House of Assembly: Vol1 - FRIDAY 9 JUNE 1961
For oral reply:
asked the Minister of Bantu Education:
- (1) Whether, as reported in the Press, the Fort Hare University College has been closed; if so, (a) from what date, (b) on whose advice and (c) on whose instructions was the College closed; and
- (2) whether it is intended to re-open the College; if so, when.
- (1) Yes.
- (a) 2 June 1961.
- (b) The Senate of the University College.
- (c) My Department.
- (2) Yes, on 18 July 1961.
asked the Prime Minister:
- (1) Whether his attention has been drawn to reports which appeared in the South African Press last week that a general election will be held later this year; and
- (2) whether he will make a statement in regard to the matter.
- (1) I have seen some guess-work reports on Cabinet reshuffles and general elections. These are the usual shots in the dark.
- (2) I regret to have to disappoint the hon. member.
asked the Minister of Transport:
- (1) Whether the non-recognition of the Republic of South Africa by the United Arab Republic will in any way affect landing and other facilities hitherto enjoyed in the territory of the United Arab Republic by South African commercial aircraft or the aircraft of undertakings serving South Africa; and, if so,
- (2) whether he will make a statement in regard to the matter.
- (1) No.
- (2) Falls away.
asked the Minister of Foreign Affairs:
- (1) Whether the non-recognition of the Republic of South Africa by the United Arab Republic will in any way affect the privileges and rights hitherto enjoyed by South African shipping in regard to the Suez Canal; and, if so,
- (2) whether he will make a statement in regard to the matter.
- (1) By virtue of the provisions of the Constantinople Convention of 1888 the privileges and rights hitherto enjoyed by South African shipping in regard to the Suez Canal will not be affected.
- (2) Falls away.
asked the Minister of Justice:
- (1) Whether his attention has been drawn to Press reports of a case at the Criminal Sessions in Cane Town in which the Judge recused himself on the grounds that the accused was brought before the court in chains;
- (2) (a) under what regulation, (b) on whose instructions and (c) for what reasons was the accused manacled when brought before the court;
- (3) whether this procedure has been followed on any other occasions; and
- (4) whether instructions will be given that in future no accused will be brought to trial in handcuffs, chains, or otherwise bound; if not, why not.
- (1) Yes.
- (a) In terms of Section 80 of the Prisons Act (Act No. 8 of 1959).
- (b) The officer in charge of the prison in question.
- (c) It is not regarded as being in the interest of the accused to furnish reasons why mechanical restraint has been applied.
- (3) Yes.
- (4) No. Such an instruction cannot be carried out in practice. Mechanical restraint is being applied since 1 October 1911, to ensure the safe custody of prisoners and to prevent them from injuring themselves.
asked the Minister of the Interior:
- (1) Whether his attention has been drawn to a report in the Vaderland of 6 June that Public Service salaries may be increased and posts reclassified; and
- (2) whether the Government intends to introduce such improvements; if so, (a) when and (b) what grades will be affected.
- (1) Yes.
- (2) The Government is at present not considering a general salary revision in the Public Service.
—Reply standing over.
asked the Minister of Bantu Administration and Development:
- (1) Whether steps are being taken to amend the Schedule to the Natives Land Act, 1913, by excising therefrom the land referred to in the John Dunn (Distribution of Land) Act (Act No. 15 of 1935); if so, when is it anticipated that the matter will be submitted for the approval of Parliament; and
- (2) whether he will make a statement in regard to the matter.
- (1) Steps to amend the Schedule of the Natives Land Act, 1913, will be taken as soon as the necessary approval of both Houses of Parliament has been obtained. It is anticipated that the matter will be submitted to Parliament early next week.
- (2) No further statement is considered necessary.
The MINISTER OF JUSTICE replied to Question No. *VIII, by Mr. Hopewell, standing over from 6 June.
- (1) Whether his attention has been drawn to a Press report that permission has been refused for a meeting to be held by the United Party in Natal;
- (2) whether he will state the reason why permission was refused in this case; and
- (3) whether permission is refused for the holding of all meetings organized by political parties; if so, why, if not, which meetings are allowed.
- (1) Yes.
- (2) and (3) Approval or refusal for the holding of gatherings is in the cases in question in the discretion of the magistrate concerned and it is not required of him to furnish me with reasons for having refused permission in certain instances.
Mr. Speaker, next week we will go on with legislation more or less in the order in which it appears on the Order Paper, except that the four Bills of the Minister of the Interior might get precedence, and I have just received a verbal request from the Minister of Transport that precedence should be given to the Bill he is introducing. Then there are also the Railway Estimates and the Railway Construction Bill and the Minister of Finance has an amending Bill on building societies and an amending Bill to control security trust schemes and the Finance Bill. The Minister of Economic Affairs has an amending Bill dealing with export credit and re-insurance and the Minister of Pensions has a Bill dealing with parliamentary pensions.
We hope to be able to finish to-day fortnight, with the help of the Opposition, which is always very necessary in a case like this. There are two Bills with which we will not proceed. The one deals with undesirable publications, which will go to a Select Committee after the first reading, and the Amending Bill on Magistrates’ Courts will not be proceeded with either.
Mr. Speaker, may I with your permission make a short statement. In view of the fact that the details of the Liquor Amendment Bill will be available to-day, I wish to make the following statement.
The Liquor Amendment Bill does not cover the wide field originally envisaged by the Government. As hon. members know, the Liquor Commission makes far-reaching recommendations in its report in connection with the distribution of liquor. As a result of the recent occurrences it was necessary for the Government to devote serious attention, amongst others, to important matters in relation to our becoming a republic as well as the maintenance of law and order. Consequently it was not possible to come to a final decision in regard to all the changes recommended by the Liquor Commission and the affect they will obviously have on the public in general and the liquor trade in particular. The Bill, therefore, deals mainly with an aspect which may have enjoyed the careful consideration of the Government, namely the supply of liquor to non-Whites. We intend publishing a second Bill concerning all the other aspects of the distribution of liquor during the recess for public information to enable interested parties to comment on it.
When the report of the Liquor Commission was tabled on 10 May 1960 I considered it necessary, by way of a statement, to draw attention to a recommendation by the commission to the effect that no new bottle liquor licences should be granted for a period of three years. In view of the fact that the commission thinks that the period of three years should commence from the date on which their report is made public, I indicated in my statement that if this recommendation were accepted by the Government, it would be made of retrospective effect to 10 May 1960. The Government has seriously considered this recommendation of the commission but in view of the fact that there are far-reaching implications in a prohibition on new bottle liquor licences it has not come to a final decision as yet. If it should be decided to do so, in view of the fact that legislation in this regard cannot be placed on the Statute Book this year, the Government has decided that it would be unfair to continue to hold the sword which is contained in that statement over the heads of prospective bottle licence applicants. In view of this the Government has decided that it would be best to withdraw that part of the statement, which I now withdraw.
That part of the statement, however, that deals with the granting of liquor licences in or near the border of Bantu and Coloured areas, as well as the transfer of existing licences to or nearby such areas, is not withdrawn and is contained in this Bill with retrospective effect from 10 May 1960.
I have already mentioned the legislation that will still be introduced and also when we hope to finish this Session, and it is therefore not necessary for me to say anything further.
First Order read: Adjourned debate on motion for second reading,—Indemnity Bill, to be resumed.
[Debate on motion by the Minister of Justice, upon which amendments had been moved by Mr. Hughes and Mr. Lawrence, adjourned on 8 June, resumed.]
Mr. Speaker, when the debate was adjourned last night I had just said that it seemed to me that the legal side of this matter was not the only side, and that in some respects other factors were even more important. What I meant by that was that it seemed to me that the introduction of a Bill of this kind could very well be used as an instrument of State policy. I feel that the question whether or not a Bill of this kind should be introduced is a matter of high statecraft. It affects the general attitude of the Government towards the public as a whole and it should not rest entirely on questions of law. However, in regard to questions of law it would seem to me, after listening carefully to the Minister’s introductory speech and to a number of other speeches made on the purely legal side, that the law is not very clear on the matter and that there is need for clarity certainly in regard to the principles of the law.
A number of precedents have been quoted in justification of this measure.
If the Minister will be patient I will explain my contention. The precedents are not really relevant. The hon. the Minister himself quoted a number of precedents. The circumstances of almost every precedent quoted by the Minister were different. They did not really apply to this case. I do not think that in all the incidents the Minister quoted there was anything which was totally applicable to the situation to which this Indemnity Bill is to be applied. Certainly Bulhoek had no relationship at all to this situation, and the 1922 strike had no relevance whatsoever to it, because the circumstances were totally different. Wartime circumstances bear no relationship to what happened last year. The considerations involved, which I feel are important, were far different. Incidentally, on this point, may I just say in reply to the hon. the Minister that I believe it was irrelevant for the Minister to have said what he did in introducing his speech, if you will forgive me for saying so, Sir. The Minister said that there was practically no reaction to these other incidents he mentioned, but that there was a tremendous uproar in the world in regard to the incidents last year. Mr. Speaker, may I correct the hon. the Minister. With respect, he is entirely and absolutely wrong. I have taken the trouble to do some research into these matters, as a matter of interest. I can tell the hon. the Minister that there was a tremendous uproar in regard to Bulhoek. The Press of the world was full of indignation in regard to certain aspects of the incidents at Bulhoek, almost as great as the reaction to Sharpeville. So in that respect the Minister is not correct.
Then in regard to 1922, may I tell the hon. the Minister that that strike was world news on a very big scale. All over the Commonwealth countries and other English-speaking countries newspaper after newspaper gave the most prominent attention to it. So, with respect, the Minister is not correct there either when he says that Sharpeville and Langa got disproportionate publicity in relation to the other incidents. The same applies to some of the other incidents mentioned by the hon. the Minister. So I say that the Minister is not correct when he makes that contention. It seems to me that what is required, is to formulate a principle.
Order! Hon. members speak so loudly that I cannot hear what is being said.
Some very clear principles should be formulated with regard to indemnity Bills and certainly with regard to this Bill. I have no doubt that this Bill will be used as a precedent for future action and that future Governments when introducing such measures would like to look to this debate and the principles enunciated here in order possibly to justify future action on future occasions. One naturally hopes that there will be no more indemnity Bills. However, in the nature of things, the world being what it is, I have no doubt that there will be, and I think the time has come when some very clear principles should be enunciated. I want to say to the Minister with respect that certainly in his introductory speech he has not enunciated clear principles. A future Minister looking to this debate and to the Minister’s speech will not find any clear guide to assist him in regard to legislation of this kind.
I did quote precedents.
I submit, with respect, that the mere quoting of precedents is not enough. It is not even relevant. Some of the precedents are simply not applicable.
What is contained in this Bill was almost verbally taken over from the 1913 and the 1922 Acts.
I am going to make a request to the hon. the Minister and I hope he will listen. The hon. the Minister must not be stubborn in this matter. We are dealing with a very, very serious matter. I think the Minister has had time now, and when he replies to the debate let him then formulate the principles. In summing up the debate let him give us the clear principles on which he feels an Indemnity Bill should be introduced here and having given these clear principles, let us coldly and dispassionately see whether they have been met in the existing circumstances. I am going to suggest a set of principles to the hon. the Minister and I am going to do so in good faith and I believe with a good deal of common sense, because I think this is a situation which has to be determined by statecraft and common sense. I hope the Minister will listen carefully to the principles that I suggest to him and tell us whether or not he agrees, because I think we should have clear principles. The mere stating of precedents without clearly enunciating any principles is not enough. What are the principles that should determine the introduction of an indemnity Bill? Should a consideration be the question of how much damage was done in a given situation? Supposing there is an emergency situation, should the amount of financial damage involved be a principle; should the amount which the State is likely to be called upon to pay be a principle? With respect, I say that that should not be a principle. I maintain that whatever the damage in a certain situation, it is over to the State to the best of its ability, where it is liable to meet that damage, just the same as any civilian. I am discarding the suggestion that the amount of damage done in a given situation should be a criterion or principle.
I do not follow. It is not a legal principle; it is a factual principle.
Surely legal principles are factual principles. I said earlier on that purely legalistic arguments should not govern the introduction of a Bill. Surely the Minister will agree with me that it is also a matter of statecraft, a matter of common sense. However, I am not so certain that as a principle the question of the amount of damage should be taken into account. It is certainly a matter of policy. I do not think the question of pure damage should be one of the determining factors. The next question is this: Should the nature of the emergency be a determining factor? Should you introduce an Indemnity Bill of this kind in one situation and should you not in another? For instance, should an Indemnity Bill be introduced because there is a declaration of martial law; should that be a circumstance? Should an Indemnity Bill follow automatically if there has been a revolution or even in the case of a war, or should the nature of the circumstances automatically determine the introduction of an Indemnity Bill as a guiding principle of policy? With respect I say “no”. I would discard that as a determining factor. I do not think the nature of the circumstances is what should determine whether or not there is an Indemnity Bill. I do not want to spend too much time on elaborating this point. I think that illustration after illustration could well be quoted where martial law may have been declared and yet it was not necessary to introduce an Indemnity Bill.
What, then, are the determining factors which should govern the introduction of a Bill of this kind? In the course of his speech, the hon. the Minister gave only two considerations which I think are worthy of examination. I submit to him that everything else he said in introducing the Bill did not carry sufficient weight to justify the introduction of this Bill. But the Minister made two valid points, both of which, with respect, I submit are not sufficiently weighty and should not be considered as principles. The first point he made was contained in this passage, which is rather an involved passage. Let me read it out. The hon. the Minister said—
And these are the operative words—
In other words, the principle at stake there is that in an act committed by an agent or servant of the State in good faith resulting in damage, the State should be covered by an Indemnity Bill. That is the criterion, that where the State has to act in an emergency situation in order to protect lives, any act committed by a State official in good faith should be covered by an Indemnity Bill.
Even though it was illegal?
Yes, even if it was illegal; that is the whole point, otherwise you would not have to have an Indemnity Bill. Now, let us examine that. Surely it is not sufficient that the State should cover an act committed in good faith. Let us consider some other examples where acts are committed in good faith in the civilian sphere. Supposing a man enters my ground at the bottom of the garden in semi-darkness. I am fearing a burglary and I shoot him. I do so in good faith. I am a jittery, nervous type of person, and I think I am going to be attacked by this man and I shoot him. I have been horribly negligent; I did not make certain that he was in fact the burglar. However, the situation was such that in good faith I shot him. Surely I was liable, and the Minister knows that. To give another example: I am driving along the road and I am not a very good driver. However, I am full of goodwill and good faith and I swerve to avoid a dog and I kill a child on the pavement. Sir, I am guilty of negligence and there is no doubt about it. In other words, just as in the case of ordinary civilian law, merely to do something in good faith is not enough.
I want to suggest the following principles as principles that should govern whether or not there should be an Indemnity Bill. In the first place, I think everybody, including the Minister, will agree with me that the first principle should be that an Indemnity Bill is only introduced as a last resort with the greatest possible reluctance. If it is possible at all to meet the situation in any other way it should be done. The introduction of an Indemnity Bill is not a good piece of statecraft; it is not good for the state; it does not redound to the good name of the Government or of the state. It is a thing that should be done with the utmost reluctance. In other words, let us say, then, that the first principle is that only when it is unavoidable, when the situation cannot be met in any other way, when the question of damages or recompense cannot be met in any other way; only then, as a last resort and for the very best of reasons should an Indemnity Bill be introduced. I think that is the first and soundest principle. Secondly—and I think this is tremendously important, an Indemnity Bill should never be used as a political weapon. It is a very dangerous political weapon. I want to say that in regard to the present Indemnity Bill there are certainly misgivings, I think justifiable misgivings, as to whether or not this is being introduced as a political weapon. I have not made up my mind on that point. However, there are such feelings abroad. I hope that this is not being introduced as a political instrument, simply because certain people that the hon. the Minister does not like were involved in a certain situation and, as a result of that, he wishes to deprive them of their legitimate recourse to the courts and he has taken the “kragdadige” line of introducing this Bill. I hope that it is not the position, because if that were to be so it would be a shocking thing. I hope therefore that this is not a political weapon.
Then I feel that the third principle that must be accepted is that lives and property must be protected by the state, which can and should take extraordinary action when necessary. In other words, the taking of action by the state and its servants, extraordinary action, unusual action in certain circumstances, must be accepted, and in taking such action the state should be protected. I think we are all agreed on that point. Let me mention one other matter. There has been quite a lot of talk during the course of the debate on whether or not the state should protect its employees. In other words, should the state protect the police if the police do something wrong or negligent. I submit with respect that that is irrelevant. Of course the state must protect its employees. The state is liable not its employees. I do not think that that even requires to be argued. If the state is negligent in not controlling its employees the state will suffer. The point is that the state must protect its employees. If the driver for a certain firm negligently kills or injures someone, the firm is liable. To me it is irrelevant to the question of indemnity whether or not the state should protect its employees. I say it should protect its employees, and in regard to Sharpeville and Langa of course it should protect the police. I have no doubt about that, but that is not the point. The point is the introduction of this Indemnity Bill which deprives people of the right to go to the courts. That is what we must keep our eye on. The third principle therefore is this, and I think this is the most important of all …
They can go to court only in bona fide cases.
Yes, that is what I am coming to now. The third important principle is that the state should be protected only from claims arising from acts that were necessary, unavoidable and responsible in order to preserve law and order. Those should be the three operative terms—“necessary, unavoidable and responsible” acts. If they were so, then possibly there should be an Indemnity Bill, not simply when, as the Minister said, the acts were committed “in good faith”. I hope the hon. the Minister will withdraw those words. That is not good enough. The principle should be that the acts for which the Indemnity Bill is to be introduced were “necessary, unavoidable and responsible”.
How would you otherwise define bona fide acts?
Surely that is a quibble. What is “in good faith”? I gave two absurd incidents where I acted in good faith, and I was highly negligent in both cases. No, I do not think that is good enough. In other words, to put it in reverse, the state should not be protected against claims for damages for any action that was “unnecessary, avoidable or irresponsible”. Those are, I suggest, the three operative words.
Now let us test the present situation in relation to these principles. Let us take the two cases of Langa and Sharpeville. I am not going to go into details, but I just want to draw certain conclusions from the detailed findings of the reports made by the two Judges who looked into those two cases, testing them against the principles which I have just put forward. What did the Judge find in the case of Langa? He found, firstly, that many policemen had acted unlawfully and in an undisciplined manner, clearly contravening the principles which I have just put forward. In other words, what they did was not “necessary, unavoidable and responsible”. They acted in an undisciplined manner. Secondly, the Judge found that the majority of the crowd did not flout the order to disperse and thirdly the Judge condemned the undisciplined firing that took place. Therefore clearly what took place at Langa did not conform to the principles which I have just enunciated. Now in regard to Sharpeville: Firstly the Judge found that there was no intention to attack the police; secondly, that no order to shoot was given by any senior officer and thirdly that the vast majority of the people who were shot, were shot in the back when they were running away. It would appear that those two sets of circumstances did not comply with the principles which I have enunciated to-day and which I suggest should be the governing principles in regard to the introduction of an Indemnity Bill.
