with. Those regulations are prescribed by the Act. The Act prescribes that those regulations shall be promulgated, and my undertaking that the Criminal Procedure Act will be followed in that respect, should be an adequate assurance to hon. members that what they want is guaranteed by the Act and by the regulations.

I then come to what the hon. member for Durban (Point) said a moment ago. This Parliament has the power to call to account any Minister or Deputy Minister who fails to carry out the regulations as prescribed, and that particular Minister or Deputy Minister is responsible to this Parliament every year Parliament is in session. There is therefore no adequate reason why such a provision should necessarily be included in this legislation. After all, as one of the hon. members on this side said, legislation can also be amended again, but in the final instance it is this Parliament which amends the Act and it is also this Parliament which calls Ministers or Deputy Ministers to account.

I would like to draw the attention of the hon. the Deputy Minister to the fact that under this clause more innocent people than guilty people will suffer. I refer especially to the Coloured people whom I represent. The Coloured people, now that group areas have been declared, have to move from one area to another. These people make use of lorries to transport their furniture to the new place of residence. What will happen under this clause? A policeman who suspects the owner of the lorry of carrying on an illegal transportation business can now stop the lorry and hold the Coloured man’s furniture for weeks or perhaps months until criminal proceedings are instituted. That is what will happen according to the wording of this clause. Sir, I would like to help the hon. the Deputy Minister. My suggestion will get him out of all his troubles.

Order! That point has been made on innumerable occasions.

I am helping the hon. the Deputy Minister.

Order! The hon. member must not trifle with the Chair.

On a point of order, the hon. member for Boland is discussing clause 5, which relates to the merits of the case. This clause relates to the regulatory powers.

I have already pointed out to the hon. member that the point which he is making now, has already been made. If the hon. member cannot advance new arguments he must resume his seat.

I was going to make the suggestion to the hon. the Deputy Minister that he should set out in a schedule to the Act a list of goods which he feels should be confiscated and a list of goods which he feels need not be confiscated. With respect, Mr. Chairman, this law provides that the authorized person must act; it is peremptory. No constable, when he stops a lorry, has any discretion in the matter. He has to confiscate the goods on the lorry. Why does the hon. the Minister not have a schedule setting out goods that can be confiscated, because in clause 5 there is nothing conclusive. It does say that if a man proves his innocence he can get his goods back. But this is going to create an enormous amount of hardship for the poor people who convey their goods by lorry from one area to another, firmly believing that the owner of the lorry has the right to convey their goods. I should like to ask the hon. the Deputy Minister to reconsider this and to add a schedule in which he sets out what goods can be confiscated.

I really think the hon. member for Boland has now strayed very far from this amending Bill. This particular clause places no obligation on an inspector…

Order! If the hon. member for Boland strayed from the clause I want to ask the hon. member for Potchefstroom not to reply to him. The hon. member should rather advance arguments on the clause itself.

For the sake of explanation, may I just further suggest, without reference to previous clauses and with due regard to your ruling, that this clause makes it quite clear that a discretion is conferred. I just wanted to clarify that point; in view of the hon. the Deputy Minister’s undertaking, I shall not elaborate on it any further.

What we are now being asked to do by the hon. the Deputy Minister is to pass a bad law because he has promised to make a good regulation to go with it. That is what it boils down to. The hon. the Deputy Minister has accepted our arguments and he has promised us that he will introduce regulations which meet our objection. Yet he is asking this House, the Parliament of South Africa in committee, to pass a bad law, a law which the Deputy Minister himself is now obliged to counteract by regulation. He is asking us to pass a law which he himself is going to negative by means of regulations which he is going to make. He says in effect: “Of course, this is wrong; I agree with you, but I will rectify it by making a regulation.” Sir, there is a very simple solution. If the hon. the Deputy Minister will look at the clause he will see that in line 34 he provides for certain powers and then adds these words, “and providing for the manner in which any such motor vehicle and goods shall be dealt with pending the institution…” If he will delete those three lines and substitute “and shall act in terms of sections 1-5 of the Criminal Procedure Act”—I think those are the sections which he mentioned—then he will be introducing by way of legislation what he wants to introduce by way of regulation. It is a simple substitution. Instead of saying that regulations will be made with regard to the proceedings to be followed, he will specify in the legislation itself what that procedure is to be. It is in fact exactly what the Deputy Minister has undertaken to do. I should like to hear from him whether he would not be prepared to follow up the steps he has already taken by introducing the words “and shall act in terms of sections 1-5 of the Criminal Procedure Act”, if those are the relevant sections? That would rectify the position.

No.

The hon. the Deputy Minister says “no”. In that case I am right in saying that he wants us to pass a bad Act and to accept his good faith in administering the Act.

Order! The hon. member has said that three or four times already.

No, Sir, I have not dealt with the question of good faith. Up to now I have dealt with the regulations. I am now saying that the hon. the Deputy Minister refuses to bring about the amendment in the Bill because he wants us to accept his good faith.

Order! The hon. member has raised that point too.

We obviously accept his good faith, but I say that we on this side of the House at least cannot accept dictation by a Minister in regard to legislation which we believe to be wrong, unfair and unjust, and we will not be party to passing a Bill in this House merely because we have vague assurances that the Bill, when it becomes an Act, will be administered in a particular way. We will therefore stand by our amendment to delete this sub-clause.

Mr. Chairman, I think it is important to realize that there is another reason why we on this side of the House cannot accept the suggestion that the hon. the Deputy Minister has made, namely that this be left to be dealt with in the regulations. This clause, as has been admitted, is a very severe one. The suggestion which the hon. the Deputy Minister makes and which he says he will introduce in the regulations would make a very great difference to this clause. It would to a large extent, and perhaps altogether, remove the severe features which exist at present. If it is introduced by way of regulation, those regulations can be altered at any time because they are not part of this clause. Whereas if an amendment were introduced into the clause, it could only be altered by Parliament through a subsequent amendment.

That argument has already been put forward.

Mr. Chairman, I do not recall that but I have made my point and I do not wish to pursue it. This is a further reason why it is important that this should be included in the clause and not merely dealt with by regulation.

If the hon. member does not abide by my ruling, he must resume his seat.

Mr. Chairman, I do not wish to go against your ruling. I wish merely to explain as I have done why we on this side of the House persist in our efforts.

Mr. Speaker, I move—

Sir, this Bill is a very innocent little measure, so innocent that I believe I can rely on the support of the Opposition. In fact, I even expect the hon. member for Houghton to express her support for this measure. Hon. members have been acquainted with the contents of this Bill for a long time, since it is one of the measures which stood over from the previous session of the House. Nevertheless, I have thought it proper to reintroduce the Bill at an early stage so that hon. members, if they think it necessary, may have ample opportunity to consider and debate it. The Bill consists mainly of a number of amendments to the Suppression of Communism Act which, for reasons which I will soon mention, have become necessary. As hon. members will notice, however, it is being envisaged in clause 2 to insert certain new provisions into that Act. As far as I can see, the provisions are to a large extent self-explanatory. I believe, however, that clause 2 can be regarded as the essence of the Bill. Hon. members will therefore understand if I begin by dealing with that clause first.

It is general knowledge that legal practitioners in South Africa exercise their profession only with the permission of the courts. They are, inter alia, officers of the court, and it is a tradition amongst us that they occupy a particularly honourable position in society. In return, and quite rightly so, I think, a particularly high degree of integrity and obedience to the law is expected of them. I am glad to be able to say, Sir, that the legal practitioners in our country generally measure up to the great expectations and demands entertained and required of them. Unfortunately, however, it also remains a regrettable fact that communists, as in many other spheres, have infiltrated the legal profession as well and have made their influence very heavily felt in this sphere.

Mr. Speaker, you will recall how it was recently disclosed with shocking impact in a number of sensational trials, that some legal practitioners had played an active part in subversive activities which threatened the safety of the State. What is more, some of them were even in charge of these activities, and with eager cunning planned the downfall of the Republic, while others were the voice of Jacob behind the hand of Esau which was stretched out to destroy law and order in our midst. Hon. members will also recall how it was unambiguously disclosed in one trial after another that Communism was the motivating force behind and the inspiration of those who had ventured upon the path of anarchy and destruction. And, Sir, may I remind this hon. House that it is only due to the timely steps which this Government took that this adder in our midst was revealed and the attempt foiled. Now, Sir, it is no secret that it is the policy of this Government to combat, and as far as possible, to root out and destroy Communism. It would seem strange, therefore, if it were to allow communists, who seek its downfall and threaten the safety of the country, to continue to practise in the courts. This must therefore be regarded as being a matter of principle with the Government. Incidentally, it is not only we who hold this view. According to my information the American Bar Association resolved and stated as far back as 1948 that any legal practitioner who, whether in public or in secret, lent his support to the world communist movement to accomplish its aims in the U.S.A. was unworthy of his office and should not be permitted to become or remain a member of the American Bar Association. I should like to read to hon. members a resolution taken in this regard by the American Bar Association, which reads as follows—

To what extent the American Bar Association has been able to carry into effect its resolution I do not know, but I am merely mentioning the resolution taken by the Association in order to indicate the line of thought taken on this matter in Western juristic circles.

Hon. members may now ask me whether consultations were held on the matter with the Bar and Side-Bar through official channels, and I think that hon. members are entitled to a reply. In this connection I may mention that my predecessor discussed the matter with the official representatives of the Bar and the Side-Bar. The standpoint of the Bar Council as well as the Association of Law Societies was that they had no objection to legal practitioners who were communists being excluded from the various rolls, but that the State itself should act in that regard and not expect them to take the necessary steps.

As hon. members will notice, provision is also being made in clause 2 to bar from the legal profession persons who have committed certain offences in terms of the Suppression of Communism Act. At one stage the Bar objected to that because it was of the opinion that such persons had not been included in the original discussions on the matter. However, if hon. members would glance at the provisions in question, they would find that the irresistible conclusion to be drawn there from is that those contravening the provisions in question are nothing but communists.

I should now like to refer to what the provisions and the convictions referred to are. The first one is a person who has been convicted of performing an action which was calculated to further any of the objects of Communism. The second is that he is a person who has been convicted of advocating, advising, defending or encouraging the achievement of the objects of Communism. The third is any person who has been convicted, while residing or having resided within or outside the Republic, of advocating, advising, defending or encouraging outside the Republic and with the aid of a foreign government or overseas organization violent action, a change in the political, industrial, social or economic pattern within the Republic or any of the objects of Communism. The fourth is a person who has been convicted of having, while residing or having resided within or outside the Republic, received training within or outside the Republic, or agreed to receive such training, or encouraged or persuaded someone else to undergo such training, or of having obtained information which could have been of use to the achievement of the objects of Communism or of an illegal organization. The last is someone who has been convicted of becoming or remaining an office-bearer, officer or member of any illegal organization, or of carrying, being in possession of, or displaying anything whatsoever indicating that he was an office-bearer, officer or member of an illegal organization, or was associated therewith, or giving or requesting from any person anything whatsoever in the way of a contribution or otherwise to be utilized directly or indirectly to the advantage of the unlawful organization, or participating in any way in any activities of the unlawful organization, or of continuing to participate in any activities which the organization engaged in or could have engaged in, directly or indirectly to the advantage of those unlawful organizations. I say that it is these people who have been convicted of these offences which we now want to bar from the courts. I think that, in view of the nature of the offences and convictions, the objection made by the Bar will consequently have to fall away.

As far as clause 1 of the Bill is concerned, it can be mentioned that although listed communists and persons who were office-holders, officers or members of unlawful organizations, or who are subject to restrictions in terms of the Act, may be prohibited in terms of section 5ter of the Act of being or becoming officeholders, officers or members of certain other organizations, there is nothing to prevent them from playing an active part in or influencing any organization, since they are at liberty to make contributions to such organizations and to participate in its activities without being office-holders, officers or members. In this way the whole object of the provisions in question, namely to exclude communist influence from any organizations, is being defeated. Of course it is not always feasible to declare an organization an unlawful organization merely because it is being undermined by communists. An attempt is therefore being made now to purge organizations from communistic influence by means of the powers which are being requested in clause 1.

It is customary to prohibit persons upon whom restrictions in terms of the Suppression of Communism Act have been imposed from communicating with listed communists or other persons similarly restricted in order to prevent them from plotting together and continuing to engage in their undesirable activities. In a prosecution arising from the contravention of such a prohibition, it is virtually impossible to prove that the offender was aware that the person with whom he communicated unlawfully was a listed communist or someone on whom a restriction had been imposed in terms of the Act. The fact that particulars of persons with whom restricted persons may not communicate are published from time to time in the Government Gazette, is not of much use to the State in such a prosecution since, in accordance with our administration of justice, there is no obligation on restricted persons to determine upon what persons restrictions have been imposed. It does not appear to be unfair to expect a person who has been prohibited from communicating with restricted persons or listed communists, particulars of whom are published in the Governvernment Gazette, to take steps to satisfy himself that those with whom he communicates are not persons particulars of whom have been thus published. The presumption envisaged in clause 3 will lighten the State’s burden in this regard and does not make unfair demands on the accused since, apart from the knowledge he normally has of his friends and cohorts in any case, it is very easy for him to acquire the information which will enable him to know precisely with whom he may not communicate.

As far as clause 4 of the Bill is concerned, the position is that certain undesirable inhabitants of the Republic and South West Africa may be deported in terms of section 14 of the Act because they are communists or have been convicted of certain offences under the Act. However, the provisions of the section have become obsolete because, since it was placed on the Statute Book, a number of serious offences upon which it has no bearing but which ought in fact to be included therein have been inserted in section 11. In addition the application of the audi alteram partem rule in cases falling within the purview of the section is really redundant since the persons concerned in the case of listed communists have already had an opportunity of being heard before they were listed as communists, and in the case of convicted persons have had a similar opportunity during the course of their trial. In any case there is little information, of significance when considering the deportation of persons in terms of the article, which is not already known to them, and which may be published without detriment to the public interest. The provisions of the proposed section 14 (2) should therefore cause no hardship to any one.

As the hon. the Minister has rightly said, the main object of this Bill is to prevent lawyers who have been listed as members of banned organizations or who have been convicted of certain offences under the Suppression of Communism Act from carrying on their profession. I intend dealing only with clause 2 because, as the Minister pointed out, this is the clause which really matters. With other clauses we can deal in the Committee Stage. We do not have the same objection to them as we have to clause 2.

This suggested prohibition of lawyers who have been listed or convicted of certain offences is not a new thought. As a matter of fact, this suggestion was first made in 1965 when this provision was contained in the Suppression of Communism Amendment Bill introduced during that year. The then Minister of Justice, now the Prime Minister, dropped this particular provision from that measure because he stated we did not have sufficient time to discuss it. However, he assured the House at the same time that the Government intended going ahead with it and, consequently, that it would be reintroduced at the first opportunity during the ensuing year, i.e. 1966. Well, during 1966 we had two sessions of Parliament and yet the measure was not proceeded with. Therefore I say that this particular matter is, obviously, not one of urgency, because if it was so urgent it could have been introduced either during the first or during the second session held during 1966. But, as I said, it was not introduced and the Minister has not convinced us that anything has happened since 1965 which has made this particular question one of urgency or, at least, more urgent than it was in 1965. Moreover, if it was of such urgency it would have been introduced during 1966 and proceeded with. I say that if this is not an urgent matter, it should not be proceeded with because it is something which goes against the grain and certainly has not received the wholehearted support of the legal profession.

The Minister said that the Bar interviewed the previous Minister of Justice; similarly, the Association of Law Societies. They indicated that they would have no objection provided he did not introduce the measure into their own Act. But I do not think this is quite right. As far as the Association of Law Societies is concerned, that was the attitude taken up by the Association, but the Minister will agree that the Natal Association of Law Societies, which afterwards held a meeting, objected to the measure being passed at all.

I was talking about the General Bar Council.

Yes. The Bar Councils of the Cape, of the Transvaal and of Natal were very critical of this measure and gave it no support. They denounced it. I do not want to take up the time of the House by reading the statements which they made at the time. The position is that they denounced the measure in no uncertain terms. Therefore I say that the Minister is not conveying quite the right impression when he indicates that the Bar Council and the Association of Law Societies had no objection to this measure. The Minister also relied on the fact that the American Bar Council had denounced Communism and had stated that lawyers taking an active part in Communism should not be allowed to practise. But I want to make this clear, that although the Bar Council in America denounced Communism, and denounced it very strongly—and we agree with everything they said about it; we agree with all their criticism of Communism and we agree with them about all the dangers involved in it…

Now comes your “but”.

But. Sir, the Minister was unable to tell us what happened to that resolution.

It was adopted.

It was adopted, Sir, but who had to put it into effect? Who put it into effect? The Bar Council themselves—if it was put into effect. And how did they put it into effect? On whom did they make it operative? On those who were convicted of offences and not just on any person whom they thought was a communist. I am sure that if the Minister investigates what has happened in America, he will find that the American Bar Council has not debarred a man from practising merely because he said he was a communist. This is the objection we have to the Bill.

Are you against the clause?

Of course I am against the clause. I am a right—thinking man. The hon. member should know by now that I am against the clause. Let me tell the hon. the Chief Whip that already in 1965 we indicated that we were opposed to such a provision. We repeated that in 1966. Let me say that it is a pity that this hon. Minister should start off his career with a measure of this nature. After all, Sir, he is a lawyer with practical experience. He practised for many years, and I know he is just as jealous of the reputation of the profession as I and others on this side of the House are. The Minister knows as well as I do that the legal profession is not uncontrolled. It is not a profession of low standing, or a profession which is in disrepute. On the contrary, it is a profession of high standing. In fact, the control is so strict, and the discipline so strict, that the reputation of our judicial system stands as high as any other in the world. We have no fears in this respect. It is a fact that although we as a country are criticized from abroad, you never see any criticism of our judiciary or of our Bench—in fact, it stands out how they praise our system of justice. The world accepts it as being fair and honourable. It may be said that magistrates are not lawyers and that they have not practised at the Side Bar. But they are trained in the law and Judges certainly are all men who have practised at the Bar. They have had their training and all of them belonged to the profession before they were made Judges. I think our judiciary would be the first to admit that they are only able to carry out their duties as they do and to maintain the high standard which they do maintain because of the assistance which they get from the representatives and the members of the legal profession who have occasion to appear before them.

Of this type with whom we are dealing here?

I am sorry to hear the Minister making an interjection like that. Surely he is not suggesting that it will only be from now on that our courts are going to set and maintain a higher standard? That reputation has been built up over the years, over many, many years—as a matter of fact, over the centuries. The rules applicable to lawyers were not formulated during the last 30, 40 or 50 years. They were formulated over centuries, and what is more, are being strictly applied. It is because of the attitude of lawyers that the reputation of our judiciary has been built up.