I have stated what I believe should be the rules and regulations governing this matter. But there are some other aspects of this debate which require some comment and, Sir, I hope you will allow me to comment on them because of the fact that they were introduced by the Minister himself. First of all, I want to come to the attack made by the Minister on a firm of attorneys in Johannesburg. May I say at once that I rise in this regard with great indignation. The people concerned are people who are known to me and they are my constituents. I am in this House to defend their good name, to defend them. It outrages my sense of justice that the hon. the Minister should have levelled such an attack upon them. Anybody else could have been irresponsible, but the Minister is the Minister of Justice, he is the head of our whole system of justice in South Africa. These two attorneys whom the Minister has attacked here are in a sense people who deserve the protection of the hon. the Minister. He is the head of the law in our country, and for the Minister to level such an attack lends it an aspect which I say is particularly unfortunate. I want to say emphatically that this firm of attorneys is one of the most reputable firms of attorneys in Johannesburg. They are well known in legal circles.
I hope you won’t mention their names.
I won’t do so. The Minister has not mentioned their names, but it is well known who they are.
No, it is not.
There is great indignation in legal circles. Every lawyer in Johannesburg knows exactly who these people are. Every firm of lawyers is well aware who these people are, because everybody was well aware of the circumstances under which they operated, which were circumstances of considerable public importance at the time. Of course, I am not going to mention their names—it is un-parliamentary to do it, but it is a fiction; everybody knows who they are. What happened in that case? Certain public people have been criticized. However, that is irrelevant. The Bishop of Johannesburg was the leading figure in that case. The Bishop of Johannesburg took a particular interest in the tragic events at Sharpeville, and he took an interest from the humanitarian point of view mainly.
Tell that to the marines!
The Bishop of Johannesburg, a citizen of the highest standing, took an interest in the tragic events at Sharpeville. He knew that a large number of people had been injured. He knew that there was an important aspect, and that is the question of possibly submitting a claim later on for their rights. If the State had been wrong in that case, then the right of those people had to be adjusted, and the Bishop of Johannesburg headed a certain fund which was there to assist people in circumstances of that kind. The Bishop of Johannesburg commissioned a certain firm of attorneys to investigate the situation, to obtain statements and to prepare for the possibility of lodging claims in future. Sir, is there anything wrong in that?
Dum-dum bullets too?
If the hon. member for Heilbron (Mr. Froneman) is a man of standing in his community and a certain incident occurs there which touches his feelings and he decides to raise a fund, if he says “I do not know the rights and wrongs of the situation but people have been hurt, people who have not the knowledge or the resources to act for themselves, so I will raise a fund and assist them”, it would be a humanitarian act for the hon. member to do. Would he be wrong, then, in going to a firm of attorneys and asking them to investigate? What did the Minister do? The Minister retaliated at once. He was so touchy, so nervous, so “kragdadig” that he clapped these two attorneys into detention, because they went there to collect those statements. I say that for the Minister to attack those people the way he did was reprehensible and wrong. I feel that a man in his position should never do such a thing. Every man of law should look to the Minister for protection, not for an attack of this kind. I do not know why he introduced this matter; I say it was wrong and I hope that the Minister when he gets up will tender an apology to this firm and indicate to the legal profession that he is there to protect them and not to attack them when he does not agree with their political views. I say that was a most unfortunate part of the Minister’s speech, and I hope he will live to regret it.
These two attorneys should be kicked out by the Law Society.
May I ask what the hon. member said?
Order! The hon. member may proceed with his speech.
I think that remark is most reprehensible. I hope the Minister will take note of it. Here is an opportunity for him to make some redress to this firm of attorneys. I understand the hon. member for Mossel Bay (Dr. van Nierop) said that they should be kicked out by the Law Society. What right has he to say that; what evidence has he to support that statement? I hope the Minister will put the hon. member in his place when he replies. He has the chance now and he must make retribution to this firm of attorneys.
The next point I want to make is this; in the course of his speech the hon. the Minister said that he was certainly not going to allow any recompense to certain detainees who had been wrongly detained. I submit to him that that is a petty line to take, and I hope he will reverse that. There were very few persons and the amount involved as far as the State is concerned, although it is irrelevant, would not be large. I do not know why the Minister wants to do that. It seems to me to be petty. Certain people were detained illegally and they should be recompensed for it. I feel that the Minister should withdraw that portion of his statement and that these people should get some recompense, just as others will.
Finally I want to say this. What the hon. the Minister has done in this case is that he is going to make certain moneys available to pay out damages to a number of people who were hurt. He has told us what sum is involved. Sir, we are glad, of course, that something of the kind is going to be done. But I want to say that there is a very dangerous principle involved here and I hope the Minister is aware of it. What it amounts to is this: The Minister is saying in this Indemnity Bill: “I will cut the courts off from these people. They cannot come to the courts but obviously a lot of innocent people got hurt and probably they have very good claims in law, so I will pay them out of my good heart.”
Why do you say that they cannot go to court?
How can they go to court after the Indemnity Bill is passed?
But of course there is a difference between bona fide cases and mala fide cases.
No, do not let us side-track from the point. Let me put the principles to the hon. the Minister. What the Minister is doing is this: He is saying in effect: “I am going to cut a number of people off from recourse to the courts through this Indemnity Bill. However, obviously a lot of them deserve to be recompensed.” The Minister would not give recompense to underserving cases, so what he is doing is to appoint a committee to go into the matter and make recommendations. That is just an administrative act; he cannot do it himself, but he says, “Out of the kindness of my heart I will pay certain people certain sums of money”. I hope the Minister realizes the principle involved here. What that amounts to is that in certain situations we are going to have the courts cut off and if any damages are going to be paid it is going to be out of the kindness of the Minister’s heart.
Yes, ex gratia. If for some reason or another he thinks they should not get it, they will not get it. In other words, they cannot get damages as of right; they are dependent on the goodwill of the Minister. May I say in this regard that I think the hon. the Minister missed a wonderful chance. Why did he not, immediately after the emergency, say at once: “I shall create a fund to assist people and ask the public to contribute as well”? Why did he not do that? It could have been quite a voluntary fund, something like the Governor-General’s War Fund. If such a fund had been created, I believe there would have been a tremendous response. You see, Sir, the public was very concerned about the whole situation. What was the attitude of the public? The attitude of the public undoubtedly was one of great pity that innocent people had been killed. It was also one of great sympathy for the police, too. I do not know if any hon. members in this House have been in the position in which the police are sometimes placed and have had to face angry mobs. I have been in that position. I have been in uniform facing an angry mob, and I can tell you, Sir, that it is the most frightening experience that you can have, and my sympathy goes out to the police. We are sympathetic to those who have to do their duty. We hope, of course, that they will act responsibly in terms of the principles I have set out, but that is a different issue. However, there was tremendous public sympathy for those who were killed, and I feel that the Minister lost a chance. He might have said at once: “Let us create a fund into which the Government will pay, shall we say, R500,000, and then appeal to the public for contributions.” Even people who go to court will not be recompensed in many cases, and something like the Governor-General’s War Fund would have been of great assistance. But that is not the point. I say a dangerous principle is being set here to-day. I do not think the country likes the idea that, in a matter of this kind, it should be dependent on the goodwill of the hon. the Minister. People must have their rights to go to the courts.
To sum up, may I just say this: I say firstly that the Minister has not justified the necessity for this Bill. He has not enunciated clear principles upon which an Indemnity Bill of this kind should be introduced into this Parliament. He has not done so; I am hoping he will still do so. He has not justified this Bill under the existing circumstances, and, finally, I say that, as a matter of statecraft, the Minister has been unwise in introducing this Bill. Why does he always want to adopt this “kragdadige” attitude, and pass this kind of legislation? This kind of legislation certainly gives the Government that kind of image. I think that a greater element of humanitarianism was called for and that it was sadly lacking as far as the Minister was concerned. Under all the circumstances I say that the correct attitude for this House to adopt—and I hope the House will adopt it—is to support the amendment moved by the hon. member for Salt River (Mr. Lawrence). I want to read that amendment out again, because I think the House should be reminded of it again—
- (a) were illegal at the time they were committed, or
- (b) were the result of negligence or avoidable actions.
When the hon. member for Parktown (Mr. Cope) spoke a few moments ago, I was reminded of an old Persian saying which amounts to this: Good wood burns quietly, but thorns crackle loudly while they continually shout “I am wood, I am wood”. That is more or less what the entire speech of the hon. member amounts to, because he should remember that he has only been a member of that party for a very short time and that he was a member of the Press for many years, and that, for many years, he made the same propaganda that he is making in this House to-day so that the Press could convey it to the outside world, and that he did so for many years before he came to this House. He should remember that if ever there was a party which did not have the right to object to indemnity legislation, it was the party to which he belonged for many years and to which the hon. member for Salt River (Mr. Lawrence) belonged for many years and of which he was a Minister.
When this debate was in progress on a previous occasion, the hon. member for Johannesburg (North) (Mr. Plewman) mentioned certain indemnity laws which his party had passed in the past. I want to refer to something to which he did not refer, and to which the hon. member for Salt River did not refer, nor the hon. member for Parktown, and I should like to know what they think about the judgment to which I am going to refer. The hon. member for Johannesburg (North) was quite right when he said that when similar measures were taken in the past the circumstances were not the same as they are to-day, but you will never have the same circumstances in respect of any indemnity law. It is not always the same occurrences which give rise to such legislation. Let me take Act No. 1 of 1914. That Act was passed by the predecessor of the present Opposition party on 19 March 1914, and it was made of retrospective effect to 8 January 1914. We had Act No. 11 of 1915. That was passed on 19 April 1915, but was made of retrospective effect from the outbreak of the 1914 war. Let us think for a moment that here we have a Government which enjoys a powerful majority. Have hon. members who object to this indemnity legislation ever thought of the fact that in those years when their predecessors, their great leaders, placed the indemnity legislation on the Statute Book, they sat in this House with a minority of 24, without having come to any agreement with the Union Party or the Labour Party or the National Party? They can check on the figures. They governed with a minority of 24 in this House.
What is your argument?
My argument is this: that we have more right, as a majority government, to introduce indemnity legislation than the minority government had in those days.
I want to go further. Do hon. members remember what they did a few years ago during the war in the case of Trumpelmann versus the Minister of Justice and the Minister of Defence and in the case of du Toit versus the same two Ministers? Those two cases were heard on 2 November 1939 and Judges Greenberg and Schreiner were on the Bench and for the benefit of the hon. member, who is a legal man, I want to quote from the “South African Law Reports, Transvaal Provincial Division, 1940”. Hon. members opposite are the people who point an accusing finger to the Government because of this indemnity legislation. Those hon. members know the case of Kellermann, they know the case of the two policemen who won their case, while their Government passed an indemnity law subsequently to indemnify the Government. I want to ask hon. members who accuse the Minister of everything that is wrong whether they have a high regard for the late Chief Justice Innes, because I will quote just now what he said about that case, and I hope there will then be no further argument about the matter. In the case of Trumpelmann, Judge Greenberg on page 245 quoted from a judgment by Chief Justice Innes in the case of Krohn versus the Minister of Defence (1916 A.D. 191, page 195) and this was what he said. I want to ask hon. members this that if they agree with what Chief Justice Innes said on what grounds do they attack this indemnity legislation which is before the House? Let us be reasonable with one another. He said this—
That is the rule of law.
Yes, I want them to put their foot into it. The Judge continued—
And then he goes on—
This is the main point—
I want to ask hon. members this, they who predicted in this House that there would be great disturbances on 29, 30 and 31 May …
Who are “they”?
They who have always had the support of the jingoistic English Press in South Africa, they who predicted a blood bath and who expected …
That is not true.
Now it is not true, but at that time the newspapers published that as the truth and hon. members said we were sitting on a keg of gunpowder.
Yes, hon. members said that. Their leaders said it, everybody broadcast that. And when the Government takes steps to ensure the safety of the country and it becomes necessary to introduce indemnity legislation, this Government has more right to do so than any previous Government had when that side governed the country with a minority of 24. What have they done now? They did not go to the legal courts where the hon. the Minister wants to go now. No, in 1914 they established special courts of law where police sergeants sat as Judges and where non-commissioned officers sat as Judges and they passed judgment on the freedom of people, they passed judgment on life or death. That was what those members did, those hon. members who are now pointing an accusing finger at us this afternoon. Have they forgotten that? We have not forgotten it. The hon. member cannot deny that. I will quote every case to him. I do not know what type of case the hon. member for Transkeian Territories concentrates on, but I can quote these cases to him, and he cannot deny the truth of what I am saying here, namely that they appointed police sergeants and non-commissioned officers in 1914 to pass judgment over the property and the life and death of people—special courts. That was what they did under an Indemnity Act.
Over White people. I want to know from hon. members whether they agree with what Chief Justice Rose-Innes says that when a state has to defend itself when its existence is at stake it has the right to resort to any measure. He made no exception. If hon. members deny that, they should be chivalrous enough to get up and say that they reject the judgment of Judge Rose-Innes, that it is wrong. Naturally it was right during their régime; they depended on it at that time. It is only now that it is wrong, now that we have far more justification to act like that. Hon. members said that we were sitting on a keg of gunpowder as a result of our policy. They told us what would happen, their newspapers broadcast it, the Press of the world broadcast it. and now that the Government is introducing necessary indemnity legislation they are the people who pretend to be very indignant because we dare do it. I say to them: Examine your own conscience before you attack and criticize this Government because of the legislation which is before us to-day.
I would like to say to the hon. member that this side of the House is in general agreement with the statement of the late Chief Justice Innes which the hon. member has just quoted. We are not in agreement with the hon. member’s interpretation. What the learned Judge said was that when the existence of the state is in great danger, it is entitled to defend itself. That is not the issue with which we are concerned here. The issue with which we are concerned is whether the courts of this land are to be prevented in appropriate cases, where persons can prove that the State and its agents acted incorrectly, from awarding damages. The hon. member should remember that the hon. Minister has conceded that there probably are cases where there should be compensation. I will deal with that more fully when I deal with what the hon. Minister had to say. But, Sir, I wish to come back to what was said last night by the hon. member for Standerton (Dr. Coertze), and I am very sorry that he is not here. I am astonished that the hon. member should so have misconceived what is the law in regard to the liabilities of the Crown, as he did last night, especially in view of the fact that he is a previous professor of Law. He indicated in his speech, Sir, that the Crown Liabilities Act in fact disposed of this question. I can quote his exact words. In referring to it he said—
I would like to say immediately that the hon. member has completely misconceived the provisions of the Crown Liabilities Act. Section 1 of Act 20 of 1957 makes it quite clear that claims against the State must be entertained by the courts. It is true that no execution may be issued against the Crown, but it is implicit in the remaining provisions. Sub-section (3) provides that the Crown must pay and that a judgment against the Crown must be dealt with through the Consolidated Revenue Fund or the Railways and Harbours Fund, as the circumstances may require. Obviously it is wrong that there should be execution against the State, but the hon. member is quite wrong in suggesting that that means that the State need not pay. The State must pay out of the Consolidated Revenue Fund or the Railways and Harbours Fund, as the case may be.
I would like to say one word in regard to the hon. member for Mossel Bay (Dr. van Nierop). I must say that I am astonished that a man of many years’ service in this House, a front-bencher of the Nationalist Party, should make here what is a scurrilous reflection on an attorney. He submitted no proof.
Order! The hon. member must withdraw the word “scurrilous”.
I am sorry, Sir, let me say “unworthy reflection”. I am not seeking, Sir, to defend the people concerned, but the hon. member made a statement in circumstances where they cannot defend themselves. It is up to the hon. member if he wishes to pursue that to make that statement outside of this House and then he can let the courts test whether the remark he made in this House is justified or not. I challenge him to do that. I say that he will be utterly wrong if he does not make that statement, because hon. members of this House should not use the protection which is given them by the law in order to make statements which they are not prepared to make in public. A very simple issue is involved. If the hon. member is right, obviously the courts will protect him. If his statement is unjustified, then obviously the courts will defend the good name of the persons upon whom he has cast a reflection in this House.
I wish to come now to the Minister himself and what was said by him in introducing this Bill. Let me say at once that there is no dispute as to whether the State is entitled to take appropriate action to protect the safety of the State. That is the duty of the Government, it is the duty of the police. There is no dispute on that score, as hon. members have appeared to suggest. But I want to submit to the hon. the Minister that he should reconsider the legislation which it at present before the House. I would like to say that had it been possible under the Rules of this House, the amendment of the official Opposition would have been different. We could have made it clear, as I hope we shall do if this Bill is proceeded with, in the Committee Stage, that the official Opposition is in favour in terms of the Act as it stands, in regard to individuals, who were carrying out what they conceived to be their duty, to be protected against legal claims. But we do believe that the State should accept liability for claims and should be prepared to test the validity of those claims. The hon. the Minister in his second reading speech said this—
The hon. member for Parktown has shown that the world did in fact take a considerable amount of interest in those happenings. For the purpose of what I wish to put to the hon. the Minister, I will assume that his statement was a correct statement. Sir, does the hon. Minister not realize that world opinion has moved a very long way since 1914? These matters, as the hon. the Minister said, received a great deal of world attention. I would say to the hon. the Minister that if he wants to do something to raise South Africa’s name in the outside world, his proper course is to make it possible for the questions which will be in issue in these various cases to be tested in the normal way. The hon. Minister has indicated that he has appointed a committee under the chairmanship of the Government Attorney in order to consider these claims. I would like to submit to the hon. the Minister that there he has made, I believe, an error. Sir, it is a fundamental principle of our law that a man should not be the judge of his own cause. The Government Attorney is an official, a man for whom I have the greatest respect, who would be acting on behalf of the Government as the attorney of record in contesting claims. I do submit that it is most unfortunate that the examination of claims should have been put in the hands of a committee under his chairmanship.
It is a question of ex gratia payments.
I appreciate that, but nevertheless the official concerned if his official capacity is a servant of the State and if these cases did go on, he would be one of the persons acting professionally for the Government.
He has no financial interest.
I don’t suggest for a moment that there are any financial implications whatsoever. The fact nevertheless is that in a professional capacity he would be representing the Government. What I wish to suggest to the hon. the Minister is this: One can appreciate that where there are large numbers of claims, as here, well over 200 claims. In many cases the evidence will be the same with differences in detail. The cost of contesting all those cases before the courts would be enormous. That was conceded by the hon. member for Transkeian Territories who opened this debate on behalf of this side of the House. The hon. member for Transkeian Territories suggested to the hon. the Minister that if he is satisfied that in the circumstances it is desirable—and there is something to be said for that, because there would be enormous costs if these 244 cases went to trial separately —the Minister could appoint a judicial commission to deal with the matters. If a judicial commission were appointed, after the investigation of the State Attorney who is going into these matters, I have no doubt whatsoever that that commission would obviously sit for some time and that it could obviously deal on the basis of the Rule of Law with these claims. It could decide in which cases there should be recommendations to the State. I believe that nothing would do South Africa’s name in the outside world more good than if the hon. the Minister were prepared to take his courage in both hands and agree either that certain cases should go to trial, or better still, that the hon. the Minister should agree to an investigation by an independent judicial commission of particular claims. That could be done after the Government Attorney’s investigation. He would have gathered a lot of information. In respect of claims where it is shown that there is clearly no liability, no doubt those cases would be dropped. I suggest to the hon. the Minister that he should follow that course.
Sir, the claims which the Minister is seeking to provide for may not be tested by the courts. It is only a judicial commission dealing with particular claims which could, I believe, with justice take a decision in these matters, and not a committee such as the hon. the Minister has provided for.
I want to make it clear again that in regard to the individuals protected, this side of the House has no objection to the passing of this Bill. It is the liability of the Crown itself that we suggest should be preserved.
Where do you draw the line if acts are committed by the Government?
No, it is not acts committed by the Government, but by the agents of the Government. What I suggested is that so far as the Government is concerned, the Government itself should not be indemnified, but that its servants should be indemnified. I accept that members of our Police Force have a tremendously difficult task and it is for that reason that I concede that in justice to individual members of that force, cases should not be brought against them for acts which they committed in good faith. But so far as the State is concerned, it is an entirely different matter. So far as the State is concerned in cases where persons can show that in terms of the provisions of the law they have a claim—and perhaps not a single one may be able to show that, I am not seeking to pre-judge the case—I do suggest that there should be the right for that to be tested in a court of law, or if the Minister so sees fit there should be special provision that these claims will be dealt with by a judicial commission.
This House in cases of ex gratia payments does not appoint a judicial commission.
No, but I suggest that in the special circumstances of this case, we should follow that course. The hon. Minister himself said that this case has attracted the attention of the whole world, and in those circumstances it would be in the interest of this country if the Minister would appoint a judicial commission. I would like to put it to the hon. the Minister again: By all means, let the Government Attorney and his committee complete its investigations. It may be that as a result, certain cases would be settled. I do not know. That would be in the hon. the Minister’s hands. It may be that it would be found that certain claims are utterly without foundation and I have no doubt that those cases then would not be proceeded with. But there would possibly be cases where it would be in the interests of all that they should be tested by an independent body, and for that reason I would suggest a judicial commission. It would possibly even need special legislation, but I repeat that nothing would do South Africa more good than if the Minister were to take action along those lines.
The hon. the Minister has in interjections, more than once, referred, and rightly so, to the fact that the indemnity relates to acts “in good faith”. But in addition to that there is a further provision in sub-section (3) which provides for a presumption—
That refers to publications.
No, good faith is presumed and the intent is presumed. The hon. the Minister will agree that goes beyond the provisions of the common law. But I do not propose to quibble about words. I am trying to deal with the principle. I say that in the circumstances of the world to-day, and particularly in the circumstances of our country, South Africa, we are placed in a tremendously difficult position in regard to the enormous problems arising from having White and Black in one country. I believe if we want to secure the future, we must be meticulously careful in regard to the preservation of the rights of the individual and in regard to the preservation of the Rule of Law. The hon. the Minister will agree that this Bill, which I concede to the Minister follows previous precedents, does constitute an exception, or let me call it an interference to the Rule of Law. It excludes the ordinary Rule of Law. Sir, it is my belief that in South Africa, if we wish to gain, what we all hope to gain for this country—a lasting place here for ourselves who are White—harmonious relationships between White and non-White, there can be no better foundation than to preserve to the utmost of our ability what I believe is the very basis of civilization itself, namely the Rule of Law. I believe it can be shown quite easily if one goes through history that the very foundation of civilization is the Rule of Law and the uninterrupted honouring of the Rule of Law. One will find that when there was interference with the operation of the Rule of Law, that undermined civilization itself. My plea to the hon. the Minister is a very simple one, that in the interest of preserving this country, and I believe it is essential for its preservation, we should take a different approach to these matters. I will concede all the Minister says in regard to precedents, as I have already done. Against that, I put to him that our correct course of action as has been suggested by this side of the House is to indemnify the individual officers, but not the Government. Let us set out to ensure that not a single person who is an innocent party who under the ordinary rule of law, shall have the right to sue the State, is excluded from so doing. Our ordinary law protects the State against actions in circumstances and within limits, which are perfectly clearly laid down in our law. It may be that in this case—I do not want to prejudge it—there will be cases which go beyond the ordinary Rule of Law. My submission, and I repeat it to summarize, is that in order to ensure that no injustice shall be done, the Minister should not leave this matter in the hands of the present committee, which I am sure is doing invaluable preparatory work, but that the hon. the Minister should agree that these matters will go to a judicial commission for investigation. In cases where our common law protects the State, and that protection is a very wide one, there could be claims for damages which would succeed; there the State and the State only and not the individuals, would be liable. I put it to the hon. the Minister in all sincerity that I believe that if he would take that step he would be setting a precedent which will be of very great importance. In due course of time that would prove to be a major factor in helping us to find a way to deal with these tremendously difficult circumstances with which we in South Africa are faced, as a result of the position in which we have been placed by Providence.
Mr. Speaker, I want to convey my appreciation to both sides of the House for the fact that during the interrupted discussions we have had on this Bill from time to time in this House, a great measure of calm has prevailed. With few exceptions that has been the position. I also want to express my appreciation because the points which have been raised by hon. members opposite have been answered so effectively point by point by hon. members on this side that it is not really necessary for me to deal with all those points in detail. I therefore do not want to discuss all the points which individual members have raised, but I want to confine myself more to a general discussion. As I have said, I think that we have reason to be thankful that we in South Africa have made such progress that a very responsible member like the hon. member for Springs (Mr. Tucker) could admit here this morning that in South Africa one cannot object in principle to the principle of granting indemnity. The hon. member was therefore also broad minded enough to say that. But unfortunately all hon. members opposite—I want to exclude the hon. members for Transkeian Territories (Mr. Hughes) and Springs in this regard—have not been guided by that principle, namely that a State is in principle entitled to offer indemnity under certain circumstances. I say that this was in the main a peaceful discussion, an objective discussion which I appreciate greatly because I think we have made great progress.
I have taken the trouble to examine the old Hansards and reports of debates which have taken place in this House in bygone days on this very subject and on Bills, the wording of which was more or less identical to that of the Bill now before us.
There are differences.
In the circumstances there may be differences here and there, but if hon. members will examine the wording of Act No. 1 of 1914 and that of Act No. 7 of 1922, they will see that they were actually the basis which my Department used in drawing up this Bill—with just this difference that the two sides of the House have changed places. I want to admit—and I have been criticized for saying this at the beginning of my introductory speech—that in South Africa it has become something of a custom that a Government introduces an indemnity Bill and the Opposition of the day opposes it. It is natural that that should be the position. All I want to express my appreciation for is the fact that in this year of 1961 we have made such progress that we have been able to discuss these matters calmly with one another. That was not the position in the past.
But now there is a sensible Opposition.
Yes, but the Government takes the lead and it is a very sensible Government. Hon. members have delved deeply into history. There are hon. members who have gone back hundreds of years in history, and I also want to go back a little, but I just want to confine myself to two examples of Indemnity Acts which are really very appropriate, with a view to the circumstances under which this Indemnity Bill is before us to-day. In 1914 General Smuts introduced an Indemnity Bill, that is to say Act No. 1 of 1914. The then Opposition under the leadership of General Hertzog naturally launched severe attacks on the Government of the day. At that time General Hertzog concentrated particularly on criticizing the Government in respect of the Indemnity Bill, and I see that he spoke for 2y hours. When he replied, General Smuts spoke for longer than he had when introducing the second reading debate because so many days had been devoted to the debate.
There was the question of deportation as well.
That was also involved, but actually it dealt with the strike itself. The deportations were in effect only dealt with towards the end of General Smuts’s speech and also towards the end of that of General Hertzog. That was a serious matter, it is true, but it was an ancillary matter. As far as General Hertzog was concerned, the strike was the main issue, and I should like to read to the House what he said. I am quoting from page 312 of the 1914 Debates of the House of Assembly of the Union of South Africa, and I want to refer to certain interesting objections which General Hertzog raised against the Indemnity Bill which General Smuts had introduced. General Hertzog spoke of martial law, and we know that it is not relevant to this debate whether it was martial law or whether a state of emergency was declared, because under the common law there is no difference between the two. The position which is created is that in both cases the law is suspended and legally there is therefore no difference. General Hertzog said the following—
I do want to refer the House to this statement because when I referred to it during the second reading, I was criticized on the grounds that it was quite unthinkable to make indemnity legislation relating to a state of emergency cover a longer or shorter period than the period which elapsed between the incidents concerned and the introduction of the legislation. It was General Hertzog’s complaint that in that case there was a difference of a week. In other words, a week prior to the declaration of martial law was also covered by the Bill—indemnity was requested in respect of a week prior to the declaration of martial law, just as in this Bill indemnity is sought in respect of the period prior to the proclamation of a state of emergency. In our time it is a state of emergency because this is a Government which does not want to have much to do with martial law. It only proclaims a state of emergency occasionally. General Hertzog went on to say—
Last night my colleague the hon. the Minister of Bantu Administration and Development was criticized because Pondoland is in certain respects still in a state of emergency and when this Bill is passed—so I understood by implication—the hon. the Minister of Bantu Administration and Development will then be able to maintain the state of emergency which he has declared in Pondoland for a long time to come. I want to reassure hon. members at once on that point. Although this Bill applies to Pondoland, it will only be applicable to incidents in Pondoland up to the date of commencement of this legislation. But I am only mentioning that General Hertzog had two complaints. The first was that the Indemnity Bill covered the week prior to the proclamation of martial law and secondly that the Government laid down that only on the date that it repealed martial law, would the indemnity legislation lapse. At any rate that is how General Hertzog put it. I accept what he says here, although I have not had the opportunity to read all the speeches in this regard. But, Mr. Speaker, it is interesting to note what was said at that time and how members criticized one another—General Smuts on the one side and General Hertzog in particular on the other side. Those were stormy days.
May I ask the hon. the Minister a question? Do I understand from him that the proclamation which has been applied to the Transkei will only apply up to the date of promulgation of this Bill?
No, what I have said is that as far as the granting of indemnity is concerned this Bill before us will only cover incidents in Pondoland up to the date of commencement of the Act, whenever that may be.
I just want to dispose of this point. In 1922 the debate was still more stormy. I am taking two peace-time examples. When the Bill was before Parliament in March, it was peace time and it dealt with a peace-time matter. Just as we in 1961 are dealing with 1960 incidents, so the 1914 Parliament dealt with the incidents of 1913 including, inter alia, the strike. When the Indemnity Bill was before this House in 1922, the debate lasted six days and it was a stormy debate. I see from these debates that far-reaching accusations were made on both sides. Gen. Smuts who introduced the Bill, accused the National Party and said—
I wondered whether when he later doffed his hat to Stalin he too thought of what he had said at that time. This is history, but it is important history because to-day the debate is so calm and at that time it was not so calm. Gen. Hertzog did not hesitate either. As Leader of the then Opposition he spoke very clearly. On page 98 of the reports of the debates of this House for 1922 he said the following—
Those were the days.
Yes, those were the days when the United Party was in power—
That was what was said in that debate. I leave history at that.
The Bill now before us, as I explained in my introductory speech, is in line with previous precedents as far as principles and factual principles are concerned. The hon. member for Parktown (Mr. Cope) complains that I have not explained the legal position as it should be explained. I do not quite follow him. What is there to explain about the principle of indemnity? He complains that I have used the words “good faith” instead of bona fide. He asks what we mean by “good faith”. I want to refer him to Wade and Phillips “Constitutional Law”. They are two authorities and I want to refer him to page 380. He can safely read it. I am not going to read all of it to him. In dealing with the British Indemnity Act of 1922 they say “if done in good faith”. It contains the words “if done in good faith” and then, “if purported to be done in execution of duty”. They use the words which I have also used—“if done in good faith”. I think I was in good company by explaining bona fide with the words “good faith”. The hon. member complains that I have not explained the legal principle properly. The legal principle that a State can ask for indemnity is recognized, although there are very few examples in the world. That I concede to the hon. member opposite. That principle is recognized in Roman-Dutch law; and it is recognized in the common law of South Africa that a State can ask for indemnity under certain circumstances. That is the legal aspect. But by custom something has been added in South Africa which has also been done in England. In South Africa it has been done more pertinently, and this is what has been said here, namely that only the Government and its agents will enjoy indemnity under our indemnity laws provided their actions were bona fide.
Is that sufficient?
As far as that is concerned, that is all. The State must prove that it acted bona fide but it does not prevent the people concerned going to court. In all these Indemnity Acts, namely those of 1914, 1922, those of later years and that of 1961, this exception was made. They laid down that in cases where mala fides could be proved the State could still be called to account by the courts. I would like it to be clearly understood in this debate that we must not forget that point. This Bill only deals with State acts which the State can prove to have been bona fide. If someone says that the State acted mala fide or in bad faith, the courts can call the State to account. Together with the hon. member for Springs, I hope that the principles which have been laid down in practice in South Africa over the years in respect of this matter, will also be taken into account in future in this regard. I hope that there will never be a party in South Africa which will introduce indemnity legislation laying down that whether or not the acts concerned were bona fide the Government is nevertheless not liable.
Is that not what has happened in the Transkei?
That is a matter involving other emergency measures and in respect of which this principle will also be applicable. In so far as this Bill will be applicable to Pondoland, the principle embodied in it will also be applicable. If a person can prove in Pondoland that there was mala fides, that person will not suffer under this Bill.
But what about the Transkei?
I am now only discussing this Bill in so far as it relates to Pondoland. It will only apply to Pondoland in bona fide cases.
Yes, this one, but the other one goes further.
Sufficient unto the day is the evil thereof. Let us cross each bridge as we meet it. We are now discussing this one. For the moment my attention has been distracted from the speech of the hon. member for Parktown. Allow me just to return to it. The legal principle therefore is clear and it cannot really be explained any more fully than I did during my introductory speech when I quoted precedents together with what I have now said. During the course of my speech I shall come back to certain other points which the hon. member has raised.
I just want to say here that the legal aspect of the matter is not something over which we can quibble. The hon. member has surely listened to what the hon. member for Springs stated during a very good speech. We are not quibbling over that point. I now just want to refer to one or two of the points which have been raised.
Two amendments have been moved, one by the official Opposition and the other by the Progressive Party. As far as these two amendments are concerned, it seems to me that in principle there is not much difference between them. I think that the speeches of the Progressive Party show that they agree with the official Opposition that the agents, the officials, the police and others should be granted indemnity, and that only the State should be held liable. It looks to me a little like a “distinction without a difference”.
No, there is a big difference.
Yes, there is very little difference because in the precedents we have mentioned here, we find that it is stated everywhere that the State acts through its agents; in other words, through its officials, its police and others. The only distinction which hon. members can draw is the following. They can say that if a case is brought against an official in respect of mala fide acts, the State must still pay. The State must be held liable, and not the people who act on its behalf. I admit that that is a difference. I think that in this instance any State would treat its officials very fairly. The State wants to protect all its agents, its officials and its police.
That is not a legal argument; whether the State wants to be friendly, has nothing to do with the Bill.
The hon. member thinks so slowly that I am already several sentences beyond that point. He now wants to bring me back to it. I want to continue. I think that that answers the two main points to which the hon. member for Transkeian Territories and other hon. members have referred, namely the application of the Act, the extent of its application. All that still remains is the period. This Bill applies to the period from 21 March 1960 to the date of commencement of the Bill. This follows the example set in previous legislation. Most of the previous examples provide that the legislation takes effect as from a certain date and ceases to be of effect the moment it comes into operation. Hon. members know when an Act comes into operation in South Africa, and I do not need to go into details. That is therefore my reply to the question by the hon. member for Transkeian Territories, and that is the period which this Bill will cover. In other words, this Bill will also, depending on the extent to which the Opposition help me to expedite its passing …
You could have introduced it at the beginning of the session.
I hope the hon. member will still say that after my next sentence. This is a Government which looks far ahead and it therefore draws up its plans in advance. This Bill will also be applicable to incidents which took place in the Union in recent times, up to the date of commencement of the Bill.
Order! “In the Republic.”
Forgive me, in the Republic of South Africa.
Custom dies hard.
The Bill will be applicable to the period of the Union up to 31 May and thereafter to the period of the Republic of South Africa up to the date of commencement of the Bill.
It is of importance that we should take note of one point which the hon. member for Parktown has raised. He asked—I think the hon. member for Springs also raised this point—whether the facts were such to-day that they justified the declaration of a state of emergency last year. He did not add, but I want to do so now, that whether or not we were justified last year can be seen from the reports of the two Judges whom we appointed last year. The position which prevailed this year is still fresh in our memories. But with reference to what the hon. member has said, I do just want to say a few words. I say that it is fresh in our memories; we are familiar with the circumstances. I do not know whether there are circumstances in respect of which the Government will require indemnity, because all the circumstances involved in the recent incidents are not yet known. We can therefore not take the risk of not granting indemnity to the state in bona fide cases. Although the general circumstances are fresh in our memory and are known, I do want to say a few words so that they can be placed on record. The first point is that the circumstances of this period correspond in certain respects to those of last year. I only think that if we had perhaps taken similar action last year, there might have been no Sharpeville. The hon. member for Salt River (Mr. Lawrence) has said that if we had had consultation, there would not have been a Sharpeville. I cannot agree with the hon. member. It seems to me that no matter what consultations had been held, if we had not made concessions the next day and abolished the reference books, we would have made no progress. The hon. member surely does not want to imply for one moment that we should have complied with those demands. Allow me in this regard just to tell this to the hon. member for East London (City) (Dr. D. L. Smit) who is not here at the moment. To my great regret he has quoted extracts from the Sharpeville report which reflects the unfavourable side. He has confined himself in effect to paragraph 26 without quoting one single word in favour of the police or where the Judge has found in favour of the Government. That he has simply not done. I therefore say it is right that we should take some notice of the circumstances. The hon. member has not said one single word about the preparations which took place the night before Sharpeville. No, as far as he is concerned, these are merely innocent people. If he will look at paragraph 89 of the report, he will see how the telephone lines were cut the night before, which is an indication that there were mala fide intentions. It reads as follows—
Does this indicate innocence? Then the Judge says—
But that the hon. member has not read to us because it does not suit him. Then there was the stoning. The hon. member for Houghton (Mrs. Suzman) has unfortunately not referred to it either.
We do not deny it.
No, but the hon. member could at least have been so kind as to direct the House’s attention to it while she was directing our attention to other aspects as well. In paragraph 117 the Judge says—
And thus the report continues, but of course it does not suit hon. members to read such extracts. There is the Judge’s reference to the large and excited crowd and their grievances to the effect that they did not want to carry reference books. I am sorry that the hon. member for Parktown (Mr. Cope) has got hot under the collar about remarks I have made in respect of Bishop Reeves. If the hon. member will examine my Hansard he will see that I chose my words very carefully and if he has given a somewhat clearer identification of the people to whom I was referring, it is not my responsibility but his. My object was only to make my point and merely to refer to the matter, because we cannot go into the details since the matter is still sub judice with a view to the time when Bishop Reeves may return to South Africa. I have therefore not given details, and the hon. member for Parktown should not go into undue detail either. I merely referred to the fact that it was so strange that the people who had made all sorts of accusations to the effect that the police used dum-dum bullets on the Natives while they were fleeing, were accompanied to the hospitals in order to obtain evidence. I would say that what my hon. friend meant when he asked whether attention would not be given to the matter, shows that he had in mind that the law society should pay attention to “touting”.
Now the hon. member for Houghton is almost speechless.
That is a very serious complaint. Has the Minister submitted any facts in this regard to the law societies?
I am surprised that such a sensible member as the hon. member for Springs (Mr. Tucker) still asks that question after I have said that there are certain matters which are still sub judice. Then people like Bishop Reeves and others who were concerned will be able to explain to the courts how it was that they descended on all the hospitals so quickly.
They were called by the Bantu priest at Baragwaneth.
That can all be explained later. The hon. member must not become so excited. I am not making irresponsible statements. That is why I have only referred indirectly to this case. It is because the public of South Africa are excited about this matter, about this man who has accused the police of South Africa of using dum-dum bullets. I have not mentioned any names. I have referred to the matter very-indirectly.
What about the accusation of “touting”?