Of lawyers of this type we are dealing with now?

I shall deal with those lawyers. There is no provision in this Bill prohibiting attorneys to practise should they steal or murder. Why not? Because the Minister, being a practical lawyer, knows very well that the respective law societies will take action against such an attorney; that the Bar Council will take action against a barrister who has committed these misdemeanours. I will readily admit that some lawyers have been convicted of criminal offences, but none of them have been prohibited to practise. The punishment fits the crime. If a lawyer has committed these misdemeanours, the respective societies take action and it is left to the courts to decide what should be done with them. The Legislature in the past has left it to the respective societies and to the courst to handle these things themselves, and the Minister, as well as the public generally, will agree that they have done so pretty well and have succeeded in building up a reputation for our judicial system which, as I have said, is second to none in the world. The hon. the Minister said by way of interjection that if we strike off these lawyers whom he aims to get at in this clause, then the judiciary will have the advantage of the advice of respectable lawyers and lawyers who will not bring dishonour to our country. I want to point out, Sir, that this clause permits of no change; it reads that the attorney or the advocate shall not be admitted unless he can satisfy the court that his name does not appear on the list, or if he has been convicted of any of the offences which the Minister read out here. There is no opportunity for a barrister to reform. Once this measure is passed, he will be debarred for all time from practising his profession. We know very well that people do change. I want to quote the example of two men who were abhorred in this country. We thought that they were probably the vilest of the African leaders. I refer to Banda and Kenyatta. What happened to them after they assumed power? To—day they are probably amongst the most popular and most responsible of the African leaders in Africa, because they have had a change of heart. They have become the friends of our Government. I say that if either of them had been a lawyer and had been convicted of the sort of offences of which Kenyatta was convicted no matter how much he subsequently reformed he would have had no opportunity of practising his profession again. The hon. the Minister, of course, did not deal with the question of listing. He only mentioned persons convicted of offences. Sir, when members are listed I know that they are given an opportunity of proving to the officer in charge of the records that they were not a member of any unlawful organization or association, but it is left to that official himself to decide whether or not he accepts their denial. We say that it is wrong to penalize people in this severe manner without giving them an opportunity of going to court.

You have it all wrong.

I know that they can apply to have their names removed, but if they are deemed to be active members of the organization, even if they are not in fact members of the organization, their names can be listed.

You are dealing with the wrong section.

They can be listed without trial; is that not right? Surely the Minister is not going to say that they have to be tried and that they have the right to be tried before they are listed?

I read out to the hon. member the crimes of which they had been convicted.

I am not talking about the crimes; I am talking about the listing.

But listing does not feature in it.

Of course, it does.

Let me read to the Minister what the clause says: “No person shall be admitted to the court or any division of the Supreme Court of South Africa to practise as an advocate, attorney, notary or conveyancer, unless such a person satisfies such court that his name does not appear on any list in the custody of the officer referred to in section VIII.”

That is the liquidator.

Yes, that is the liquidator. It goes on to say: “… and that he has not before or after the commencement of the section been convicted of an offence …” I am dealing now with the first part.

With the listed communists?

No, not the listed communists, but a member of an unlawful organization such as the Congress of Democrats or Defence and Aid.

What is wrong with that?

The point is that the Minister said that it did not apply to those members, but it does apply, and I say that it is wrong to make it applicable to any person who has not had an opportunity of appearing before the court. As far as convictions are concerned, the Minister is right there; once they have been convicted it means that they have appeared before the court. But we object to their being barred from practice merely because they have been convicted; we say that even where they have been convicted the court should be allowed to say whether the offence committed was so serious that the man should not be given another chance to practise; the court should be allowed to decide whether the man has not in fact reformed. As the Bill reads at present, the man is given no second chance. Once he is convicted, or if his name remains on the list, he cannot practise again.

They made a man who used to be a communist a senator.

Yes, what about Senator Petterson who was an admitted communist? In spite of that the Nationalist Party elected him as a senator. I take it that he must have become converted otherwise they would not have done so.

There is no proof of that.

Was his name on the list?

There was no list at that time.

He was a member of the Natal Electoral College.

There was no list when the United Party governed the country. The hon. Minister of Forrestry, who was a member of the United Party during the war shakes his head. Did he object when the present Prime Minister was locked up? Sir, while I am on that point, if we had had a list, there is no doubt that the Prime Minister’s name would have been on it. If we had had a list of people who in our opinion were a danger to the security of the State, his name would have been on the list and the mere fact that he was on that list would have debarred him from carrying on his practice, which is quite wrong.

But the Act deals with Communism.

No, it does not only deal with Communism; that is where hon. members on the opposite side go wrong. It shows how little they know about this Bill. The Prime Minister himself was the man who said that the Suppression of Communism Act did not apply to Communism only; it does not apply to communists only; it applies to anybody whom the Government regards as a danger to the security of the State.

Sir, the Minister has read out the nature of the offences. The mere fact that they deal with Communism and with the security of the State enables the Minister to make a popular appeal to the country to give his Department powers of this nature. Sir, South Africans abhor Communism. [Interjections.] No, the hon. the Minister misunderstands me; I am not trying to minimize the gravity of the offences at all. What I am saying is that because the name of the Act is the Suppression of Communism Act it has popular appeal amongst the people. Members of the public are naturally afraid of Communism; they have been brought up to abhor Communism. Ever since World War I, ever since the Russian Revolution, we have heard of the communist dagger in the dark, and since the last war, of course, we have almost lived in a continual state of war, either cold or hot, against Communism. There is a continual confrontation by the Western powers against the Eastern powers, and we are naturally very much alive to the dangers of Communism. Especially here on the African continent we are alive not so much to the dangers of Communism but the dangers of insurrection and of the threat to take over government by violence. We all know too that the communists have not taken over any government through the ballot box; we know that it is only by insurrection that they take over a government that is why we have to be on our guard and we are on our guard.

You are!

Of course. Sir, we have given this Government extraordinary powers to deal with Communism.

We have taken them.

Yes, they have taken certain powers in spite of our opposition. We have opposed certain measures where we have believed that powers sought by the Government go too far and that those powers will ultimately do more harm than good.

But the next session you have agreed to them.

We have at times, as the hon. the Minister knows, agreed to give the Government certain powers although we have said that we did not like them. However, since the Government said that they needed these powers in order to maintain order, we agreed to give them to the Government. I could quote the Unlawful Organizations Bill, for example. We have assisted the Government when we have considered it right. But. Sir, we must bear in mind the fact that we are fighting to maintain democracy.

Lip service.

We have to be careful that in fighting Communism or other forms of totalitarianism we do not use their methods and lose what we are fighting to keep and in fact become as bad as the communists. That is what we have to guard against. Sir, we know that any Government in power tries to take as much power as it can in order to facilitate government. All governments like power. In war—time there is an excuse for giving them power. Even democratic governments take totalitarian powers in war—time. We know that all governments like to have power, and in a democracy it is the duty of an Opposition to watch the Government to see that they do not take more power than is necessary. We are in fact the watchdog of the liberties of the people. In acting as watchdogs we have to be responsible, and I maintain that we are responsible. We are not prepared merely to hand over all the freedoms and the rights of the individual to the Government merely because the Government asks us to do so. We have to be satisfied that the powers asked for are necessary.

Nobody asks you.

Go and play rugby!

I do not like hypocrisy.

Sir, I should take exception to being accused of being a hypocrite, but coming from that hon. member, I take no notice of it.

Order! What did the hon. the Minister say?

I said that I did not like the hypocrisy of this.

Order! I think the hon. the Minister should withdraw that.

I withdraw it, Sir.

Sir, it is not as if we are asking the Minister not to take any action against these lawyers who may become guilty of these offences. We do not say that they should go free. We do not say that for one moment. There is provision for dealing with lawyers now, and it has worked very effectively. They do not have to wait necessarily, for conviction either. And we had the very well-known case recently before us of a leading member of the Bar, a prominent member of the Bar, who was struck off, not at the instance of the Secreatry for Justice, but the Bar Council, because he estreated his bail. They did not wait for any Government department to take action. The Bar Council at once took action and said that this was not an honourable…

They took a very long time.

They did not take a very long time. And what is more, on his conviction I have no doubt that the Bar Council again would have stepped in at once to have Abram Fischer removed from the roll. I say that there is provision now for action to be taken by the Societies themselves. But, we on this side of the House appreciate that it may be necessary, the hon. the Minister may think it necessary, that others besides the Societies should have the right to take action. And therefore we will agree that the Attorney—General for instance should be given the right to make application to a Supreme Court to deal with an attorney or a barrister whom he feels has participated very actively in Communism, or who has been convicted of an offence. But there ought to be this difference, namely that he should be brought before a court and be given a chance of defending himself and putting forward his case. So, we do not object to lawyers being struck off the roll when they are found guilty of one of these offences. We say that they should be dealt with. And we are certain that the Societies will deal with them. Now, the hon. the Minister of Forestry was sarcastic a little while ago. I am surprised at that attitude of his, namely that we were not prepared to fight Communism. Our record of fighting for the security of the State and for maintaining law and order, stands very high. [Interjections.]

Order!

I say our record stands high. [Interjections.] I should like these hon. members that laugh, anyone of them, to get up and suggest one instance where the United Party or the old South African Party lost control and gave in to a threat of violence.

Now, get up.

Just one of them. [Interjections.]

Order!

We know what our duty is to the country. [Interjections.]

Order!

We know what our duty is to the State and we are prepared to give all the necessary support to the Government to maintain law and order and to fight this communistic threat. And therefore, I wish to say as I have said earlier, that we must be careful that in maintaining the democratic way of life that we do not merely hand over, or are not cajoled or bullied into handing over all the freedoms for which our forebears fought against tyrants in the past.

Mr. Speaker, I wish to move the following Amendment—

Mr. Speaker, the sighs being heaved over there make me think that they are the sighs of the “watchdog of the liberty of the people” because “it is a bit of a mangy watchdog we have here”. Or it may even be nothing but a little lap dog we have here. But let us take a brief look at the way in which these hon. members watched over this matter in the past. I just want to mention a few examples. Let me mention one example. In 1961, just after the Langa and Sharpeville incidents in the country and the incidents in the Transkei, we said in this House, through the mouth of the Minister of Bantu Administration and Development, that it was the communists who were behind it and we had to issue Proclamation 400 for the purpose of combating Communism there. At that stage it was the hon. members of the Opposition who laughed the hon. the Minister to scorn and said that he was seeing lions in the way. But in the following year certain cases were tried in the Transkei. In those cases the advocate for the defence, amongst other people, asked a Coloured attorney, Schwartz by name, certain questions. He appeared on behalf of the Poqos. In reply to a question he said the following: “Certain persons, while regarded as the instigators of this trouble, took advantage of the grievance that the Bantu people felt because they have to pay increased taxes in order to embarrass the Government and the Bantu Authorities System.” You will recall that they were the people who said that it was not the communists, but that it was dissatisfaction with the Bantu authorities who were there. Then the lawyer asked him, “According to your information, was it quite common that they took advantage of this discontent in these territories?” His reply was, “So I understood.” Then he was asked, “What were these agitators’ aspirations, political or communistic?” “Communistic,” he replied. The next question was as follows: “And has the hon. the Minister of Bantu Affairs stated that White communists have been behind the organization and that he even had their names?” “Yes,” was the reply. Another question was as follows: “Is that borne out by what you have been able to discover?” “That is borne out by what I have discovered,” was the reply. A further question was as follows: “How does the objection to rehabilitation come in?” Then he continued with the “Bantu authorities” and said that it had been abused by these people who were nothing but White communists.

[Inaudible.]

Has that become apparent later? That is the way the “watchdogs” looked after it.

Mongrels.

The people who are watchdogs at present over the “liberties of the people”! It became apparent later that…

Order! Who said “mongrels”?

I did.

The hon. member must withdraw that.

I withdraw.

It became apparent later that among the people who had been behind that movement and whom we had labelled communists, there was in fact one of the listed communists and one of those whose name actually has to be struck off the roll at present, namely Mr. Roley Arenstein. I mention his name. It has become apparent now that he is one of the persons behind that movement and that he is one of the attorneys who has been in practice for several years since that time and against whom no action was taken, neither by the Law Society, nor by the Bar Council, nor by any other body or person. Mr. Speaker, before I actually deal with the amendment, about which I also want to say a few words, I want to reply to a few of the matters raised here by the hon. member for Transkei. He says that he is opposed to clause 2 only. Well, we shall let the other clauses be, because it only concerns clause 2, i.e., the admission of listed persons and persons who have committed certain crimes. The hon. member for Transkei says that this legislation was introduced as far back as 1965, but was then withdrawn, and that 1966 went by without anything having been done about it since there was no urgent reason for having to introduce it. But, surely, the hon. member knows that it was in fact impossible for us to introduce any legislation of this nature in 1966. After all, he knows what the course of events was during 1966. We had a very short session in February, before the general election in March. It was not possible to discuss it then, and the session last year was completely overshadowed by a tragic incident, and I believe that none of us felt inclined to introduce this legislation at that time. He knows that very well. That is why we are introducing this legislation now, at the very first opportunity. I think he has no leg to stand on if he says that there is no urgency for this legislation. It is just as urgent as it was when the former Minister of Justice announced in 1965 that he was going to introduce this legislation. It is true that the Bar Councils of Natal, the Cape and Johannesburg adopted a critical attitude towards this matter. But the argument they advanced was of a rather ambiguous nature. They did not say that they were utterly and completely opposed to this legislation. They only talked about certain misgivings they had. However, they did not want to say that they were entirely in favour of it nor that they were entirely opposed to it—for certain understandable reasons. They were very much divided amongst themselves. It is striking, Mr. Speaker, that those are the very provinces where we find that the names of the majority of these persons appear on the respective rolls of advocates and attorneys of the provinces concerned.

Now they say that they agree wholeheartedly with the American Bar Association’s decision and what the hon. the Minister of Justice read out to us. But he says that they agree whole—heartedly because action is only to be taken if crimes are committed. But that is precisely what happens in this legislation. Under this legislation action is only taken against persons after they have committed the crimes. Therefore he does not have anything against that section in as far as it concerns action taken against legal practitioners who have committed crimes in terms of the Suppression of Communism Act. He has or ought to have no objection whatever to that part of the section. Therefore all that remains is that part which relates to listed persons. He said that, as far as listed persons were concerned, the courts were barred from exercising their discretion, since these matters had previously always rested with the courts. Before I reply to that, just permit me to quote what the late General Smuts had to say in this regard. He said that Communism was not a thing which revealed itself in public, but that it followed an underground course, and that it could not be combated by normal methods. That was said by General Smuts in this House. Now, having said that more timely action should be taken against listed communists, I want to point out that one can be listed as a communist or as a member of a prohibited organization. Let us see who the listed persons are and take a look at these prohibited organizations. Does the hon. member want to tell me that the African National Congress is not a communistic organization? It is one of the prohibited organizations to which he referred. There is a vast amount of evidence from the various courts proving that the A.N.C. is indeed a communistic organization. As a matter of fact, according to the latest ruling in the courts, all the Judges accept that it is in fact such an organization. The other communistic organization which has been prohibited is the Pan African Congress. Is that not a communistic organization? Surely, you know that after all the cases which have been tried, such evidence does exist in all those courts, namely that they are communistically orientated, and that is why they were tried. Now, what listed organizations can the hon. member mention to me which are not communistic? Can he mention a single one to me? I am asking the hon. member: Can he mention to me one organization which is prohibited in South Africa and which is not a communistic organization? He said that one could be listed without necessarily having to be a communist. Can he mention to me one case of a listed person who is not a member of one of those prohibited organizations and who is therefore not a communist?

That was not the point.

What was the point then? Mr. Speaker, I would therefore make the statement this afternoon that every listed person is also an out and out communist. There is not one listed person who is not a communist. I should like to hear from the hon. member or from any other member on the other side whether he can mention to me a listed person who is not a communist. Then I shall be glad. [Interjections.] I want to deal now with the objection that we are removing the traditional rights of the court. The Admission of Advocates Act (Act No. 74 of 1964) admits advocates to practise on condition that they are to be fit persons. That is a requirement laid down by the Act. In addition to that requirement we are inserting now that he should not be a communist, because we maintain that a communist is not a fit or a proper person. Now the hon. member says that we are removing the discretion of the courts because we are encroaching by laying down this additional requirement. If we were to leave this matter exclusively to the discretion of the courts to decide whether such a person is fit, then it would not even have been necessary for us to lay down such a requirement in the Act. But this is not the only requirement we lay down. We also lay down other requirements. As legislators it is after all our duty to lay down requirements. We do not encroach upon the jurisdiction of the courts. We determine the requirements to which a person must conform in order to gain admission, and one of the requirements is that such a person should not be a communist. His application is heard by the court and then it may appear that he is in fact a communist. Surely, then it is still the courts which will decide whether or not he should be admitted, not so? Surely, this is so. The courts will decide on that application. They must decide whether they are going to admit him or not. If they admit him, he makes the grade. However, they cannot admit him if he is unable to conform to the requirements, just as they cannot admit him if he is not a fit and proper person, which is a requirement laid down in the Act. Why do hon. members on the other side say that the courts are being barred from exercising their jurisdiction? Hon. members make their statements in such a way that it may seem to the public that we no longer consult the courts in this matter at all, that we no longer grant the courts the power to admit advocates. Not only do they want to give out that an advocate does not merely have to go to court to be admitted, but also that we are the people who say who may and who may not be admitted to practise as an advocate. What we are doing now is that we are inserting a further requirement in the act, adding it to those requirements which already exist in terms of the present Act, namely that the applicant should not be a communist, and then the court itself will have to decide whether he is a person who satisfies the requirements. Therefore, when he lodges his application, it is for him to adduce proof that he is not a communist. Now the hon. member says that if the applicant is a listed person, he cannot do so. But the fact of the matter is that, if he really is not a communist any more, he has ample opportunity to ask for his name to be removed from that list. Most of those people know that they are given the opportunity from time to time to apply to the Minister for their names to be removed from the list of listed persons because they are no longer communists. He can, therefore, before he applies for admission, make application to the authorities, to the Minister of Justice, to be delisted. If he has to be delisted (ont-lys), the applicant will… [Interjections.] That word is spelt “1-y-s” and not “1-u-i-s”. If his name has been removed from the list, he can most certainly be admitted.