I agree with the hon. member, but these people must just come and say why it was that they went with this person, with Bishop Reeves to the hospital in order to obtain evidence. Then the law society will probably not have to take any action. [Interjections.] Hon. members must not become excited about the matter. We on this side of the House could go far further as far as these dum-dum bullets are concerned because the excitement in the country has not yet died down.
He denies that he said it.
Yes, I saw that in the Press as well. I do not want to make any accusations against these people. I just say that this is a strange position which can still be cleared up later, and there is evidence for which we are waiting, so that we can have an explanation of this strange position. I do not want to say anything further. But I want to quote what the Judge has said about dum-dum bullets in paragraph 209—
I do not want to detain hon. members with details. I just want to refer to one point. I think it is the hon. member for Parktown who has referred to people who were shot in the back.
Yes, he is the one.
Now that the hon. member has read this report—I hope he will do so—I want to appeal to his sense of fairness. In view of the fact that the Judge has said why such an accusation could be made, but has given the explanation; a quite obvious explanation, he could at least have mentioned it for the sake of the police. I hope he will read the report and will take the opportunity to say that he is sorry that in passing he has cast this reflection because it was only one sentence. The Judge has said how it came about and that the police were not responsible.
That is all I want to say as far as the past is concerned and I want to repeat that if we had done last year what we should really have done, namely prohibited all meetings, then there would have been no Sharpeville and no Langa.
That is one way of dealing with it. Stop all meetings.
We are now being criticized because we banned all meetings for a certain period; Thank heaven we did so. There is a Press in South Africa.
Did the hon. member not follow me? I have said that this Bill covers the recent events until such time as it comes into operation. The hon. member says that it has nothing to do with the Bill. But it has everything to do with it. We are now being criticized because we have banned meetings. Fortunately we banned them all. It was largely because we did so that things have gone off so calmly because we have removed their platform from under the feet of the intimidators and the agitators. Things could have been otherwise. The rapid action of the Government in respect of the detaining of idlers, agitators and intimidators—those who had not fled across the border—all contributed towards upsetting the plans which these people had drawn up. The overall plan was to call out a three day strike and to paralyse the country, as these people said. We were faced with a position in South Africa which no democratic country in the world would tolerate, namely that the Press could hold interviews with the leader of the trouble-makers who was being sought by the police, and no one believed the newspapers when they said that a Press reporter was blindfolded so that he could go and see this man, because no one believes that one obtains one’s information in that way. No one believes the newspapers which said that this man telephoned them and gave them an interview. What newspaper in South Africa which is worth its salt would hold interviews over the telephone while it cannot see who is speaking at the other end? I do not accept that statement. There has been an agreement between the police and the Press ever since 1932 to the effect that the State would supply certain information to the Press and that the Press for its part would help the State by giving information when certain facts came to its notice. I think, Sir, that you will agree with me that the State can seriously consider whether it will not have to suspend that agreement for a period in order first to ascertain why it was that certain newspapers for their part did not comply with that agreement. But I want to go further. Knowing that the Government was looking for certain people, they not only sent people to those sought-after persons, they not only published telephonic interviews with them, but they made it front-page news. I shall be in favour of considering very seriously whether we should not suspend this long-standing agreement between the police and the Press to the effect that we shall give them information but they must for their part also give us information. And the hon. member for Salt River (Mr. Lawrence) when he was Minister of Justice, as well as General Smuts and Mr. Pirow, worked in accordance with that agreement and it worked well, until this development took place to the surprise of all. I apologize for detaining the House, but I must say that we are justified in also providing for the incidents of recent times in this Bill.
Is that the reason for the delay?
The hon. member is now asking a question to which he is not entitled to have a reply. Because he surely does not want to tell me that a sensible person on his side of the House like the hon. member for Springs is opposed to our making this Bill applicable to the most recent events. I ask the hon. member for Transkeian Territories and also the hon. member for Springs whether it is the Opposition’s policy to help us in making this Bill applicable to the most recent developments? I ask the hon. member for Queenstown (Dr. Steytler) the same question.
No, we are voting against the Bill.
When someone insulted another person in the zoo where he was standing watching, he said he would do nothing; he would just stand there until the policeman came. That is also applicable to the hon. member for Queenstown.
We have discussed the strikes which were planned, the plans to paralyse South Africa, economically and otherwise, when she established a republic. That was generally accepted. Information came to us which warned us against rapid action and to apply the drastic methods to which the hon. member for Parktown has also objected. It came to our knowledge that a certain “operation order” had been issued to “Town leaders’’ who in turn made use of “rockets” and “crackers” who had to carry out their orders—the well-known communist system. The “operation order” contained the following objects—
That is what the United Party wanted.
According to the “operation order” the instruction was that the Bantu and other non-Whites should ascertain what republican festivals and meetings had been arranged in their various towns and cities in connection with the establishment of a republic. This included inter alia public dinners, the folk dances, etc. The “town leaders” were further advised how they should operate and what information they should obtain. Then, at an opportune time, they had to decide how they could upset the various functions including inter alia—
How they were to “disorganize” I shall not discuss at the moment. [Interjection.] The hon. member is laughing, but he will understand that I can only provide such information as is necessary to justify this Bill covering these incidents as well—
Must I explain that? I am reading so clearly. Someone might place an order for printing in respect of Republic Day and then they were to phone up and say: Do not print 5,000, but 2.500—
[Interjection.] Is the hon. member for Salt River not grateful for the sake of the businessmen of Adderley Street that we prohibited that procession with torches? I read further—
I say that we can be thankful to the police, the Defence Force, the Department of Bantu Administration and other Departments concerned for the assistance which they have provided so that we were able to get the position under control so rapidly that we were able to prevent these things happening. Can the House not appreciate what jubilation there would have been amongst some people in South Africa, including some Whites, if this had happened? I am not referring to anyone in this House.
No, you are wrong.
Can you understand, Mr. Speaker, what the position would have been in the outside world, what the reaction would have been of the people who were sent here, the 79 or 80 of them, to obtain information but who did not want information, but “incidents”? Can the House appreciate what would have happened in the country if the Government had not taken such drastic action in order to silence these agitators and to smother at the very outset these orders which were issued? That is why I shall be surprised, nor do I think it will happen, because I do not think hon. members will rise and say that we should not approve of this Bill which grants indemnity to the Government in respect of the acts of its officials. I do not think that any hon. member opposite will tell me that we should not make this Bill applicable to the last few days.
May I ask the hon. the Minister whether it is correct that certain pamphlets were distributed in the streets, pamphlets which it was alleged emanated from the P.A.C. which had been banned and in which the Bantu were advised not to participate in the strikes?
Shame on you!
I did not expect that question to come from the hon. member for Salt River (Mr. Lawrence).
For the simple reason that it is a reflection. I do not know on whom the hon. member wishes to cast that reflection. I know nothing about it.
I asked the question for the simple reason that I wanted to follow up what the Minister has told us. He has submitted certain information based on reports, and I have simply asked whether it is correct that pamphlets which it is alleged emanated from a certain organization were distributed in the streets with a view to preventing chaos.
My reply is that I do not know of any pamphlet which was issued in the name of another organization. How should I know of it? The country is big and there are many people who issue pamphlets.
I did not imply that you knew anything about it.
Very well, my reply to the hon. member is “no”. I do not know of a body or of persons who distributed pamphlets in the name of the organization which he has mentioned.
Does he know about it?
Mr. Speaker, you will forgive me for having spoken for so long, but I thought that I should refer to these few aspects. I am not replying to every hon. member individually, but I think hon. members will agree that in general I have dealt with the matter thoroughly.
Question put: That all the words after “That”, proposed to be omitted, stand part of the motion.
Upon which the House divided:
Ayes—79: Badenhorst, F. H.; Bekker, G. F. H.; Bekker, H. T. van G.; Bootha, L. J. C.; Botha, M. C.; Botha, S. P.; Coetzee, B.; Coetzee, P. J.; de Wet, C.; Diederichs, N.; Dönges, T. E.; du Pisanie, J.; du Plessis, P. W.; Erasmus, F. C.; Faurie, W. H.; Fouché, J. J. (Sr.); Froneman, G. F. van L.; Greyling, J. C.; Grobler, M. S. F.; Hertzog, A.; Heystek, J.; Hiemstra, E. C. A.; Jonker, A. H.; Jurgens, J. C.; Keyter, H. C. A.; Knobel, G. J.; Kotze, G. P.; Labuschagne, J. S.; le Riche, R.; le Roux, P. M. K.; Louw, E. H.; Luttig, H. G.; Marais, J. A.; Martins, H. E.; Mentz, F. E.; Meyer, T.; Mostert, D. J. J.; Mulder, C. P.; Muller, S. L.; Nel, J. A. F.; Nel, M. D. C. de W.; Otto, J. C; Pelser, P. C.; Potgieter, D. J.; Potgieter, J. E.; Rall, J. J.; Rall, J. W.; Sadie, N. C. van R.; Sauer, P. O.; Schlebusch, J. A.; Schoeman, B. J.; Schoeman, J. C. B.; Scholtz, D. J.; Schoonbee, J. F.; Serfontein, J. J.; Stander, A. H.; Steyn, F. S.; Steyn, J. H.; Strydom, G. H. F.; Treurnicht, N. F.; van den Berg, G. P.; van der Ahee, H. H.; van der Merwe, J. A.; van der Walt, B. J.; van der Wath, J. G. H.; van Niekerk, G. L. H.; van Niekerk, M. C.; van Nierop, P. J.; van Rensburg, M. C. G. J.; van Wyk, G. H.; van Wyk, H. J.; Venter, M. J. de la R.; Venter, W. L. D. M.; Verwoerd, H. F.; Vorster, B. J.; Vosloo, A. H.; Wentzel, J. J.
Tellers: J. J. Fouché and J. von S. von Moltke.
Noes—51: Barnett, C.; Basson, J. A. L.; Bronkhorst, H. J.; Butcher, R. R.; Connan, J. M.; Cope, J. P.; Cronje, F. J. C.; de Beer, Z. J.; de Kock, H. C.; Dodds, P. R.; Durrant, R. B.; Eglin, C. W.; Fisher, E. L.; Frielinghaus, H. O.; Gay, L. C.; Graaff, de V.; Henwood, B. H.; Higgerty, J. W.; Holland, M. W.; Horak, J. L.; Hughes, T. G.; Lawrence, H. G.; Lewis, H.; Lewis, J.; Malan, E. G.; Miller, H.; Moore, P. A.; Oldfield, G. N.; Plewman, R. P.; Radford, A.; Raw, W. V.; Ross, D. G.; Russell, J. H.; Shearer, O. L.; Smit, D. L.; Steenkamp, L. S.; Steyn, S. J. M.; Steytler, J. van A.; Streicher, D. M.; Suzman, H.; Swart, H. G.; Swart, R. A. F.; Tucker, H.; van der Byl, P.; van Niekerk, S. M.; van Ryneveld, C. B.; Warren, C. M.; Waterson, S. F.; Williams, T. O.
Tellers: N. G. Eaton and A. Hopewell.
Question affirmed and the amendments dropped.
Motion accordingly agreed to and Bill read a second time.
Second Order read: Second reading,—Police
This is totally different legislation from that which we dealt with this morning. I take it that this is a non-contentious Bill, because all it really contains are changes that will enable the police to function more smoothly, particularly at times when we need more policemen than the number at our disposal. The most important provision in this Bill is that a reserve police force is to be established. To start off with we envisage a force of 5,000. During the events of the past few weeks this idea has gained ground amongst the public and I am glad that a large number of English-speaking persons came forward to be sworn in as reserve policemen during those difficult days. I want to express my appreciation of the fact that both Afrikaans- and English-speaking persons came forward but it is remarkable what a high percentage of English-speaking persons came forward to be sworn in as reserve policemen. That happened without there being legislation for it, and we are now making provision for that in this legislation. I think the House in general approves of the idea that there should be a reserve police force, a citizen unit who can assist in performing ordinary police duties when the police are required for more urgent service. I imagine that you will have people in the reserve police force who are very efficient office workers, for example, and they can then on certain occasions take the place of the police who do office work. As I have said, to start off with, we envisage a force of 5,000. Membership will, for the time being, be limited to White citizens who are prepared to undergo training at police stations without payment. At a later stage we will arrange special courses at the South African Police College. For the time being reservists will not wear uniforms, but will wear an arm band to identify them. When they are on duty they will be provided with the necessary weapons and equipment. They will be entitled to free medical attention in respect of any injuries sustained while on duty. We envisage making uniforms compulsory at a later stage, as for example, when there are abnormal disturbances in the country.
Business suspended at 12.45 p.m. and resumed at 2.20 p.m.
When business was suspended I was explaining that it was our intention to establish a reserve police force in terms of this legislation. I do not want to go into further detail as far as the reserve police force is concerned. We must take it that this reserve police force is an experiment. I should like hon. members to take that in consideration when they deal with the provisions of this non-contentious Bill, namely that it is an experiment which may be extended at a later stage, if necessary, but I think we should tackle it in the way suggested here and develop it at a later stage. There are two matters to which I want to refer concerning the proposed reserve police force namely that provision is made where reservists perform police duties on a full-time basis they will be remunerated. I have already said that this is a voluntary service but this is the one important provision and the second important provision is that only those citizens who have not already been taken up in any other defence force unit will be considered for the reserve police force.
In the 1958 Act the objects of the Police Force are set out as follows: They are responsible for ensuring internal safety; for maintaining law and order, for investigating crime and for preventing crime. Our experience has been that with those objects in view, as laid down in the 1958 Act, the police organization can easily be adapted to any modern circumstance. In my statement of policy this year in the Senate I explained that the South African Police had been re-organized in order to adapt it to the changed conditions of to-day. That means that a few non-contentious amendments will have to be effected. That re-organization does the following: There was a certain amount of overlapping in the head office of the South African Police under four assistant commissioners and a colonel. That division is being changed. The Adjutant-General will in future be responsible for staff matters, organization and general administration. The Inspector-General will be responsible for inspection over the whole country and investigations and all aspects of police activities. The Director of Training will be responsible for recruiting, seeding, tuition, training and the preparation of the staff. The Quartermaster-General will be responsible for the issuing and maintenance of transport units, weapons, supplies and equipment as well as supplying buildings and quarters. The Detective-General will be responsible for the prevention, combating and detection of crime. The Director of Internal Security will be responsible for ensuring internal peace. We have created a new post, namely that of Chaplain-General. The Chaplain-General will be responsible for the spiritual and moral welfare of the Police Force as well as promoting interest in cultural activities. He will be assisted by a number of spirituals according to circumstances. These officers that I have mentioned will be directly responsible to the Commissioner of the South African Police for the duties entrusted to them. But these seven officers will also form a police advisory council. They are the seniors and the police advisory council is being established in order to advise the Minister and the Commissioner of Police. In order to bring about a better distribution of the police and better liaison between the South African Police and the Defence Force over the whole country, including South West Africa, 16 police control areas are being established instead of the existing 11 police divisions. The reason is this: It is obvious that the Defence Force and the police have to work in the closest co-operation, and the 11 police divisions comprise areas which are much bigger in certain places and much smaller in other places than the commands of the Defence Force. That is why we have decided that in order to promote practical co-operation between the two forces there will also be 16 police control areas, and these control areas will more or less comprise the same area as the commands of the Defence Force. The police control areas will be known as follows: Witwatersrand, Western Province, East Rand, North Transvaal, Port Natal, Natal, Eastern Province, West Transvaal, Orange Free State, North Western Cape, Transkei, West Rand, East Transvaal, North Orange Free State, South Western District and South West Africa. This change will ensure the desired liaison and co-operation between the police and the Defence Force.
Those briefly are the provisions of this small and, in my opinion, non-contentious little Bill and I introduce it in full confidence that the House will regard it as such.
We appreciate the outline that the hon. the Minister has given us of the new organization that is taking place in the Police Force, and I wish to say that we wish the new Commissioner of Police success in the carrying out of the important responsibilities which are placed on his shoulders.
As the hon. the Minister has said this is not a contentious Bill and the United Party will not oppose the second reading. There are, however, certain points that we think may require further consideration in Committee. I refer first of all to the definition of “commanding officer” in Clause 1 (a) and the deletion in paragraph (iii) of the definition “deputy commissioner” by paragraph (b). As I understand it, Sir, the effect of these two amendments will be to change the divisions of the force hitherto commanded by deputy commissioners into what are now termed “police control areas” under a commanding officer. In other words, I take it, this is merely a change of name. We feel, however, that the rank of the police officer who may be designated by the Commissioner as a commanding officer should be set out in the definition. The commanding officer as such will exercise very important functions under Sections 9 and 17 of the principal Act, as amended by Clauses 4 and 6 of this Bill. Section 9 of the Act provides for the trial of members of the force for breaches of discipline by commissioned officers, and in case of conviction, the proceedings have to be sent for review to the commanding officer or any other officer designated by the Commissioner, who may either quash the conviction, or confirm, or reduce the sentence. So also under Section 17 of the principal Act, the commanding officer, or any other commissioned officer so designated by the Commissioner will have authority to dismiss or reduce in rank any member of the force on the ground of unfitness. These are very important functions that may affect the future of non-commissioned officers as men of long service, and we submit, Sir, that they should be entrusted only to officers of senior rank, and that that rank should be laid down in the law. We have every confidence in the present Commissioner of Police that he will exercise his discretion in making these appointments, but that is beside the point; I understand that the rank of a deputy commissioner is that of a lieutenant-colonel, and we suggest that this rank should be laid down in the Bill. So also in the case of officers who are designated by the Commissioner to perform important functions. There are other administrative amendments in this Bill to which we do not object. Among others there is the authority given to the Minister under Clause 5 to delegate his powers, under Section 15 of the Act, to authorize the payment of salaries and allowances and other benefits to a member who has been suspended, and other incidental matters of which the Commissioner has charge. We think that that amendment will facilitate the administration of the Department. We also think that the establishment of a police reserve force under Clauses 8 and 9 is in the public interest and that it should be supported. Those members who serve as special constables in the civilian corps that was created during the Second World War will appreciate very fully the value of a service of this kind in time of emergency. I hope that this principle will not be confined to the European section of the community, but that it will be applied to the Coloured people and also to the Natives living in the urban Native townships. The hon. the Minister of Bantu Administration and Development has introduced a Bill for the establishment of what are termed “community guards”. I cannot discuss that proposal under the present Bill, but I do hope that the creation of community guards will not prevent the Minister of Justice from including both Coloured and Bantu sections in his reserve police force referred to in this Bill. Neither the Department of Bantu Affairs, nor the municipal authorities are capable of organizing and disciplining these auxiliary forces in the thickly populated Native townships of Johannesburg, and the other large cities of the Union where serious crime is rife. The municipal officials and the municipal constables and Bantu Affairs constables who are at present employed are engaged, as I remember it, in purely routine work, but they do not play any part in the suppression of serious crime, and I say that whatever force is employed, it should be under the direct supervision and control of the Commissioner of Police. Otherwise all sorts of irregularities may take place, and after all the suppression of serious crime and riots and disturbances are matters that should be the responsibility of the Commissioner of Police. To divide the responsibility between the police and the Bantu Administration or an urban Bantu council, is likely to lead to overlapping and inefficiency in the administration. Sir, according to a Press report, during the riots recently at Port Elizabeth a contingent of Natives dressed themselves in white cloaks and armed themselves with sticks and assigns and beat up intimidators and agitators who were trying to prevent the loyal Natives from going to work. Two of these so-called guards were killed. The police rightly warned them not to take the law into their own hands, but I submit that that illustrates the readiness of the more law-abiding Natives to co-operate with the police in these matters, and under police control these people might well render very useful service. Subject to these comments, Sir, we will not oppose the second reading of this Bill.
This Bill contains two important provisions in regard to the organization of our Police Force, namely, the creation of a reserve of the Police Force, and the establishment of a new unit of organization, the police control area. I want to say at once that I regard this as welcome evidence of fresh ideas and initiative on the part of the Minister and his Commissioner of Police. Perhaps this gives one an opportunity and is a suitable occasion to say a word or two about our Police Force and the vital part that it can play in the new Republic of South Africa. I want to take this opportunity particularly, because I was once the Ministerial Head of the Police Force, and secondly, because the present Minister of Justice was a colleague of mine at the Cape Bar, where both of us inherited, I believe, similar traditions of the Rule of Law. Now, Sir, as public servants, members of the police are no less vulnerable to criticism than any other member of the Public Service, and rightly so. They have a most responsible part to play in maintaining the security of the State and in the upholding of law and order, and it is only proper that if occasion demand it, they should be subject to criticism—not necessarily unfriendly and destructive criticism but constructive criticism.
I have noticed a tendency on the part of the Government in the course of the last few years in this House to resent that sort of criticism and I have tried to find a reason for it. If one analyses the debates which have taken place in recent years in this House on the Justice Vote and on other similar occasions, I believe we find a growing tendency by Government spokesmen to equate the police with the Government and even with the Nationalist Party, and not with the State. I think that is a grave mistake to make. That is completely wrong. The Police Force is an independent force. It is there to serve any Government which may from time to time be called upon to rule in this country. I am happy to feel, Sir, as I read the provisions of this Bill and having listened to the explanation of the hon. the Minister, that we are getting back to a more salutary approach to this matter. There was a time when I was losing confidence. I am regaining confidence at the present time. Criticism is salutary, that is why it has been made in the past. Many of us on this side of the House, have been severely condemned by the more irresponsible members on the opposite side.
Order! I hope the hon. member will not take that line too far.
No, Sir. I am dealing with the approach to the Police Force, because the hon. the Minister has pointed out that he is augmenting the regular Police Force with a police reserve which will be given all the responsibilities of our Police Force. Therefore I think it is timely that we should pause for a moment and remember once again what the functions of the Police Force are; and this Bill gives us an opportunity, a rather better one than the Justice Vote where so many separate matters are discussed. We now have an opportunity of considering for a moment the functions of this great Police Force, of whose tradition I am very proud indeed. I was saying that there were occasions when certain hon. members opposite have condemned members on this side of the House for criticizing certain actions. They have regarded that criticism as lack of appreciation of the Police Force, a lack of recognition of the high traditions that have been built up over the years, of the courage of members of the Police Force, of their initiative, of what they are doing for the public safety. That criticism, Sir, was no lack of recognition of that. That criticism was made, certainly by me on occasions when I felt it my duty to do so, because I feel proud of the traditions of the Police Force, and am very, very jealous of the reputation of the Police Force, just as I am sure that the present Minister and his Commissioner of Police and every senior member of the Police Force are jealous of the reputation of the police.
Have you said that on all occasions?
I will deal with that. Mr. Speaker, we are now creating a police auxiliary with the same powers as the regular Police Force, and I agree with the hon. member for East London (City) that it is imperative that this auxiliary Police Force should be made to appreciate their responsibilities. The hon. member for East London (City) has reminded the House this afternoon that during the war years there was created what was known as “ civilian guards ”. That Civilian Guard came into being as a result of the setting up of a civilian protective service when it was thought that this country might be in danger of air raids from without. When that danger began to dwindle, and because of the depleted Police Force at the time (many men being on active service) it was felt that civilians in this country could play a useful part, particularly those who were not of an age to do other active service, play a part in maintaining law and order. So the Civilian Guard came into being, first of all under me and the Department of the Interior, and later under the Department of Justice. And I think that they rendered a very valuable service. That Civilian Guard was composed not merely of Europeans but also of non-Europeans. The hon. member for East London (City) has pointed out the great potential source of our non-Whites, Coloureds, Africans, Asiatics, who are prepared to help in maintaining law and order, not, Sir, let me say this at once, in order to maintain a state of affairs which they do not believe in—I am talking now about the normal business of preserving law and order. The Police Force has been depleted in recent years, and there is this potential source which can be drawn upon. I say, however, that when giving the official imprimatur to this auxiliary Police Force, great caution is necessary. The Minister has, I am glad to say, said that lectures had been given to those who were temporarily in this employment recently, and he contemplates that such lectures will be given in the future to those who join the reserve police. He contemplates that members of that reserve may get certain training in the Police College at Pretoria. That is all very important indeed, because what is so necessary in my view is to inculcate not merely into the members of the police reserve, but also into the members of our regular Police Force, this fundamental categorical imperative, namely, that members of the police are not the enemies of the public, they are the friends of the public. They are there to assist putting down unlawful acts, but they are also there to prevent persons who may be misled or misguided from placing themselves in positions where they may be brought before the courts of our land. The Police Force in my view has a dual responsibility, not only to apprehend the wrong-doer, but also to prevent a potential wrong-doer from following a course which may lead him ultimately into a career of crime. The hon. Minister has said that the police reserve will not be placed in uniforms, they will wear armbands. I would like to ask him whether he has considered giving them some mark of identification. The hon. member for Houghton (Mrs. Suzman) has for some time past stressed the desirability of having numbers to be worn by the ranks of the regular Police Force. It seems to me that it is important that the Minister and his Commissioner should consider whether some means of identifications can be devised, because one can easily imagine that in terms of stress where passions are running high, racial passions or political passions, you may have unauthorized actions taken by groups of persons who may call themselves the Ku-Klux-Klan or some other organization who pose as organized members of the Police Force, and who seek to assert a bogus authority on members of the public on the basis that they have been authorized by the Minister or the Commissioner or other commissioned officers. It seems to me that it is very important indeed under those circumstances that the Minister should consider when placing these reserves on the streets that there is a means of identification.
The hon. Minister has said that in recent weeks there has been a surprising number of English-speaking volunteers for this special reserve. I do not regard that as surprising. I regard that as a sign of a recognition, either tacit or expressed, that there is a new deal in the Police Force and a new spirit. You see, Mr. Speaker, I said that there must be criticism, and I put it to the hon. the Minister that I am quite convinced that a large number of English-speaking South Africans, who would have joined the Police Force in past days, refused to do so because they felt that they would not get a square deal. The hon. Minister may disagree with me, but I put the facts to him. You have only to make it abundantly clear that you have a force which is open to all, and which will be fair to all, and then you will have all the recruits you want, English-speaking and Afrikaans-speaking young men in this country.
It was undoubtedly one of the faults of the past, I believe, that a number of young men enlisted in the Police Force while still in a state of immaturity and were placed in responsible jobs, very often away from their home areas. We have had young men from the platteland sent into the large towns, Johannesburg, Durban, Cape Town and elsewhere, in an environment quite strange to them. They have carried arms, they have met a section of the population with whom they had no contact in the past. The result is that they have not had the mental and spiritual resources to meet with situations, and there have been conflicts. I am told for instance that last year, during the disturbances at Langa, and certainly at Cato Manor, when units of the Active Citizen Force were called out, the relationship between members of those units and the Africans was better than the relationships between them and certain members of the Police Force. That is something which I regret, but I think the reason is that those units which were called out consisted of local persons, knowing local conditions. Just one further word about the reserve. The Minister says that they will be armed. Now I do ask the hon. the Minister to consider very seriously whether it is essential if they are used, not in time of emergency, but in ordinary times to augment the normal Police Force, whether it is necessary that they should be armed. We are dealing now with the Police Force as a whole, and my own view is that it is quite unnecessary to arm every member of the Police Force patrolling our public streets. There are certain areas, certain aeras in the Cape Peninsula for instance, where I entirely agree that it would be dangerous during certain times of the night to send less than two policemen to patrol the area, and where I entirely agree that they should be armed. But my own view is that particularly young policemen patrolling, for instance, Adderley Street, Cape Town, or Eloff Street in Johannesburg, to be fully armed, is not necessary, and I ask the hon. the Minister to consider whether the provision of arms is necessary in all those circumstances. Should it not be limited to special patrols in certain cases. Particularly if a person with limited education, a person who has not reached a stage of development that those of us in this House have, is fully armed, what is his reaction? He may unnecessarily tell people to leave the pavement, or something of that sort. It does not make for good relations. I hope that the formation of this new reserve may give the Minister an opportunity of reviewing the whole question of the arming of every member of the Police Force on all occasions.
Then I come to the Police Control Areas. The Minister has told us that there will now be 16 areas. Now I want to make one observation in regard to that. It seems to me that the Eastern Province area (the Transkei is a separate control area) is a very large area indeed.
The same as the defence area.
There may be good reasons for it, but I put that point to the hon. the Minister. In regard to these areas I want to make a plea which I made at an earlier stage of the Session, that the Minister should try so far as possible to provide personnel in these particular police control areas from citizens who come from those areas. I know that that is not a hundred per cent possible. But it seems to me that if we can build up, bye and large, a Police Force in the Western Cape, in the Peninsula for instance, consisting of a majority of young men, or men, who are born in this area and know the local circumstances, who have a much better chance of getting to grips with the problems of that particular area, you will increase the effectiveness of the Police Force. In the Peninsula, for instance, you now bring in young men from Calvinia, or from the Northern Transvaal. You bring such men to Durban. They are in an entirely new environment and they are in difficulties. I realize that it is not possible to work this out with mathematical precision, but I suggest that as the Minister is now enlarging the number of areas, there should be some sort of decentralization as it were, in the sense of having as personnel in those particular areas young men who have sprung from those areas and who know them. If you have such young men serving here in the Police Force, after having grown up in the Cape, they for instance will know the Coloured community, their habits, their weaknesses and their good points, their characteristics; and that will be of the greatest help indeed in dealing with them. But if you bring here persons who have been born in other parts of the country to deal with this particular section of the population, they will be confronted with something which is strange to them, and there will be a gap. What is necessary is to remove gaps between the police and the public, to breach those gaps and to make them feel that they are all part of a common community, and that the police are there to help every section of the community, irrespective of race or colour.
I agree with the hon. member for East London (City) that some limitation should be placed on the delegation of powers. If under this Clause 2, the Minister is prepared to limit the delegation down to the rank of, say, lieutenant-colonel …
I was going to tell the hon. member that I am prepared to accept an amendment to that effect.
Then I need not press that point. Let me say a few final words about the scope and the functions of the Police Force. Necessarily in the context of the South African scene at the present time, there must be collaboration between the police and the Defence Force; but from that it also follows that the Government is expecting potential trouble in the future. I would have hoped that there were other ways of evading such trouble, but I won’t go into that aspect of the matter at the moment. I would, however, like to make this observation, that one of the functions of the Police is naturally to ensure that public meetings which are banned in this country are not held. That of course has led to difficulties in the past. That is what led to the shooting at Langa. There was a late banning of a meeting under the Riotous Assemblies Act and that led to …
Order! The hon. member is drifting too far away from the contents of the Bill now.
Sir, it is very difficult because we are dealing now with what I call a new deal in the Police Force, and I am trying to point out certain features of that new deal. What I was going to suggest to the Minister is that he must not make the task of his Police Force more difficult than it necessarily should be by imposing obligations and duties on the police which may or may not be distasteful, but which may lead to serious consequences. The hon. the Minister in his speech earlier to-day said that had all meetings in South Africa been banned last year, we would not have had a Langa or a Sharpeville.
Order! The hon. member is drifting right away from the Bill.
Very well, Sir, perhaps I can deal with that some other time. I am sorry that I am not able to deal with this now, because I wanted to give the hon. the Minister some friendly advice! So, Sir, allow me before I sit down, to pay this tribute to the police: All the reports I have go to show that much of the cause of the peacefulness that existed during the last week or so, when difficulties were anticipated, was due to the improved handling of non-Whites by members of the Police Force. I think there is a great lesson in that. I want to pay tribute to the police for that because I think that that is in the best traditions of the Police Force, this display of understanding and courtesy and the recognition that everyone is a citizen of this country, whatever his race or colour.
They have always been that way.
I say there has been a great improvement. That is the information that has come to me. Therefore I want to take this opportunity of saying so. It is not my function in this House always to get up and make destructive criticism, but when I feel that is necessary I shall do so. However, I do feel it is only right on this occasion that I should pay this tribute to the Minister, to his Commissioner of Police and to his Senior Officers. And if that can continue then it will not be necessary for us to have contentious Bills such as we were discussing earlier to-day. Then I would be in the happy position that I am in this afternoon, of being able to give my full support to the hon. the Minister in the second reading of this Bill.
May I say at the outset that I would like to associate myself with the remarks of the hon. member for East London (City) (Dr. D. L. Smit) in regard to the present Commissioner of Police. I have known the gentleman over many years, dating back from a time when we both served the State in quite humble capacities. I have watched his progress through the force with interest, and I, too, wish him well.
I should like to comment on three aspects of the Bill presently before us. Firstly, I regret the introduction of the phrase “Police control area” in place of the original “police division”. The functions of the police are set out quite clearly …
We have Divisional Councils in the Cape Province and hat makes it very confusing. We wanted to get away from this word “Division” and we have therefore changed it to “Police control areas”.
I still regret the change. I appreciate the point of view put forward by the hon. the Minister but I am sorry to see the word control being used, because I do not think that that word is the correct one to associate with a civilian force. As I was indicating, the functions of the police are clearly set out in Section 5 of the Act, and they deal with the preservation of internal security, the maintenance of law and order, the investigation of offences and the prevention of crime. I hope, therefore, that in spite of the difficulty to which the hon. the Minister has referred, he will give consideration to changing the phrase because I do not think the words “Police control area” are happy ones.
The second matter which I want to raise is the question of delegation. We on this side of the House know that delegation of powers obviously have value, provided it is granted within definable limits, even rigid limits. The word “officer” is not defined in the Act whereas “commissioned officer” is. I am very glad that the hon. the Minister has anticipated my remarks by indicating that he will accept an amendment, and I appreciate that aspect of the matter.
I then come to one other matter, and that is in regard to Clause 9(3). I mentioned the need for limitations in regard to delegation of power. May I say that in the wording of this sub-clause, limitation seems to have been somewhat overdone. I do not want to go into detail, and it is a matter of detail rather than of principle, but this seems to be the appropriate time to draw attention to it. A member of the Reserve Police Force may perform duties, and when can he perform those duties? He can perform them subject to direction from the Minister, or if called upon by the Commissioner or if the Commissioner does not say he cannot do it. The phrasing of that seems to be rather tautologous and I hope the hon. Minister will look into it because limitations do appear to me to be rather over done rather than under done, as is the case in the previous clause with which I was dealing, that is, the powers of delegation under Clause 2.
With those few comments I support the second reading of this Bill.
I am prompted to take part in this debate because of the statement made by the hon. the Minister during the introduction of this legislation, to the effect that the special force will be for “Blanke burgers” only. I think that was the hon. the Minister’s statement, and that indicated that this force is going to be European only.
Do you mean the Reserve?
I will reply to you on that point.
But the hon. the Minister did say that. I merely want to say that I join with those hon. members who pay tribute to the Civilian Guard which acted so well and rendered such yeoman service in the dark days of the war. In that regard I can speak from personal experience because I was in charge of a Coloured platoon in that particular organization. I would like to say that these Coloured people acted in accordance with the highest traditions of South African citizens, and rendered yeoman service in the interest of peace and security on behalf of those people who were pestered, due to the blackout, by prowlers and burglars, and also those who were molested in the streets by undesirables. In other words, when they were asked to play their part in the service of the country during the War, they did it in a splendid manner. And as a Coloured representative I resent any implication by way of this piece of legislation that the Coloured people who, by test in every way, have never been found wanting in the service of this country, are not worthy to serve in this Force. Why should they be excluded?
That is not the idea. I will explain the position to the hon. member later.
That is all very well, Mr. Speaker …
I said that this was only an experiment. It is going to lead to something else, but I will explain that later on.
Well, if it is an experiment all the more reason why you should experiment with the Coloureds as well. Try them out and see how they will respond to your experiment. However I will not embarrass the hon. the Minister. As he says he will explain the matter I will not take that point any further.
May I now say that having had a lot of experience with the police, over a number of years, I do not agree with those hon. members who support this multiplicity of authoratitive positions which are being created. I think the more authority you have at the head of the Police Service the worse it is for the Police Force. I think you should have less men in charge and have less underlings than you are creating by this piece of legislation. That is my view. I think that in the old days, in practice, when you had less officers in authority the system worked quite well. I do not want to go into any political aspects of this legislation, but I do say this, that one cannot but regret the necessity of this type of legislation.
Order! order! That is not under discussion.
Why not Mr. Speaker?
Order! order! I am not here to explain. The hon. member must come back to the Bill.
Mr. Speaker, am I not allowed to say that I am sorry it is necessary to bring this type of legislation before this House, and to give my reasons for being sorry? Am I not allowed to do that?
Order! order! The hon. member has the Bill before him and he must confine his remarks to the Bill.
I say, then, that I am sorry it is necessary to establish a special force as indicated in this Bill, because to me as a man with experience in regard to the police it shows that there is a lack of recruits sufficient to build up the actual Force. I do believe that there has not been that response to the Force itself as desired by the Government. I want to ask the hon. the Minister whether he will not consider in the light of the information he must have—and in the light of information which I will give him privately because I do not want to discuss it publicly—if he will not consider trying to find out why there is this lack of response to appeals for recruits for the Police Force. Why are the numbers not as great as they should be?
We have been very fortunate in the last two or three years.
My information comes from very good authority and it is that the college near Pretoria could not open for several months because there were not sufficient recruits.
That is entirely wrong. There were about 850 recruits.
Well then, some officials do not know what they are talking about because that is the information I was given.
There is one further point which I think you, Mr. Speaker, will allow me to raise, having regard to this type of legislation and the necessity to augment the Police Force. I want to give the hon. the Minister certain information which I think he should seriously consider, but which does not directly refer to this Bill although it is germane to the issue of the Police Force and its duties. I refer to the fact that a considerable number of police have to hang round the law courts waiting to give evidence when their services could be much better used performing their normal duties. That is due to the fact that authorities have centralized certain courts and have taken them away from the suburban areas. For instance, many years ago we had a court at Woodstock which dealt very well with the cases that came before it. It was possible for the police to be on duty at that particular police station, and they knew exactly when their cases would come on, and they were not required to hang around the courts doing nothing all day. I do want the hon. the Minister to probe into this question of establishing courts in the suburban sections of the Cape Peninsula in order that the police can be on the spot to give evidence as soon as possible and thereafter go and do their duty as required. They are overworked because of the fact that many valuable hours are wasted at the courts waiting for their cases to come off.
Mr. Speaker, I now await with the interest the explanation which the hon. the Minister is going to give us in regard to the point I raised about the Coloureds, and at this stage I do not propose to take the matter any further.
I should like to express my appreciation for the way in which hon. members have received this amending Bill. I also want to express our appreciation for the tributes paid to the police and the kind sentiments expressed by hon. members, especially by the hon. member for Salt River (Mr. Lawrence) Having been a Minister of Justice in his day and having worked with the police for many years he well understands the difficulties of the service. We appreciate what he and other hon. members have said about the Commissioner of Police and about the Police in general. More especially is this so now that we know what the police have had to cope with during the last few weeks in this country, how hard they have had to work and how they have done their duty almost round the clock. I think it is fitting to express tribute to them for the wonderful work that they are doing from day to day and for the work they have been doing recently.