Now we come to the fact that the provision that the applicant for admission should be a “fit and proper person”, also applies to attorneys. In the case of an attorney, it is not the courts which decide that he should be a “fit and proper person”. The hon. member is quite mistaken if he thinks that that is the case. When an attorney applies for admission, it is not the court which has to decide whether he is a “fit and proper person”, but indeed the Law Society. Perhaps the hon. member does not know that. Act 23 of 1934 lays down the same requirements for an attorney, namely that he should be a “fit and proper person”. But section 7 of that Act reads as follows—

It is therefore not at all the court which has to decide whether he is a “fit and proper person”, but the Law Society. What right have hon. members on the other side to suggest that we now want to bar the courts from exercising their rights?

The hon. member for Durban (North) wrote a very learned article in this connection last year which appeared in a local publication, and, inter alia, he wrote the following—

Further in this article the hon. member writes that the fact that we are laying down this requirement for admission at present, is a reflection on our courts. Is that not really a reflection on the Law Society, because that is the body which has to decide whether a prospective attorney is a “fit and proper person”, or does the hon. member not know that?

Judges are not chosen from amongst the attorneys—didn’t you know that?

I know they are not chosen from amongst the attorneys, but that does not mean that a reflection may not be made on them, as the hon. member wants to suggest. Or did the hon. member not catch the point?

Read on from the article.

The hon. member writes further—

The hon. member wants to suggest, therefore, that the courts of South Africa do not adhere to the same principles and that they will neither act when it is necessary, nor want to act when it is necessary. As the Act reads at present, the courts may perhaps be unable to act, and that is the case because this House which makes the laws of the country does not afford them the opportunity to do so and to be able to uphold those democratic principles, since these are factors which they may, in terms of the existing law, not have taken into consideration up to now. I say that the courts are just as anxious to bar communists from the profession as any person on this side, and on that side as well, but seeing that the courts have to administer justice according to the existing law, they are not afforded the opportunity of doing so. By passing this legislation, we do afford the courts the opportunity of acting in the way the hon. member and every upright Afrikaner say they should act. As I am saying, the hon. member did not realize that the requirement that a person should be a “fit and proper person” as far as attorneys are concerned, is not applied by the courts but in fact by the Law Society, and such a person then gains admission on the Law Society’s certificate. That is the position as the law reads at present.

I shall now deal with the second point, namely that practitioners should be struck off the roll if they are communists. It is terrible to think of some of the cases we have had in South Africa, and in this respect I am thinking of the Braam Fischer case in particular. This case was very nearly wrecked because the Bar Council of Johannesburg hesitated as to whether they should in fact take action against Fischer. They hesitated for a long time before they took a decision. This was, after all, obviously a case in regard to which action had to be taken. But the worst about the Braam Fischer case is the following: According to the evidence Braam Fischer had been the acknowledged leader of the communists in South Africa for years. For years he practised in our courts as a senior advocate. For years he defended his fellow—communists in our courts—people to whom he had given instructions, people who had been under him. In other words, Sir, he represented his own “stooges” in court. In actual fact he, who was the leader of the communists in South Africa, defended himself in the courts because the accused were under his command. [Interjections.] That became very apparent, but did the Bar Council take action against him? No, Mr. Speaker. They waited and waited until the very end when they could wait no longer and only then did they take action. [Interjections.]

Order!

May I ask the hon. member a question?

No. As a matter of fact, it was not so much because of his being a communist that the Bar Council struck his name off the roll. They used the excuse that he had committed a crime because he had estreated bail. In their eyes that crime was the greatest sin and that was why they had his name struck off the roll and not because he was actually a communist. But the tragedy of this is that many people fled the country. Let us merely take people who practised on the Rand as attorneys and who permitted their trust accounts to be misappropriated for the funds of Communism. They got money from the communists, deposited and kept it in their trust accounts, while they knew full well that it was communist money. They financed the communistic organization with those funds which had been deposited in their trust accounts. Hon. members know the Rivonia case, surely. They must read up about it if they do not. But did the Law Society take action against those people? No, Sir, the Law Society did not take action in a single case. I think it is high time we took action. When we have to consider the safety of the State and when we are dealing with communists, we may not wait for another body or person to do the work which we as a State should do. After all, we have a responsibility towards the people of South Africa and because we have such a responsibility, we must take action against these people. We may not wait until somebody else does the work for us. That is the principle which is involved in this Bill—who has to do the work? Hon. members on the other side pretend that they are the “watchdogs”. But if they want to be the watchdogs, why then do they want to leave this matter to be dealt with by other bodies and persons such as the Law Society and the Bar Council?

You do not know the contents of our amendment.

To talk about the tradition of 100 or 1,000 years as the hon. member for Transkei did… But has Communism been in existence for 1,000 years? Communism only originated about a century ago. These communistic activities are a thing of the present; it is not a thing which dates back centuries, and we have to live with present-day conditions, not with the conditions of a century ago. I also just want to point out that this principle, namely that application may be made for a person to be struck off the roll, is not a new principle in our law. This principle was introduced into our legislation as far back as in section 7 (2) of the Admission of Advocates Act, for instance. That Act provides that the State Attorney may also take action in certain cases. All that is being done in this Bill, is to grant the Secretary of Justice that power. But this principle is not a new one.

I expected that hon. members on the other side would also have something to say about the question of onus of proof. However, it seems to me as though they have at last yielded this point relating to the onus of proof. Clause 3 of this Bill places another onus of proof on the accused. But up to now they have not yet objected to this in this debate. However, if they still want to object to that…

I am going to object.

The hon. member for Houghton says that she is going to object to that. To her I just want to say in anticipation that this is a principle which is recognized in virtually every section of our law in South Africa—and not only in South Africa, but also in Great Britain, a country the hon. member likes holding up to us as an example. I want to refer her to a few laws in which that principle has already been embraced. There is the Stock Theft Act, for instance. Sections 3 and 4 of that Act places the onus of proof on the accused. In England there is the Official Secrets Act. It is an Act which deals with the safety of the state in England. Sections 1 and 2 of that Act places the onus of proof on the accused. Even the United Party, in the days when it still governed the country, made use of this in their Emergency Regulations, regulations in terms of which they put our present Prime Minister, inter alia, behind barbed wire. Under Proclamation No. 29 of 1942, in which they prescribed capital punishment for certain crimes, they also placed the onus of proof on the accused. Therefore they went much further than we are going in this Bill. There are numerous other laws which place the onus of proof on the accused—there are, for instance, the Insolvency Act, the Wage Act, the Riotous Assemblies Act, and so forth. Therefore, this principle of placing the onus of proof on the accused is an ingrained principle in our law, and not only in our law, but also in the laws of the British Empire, particularly those laws relating to the safety of the state. In this Bill we, too, are dealing with the safety of our State.

Another aspect raised by the hon. member for Transkei, was that this Bill made no provision to the effect that it would be possible for a person to be reinstated in his profession when he could adduce proof that he had been rehabilitated and that he was no longer a communist. Mr. Speaker, it is difficult to think that a communist can rehabilitate himself. As a matter of fact, I believe that once he has fallen into that sin, one cannot cure him of it. But what the hon. member for Transkei alleges, is true. However, I believe that our courts have inherent discretion. Surely, the fact that a person’s name has been struck off the roll, does not mean that he is being deprived of his qualifications. If he is in possession of his B.A. Ll.B. degree and all his other qualifications and he can prove that he has been rehabilitated and is no longer a communist, what is there to prevent him from applying once more for admission to the Bar? [Time expired.]

I have listened with great attention to what was said by the hon. member for Heilbron. I must say that I agreed very strongly with him when he said that the courts should decide when a person applied for admission to the profession whether or not his application should be accepted. As a matter of fact, if that were the contents of this Bill then there would have been no objection against it from this side of the House. However, the position is that once a man has been listed as a communist by the liquidator, all discretion in deciding whether or not such a man is in fact a communist is taken away from our courts. In the legislation which already exists concerning the legal profession, grounds are stated upon which application can be made for the removal of a person’s name from the list of practising attorneys or of advocates of the Supreme Court. These grounds are specified. That is also what we are asking for here, namely that the grounds should be specified and that any action on those grounds should be left to the discretion of the courts.

It seems to me that we must come back to only two questions which are before us this afternoon. The first of these is whether a communist, or a communist fellow-traveller, should be permitted to practise as a member of the legal profession. As I was listening to the hon. member for Transkei and as I read the amendment which has been moved, I think there is no dispute between us on the question that a communist should not be permitted to practise, unless there are grounds which are within the discretion of the courts. There should be a reason within the discretion of the courts, why a person should not be admitted to practise. So, what really is at issue here this afternoon is how that decision must be taken, and by whom. I believe that both sides of this House are prepared to take such steps which are necessary to combat Communism in this country. We are prepared to combat Communism in all its forms and in its insidious intrusions into our national life. However, the question is how that is to be achieved—a question upon which we so often disagree. Let me say that I hope this House will never forsake principles, or undermine established practices of our legal profession, merely because we are over-enthusiastic in getting at communists or communist fellow-travellers.

Because if we do that, then I believe we face the danger of drifting towards some other form of totalitarianism, which is just as bad as the totalitarianism which we are trying to combat, and that is by placing too much power in the hands of too few people who can exercise that power without the calm deliberations of our courts of justice. I believe that it is wrong to entrust the passing of judgment and the imposition of penalties to any authority other than our courts, and that, Sir, is just what this Bill is doing. This Bill in fact now says that the decision of the liquidator of an unlawful organization shall be the judge as to whether or not a practitioner in our courts may be permitted to practise or to continue to practise. I believe that that is a dangerous step to take; I believe that injustices can occur. Sir, the House knows that listing under the various powers now existing has not always been free from doubt. In fact, there have been cases in which a doubt has existed as to whether there was any justification for listing in the first instance. I do not think it is correct for any lawyer in this House, for any member of the legal profession, to accept that when once a man is listed by the liquidator of an unlawful organization, then the principle of res ipsa loquitur should be applied and the judge’s discretion completely and utterly fettered and that man prohibited from being a member of the legal profession. I do not believe it is sound for our profession to adopt such an approach to this particular problem, and I do not believe it is necessary for us to do that.

Sir, who will accept the blame if an injustice is done to a practitioner? Who is the person to accept the blame? Will it be the responsible Minister or must we blame the liquidator of the unlawful organization who was guilty of an error of judgment in deciding that A’s name should be placed on the list of persons under the particular section of the Act? I believe that this Bill before us harbours concepts which are foreign to the system of judicial practice which applies to South Africa at the present time. I believe that if this Bill is passed in its present form, where there is no opportunity for an accused member or would-be member of the profession to test the validity of his listing before the courts, there may be cases of grave injustice. What hope is there for a person who feels that he has been unjustifiably listed? He can go to the liquidator and talk to him and say, “My name should not have been on the list of members; I was never an office-bearer; somebody asked me to help financially to assist in the defence of some person who could not afford a defence and I gave a contribution, and I did not even inquire what this man was being charged with.” The liquidator can simply say, “I am sorry; I am not prepared to remove your name from the list”.

Sir, those things can happen. I think there is another approach to which I hope the hon. the Minister will give due consideration and that is that attorneys, notaries and conveyancers and advocates who are affected by this Bill are basically and legally officers of the Supreme Court of South Africa. They are not members or officers of the civil service of South Africa. They are not officers or members of some professional organization in itself but through their professional organization they are basically officers of the Supreme Court. They are practising professions which are essential to the carrying out of judicial procedure in the courts of this country based on our concepts of how a democratic country should be run. They are responsible, it is true, in the first instance, to their own control bodies, the councils and the law societies, but they are ultimately answerable to judges of the Supreme Court. The right to practise is granted to them by the Supreme Court and that right to practise can be withdrawn by the Supreme Court if it should be shown that it is not in the interests of our administration of justice that they should be allowed to continue to practise; and that is all that our amendment asks. Our amendment merely asks that the machinery should be set up whereby the facts of the conviction or the listing can be placed before our courts and that the courts should be arbiters as to who should be admitted as officers of the court.

I do not think there is any question but that our courts of justice enjoy a very high reputation both of competence and of unassailable impartiality in matters which come before them. This need for impartiality and independence on the part of our courts is recognized in our Constitution. The hon. the Minister is aware of the intricate procedures which must be followed before a Judge of the Supreme Court can be removed from office, and that is provided for in our Constitution to ensure their impartiality when they exercise their functions in the framework of our society. I suggest to the hon. the Minister that the same results which he has in mind can be achieved by his accepting what has been suggested by us from this side of the House, and that is that there should not be arbitrary dictation to the judges as to what they must do in particular circumstances but that in carrying out the functions of their high office they should take into consideration certain factors which will be placed before them either by the society concerned or, as has been suggested, by the Attorneys-General of the various provinces. I hope that members of the legal profession will agree that that is the correct approach to adopt in order to achieve a particular objective by means of legislation. Sir, Edmund Burke wrote about what he called the cold neutrality of an impartial judge. I believe that it is that very neutrality that is required when one is dealing with the livelihood of a citizen who has embarked upon a certain career. Surely judgment should be decided and determined in the aloofness and cold neutrality of our courts and not with all the feeling which is sometimes engendered in political circles when one is discussing a particular person or the activities of a particular group of people. I believe that the judgment should be determined free from the dictates of a person like the liquidator of an unlawful organization who is not obliged to appear before the court and say why Mr. X’s name was included in the list.

Under this Bill there is no means whereby the Court can say that it wants to see this liquidator and wants to know why this man’s name is on the list. There is no such provision in this Bill. I believe that grave injustices can occur, not that they are likely to occur, but if they can occur then this is surely bad legislation which leaves that possibility open. I believe that we have perhaps on occasion rather precipitately brought in legislation when there are the existing methods, and I say so with the greatest respect, because there are methods for dealing with these problems. This Act which we are now to amend was introduced some years ago, in 1950, but since then on no less than eight occasions it has been necessary to try to do this and to do that to this Act by legislative procedure. These amendments which have been brought in have in the main improved the position but there are some of them which have done grave injustice to the reputation of our administration of justice in this country.

I am sorry that the hon. member for Heilbron found it necessary to offer the smoke screen that we on this side of the House are not prepared to lend our support to combat Communism in this country. I should like to say, if I might be personal for one moment, to the hon. member for Heilbron, that way back in 1950, long before the new experts on Communism were holding national congresses, I was a member of a deputation or an organization to which many members on this side of the House belonged who saw Dr. Malan and the late Mr. Erasmus and offered the services of our organization to combat the danger of Communism in this country. That has been our persistent endeavour. Let me refer to a report which appeared in The Cape Times on the 17th August, 1960, in which it was said that the South African Legion had offered the support of its 240 branches and 40,000 members to help the project, namely the formation of some common concept for the defence of this country. The report reads as follows:

But that is not the United Party after all.

Mr. Speaker, what I am trying to say to the hon. member for Heilbron is that he must not think that, since the new experts started having conferences, that is the first time that anybody has thought of means of combating Communism. Was this party irresponsible when it supported the Unlawful Organizations Act? Was this party being irresponsible when it supported the Public Safety Act in 1953? Was this party being irresponsible when last year we accepted the necessity for certain amendments to the General Law Amendment Act which were introduced by the hon. Minister of Justice and gave him our support?

Those are not the actions of a party which justify the attempt of the hon. member for Heilbron and others to produce a smoke screen. We on this side of the House are prepared, as our amendment makes abundantly clear, to ensure that the offences referred to which are in the opinion of this House the result of reprehensible conduct, should be regarded as factors justifying the refusal of entry to and expulsion from the legal profession. But let us at the same time confirm and reaffirm that we have an unshakeable confidence in our courts to exercise the final discretion in these matters. There is a legal maxim of which the hon. the Minister is well aware, I am sure, that one cannot approbate and reprobate at the same time.

That is what you are doing now.

No, Mr. Speaker, I am not. One cannot select and at the same time reject; an argument is sound or it is unsound. If it is sound for us to say that our courts are impartial and that the legal practitioners are officers of the court, then surely it is correct that we should leave the final decision as to who should be officers of the court to the court itself and not fetter that discretion. Thus I support the amendment which has been moved by the hon. member for Transkei. I believe that this legislation in its present form is unnecessary. I believe that if offends the reputation of the legal profession. I believe that the Government and the Minister have not produced to us arguments which will justify the removal and the limiting of the discretion of the courts. For those reasons I trust that the members of the legal profession in this House will not give their support to this Bill.

Mr. Speaker, it is strange that the hon. member who has just sat down should be the man who has used the expression “a smokescreen”. What we have had from the two hon. members of the official Opposition so far has been a very elaborate smokescreen. When one reads this amendment, one is struck by the long pious preamble and the lack of courage at the end to implement what they have been trying to tell this House and the country. I think that the time has arrived that certain corrections should be made. In the first place, the hon. member for Transkei devoted his time to what he said was the opinion of the Bar Councils and he mentioned the Law Societies in passing. As a member of the Council of a Law Society may I say that the point of view of the Law Societies is that if members are convicted of crimes under the Suppression of Communism Act and if they are listed, the secretaries of the Law Societies do not wish to be burdened with the task of continually examining these lists and continually reporting to their Councils that there are people who have to be removed from the roll. That was the point of view of my Council and that point of view seems to prevail in the Association of Law Societies.

Was it discussed there and was a resolution taken?

I do not have the minutes at my disposal but the matter must have been discussed there, because the draft legislation was circulated to all the Law Societies and was referred to the Association. But whether a resolution was or was not taken, that was the point of view. We are not concerned now with what was minuted. What is important is that what was not minuted is open opposition to this amendment. In the second place, one must point out that under the existing legislation there is ample opportunity for any aspirant lawyer or a lawyer already on the roll to have his name removed from the list. It seems that hon. members have not paid enough attention to all the provisions of the following sections of this Act: Section 4 (10), section 7 (2), section 8 (2) and (3) and section 8 bis (3), all of which provide for the removal of a man’s name from the list.

By whom?

Mr. Speaker, it allows for removal by the liquidator, by direction of the Minister and in section 8bis provision is made for the institution of action in court for removal of a name from the list. Section 8bis subsection (2) provides:

And then continues in subsection (3) as follows:

On what grounds could you make the application?

Mr. Speaker, I am hardly here to brief the hon. member as counsel as to how he should conduct his case when he institutes such proceedings!

I want to point out further that the Bill, as it stands, refers to a convicted criminal and to a listed communist. The hon. member for Heilbron has clearly proved that a listed person is a communist.

Why are we to believe you?