The hon. member for East London (City) (Dr. D. L. Smit) raised two points. He made the suggestion—which I have already indicated I will accept—that the lowest rank for an officer referred to in Clause 1 (a), being the Commanding Officer of a Police Control Area, should be of a rank not lower than Lieutenant-Colonel. That is the practice to-day, where Commandant is the lowest rank.
For delegation. I shall have a suitable amendment framed to that effect.
May I ask the hon. the Minister a question: What about the Commissioned Officer designated by the Commissioner to command? The hon. the Minister has accepted the change in respect of any Commissioned Officer designated, but in other clauses the same problem arises. The Minister or the Commissioner may delegate powers not only to a Control Officer but also to any Commissioned Officer. The same remarks will apply in those cases. Will the hon. the Minister accept an amendment there as well?
I have before me an amendment to that effect, to apply to two clauses where this appears. It also applies to Clause 9.
And Clause 6, which is very important. I think it would be best for me to put them on the Order Paper.
The hon. member may well do that. I have a few in front of me to this effect, but we will not be able to take the Committee Stage before Monday so we will have an opportunity to consult on this. In order to meet the hon. member as well as the hon. member for Salt River and the hon. member for Johannesburg (North) (Mr. Plewman) in this regard I was proposing to move amendments.
The other matter the hon. member raised was in connection with the non-Europeans in the Police Reserve. The hon. member for Boland (Mr. Barnett) also referred to that question and wanted us to provide in this legislation that non-European police will also be canvassed and accepted as members of the Police Reserve. I have not included non-Europeans in the Bill because at the present moment we are in consultation with my colleague, the Minister of Bantu Administration and Development on this point. We want to know how far non-Europeans, which include Bantu and Coloured, can be admitted to a special police reserve. That matter is under consideration and I hope that the hon. member for Boland will leave it at that and give us time to work out some suitable plan.
The hon. member for Salt River asked me whether there should not be some form of identification marks for these members of the Police Reserve. I have already replied to the hon. member for Houghton (Mrs. Suzman) that as far as the police themselves are concerned, we will shortly re-introduce identification numbers. As far as identification numbers for members of the Reserve are concerned, I should like to give further consideration to this question. I do not know whether it is practicable at the moment but I will certainly go into that point.
The hon. member also suggested that we should not arm those members of the Reserve who do police duties.
Not for all police duties.
Well, there may be exceptions, but I think that those who are called upon to do full-time police duty may have to be armed. It will all depend upon the area in which they are operating.
That is my point.
That is a matter which, I think, should be noted by the Commissioner of Police and which will receive his attention. But there are areas where I think they should be armed.
I agree with that.
Then the hon. member raised a point which he raised in this House before, a matter on which I could not agree with him more. We hope for the day when each area may be able to supply its own police. But we are up against almost insurmountable difficulties at the moment. If we were to carry this out now there would be parts of the country in which there would be no peace at all. I said during a previous debate this Session that Natal would be the Province most affected, because young men from Natal just do not seem to join the police. We have to send men there from as far afield as Namaqualand and other places, to police Natal.
Why is that?
There may be reasons for it but I do not know what they are. Last time I spoke on this subject I said, and I repeat to-day that I cannot understand what reason there would be for an attitude like that. In certain areas such as the Western Province, for example, that suggestion could probably be put into effect, because there are so many young men from the Western Province who are keen to be in the Police Force. But in other areas it may not be at all possible to do that. I think that this problem is almost impossible to solve in the way suggested by the hon. member. However, I will bear in mind the fact that the hon. member has said we will have his assistance on this point, and let us see how far we can persuade Natal to come up to scratch.
The hon. member for Johannesburg (North) felt unhappy about the phrase “Police Control Areas”. My Department has found it very difficult to find suitable alternative wording and this is the best they have been able to do so far. We did not want to adopt the word “Command” because that would then be the same as the military.
Why not just “Police Area”?
Well, is it so wrong to talk about a police control area? Surely, as police, they are in control of that area. It is not a control area, it is a police control area. That means that as far as the police are concerned, they control that area for the exercise of their duties. I cannot agree with the hon. member that this wording is so very unhappy.
Mr. Speaker, these are the main points which were raised by hon. members. I am glad to be able to say to the hon. member for Boland that we have been very fortunate in the last few years—in fact over the last 18 months, in getting recruits for the Police Force. The hon. member will know that the period of training at the Police College has been lengthened from six months to one year and, surprisingly enough, we have almost more recruits than we can absorb. In February when we started the Police College we had almost more recruits than we could take in. I live in hopes that we will increase the size of the force more and more and that we will get young people from both sections of our population to join the Police Force. We have also been very fortunate in connection with police reserves. Even at this stage, before this Bill has been passed, we have already had 10,000 enquiries from people anxious to join the police reserve. I am very pleased that hon. members on both sides of the House are prepared to accept this, what I call an experiment. It can be improved upon, and later on it must be improved upon, but let us start in this small way as proposed in the Bill.
May I put one question to the hon. the Minister: apart from getting new recruits from both sections of the population is the hon. the Minister considering getting more recruits from both sexes as well? What I refer to is this, is the hon. the Minister prepared to consider the engagement of more women in order to relieve men of the clerical duties which one sees them performing?
We have made progress in that regard. Within a short time we will have 500 women for police office work. I may say that we are looking into the matter now and we are considering the training of a small number of women as police women. If we do start we will start with a very small number.
Motion put and agreed to.
Bill read a second time.
Third Order read: Second reading,—Customs Amendment Bill.
The Customs Amendment Bill as printed appears much more formidable than it really is. The reason is that the First Schedule is being substituted by a new Schedule because the customs tariffs have been decimalized. Apart from a few minor amendments the Bill merely comprises the taxation proposals and the usual protective measures which are by law required to be approved by Parliament annually to avoid their lapsing. Hon. members are aware that these protective measures have been implemented by way of Government Notices and the particulars now included in the Bill have been available to the public and to hon. members for some time. The reports of the Board of Trade and Industries which refer to the amendments in question have also been tabled.
The taxation proposals incorporated in the Bill have been approved in Committee of Ways and Means. I do not propose to say anything further about them except to refer hon. members to Clause 30 of the Bill which implements the undertaking I gave in Committee of Ways and Means. In terms of this clause it is proposed to apply rebates or reductions of duty on raw materials affected by the increases in duty retrospectively on the recommendation of the Board of Trade and Industries. Subject to certain safeguards, refunds of duty already paid on such goods before the publication of the relative Government Notice, will also be granted.
The minor amendments to which I have referred are merely to decimalize certain amounts which appear in the principal Act, mostly in the penal clauses, and to make certain unavoidable adjustments of expressions as a result of the Republic’s withdrawal from the Commonwealth. These amendments are in respect of wording only and do not affect the position of Commonwealth countries.
As the hon. the Minister has said, this Bill essentially represents the decimalization of Custom’s Tariffs. It also incorporates some of the increases in duties which have already been announced. We are very pleased that the hon. the Minister has seen his way clear to make provision for the refund of the duties which have inadvertently, I think, been imposed on certain raw materials under certain subsidiary items, particularly 73, 113 and 335. We therefore do not oppose this Bill.
May I raise what has become almost a hardy annual with the Minister, and that is the definition of items on the customs tariff. If one looks at the Schedule before us now, one finds that in textiles and fibres alone there are 25 pages of items. Clothing alone comprises eight pages of items and for years the number of items has been growing, until the stage has been reached where many customs officers themselves often have to call in members of the trade to help them with definitions. If one looks at the definitions of piece goods it is becoming almost impossible for anyone, except an expert, to be able to identify one particular classification from another. I know of numerous cases where the customs have had to call in technicians from factories to help them to identify or to classify or to define one or other piece of material. The same thing applies to yarn and clothing, where the same duty is applied to many items, or virtually the same duty. You will find a whole page which carries the same cost per item percentage-wise. It would surely be a simple matter to take all those items which carry the same duty and are unlikely to change and to group them as one class of clothing. I would like to ask the Minister whether this matter which we have raised now for three years has received attention and whether there is any hope fo getting a simplification of the schedule to make it possible for people who import goods to know in advance in what classification those goods will fall. This possibly is a good opportunity for that to take place, because with the imposition of import control many of those lines will hardly be imported, if at all, and it is a good opportunity to review them while there is a period in which they will not be in daily use. I ask the Minister whether he can give the House any information on the matter.
As far as the remarks of the hon. member for Jeppes (Dr. Cronje) are concerned, I want to explain that it is not that it was any inadvertence that the raw materials were not excluded but because of the difficulty in the classification where you have an over-all item which to some extent includes raw materials, but also the same materials may not be used as raw materials. It was really an administrative problem which we had to solve, and we have tried to solve it in the best way possible by providing for rebates and refunds to the extent of the increase which we accepted in the Committee of Ways and Means.
The hon. member for Durban (Point) (Mr. Raw) referred to the redrafting of the tariff in terms of the International Brussels nomenclature. This is a big job and it will take two or three years to complete it. The Committee has been busy for about a year and I think at any rate I can say this, that the tariff is to-day very much simpler than it was some time ago, but it is a big job to convert fully to that nomenclature. The hon. member must realize that the definitions are constantly being tested to see whether they cannot provide evasions for the higher duty, and never for the lower duty, and we have to be very careful to see that the loopholes we leave are not too big. It is cumbersome as it is, but I hope that when we have this international system fully applied here, much of the trouble to which the hon. member has referred will be solved.
Motion put and agreed to.
Bill read a second time.
Fourth Order read: Second reading,—Excise Amendment Bill.
There is very little to be said about this Bill. Most of the amendments are in compliance with the requirement that amendments to the schedule of rebates announced by way of Government Notices should be submitted to Parliament for confirmation in order to prevent their lapsing. Most of the other amendments relate to the decimalization of certain amounts which are mentioned in the Act in £ s. d., and the change of certain descriptions which has become necessary as a result of the Republic’s leaving the Commonwealth in order to prevent existing privileges lapsing. There is no curtailment of privileges.
There is just one amendment which I want to explain a little further, and this relates to the definition of furnace oil. When the excise duty was imposed on furnace oil in 1951, a very wide definition was inserted in the Act. The intention was however only to include oil which could be used as furnace oil. It has now been found that certain oil-type products have been made liable to duty by the definition adopted at the time, and the Board of Trade and Industries has recommended after investigation that a rebate should be granted in respect of such products. It was not the intention to make them liable to duty. As a result of practical difficulties it has been decided to exclude these products which are only incidentally suitable for the firing of furnaces by means of a price limit. It is difficult to amend the definition, but we can exclude these articles which it was not the intention to include by means of a price limit.
As the hon. the Minister explained, this is largely a measure which gives effect to the consequences of decimalization and the formalization of already existing excise legislation. For that reason we on this side of the House do not oppose the legislation.
Motion put and agreed to.
Bill read a second time.
Fifth Order read: Second reading,—Post Mortem Examinations and Removal of Human Tissues Amendment Bill.
This Bill is very short and consists of two clauses. When a post-mortem examination has to be held on a body or when tissues have to be removed for medical purposes, the Act provides that the magistrate of the district concerned can authorize a medical practitioner to do so. It also empowers the Minister to authorize medical practitioners who are in charge of hospitals to do so. This is how the Act has always been interpreted, and it is quite clear that that was the intention of the original Act when one examines the other Acts, such as the Criminal Procedure Act, the Inquests Act, the Public Health Act and the Registration of Births and Deaths Act. But our law advisers have now found that the wording of this Act does not always cover the interpretation which has been given to it in the past. They consider that the wording should be amended. As they read the wording at the moment, it provides that a magistrate cannot on his own authorize a medical practitioner to remove tissues or to hold a post-mortem, but that the Minister must authorize each magistrate separately. The difficulties caused by this interpretation are very great when one remembers that there are more than 300 magistrates in South Africa and that they are continuously changing, whether as a result of retirement, transfer, death or other reasons, and that it would mean that the Minister would continuously have to authorize new magistrates to grant such authority. Another problem is that in our big hospitals the medical practitioner in charge is not always available. Here we must not forget that certain tissues must be removed immediately if they are to be of any use. I refer to the cornea of the eye. If it is not removed immediately, it cannot be used, and as the head of the hospital cannot always be available, another medical practitioner must also be able to authorize such action. According to the law advisers’ interpretation of the Act it is not possible at present to do so and for this reason the relevant amendment is being proposed. To put the position right, we are introducing this amendment Bill which lays down that the magistrate will have the right to authorize a medical practitioner to hold a postmortem and if necessary to remove certain tissues.
The next amendment is to the effect that the Minister can also authorize the head of a hospital or another medical practitioner whom that head recommends, to perform such acts. The amending Bill is quite simple and I hope that there will not be any objection.
We have given this Bill our scrutiny. The Minister says the Bill is a simple one but nevertheless it is important, particularly from the point of view of hospital administration, because under the Act the hospital superintendent has to be nominated by the Minister before he can authorize the removal of tissues, and also a post-mortem examination where also the magistrate comes into the picture. The Minister has rightly pointed out that the hospital superintendent may be absent through illness or he may be attending a conference, or he may be on leave, and thus certain difficulties arise since he is the only person in that institution who can authorize the removal of tissues. Apparently in the past it has been common practice, through ignorance, for other staff to do so and the intention of this clause is merely to validate what has been the practice. From that point of view this amending clause is definitely necessary.
This Bill deals with the human body. On the Statute Book there are two other Acts, the Inquests Act, which contains certain provisions related to this Bill, and the Anatomy Act, and all three of these have two things in common. They deal with human bodies and they also have for their purpose the furtherance of medical knowledge. In view of similar provisions in other Bills I want to suggest to the Minister that he might go into the question whether or not it is feasible and reasonable to embody all such provisions in one consolidating Act. The Anatomy Act does not come under the Minister of Health, but I would like to point out that in Britain the Anatomy Act, when it was introduced, came under the Home Secretary, but with the creation of the Ministry of Health it was transferred to that Minister. I think consideration may be given to this matter. I would urge the Minister to go into the question to ascertain whether or not it would facilitate research and study if these three Acts were consolidated. Because the amending Bill contained a necessary provision, we on this side intend to support the Bill.
We on these benches have no objection to this measure either. However, I want to take this opportunity to put forward one or two thoughts in a constructive spirit. The Minister has explained that this Bill is actually being introduced as a result of certain legal difficulties which have come to his notice. We, of course, want the provisions of the Act to be clear so that the Minister and all those concerned with health matters will be able to carry out their duties unhindered.
However. I also want to say that I welcome this Bill because the amendment may have the result that it will facilitate the carrying out of post-mortems and other procedures under the Act. I hope that I will not shock anyone nor that I will not be accused of being a heretic if I say that it can only have a salutary effect if in the administration of this and other laws we gradually, as public opinion is ready for it, move ever further away from the medieval idea that the human body is something sacred. I remember only too well how often during my period as a resident doctor in a large hospital which also served as a training institution for medical students, we wanted to carry out a post-mortem examination on the body of a certain patient for sound and important scientific reasons and how difficult it often was to obtain the consent of the family, and how often we were not able to obtain that consent. As a result of such consent being refused not only was an opportunity to acquire important scientific knowledge lost, but strangely enough, the members of the family of the deceased person suffered for months and years afterwards because of their doubts as to the cause of death. One can understand that it is natural when a loved one dies, that the family particularly under the influence of the initial shock, feel abhorrence at the idea that an examination should be carried out on the body of their brother or sister. But for their own sakes, apart from the great scientific value of such examinations, I felt convinced that it is right and desirable that professional officers, the medical practitioners who were responsible for the treatment of the patient, should be enabled to give an exact explanation of the cause of death. For that reason, but particularly for the scientific reason, the post-mortem examination is perhaps one of the most valuable sources of research whereby medical knowledge can be enriched. For that reason I welcome the Act. Although this is not really its object, I believe that it will have this effect and I make an appeal to the Minister to prepare public opinion in his well-known tactful manner so that it can be made ever easier to hold examinations of this type.
To reply briefly to the last speaker first, I want to point out that under the present set-up the utilization of bodies for educational purposes falls on the Department of Education, and I cannot discuss that aspect.
I was referring to research purposes; not necessarily educational purposes.
Even the control over bodies is at present in the main still the task of the Department of Education and I should not express any opinion on that aspect. I might just say that one realizes that it is a useful purpose, but one also realizes that a nation has certain spiritual values and that many people attach great spiritual value to the bodies and to the burial of their loved ones. This is of course something which one cannot belittle. For that reason there will always be a measure of conflict between the feelings and the values of those who want to use bodies for medical and scientific purposes and those who attach spiritual values to such bodies.
The hon. member for Pietermaritzburg (City) (Col. Shearer) raised an interesting point, the question of classification, whether the Anatomy Act should be classified as a health Act or as an educational Act. There is much to be said for the viewpoint of the hon. member that anatomy is to a certain extent related to medicine. It is a medical matter and as such there is something to be said for putting it under the control of the Department of Health. But classification in itself is a matter of convenience. One classifies things together which have similar characteristics, because it is convenient to do so. In the Anatomy Act one finds, as in so many other Acts, that it is concerned with various matters. It is concerned primarily with the teaching of anatomy. If one analyses the Act, that it deals with schools teaching anatomy, schools which are really part of our universities. It deals with how these schools should be authorized and how inspectors and superintendents are appointed and how bodies must be disposed of and when bodies may be delivered to such schools, and with the rights of the relatives. All these matters seem to centre primarily around the education of the medical men of our country, and for that reason it does seem as if, as a matter of convenience, the disposal of such bodies should be a matter for Education and not for Health. But there is something to be said either way. One can say it is a matter of health or of education. To a large extent it depends on how one feels about it. I can assure the hon. member that I will give full consideration to the matter, although at present it seems to me that there is as much to be said on the one side as on the other.
Order! That is irrelevant to the Bill.
Motion put and agreed to.
Bill read a second time.
Sixth Order read: Second reading,—Bantu Education Amendment Bill.
This Bill does not introduce any new principle in connection with Bantu education. Nor is its object to do anything new. Actually, it is just a Bill which became necessary in order to make certain adaptations and certain further provisions and to solve certain administrative difficulties. I think it is perhaps suitable that I should deal with the various clauses one by one because to a large extent these clauses each stand on their own.
The first clause deals with a change in the definition of “Secretary”. The reason why it is necessary to amend it … (Quorum.) In the original Act “Secretary” included Under-secretary and the Assistant Secretary, but in the meantime certain changes have been made in the titles of certain posts in the Public Service and we now have the Secretary, the Deputy-Secretary and the Under-Secretary, and it is therefore necessary to amend it in that regard. But now hon. members will note that I am going a step further here and doing something which is rather unusual in connection with the definition of “Secretary”. “Secretary” can mean any official of the Department of Bantu Education appointed by the Minister for that purpose. I must point out that this amendment is the result of the findings of Public Service inspectors who a year ago inspected my Department intensively. They came to the conclusion that certain functions entrusted to the Minister by the Act, with the power of delegating them to the Secretary, should really not be exercised by the head office of the Department. We ourselves have had that experience already, but we waited for the recommendation of the Public Service Commission in that regard. In this connection I may just mention that there is, e.g., the question of the appointment of school committees.