Do you know, Sir, that the hon. member for Houghton assured us in this House about a week ago that overseas she is dubbed a conservative. I think I can understand why. It is because she is so extremely conservative when it comes to restricting the activities of communists who undermine the social and political fabric of this country.

Much has been said about the discretion of the courts. I wish to point out to my colleagues as legal men on the Opposition benches that the Bill says that for admission and for removal from the roll the applicant must satisfy the court… The Secretary for Justice must satisfy the Court, in an application for striking off, that the practitioner concerned is such a convicted criminal and the man who applies for enrolment must satisfy the court that he is not such a convicted criminal.

The discretion of the court is not fettered. There is full discretion for the court to decide whether it will admit a man as an officer of the court or remove him because he should no longer be an officer of the court.

And if he is on the list?

If he is on the list…

There is no discretion.

I am coming to that point. This point is the only one that has been raised by the Opposition. To that my reply is: If the particular aspect of the whole matter so disturbs the official Opposition and our legal brethren on those benches, why did they waste their time by drafting this meaningless amendment?

Does the hon. member not understand it? [Interjections.]

Mr. Speaker, with the leave of hon. members on both sides, may I proceed? I wish to point out that if they felt so seriously about this matter, why then were no representations made to the Minister beforehand for a suitable amendment to the Bill as it stands, for some proviso? Why did they not give notice here that they would move such an amendment in the Committee Stage? Why did they not ask the Minister to consider some measure which would guard against the difficulties they now foresee? Why were there no representations from the Law Societies or from the Bar Councils in this respect? It is because, in essence, the hon. members of the Opposition have always tried, and not got away with it, to reap the benefits of the Suppression of Communism Act without shouldering any responsibility for it.

The principles involved in this Bill are in essence the same as those of the principal Act, namely, the Suppression of Communism Act. Either we suppress communists or we do not suppress them. Either we reject or we accept that basic and fundamental principle. We can argue, we can differ on methods of achieving that end, but there can be no compromise on the basic and fundamental principle. If we do not accept that basic and fundamental principle and we are not prepared to implement it, there can be no dialogue on methods.

I should now like to come to the principles of this Bill in general. The Opposition has granted that there is only one principle at stake, and that is in clause 2. Yet it rejects in toto the Second Reading of this Bill. We must therefore deal with the merits of this particular prohibition that will prevent listed communists, convicted criminals, from practising in our courts and sharing the privileges of membership of the legal profession. There are very sound reasons why such people should not be allowed the privileges of our profession. Men and women admitted to practise in our courts, as has been said here, enjoy the status of officers of the court. That is an official status, as official as that of an M.P. or a Senator. A lawyer can claim the privilege of confidential consultation with clients. He stands in a fiduciary relationship to the courts, to the profession and to the public. He is bound by an ethical code in his conduct towards his colleagues, the court and his dealings with the public. My submission is that there is hardly any other profession which so ideally lends itself to infiltration by communists and the abuse by communists of the privileges of membership.

Firstly, membership of the legal profession gives a communist the privileged position of access to fellow communists in custody under the guise of consultation with clients. Secondly, he enjoys the liberty and privilege of consulting confidentially with witnesses, especially communist accomplices of his so-called client in custody. He, therefore, is placed in a position where he can abuse his privileges and become the courier of his fellow-communists. We have no objection to communists being defended. Everyone of us in this House as legal men is prepared to undertake such a defence as part of our normal duties. But what I have pointed out is possible abuse.

Thirdly, there is the matter to which the hon. member for Heilbron has referred. The confidential trust account of an attorney can be used for the deposit and operation of the funds of unlawful organizations. Fourthly, our courts provide for the communist a form where he can plead, not only the cause of his clients, but also the cause of international Communism, indirectly and subtly. At the same time, he can get all the necessary publicity which he would otherwise not have obtained. Fifthly, as a practising attorney, this communist can attest signatures. He is a Commissioner of Oaths. He executes important documents accepted by our Government departments. The opportunities for abuse of his position are legion. The question not unreasonably arises: Will a communist lawyer really so abuse his professional position? My answer is that he has the opportunity, the motive, the intent and the instructions to do so. For this statement I rely on no less an authority than the convicted communist leader, Abraham Fischer. I should like to quote from a document dated 24th August. 1965. found on him, when he was arrested in November, 1965. In this document, entitled “Draft Discussion Statement”, the strategy and the objectives of the Communist Party in South Africa are set out. I should like to quote some extracts which illustrate what I have said. This is what he says—

and then he names in particular lawyers—

This was the instruction under the authority of the South African communist leader barely a year ago. These were his instructions to his members, and also to his members in the ranks of the legal profession.

But what I have said does not exhaust the opportunities afforded the communists in the legal profession to further the objects of Communism. As a member of a Law Society he has access to and the right to attend the annual general meetings of that society. He has the right to take part in the discussions and to influence the decisions. He has the right to organize elections and to be elected himself to the council of the Law Society and even to the Association of Law Societies of Southern Africa. These bodies have the high respect of the public and the confidence of the Government. These bodies are asked for their comments by the Minister of Justice and other Ministers, and these bodies discuss with these Ministers—at a very high level—confidentially various matters that are referred to them.

If there should be people who would accuse me that my imagination is taking unwarranted flights, then let Bram Fischer reply, for what does Bram Fischer say in this respect? I will quote from the same documents from which I quoted before, a document which was officially handed in at his trial—

This is the instruction given by the leader to his supporters, to his supporters also who are members of the legal profession. What I have quoted about, this combination of the legal and the illegal activities, what has been said by the hon. the Minister when he referred to these people with their foreign loyalty and carrying within them the very germ of treachery—and there is ample proof for it in other communist publications—prove most convincingly and damningly that we cannot allow these men to continue to enjoy the privileges of the legal profession. Because, Sir, their activities are a negation of the very rule of law which they are supposed to uphold. Their philosophy, their outlook, is the antithesis of the ethical code of legal men.

Therefore, whatever my legal brethren on the Opposition benches may say, this I say, and in saying it I know that I say it on behalf of many legal men in South Africa—we refuse to be associated with these men and women, and we refuse to allow the intrusion of these people into our ranks. We refuse to be contacted, to be taught, and to be recruited and to allow that to be done under the aegis of the legal profession.

In conclusion I would refer hon. members to the wisdom of a man, a political philosopher, who can by no stretch of imagination ever be regarded as a member of the National Party or as one of its supporters, namely, John Stuart Mill, the great Liberal. This great Liberal felt this way about these matters in his “Essay on Representative Government”—

We on this side of the House wish to say emphatically…

You left out the bit about too much power in the hands of one man.

There is not too much power in the hands of any one man, unless the hon. member refers to the Judge who must be satisfied in these matters! We are being directly attacked by communist infiltration and we cannot afford to be deluded by the artifices of communists, communist lawyers, who would cheat us out of our heritage. We cannot afford carelessness. We must take the necessary steps so that this one profession, which so ideally lends itself to furthering the ends of Communism, if communists infiltrated, can be purged.

I would say in conclusion, Sir, that we on this side of the House are here to prove that we are fit for liberty, and we on this side of the House intend long to enjoy it.

Mr. Speaker, I could not agree more with the hon. member for Odendaalsrus that we have a great heritage to defend. And I could not agree more that we must be alert and vigilant to ensure that the heritage which we have in no way is undermined by the communists or any other subversive body of people. I could not agree more with that. But perhaps what makes our heritage great, is the fact that we live by law, is the fact that we entrust to our courts our freedoms. We entrust to them the question and decision whether or no a man is a communist. In so much that we have heard from the other side there is the assumption that “this man is a communist, that man is subversive”. But if those hon. members will stand a moment and consider: Has that been proved? To whose satisfaction has that been proved? Maybe to yours or mine. We may, when we read reports in the newspapers, judge a man to be guilty, but how often are we not proved wrong when the court has given its decision? And so I say here that we on this side stand back for no man in our opposition to Communism and these subversive movements. If anybody speaks sneeringly on the other side, I reject their sneering with scorn, I reject it with absolute scorn. However, we do a service to our country—and to hon. members on that side—when we insist that our courts shall decide whether a man is a communist or not. This is the cornerstone of our objection to this legislation. We make it perfectly clear that people who are guilty of this type of conduct must have their fate placed in the hands of and decided by our courts. Has any man here any doubt that our courts, finding that they are guilty of Communism or other subversive activities, will allow them any longer to practise?

The hon. member for Odendaalsrus mentioned the name of Abram Fischer. Indeed, all of us in the profession are appalled at his conduct. But the Bar Council itself, long before he was even convicted of any offence, moved in Court for his removal.

Because he jumped bail.

I quite agree. But the fact is that they did not hesitate to approach the Court to have him removed.

Because he was guilty of jumping bail.

Because he was guilty of conduct not befitting a practising barrister. [Interjections.] Yes, he did jump bail, but that is the whole point. Where a man has been shown to have indulged in conduct not fit and proper for an attorney or for an advocate, there is already machinery to have him removed from the roll. I go further, and I do so for the benefit of the hon. member for Heilbron, because he quoted cases where he said these bodies had been slow to move. Without accepting that he is correct in those arguments, I want to point out to him that in our amendment we increase the ineffectiveness, because we place in the hands of the Attorney—General the power, in addition to the power possessed by the existing professional bodies, to move the court for a man’s removal. In other words, that power is also given to the Government.

Do you know what you remind me of? You remind me of a hunter who wants to stop a charging buffalo with a popgun.