At the moment the appointment of school committees is done by the Under-Secretary of the Department. Hon. members should remember that at the moment there are approximately 4,800 school committees. These committees are appointed for three years, and if one handles the matter very carefully and can manage to re-appoint one-third of them every year, when their time expires, it still means that the official in head office annually has to handle the appointment of 1,500 to 1,600 school committees. It is almost a physical impossibility to do all these things thoroughly there. The result is that this official, from the very nature of the case, becomes no more than a rubber-stamp who just signs his name without going into all the details. He just cannot go into all those details, because if he does so he will have no time to do any other work. Consequently it was decided on the recommendation of the Public Service Commission that the appointment of school committees, for example, is a function which should really be entrusted to the regional offices of the Department. The Regional Director and his officials are the responsible senior officials who are best acquainted with the persons and the circumstances in the area. They know much better which people are suitable to serve on those committees than an official in head office, and the head office officials necessarily have to rely in any case on the advice given to them by the Regional Director’s office in regard to these matters. In addition, it should be remembered that the school committees actually have no powers. They are purely advisory bodies to the school boards, and it should also be remembered that when the recommendations of the regional offices in connection with the appointment of these committees reach head office, all the legal requirements have already been complied with. But as the result of this it is necessary for us to transfer certain functions to the Regional Director’s office. In addition, the Regional Director is himself a professional official who has a lot of professional work to do. The professional guidance of his whole area rests with them; he is at the head of the inspectorate in that area, and from the very nature of the matter he is in the first place a man who has to perform professional functions. If perhaps we were to go just a step further and mention his name as one to whom certain functions may be delegated by the Secretary, it means that a whole lot of administrative work will be put on his shoulders, which will result in his not being able to do his professional work properly or neglecting it in order to do this administrative work, and therefore, although one delegates these functions to the regional office, where the Regional Director is the responsible official, the intention is that he himself should not be burdened with it, but one of his administrative officials under his control. Therefore it is difficult specifically to mention the names of the various officials here, as hon. members would perhaps prefer me to do. They would perhaps prefer me to be more specific and to mention the particular officials, but it is extremely difficult to do so, because if the Regional Director does not have to do that work himself one must see whether his senior administrative man by himself, or together with his assistant, should do the work. I have now mentioned just one example. There are many other examples of this type of activity which at present are the function of the Secretary and which really should be delegated to the regional offices. There is, for example, the question of building subsidies. Bantu school boards all over the country would perhaps like to add one extra classroom to their school in order to comply with the growing school population. A subsidy is connected with that on the R for R basis. All the details in that regard must at present go to the office of the Secretary in Pretoria for his approval. Actually the policy we follow is to allocate a certain amount of money for this purpose in every region, and that the Regional Director and his staff are in fact the people who decide where it should be granted, because the Secretary in Pretoria does not know where the need is greatest. The regional office knows that better, and therefore it is necessary to delegate such functions in connection with building subsidies, where the school board has collected half the money and we assist them in building the school, to the regional offices. For that reason it is difficult to determine precisely at this stage which officials one can name there, because experience will have to teach us that. But the position is not that just any official of the Department will be given that function. In the Other Place I was told that it actually means, as the Bill reads now, that the functions entrusted to the Minister or the Secretary by the Act will in future be performed by any clerk in the Public Service. I want to state very clearly here that this is not the case, because the definition clearly says—
In other words, the Minister must specify the particular official to whom certain powers will be delegated. I think that this should be enough guarantee that this provision will not be abused. Hon. members should remember that whether it is the Secretary who exercises these functions or any other official in the Department, it is still the Minister who in the last resort remains responsible for it, and the Minister would therefore be foolish if he allowed inexperienced officials to perform duties of this kind because it still remains his responsibility. I do not think it is necessary for me to say more about this clause.
Then we want to insert a second clause to provide for further assistance to Bantu community schools. Hon. members will know that Section 7 of the Bantu Education Act provides that State Bantu schools can be established and that in regard to State Bantu schools the Department can build the school, hostels, clinics, dwellings for teachers, etc. All those provisions are contained in the Act. In other words, the funds of the Department of Bantu Education can be utilized for those purposes in connection with the State Bantu schools. But the section which deals with community schools, which really constitute the greatest number of schools and which are really the type of school for the future, because the intention is that the State Bantu schools should gradually disappear and that community schools where the Bantu community bears the responsibility should increase in number—in that case provision is only made that assistance can be given out of the Bantu Education Account for the building of the school building itself. There is no provision for assistance when a hostel or other things which are additional to the school have to be built, and the intention here is also to do the same things that can be done in connection with a State Bantu school in connection with giving assistance to a community school. The amendment in this regard has become necessary because there is a growing need on the part of the Bantu communities to provide hostel facilities at their larger secondary schools. There is a growing need for it because they want to give the opportunity to the fellow members of their tribe living in different places and who are served by a variety of primary schools, the opportunity of attending these high schools, but they can only do so if there are hostel facilities. In addition, there is a growing urge on the part of the Bantu in the urban areas not to send their children, when they have to attend the secondary schools, to secondary schools in the urban areas, but to secondary schools in the Bantu areas from which they come and where the other members of their tribe live. It has been our experience in the past, even before we took over Bantu education, that the church schools with hostels situated in the rural areas drew the large majority of their students from the local locations, for the simple reason that the parents in the urban areas like their children at that age, when they perhaps most susceptible to the influences of city life, to get out of the urban area where there is no proper parental supervision and where there are all kinds of temptations, and to send them to a peaceful rural area, where the school results are generally also better. We are now experiencing the same thing to an increasing extent on the part of the Bantu in the urban areas as well as in the Bantu areas, and from time to time I receive requests from the Bantu tribes in the various parts of the country to help them to establish hostels, so that they can get the children of their fellow tribal members, who live in the urban locations, to come to these areas to enjoy their higher education there. Hitherto I could give no assistance in that regard because the Act did not allow it, and the intention is now to move a clause in the Committee Stage which will make it possible to extend that assistance to community schools.
Clause 3 is an important one and it deals with Section 9 of the Bantu Education Act. Section 9 of the Act provides for the registration of schools, for refusal to register schools, for the cancellation of registration of schools and for the conditions of registration of schools. When we started implementing the Bantu Education Act, certain regulations were issued in terms of Section 9 dealing with the registration of schools. One of the regulations promulgated was, e.g., that any class, school, college or institution established, continued or maintained by a church recognized by the Government, exclusively with the object of training people as ministers or evangelists, or any Sunday school giving religious instruction, is regarded as being properly registered for the purposes of the Act and of this regulation. In other words, through this regulation exemption from registration was granted, e.g., to Sunday schools giving Sunday school classes to Bantu children, because the intention always was, although the definition of “school” in the principal Act also includes a Sunday school, not to require Sunday schools to be registered, or such institutions where purely religious instruction is given and therefore this regulation was passed to exempt them from registration.
There are quite a few other things which were done in terms of this regulation. Let me mention one other thing. When registration of schools was originally considered, when the Act originally came to be applied, it was also provided by regulation that any Bantu school which before the promulgation or regulations received State support in the form of salary allowances for a teacher, would be regarded as being properly registered for the purposes of the Act and of this regulation. Hon. members will understand why that was necessary. At that stage there were between 5,000 and 6,000 schools which received a subsidy, and it would have been practically impossible immediately to register each of those schools properly, and therefore it is provided that every school which received State support at that stage would be regarded as being properly registered. I can mention many other examples of the type of regulation which was made at that time. Now, however, we have ascertained, as the result of a discovery which was made by my Department in co-operation with the Bantu Affairs Commission, that these regulations according to which we operated ever since 17 December 1954 were ultra vires in certain respects. It was found, for example, that it was illegal to grant exemption from registration to schools by way of a regulation because the principal Act provided only for registration, refusal of registration or cancellation of registration. Therefore we could not grant exemption from registration by way of registration. In other words, it was illegal to grant exemption from registration to all the Sunday schools and religious instruction classes. It was also illegal to grant automatic registration to a school merely because that school had received State support, because that was not registration as such. I mention these examples to indicate in what respect the regulations were in conflict with the Act. That is just one of the things one has to deal with continually in the Public Service. One has an Act which has to be implemented, and the Department draws up certain regulations in terms of the policy adopted. That is submitted to the law advisers, who certify that the regulation is in order and intra vires, and after having worked in terms of the regulation for a few years, even after this regulation has been submitted to Parliament and the Select Committee on Bantu Affairs has scrutinized and approved of the regulation, one encounters a certain problem and one asks the law advisers what their opinion is in connection with that particular problem, and they then reply that they now discover that the regulation which previously was drawn up with their co-operation is ultra vires. That is the sort of thing one is inevitably faced with from time to time, and the intention is now to remedy this position, to amend Section 8 of the Act in such a way as to make it possible for us to fulfil those functions which we have been fulfilling since 1954 in terms of these regulations.
One of the problems we encountered in practice and which really was the reason for the discovery that these regulations were ultra vires was this: The regulations originally provided that every school receiving a State subsidy was automatically regarded as being registered, but we then made arrangements with the various church schools that they would all have the choice of handing over to communal control or to retain control themselves as private schools, but with a diminishing subsidy. We told them that when that subsidy disappeared they could all apply for registration anew so that we could determine whether there was any necessity for the continued existence of that school or not. As a result of that, all the churches except the Catholic Church preferred to hand their schools over to the communities—except for the Catholic Church and the Seventh Day Adventists, although the Seventh Day Adventists had never before received a subsidy; they never wanted it. After the subsidy of the Catholic Church then fell away in 1957, in terms of the notice to them and in terms of the regulations they had to apply for registration anew. I said a moment ago that the automatic registration granted to them was really invalid. In fact, they had never had registration. In other words, that was the first time when registration could be granted to them legally, viz. after they applied for registration. But it then meant that within a period of three months we received more than 600 applications for registration from all the various Catholic schools and it was practically impossible for my Department and for me to devote proper attention to every case within that short period. The result is that we then arranged to grant temporary registration certificates to all those Catholic schools which had to apply for registration anew, which would be valid until such time as we had an opportunity to consider every case separately and to decide on every case. We now discover that in terms of the Act it was not possible to issue temporary registration certificates, because there is no provision for it in the Act. So we are faced with that practical problem, and the intention is now to remedy the position.
That has nothing to do with the group areas?
Yes, it is an additional reason why it is sometimes necessary to issue a temporary certificate. In fact, right from the beginning we issued temporary registration certificates in cases where there would be a removal of Bantu schools, not only private schools but also community schools. Where a community school or a private school is situated in an urban location, for example, which we know will be removed, and where the Department of Bantu Administration tells us: “We are busy with a removal here; it will take another two or three years”, we grant a temporary registration certificate to that school, valid only for the period during which there will be Bantu students. We do that with the express object of making them realize that when that area in which the school is situated is no longer a Bantu area, and Bantu no longer live there, the school will also have to be removed, and to notify them timeously of it so that they can make arrangements to obtain a site and a school in the new residential area. We now discover that it was also invalid to do it in that way. We could not grant them temporary registration certificates. All we could do was to issue a registration certificate and then, when the Bantu in that area where the school is situate were removed, the certificate again had to be cancelled. Actually, in practice it makes no difference at all to the continued existence of that school, but we just feel that it was fairer to the body controlling the school to say right in the beginning, when we knew that a removal would take place, that it would take place and to make it a condition of the registration so that they could make provision timeously for what had to come.
One of the functions I have to perform in regard to the registration of schools is to make the registration subject to certain conditions. We have been doing that for an appreciable time. We have done it right from the beginning, and I may just say that hitherto we have received no objections at all in regard to the type of conditions we impose when registering schools. In fact, I have had various consultations particularly with the Catholic Church, which is most affected by it, and there are no problems in regard to the conditions themselves. There are, however, problems here and there in regard to the implementation of the conditions. Here and there the head of a school does not comply completely with the conditions, and that is where the problem arises. In the past we made it one of the conditions that the Minister could at any time review the conditions or apply new conditions. But now we are told that that is also ultra vires; that we can impose conditions only when the school is originally registered, and then we may not change the conditions after that. One of the problems with which we are faced in that regard is this: The applicant applies for a school for, say, 200 children; it is registered subject to all the usual conditions and we provide that it will be for 200 children, because we must have a certain measure of control over the enrolment, but after a year or two or three the community has grown, the number of school-going children has increased, and the enrolment of 200 which was allowed for the school is no longer sufficient. That is one of the problems I have had thus far with quite a number of heads of schools, that they did not abide by that condition; that without asking for consent they just enrolled more children. But I then clearly brought it to their notice that where it was necessary for them to enrol more children they should obtain the consent of the Department, and then I would alter the conditions. But I now discover that I may not alter those conditions, and therefore I now intend amending the Act in this respect also so that I may have the right to alter a condition I imposed or to add new conditions where new circumstances arise which make it necessary to do so. But then I add a proviso, viz. that before I change a condition or amend it, or add a condition, I must first give the head of the school an opportunity to make representations to me in regard to the proposed change or amendment. [Interjections.] Yes, the school board, if it is a community school, or the bishop under whose control the school is, if it is a catholic school, or the head of the school, so that they can make representations to me. I add the same proviso in another connection also. As the Act reads now, I can withdraw the registration of a school which is registered subject to certain conditions if one of the conditions is not complied with. I now add the same proviso that before withdrawing the registration of a school I must first give the management an opportunity to make representations to me in that regard, and I do so for obvious reasons. My officials may perhaps consider that it was a deliberate breach of the conditions, but it may be possible for the management to draw my attention to circumstances which may make me decide that it was not a deliberate breach or, even though it is deliberate, that it is not of such a serious nature as to justify cancellation—something of which I can judge only when I have heard the other side also, and that is why this provision is being inserted.
In Clauses 3 (2), (4) and (5), which really flow from the aforegoing provisions, there is only this important provision that Section 3 (1) which deals with the registration of schools is made retrospective to 25 May 1956.
The hon. member for Kensington (Mr. Moore) may make all kinds of interjections amongst his colleagues, but he should realize that the Department has been acting bona fide in terms of regulations approved of by Parliament, because the regulations were submitted to the Select Comimttee, and we now find that the actions taken since May 1956 in terms of those regulations were invalid. If we now want to remedy it we can do so in one way only, and that is to make the provisions referring to these matters restrospective to 25 May 1956.
Whom do you consult now who were there in 1956?
In what respect?
In this respect. You are going to consult people.
The hon. member evidently did not listen when I spoke a moment ago. He does not know what the whole matter is about. I do not know whether he expects me to consult him instead of the law advisers. You see, unless we make this provision retrospective it means that all the registration certificates and all the things we did in regard to granting exemption from registration, all the temporary certificates, all the amendments of conditions, which was all done in order to meet the difficulties of the schools during that period, will be illegal, and we can only make it legal if we make it retrospective to 25 May 1956.
A sort of indemnity Bill?
Yes, that is what it amounts to. But now I want to add to that that in this case the Minister is not the only one responsible, but Parliament is co-responsible for it because the regulations were approved by the Select Committee on Bantu Affairs. Therefore we were jointly responsible for this matter in regard to which indemnity now has to be obtained.
Then there is a further clause, Clause 6, in connection with the constitution of school boards and school committees. In 1955 regulations were drafted which were promulgated in terms of Government Notice No. 61, and these regulations were reviewed in 1960. With this review of the regulations a new set of regulations was then issued in terms of Government Notice No. R.1177 of 5th August, 1960, but unfortunately it was omitted to provide in the new regulations that a school board or school committee established in terms of the old regulations could continue to serve after 5th August, 1960. Because the new regulation replaced and repealed the old regulation, it now means that school boards and school committees which functioned after 5th August, 1960, were not immediately reappointed under the new regulations, and for that period until their term of service lapsed or they were reappointed they were illegal and could not take valid decisions. This was merely an omission, and the intention is simply to remedy the position and to validate the continued existence of those school boards and school committees.
At the outset I think I would be failing in my duty if I did not thank the hon. the Minister for the particularly extensive explanation which he has given of this Bill. It deals with complicated matters, and what I want to congratulate him on particularly is the fact that he has admitted so frankly that the original legislation contained so many weaknesses and that he has therefore had to introduce these amendments. He has only referred to certain adjustments which he must make in the original legislation. I admit that most of these are of an administrative nature, but the Minister’s explanation indicated one thing very clearly, namely that the original legislation was full of weaknesses and that these weaknesses have now become apparent. I do not want to say “We told you so” but at that time we pointed out that the Government was being over hasty and we also put forward other reasons why the Government was not acting wisely at the time, which I shall deal with later. The result was that many weaknesses were left which have to be remedied to-day.
Read from Hansard showing where you raised those objections!
I am not dealing with that hon. member at the moment. I think at that time he was still sitting on this side of the House and he must examine his own Hansard speech as far as that aspect is concerned.
As far as possible I want to try and I always try to keep educational matters outside the party political arena. It is not always possible and it is not possible particularly in the case of this legislation now before us, regarding which I want to thank the Minister for his clear explanation, for the fact that he has not hidden anything and for his admission that ultra vires action has been taken in certain respects and that there are weaknesses. I rather like the hon. the Minister saying this, but it also emphasizes the fact that the Minister is dealing with a poor principal Act. I also appreciate fully the unenviable position in which the Minister finds himself as the head of this Department of Bantu Education. It is not an easy portfolio to control. He must not only serve or be of service to people who are still very backward and who still require years of culture before they will reach a stage where they can really benefit from the education which the hon. the Minister wants to give them, but the hon. the Minister is also faced directly with a prejudiced public, his own people, and if he does not satisfy them, there will be trouble at the elections.
My hon. friend knows how his party exploited the position when this side of the House was in power. Far be it for me to do the same.
Order! The hon. member is now going beyond the scope of the Bill.
Mr. Speaker, if the Minister does not take up a strong stand, he will simply not be able to give these people the essential educational legislation which he should give them, and that is where the weakness and the failing of his original legislation is to be found and that is the cause of these amendments.
Order! The hon. member is ignoring my ruling completely. He is simply going on.
With all due respect, Mr. Speaker, any one of us who is faced with party political difficulties cannot simply do the things which he should do; I shall tell the House why. The hon. the Minister admitted it himself when not 14 days ago he had to admit to the public that he did not introduce this 1953 Education Act for the benefit or on behalf of the non-Whites or his wards, but for another reason.
Order! That has nothing to do with the Bill. The hon. member must come back to the Bill.
What I want to submit is that my hon. friend has had to bear in mind that he could not go far enough in his original legislation, that he left weaknesses, that there were gaps which he now has to remedy from time to time, because he could not clash with his electorate. I understand this difficulty fully. But the Minister is the responsible person, he is the person who should take up the standpoint that no matter what the feelings of the public outside may be, he must do his duty towards his wards. The hon. the Minister will have to introduce further amendments.
I am not going to deal with the details of the various clauses as the Minister has done. There are many other hon. members on these benches who will do so. I only want to deal with this matter in general. One thing is certain, namely that the longer we have this 1953 legislation on the Statute Book, the clearer it becomes how correct we were at that time when we warned against the unsound division of the education of South Africa on a racial basis.
Order! The hon. member must now get away from the 1953 Act. We are now in 1961 and are considering this amending Bill.
Yes, Mr. Speaker, this is an amendment to the 1953 Act, and the repeated amendments which are necessary constitute proof of the soundness of the objections we raised at that time to the effect that we cannot deal with education on a racial basis.
May I ask the hon. member a question? Is it not a fact that the laws with which the Department of Union Education is concerned have been amended more often than the Bantu Education Act, and is it not also a fact that the provincial ordinances dealing with education have required amendments more often than the Bantu Education Act?
Yes, but now the hon. the Minister is out of order, and if the hon. member replies, he will also be out of order.