The hon. the Minister of Transport speaks about a charging buffalo. I have not so far heard of any buffaloes from the hon. the Minister of Justice. He did not give the names of any people who are going to be affected by this Bill, and I hereby ask him how many people are going to be removed from the roll as a result of this measure? I believe that when the hon. the Minister replies—as I know he will, being the man he is—we will find that there are no buffaloes charging about. I am sorry to have to say it, Sir, but I think that on this particular occasion the hon. the Minister of Transport is a bull in a legal shop. As regards the hon. member for Heilbron, one of his main arguments falls completely to the ground, because we on this side are, notwithstanding the jibe from that side of the House, most concerned that not only shall government go on here, but the finest government shall go on. Therefore, as I have indicated, we are prepared in our amendment to give the Attorney—General the power to move the court where he feels there is conduct not befitting a practising advocate or attorney. [Interjections.]

We trust our Judges. No one less than the hon. the Prime Minister said that so much do we trust our Judges that all of them could sit in judgment on matters of subversion.

Surely they must apply the law, and we make the law.

But we must make sound laws, and we must make laws that are worthy… [Interjections.] I agree that we have to be ever—vigilant against Communism and other subversive activities. I agree that we may have to face serious threats in the future in this connection. But I have every confidence that we can handle the situation and yet maintain high standards. I do not say that at times there should not be inroads into what it may be possible to maintain in the most peaceful country. However, I do not believe that in this country the situation is such that we need remove this discretion from our courts and thereby injure the heritage which we have.

These people cannot be fought under the Queensberry Rules.

I agree that perhaps one cannot observe all the Queens—berry Rules, but one should go as far as one can to maintain the best standards in dealing with these people. I say, Sir, that it is quite wrong to believe that our courts will allow anybody to continue practising who had committed acts of this nature. They would not for a moment permit it, as they did not permit it in the case of Bram Fischer when he did not commit an offence—well, perhaps it is an offence—when he estreated bail which, of course, is quite despicable. I agree it was altogether wrong.

Other hon. members on this side have given examples of people who have in the past been connected with subversive activities, and have yet been allowed to practise by our courts. We have the famous example of Judge Krause. He was convicted of a serious offence, he came back to South Africa and practised, nobody knowing that he had been convicted of this offence. Shortly thereafter the matter was raised whether, having committed this offence, he could continue to practise as an advocate. The court held in the exercise of its discretion, that, notwithstanding the offence which was connected with politics, he was still a fit and proper person to practise in the profession. He did so from that year 1905, and with such distinction that he became a Judge of our Supreme Court in the later years of his life. At all times he manifested conduct entirely worthy of a Judge. In other words, Sir, it is a great safeguard to leave that discretion in the hands of the Judges, which this Government, or any government in power, appoints. We on this side have confidence in our Judges, and the other side of the House should show greater confidence in them in dealing with this matter. I do suggest that it would amount to a vote of no-confidence in our Judges to remove this discretion entirely out of their hands and to give the right to decide whether a man shall or shall not practise his profession entirely to the Liquidator of Unlawful Organizations. That applies as far as the one half of this clause is concerned. So far as the other half is concerned, it deals with convictions under three sections of the Act. There, too, Sir, I ask what is the harm in allowing the court to be given full knowledge of these convictions and to let it decide. I have no fear that our courts will not do what is right.

I look forward therefore to hearing from the hon. the Minister the number of people who will be affected by this Bill, whether he consulted the people from whom this discretion is being removed, namely the Judges, and what advice they gave him. Finally, the Minister mentioned the American Bar Association, and this was replied to by the hon. member for Transkei. However, the Minister did not tell us whether according to American law if a person is believed to be a communist, as distinct from having been convicted as such, he is automatically barred from practising in the American courts. I should be very astonished if that in fact is the case.

Therefore, Sir, when one comes to consider this measure, when one has a very shrewd idea that there is practically nobody immediately affected by this measure, and when one thinks that this measure will be bruited abroad, one can feel most definitely that without any danger whatsoever to our security—and I repeat these words—we are putting on the Statute Book a clause which will certainly do us harm in those councils of the world where it will be important to us in the months ahead that they should feel that we are a society worth preserving. There are several situations in the months ahead where the position could be touch and go, and I would say that where there is great ignorance of the true situation here, and where people do seize on a new measure such as this and perhaps misunderstand and misinterpret it, it could well do us severe harm in those important councils of the world. It is important that they should realize that we conduct our affairs by the highest possible standards. I submit that we are being unnecessarily afraid in placing this particular provision on the Statute Book and are thereby doing harm to those high standards which we uphold.

Mr. Speaker, in the first place I want to make it quite clear that this Bill is not aimed at prosecuting communists but at preventing a communist from being placed in a position where he will be offered an opportunity to propagate or infiltrate his ideology. We have not yet had a clear statement from the Opposition as to whether they are opposed to a communist being entitled to practise.

We are not in favour of a proved communist being allowed to practise.

The hon. member says not a proved communist. Now in terms of the Act the listed communist is the one who is debarred, and in view of that the Opposition is now actually seeking to test the findings of the Liquidator in the Supreme Court. That is what their entire argument amounts to, namely that the Opposition wants to test the decision of the Liquidator in the Supreme Court. Can you see, Sir, what situation that would give rise to? It means that the Opposition expects all that evidence of a secret nature, which cannot be made known in public, to be submitted to the Judge. In terms of their amendment there see, Sir, what situation that would give rise to? It means that the Opposition expects all that evidence of a secret nature, which cannot be made known in public, to be submitted to the Judge. In terms of their amendment there must be a public hearing, because the application of the Attorney-General is made in open court and it is then the duty of the latter to prove that such a person is a communist. In other words, the Opposition wants a public hearing to take place in order to determine whether the person concerned is in fact a communist. That may, of course, frustrate the procedure of the Suppression of Communism Act in respect of a legal practitioner who stands to be listed. It is meaningless, because he will have to be brought before the Court if it is attempted to have his name struck from the roll, and the hearing will have to take place in public.

We therefore have the position that the Opposition is not prepared to accept that a person placed on the list by the Liquidator is in fact a communist, and by urging that the matter be brought before the court they want to drag politics into the court. I am of the opinion that it is much better to keep cases of this nature out of our courts. Political cases should not be settled in court. It is up to us, we who are the guardians of the peace, to decide what is essential to the security of the State. I want to point out that the court becomes involved after a crime has been committed, except in very special circumstances of a non-political nature. The sections of the Government entrusted with the security of the State are the Departments of Police and Justice, and as we are concerned with the security of the State it is my contention that those Departments should act and that the Supreme Court should not be involved in political hearings. Because, Sir, what it would amount to is that the court will have to pass judgment in respect of the person after all evidence relating to his political actions has been brought before the court, for how else would the court be able to judge whether the person is fit to be admitted unless it has all the evidence relating to such person’s activities before it?

They do that every day.

It is never done if a person stands to be listed as a communist. It is practically impossible to prove his communistic activities before a court. The reason for that is that the procedure is of an exceptional nature when the security of the State is involved—just as in war time, when a court martial is held and the ordinary procedure is not followed. The ordinary procedure is not followed when a person stands to be listed.

But there are thousands of convictions for political offences.

The circumstances in which a person is listed have been discussed exhaustively in this House. That was debated on a previous occasion. At that time the Opposition insisted on a hearing. I do not want to revive that old debate again. The whole world admits that we are engaged in a cold war; and the Opposition admits that as well; and at that time it was discussed here whether such drastic steps as placing a man’s name on the list without a hearing should be taken. That is an old debate of which we have disposed, and the Opposition must accept the legal position as embodied in the Act standing in the Statute Book. Consequently the Opposition must accept that a listed person is in fact a communist. Otherwise, Sir, we shall go back to the debates of years ago, of the year 1950. That being the position, I maintain that it is quite undesirable to bring such applications before the court.

The hon. member for Green Point said “we can attain the same results by accepting the amendment”. In other words, he says that if a person is a communist as he sees it, he should not practise. But we do not know what the court will find. Even if the court found that a person was a communist, it does not mean that every Judge would consider that he should not be allowed to practise. But I now actually come to the reasons why we on this side of the House contend that any person who is a communist should not be entitled to practise this honourable profession.

I shall just briefly mention the first reason, which has already been mentioned, and that is that our profession—the one to which I also belong—is one which offers most opportunities for underground communistic activities, because the practitioner can come into such direct contact with the subversive elements. By virtue of his profession, he comes into contact with them every day with a view to consultation, etc. But this point has been dealt with by a previous speaker, and I am therefore just mentioning it.

As regards the profession as such certain conditions conditions have to be set. They were set centuries ago, and they are, namely, to live honestly to hurt no one and to render to each his due. It is clear that any person who does not follow this pattern of life is quite unsuitable for legal practice. As was mentioned here, this profession is one with century-old traditions and it is regulated by certain absolute rules. It has always been practised by honourable persons, and it is absolutely essential that that image should remain inviolate.

It is accepted that when a person joins this profession he does so not to make his fortune, but to compel the respect of his fellow-men. That is why there is such a strict code and why certain basic requirements have to be complied with. One has to be constantly inspired by sound values in one’s approach to problems. Unless one faces problems with due regard for the accepted norms of the community in which one practises, and unless one exemplifies the traditions and ethics of the profession, in other words, if one adheres to false values, one has no right to belong to this profession. [Time expired.]