I realise, Mr. Speaker, that I cannot reply to the question of the hon. the Minister because then I would be completely out of order. We pointed out at that time that when education was placed under the control of an administration which had no background, no experience …
Order! I cannot allow the hon. member just to discuss the 1953 Act. That matter has been disposed of and the House is now considering an amending Bill and up to now the hon. member has only discussed the 1953 Act.
I am now coming to the objections which we raised in 1953.
No. That has been disposed of.
The hon. the Minister has told us that at that time he did not make provision in the Act for the construction of hostels, the housing of teachers or the building of clinics. Now the hon. the Minister says that it is necessary to correct these weaknesses.
The hon. member need only confine his attention to the amending Bill.
Yes, Mr. Speaker, I now want to ask the hon. the Minister—he did not tell us this—how many of these clinics, hostels or houses for teachers at such community schools he has already built. Or has he not yet built any?
I want to refer more specifically to Clause I and in particular to the addition of another official to the “Secretary” and the “under-secretary”. The hon. the Minister is now adding another official. He is now adding an official who holds a more senior post than that of an under-Secretary, namely that of a “deputy-Secretary”, who is after all an official of higher rank than an under-Secretary. I am sorry that I must once again refer to the original legislation but that legislation only referred to the Secretary and under-Secretary. He does not consider this to be sufficient.
Originally there were no deputy-Secretaries. That post was only created last year.
That still does not derogate from my argument. He is now bringing in an official who comes in between the present two. I should like to know more about these officials. Specifically under whom will the deputy-Secretary fall? Under the Secretary? Will he fall under the under-secretary? Or will be it: Secretary, deputy-Secretary and under-Secretary? I should also like to ask the Minister who he has in mind for promotion to this new post. In discussing the original legislation we pointed out that the administration which was to be established to control the education of Bantu children had no background, and that it would lack the experience of our Department of Education, Arts and Science. I think that these amendments which are being submitted to us to-day show once again that that background and experience are lacking and that the necessary staff are not available. I expect the hon. the Minister will tell me that there has been a great development, that there has been a vast increase in the number of school children and in the number of schools which fall under him to-day and which are providing education to-day to Bantu children. But I think that the Minister will agree with me that education goes far deeper and entails far more than just numbers. It is also a question of the standard which the student achieves, the quality of the education one provides, the measure of satisfaction of the student, what service he can give to his people, etc. I think that we shall have to wait for years to come before we can reach the stage where we can say that this new system which the Minister is trying to improve by this Bill, is as far as the education we are providing the Bantu children is concerned, what they desire and need. At that time this side of the House was correct when we referred to the unduly hasty way in which the matter was being handled. I repeat again that I am not accusing the Minister. It depends on circumstances and on the existing position because we are here dealing with a completely new system which in our opinion was and remains quite wrong.
I now come to the delegation of certain powers on which the Minister has also expatiated. He is delegating his own powers to the Secretary, the deputy-Secretary and the under-Secretary and then—and this is so dangerous—“ any officer in his Department ”. This clause therefore extends the principle of delegation to an unlimited extent. I know that such powers of delegation exist in other legislation, but the Minister has himself pointed this afternoon to a weakness when he told us that the final responsibility rested with him as the Minister and he would not simply nominate any official. But where is that provided in the Bill? Under the Bill he can designate any official. I wonder whether the Minister will consider an amendment whereby, instead of saying “ any officer in his Department ”, he would insert “ any experienced officer ” or “ any senior officer This is nothing exceptional. We find in other legislation that reference is made to a senior officer—the Secretary and any senior officer of the Department.
I am quite prepared to accept that, if the hon. member will tell me what he means by “ senior officer ”,
We can discuss that when we reach it.
We also know that this legislation makes no provision for any right of appeal to anybody or to the Minister if this “ any officer ” does a thing with which he does not agree or with which the people with whom he is dealing do not agree. The legislation as before us to-day makes no provision for any right of appeal. The Minister can therefore, without there being any right of appeal, delegate his powers to any officer who will then, inter alia, be able to exercise the following powers: He can appoint teachers; he can transfer them; he can promote them; he can dismiss them; he can lay down conditions of service, including remuneration and leave privileges; he can establish regional, local and domestic councils or other bodies. This “ any officer ” can do all these things, and there is no right of appeal. It is useless telling me that the Minister will not do or will not allow this or that. I know he will not do so. But that is not stated in the legislation. It must be inserted into the legislation. This “ any officer ” can go further and he can prescribe the composition, duties, powers, privileges and functions of any council, board or body and all their functions and powers. He can prescribe the conditions of appointment and service including the rights, duties and privileges of teachers in Government Bantu schools. He can prescribe the disciplinary code and the penalties which can be imposed. He can prescribe the medium of instruction in Government schools. And so on. I think that if the Minister will consider this matter further, he will see that he is going altogether too far in delegating his powers. This is something which we on this side of the House cannot support. This unlimited power of the Minister to delegate powers to any officer in his Department is a dangerous tendency in our present-day legislation.
We on this side of the House cannot support it. Then the hon. the Minister has quite rightly pointed out that it was never his intention that, inter alia, Sunday schools should also be registered. This is an improvement on the existing legislation and we support it.
The next clause in respect of which I want to ask him a question is that in which he lays down that he can grant a temporary registration. This is not yet quite clear to me. If it relates to the group areas legislation where a school serving a certain racial group is for example situated in a certain area and that racial group must be moved, then I can quite understand that the hon. the Minister can grant a temporary registration until such time as the new school is built or there are no more children. But is this not surplus legislation? Is it necessary? Can this not already be dealt with under the Group Areas Act?
We support the clause which deals with future consultation in the few cases the hon. the Minister has mentioned, that is to say where he will consult the bodies concerned when he does certain things, for example before he withdraws or amends certain registrations.
There is another objection in principle which we have, and this is a serious objection in principle. This is once again an objection not so much because it relates to this Minister, but because it is becoming ever more evident in other legislation of this House, namely the principle of retrospective effect. I must admit that as far as that aspect is concerned this Bill represents an improvement on the measure which was originally submitted to us. The Bill which was originally submitted to us was of such a nature that it was made of retrospective effect in respect of all its clauses. This one is an improvement because only certain clauses will be of retrospective effect. When we have a clause which is to be of retrospective effect, it always creates suspicion, and then we wonder what the Minister concerned had done that he should not have done. I now repeat that the hon. the Minister was frank enough to tell us to-day: I have made a mistake; we have left weaknesses and I am therefore asking that these provisions be made of retrospective effect. But, Mr. Speaker, I wonder whether this type of retrospective provision and the manner in which it is submitted to us is not a principle which we can change. You will allow me just to quote as an example what we did in the case of the Land Bank Amendment Bill which was submitted to us recently. And here the principle of making the clause of retrospective effect is embodied in the clause itself and is not a separate provision.
I think that if we want certain sections of an Act to be of retrospective effect, we should to an ever-increasing extent provide in those sections themselves that they will be of such effect. It makes the position far clearer and I think it is far better to do so.
Now, Mr. Speaker, particularly for the two reasons I have mentioned, in the first place the delegation of powers to “ any officer ” who can then exercise far-reaching powers as laid down in the 1953 Act, and secondly this principle of retrospective effect, I should like to move the following amendment—
I second the amendment. If ever there has been a Bill before this House dealing essentially with administrative matters that requires a Select Committee, this is one. It is quite obvious that in the development of our system of Bantu education the Department has come across certain difficulties. They have found that their regulations were inadequate; they have even found that the law was inadequate to build up a system of education, because a system of education cannot be built up in the manner in which we attempted to build up Bantu education. We abandoned the background of missionary education in order to make a fresh start, to create something new. And that is not the manner in which education departments develop. Hon. members who have knowledge of provincial education will know that. They will know, for example, that the Cape system of education has developed to what it is to-day from something quite different years ago, in the light of experience; the Transvaal system in another direction. And this Bill that we have before us is really, in many respects, a return to certain elements of the provincial system of education that we had in South Africa. That is the interesting part about it. Certain amendments that the Minister suggests to-day are an attempt to introduce elements of the system of education we had under the old control.
Mr. Speaker, I have about 20 minutes. If I had an hour I should like to give the hon. member a lecture on Bantu education.
I should like to deal with the clauses; in fairness to other speakers I should like them to have an opportunity as well. The hon. the Minister has introduced certain drastic changes in the law. I think the first clause is, in itself, a drastic change. My colleague, the mover of our amendment, has browsed about on the meaning of these clauses. I come to this first clause. The history of this clause will show us how we have, by trial and failure—and now, I hope, by trial and success—tried to find a way out, because our scheme was not a good scheme at the beginning.
In the 1953 Bill we said that the Secretary was a Secretary of Native Affairs. In those days there was no separate department of Bantu Education. The “ Secretary ” as defined in the Bill was the Secretary of Native Affairs, or any under-Secretary. He was a man of very high standing, an authoritative civil servant. Then there was an amendment —there have been amendments several times, 1953, 1956, 1959 and now 1961. In 1959 there was an amendment, and this is the amendment that was introduced. The “ Secretary ” then became, under the new régime of the Bantu Education Department, the Secretary for Bantu Education. And that definition included any under-Secretary, director or deputy director, which was, in fact, introducing an element of the old system of the provincial control where there were directors of education under the departments. In this way powers were delegated to senior officers in the Department. Now, in 1961, we say any officer designated by the Minister. Therefore we can say to-day that any officer of the Department can have the power of the Secretary. It goes as far as that. This must naturally lead to very slack administration and a loss of control.
If I can give an illustration of the difficult task that confronts the Department in carrying out the regulations as they are to-day, I can quote from the report of the Select Committee on Public Accounts last year. There is no person really to blame for this; they were operating under a system which was not efficient, not well-designed. We had a case where Bantu teachers claimed amounts from the Department because they had been dismissed from their posts. The Department was not prepared to employ them. To settle these accounts we had to introduce legislation. The cost to the Department was £27,000.
Sir, my point is that in those days control was in the hands of very senior officials. If we are going to delegate this authority to officials who are really juniors in the Department—as the hon. the Minister has said—the officials who will decide on subsidies for schools—then I think it is a very dangerous procedure to extend the definition of secretary to that extent.
So much for the first clause. The hon. the Minister says that no Minister would be so foolish as to appoint a person who was not responsible. But we may not always have such a good Minister. I think that is the usual reply to that remark. We may not get a Minister who is quite so efficient.
That is the polite reply.
Yes, quite. We may get someone who cannot carry out his duties so efficiently, and we may get unsuitable appointments.
I come now to Clause 2. This is the kind of clause that will attract people immediately. Subsidies are granted to-day for teachers’ salaries, and they are also granted for school buildings, for classrooms. Now this extends it to hostels, teachers’ quarters and school clinics. On the face of it it is a very commendable recommendation, but my point is this, that all this money has to come out of the Bantu Education Fund. The Bantu Education Fund was established, originally, for the education of Bantu children. No one in this House ever dreamt it would be extended to subsidizing university education. And now the same amount of money is being extended to pay for hostels and school clinics. Is a school clinic not part of the Department of Social Welfare or Health? This seems to be putting too great a strain on the fund. Yet, in spite of all this development we still say that the Government contribution from the Consolidated Revenue Fund will be pegged at R30,000,000. We will not pay more. I suggest very respectfully that the hon. the Minister should use his great influence within the Cabinet to have this R30,000,000 increased if we are going to do this. In my view it is grossly unfair to say to these Bantu children “ From your education account we are going to educate university students, and we are now going to extend payment to school clinics”.
I come now to a very important clause, Clause 3 of this Bill. This is very important indeed. It is a question of registration and the cancellation of registration of schools. One can analyse this clause into registration, refusal to register and cancellation of registration. Cancellation, I think we will all agree, is a very serious step indeed. Let us deal with the question of registration. Let us go back again to the history of how registration was dealt with in the beginning. We said in regard to registration, in 1953, that schools were to be registered as prescribed by regulation. We all knew what the regulations were. Any Bantu authority or any group of people asking for the establishment of a school could say “ There is the regulation, we make application under that regulation”. Then later, in 1956, this was amended. The ordinary application for registration was insufficient. The hon. the Minister probably felt he did not have sufficient control, and he introduced this: He said: “The registration under the 1956 Act was subject to such conditions as the Minister may determine.” It was not an ordinary, simple application that was granted forthwith. Under the 1956 Act the Minister could then say “ Here are the conditions for registration as I am laying them down for your school ”. And here we are in 1961. Look at the conditions for registration. The Minister may register now for a period only. That must be very difficult indeed for people who are anxious to encourage education in their district. For example, a farmer wishing to establish a school on his farm—and there are many such schools—would now be granted permission for a period only. Therefore it would be difficult to induce him to expend money on buildings and to enter into any other capital expenditure.
The next point is this: the hon. the Minister can at the end, if he so wishes, say “ Well, I will extend your period; you have been registered now for two years; I will extend the period”. I do not think one can conduct education in that manner. I do not think there should be that element of uncertainty. If a school is registered, then it must be for a very good reason that registration should cease. I would therefore say that when a school is registered it should be registered, and regarded as registered permanently unless there are not sufficient children to maintain the school. That is the system under our provincial education departments. Therefore, on that question of registration I say there is here in the Bill no security in registering.
I then come to a much more important point, the refusal of the Department to register when an application is made. Now we go to 1953. In the 1953 Act refusal to register a Bantu school was regarded as a very serious step. The Minister could refuse if he acted on the advice and recommendation of the Native Affairs Commission, given after inquiry by the commission. And we have had cases debated in this House. There was the case at Magaliesberg, because they had refused to register. We debated that here in terms of the recommendation the Native Affairs Commission.
But that was an existing school.
I am discussing refusal to register. Now we come to 1956. Under the 1956 Act it was not necessary to go to any higher authority. It was refused if the Minister himself—not through any advice from the commission—was satisfied that the establishment was not in the interest of the Bantu. It was not necessary to have the advice or the recommendation. And to-day the position remains the same in regard to refusal to register. The Minister has absolute power.
I come now to the most important of all, the cancellation of registration. When will the Department cancel permission to conduct a school? In the original 1953 Act cancellation was for the same reason as refusal. The Act said “ refuse or cancel ”—refusal or cancellation. In other words, we had to have that recommendation of an important body such as the Native Affairs Commission. In 1956 there was an amendment. It said—
It was a most important step to cancel the registration of a Bantu School. Then it was made to read “ it may be cancelled ”. The first was “ shall ”, the second was “ it may be cancelled if in the opinion of the Minister conditions of registration are not complied with That is fair. The Minister says “ Your school was registered under regulations but those regulations have not been complied with; you have not kept your share of the bargain ”. He is quite justified in doing that. The decision is for the Minister.
Now we come to 1961 and the Bill that we are considering to-day. The Minister may to-day cancel the registration of a school if there is a breach of sub-section (4), and we must really have a look at sub-section (4) because the whole of this clause is completely new. Sub-section (4) reads in this way—
And this is where the hon. the Minister, according to his speech this afternoon, imagines he is being generous—
In other words, if a school has been registered the Minister says “ I am now going to cancel the registration, but you may make representations to me. You cannot come and see me in Pretoria. I will ask you to see one of my sub-inspectors or an inspector, and then I will come to a decision ”. That is the attitude. That is really coming down to dictatorship in education, when we have been boasting that our system of Bantu education is education in which the Bantu share is a very important part. That is in regard to this very important Clause 3. But the most important thing of all about Clause 3 is sub-section (2) of the clause which makes all of this retrospective to 25 May 1956. It all goes back five years, and anything that has been done over the years is made retrospective to that date.
Mr. Speaker, I now wish to mention, briefly, Clause 5. My comment is that here again is a retrospective provision. And at the end of this new section it is suggested that when School Boards schools were first established that establishment was irregular.
Apparently so. That is the suggestion here under this new clause. It comes to this: we have had this Bill before the House over some months of this Session. The original Bill was withdrawn and introduced in the Senate. It now comes to us from the Senate. Had we had a Select Committee appointed at the beginning to consider these provisions, and we could have met the senior officials and discussed with them what their difficulties are, we could have come to this House with an agreed measure that would have assisted in establishing a system of education. But that has not been done. The Minister prefers to come along and say “ I am doing this in the interests of Bantu education and you should all be appreciative of the efforts I am making ”.
Mr. Speaker, I would make one parting gesture to the hon. the Minister. We are talking to-day a great deal about establishing advisory bodies in education. I think the hon. the Minister should establish an advisory body of Bantu to advise him on Bantu education. I have listened to some of their lectures about this, and they are very unhappy. I think if he were to make closer contact with them, consult with them—with the permission of the hon. the Prime Minister of course—if he were to have some of their advice and find out what they really felt about Bantu education, he would produce a Bill that he could be really proud of.
Hon. members opposite who have moved this amendment gave me the impression this afternoon in the first place that not only had they not prepared their speeches but that they did not understand this matter at all. The hon. mover himself struggled for half an hour to say what he wanted to say and he could not get to the point at all. I still do not know exactly what he wanted to say, except for two points which he could have made in five minutes, namely in the first place that the Minister should not delegate powers to junior officials and in the second place that certain clauses of the Bill should not be made of retrospective effect. He could have said that in five minutes, and it took him half an hour to do so.
Then you should resume your seat already.
Mr. Speaker, I do not only want to make those few minor points. I intend leaving the hon. member at that, except for one point on which I want to enlarge, namely this question of the delegation of powers to officials. I want to expatiate on this aspect by pointing out that this is a question of adding deputy-Secretaries which is merely an administrative matter because the post of deputy-Secretary has now been created in the Public Service and that title must now be added. When the Act was originally introduced, there was no such post. To make such a terrible fuss about that point and to raise such strong objections is to me merely an attempt to split hairs on matters which are of no importance at all.
The second point is the question of the delegation of powers. The position simply amounts to this: The Minister remains, when all is said and done, the person who is solely responsible to this House and through this House to the people outside for everything the Department does.
Who does not know that?
It is precisely because the hon. member does not know that that he makes such silly remarks. The fact remains that if the Minister were to be so irresponsible as to appoint a junior official who does not have the sense, the intelligence or the experience to take decisions or if he were to delegate certain powers to him, the Minister knows that he will get into hot water and that he will be called to account for the actions of that official. That is after all logical and self-evident. I therefore say that the final responsibility rests with the Minister, and this is exclusively a question of giving the Minister this power so that he can cope more easily with unnecessary delays and problems which may arise in the administration of his Department by delegating powers to officials who can take direct, rapid and effective action while he himself accepts the final responsibility. This is purely a measure aimed at achieving increased efficiency in the Department and I do not think we should find such great fault with this proposal that we consider it of sufficient importance to warrant the moving of an amendment.
I come to the second question, namely that of the retrospective effect of the clause. Mr. Speaker, this is no new principle. It is done everywhere and at all times, and the hon. the Minister has been frank enough to say why he wants to make it of retrospective effect. Nevertheless this point has been made the second foundation stone on which their amendment is based to-day. It may not be made of retrospective effect in this way! If it were to be made of retrospective effect in any other way in the clause itself, it would not be so bad! I honestly think that here we are dealing with people who have a poor case, who are handling it poorly and who are trying in this way to gain a little attention by opposing this Bill.
Judged from the way in which he submitted it, the hon. member for Kensington (Mr. Moore) had a stronger case. But he again went to the other extreme. He took the most exceptional and impossible practical example, exaggerated it and then submitted it to the Minister as a possibility. He mentioned the example of the salaries of Bantu teachers which came before the Select Committee on Public Accounts last year. We all know exactly what gave rise to that position, that this was a specific case and that it arose as a result of very special circumstances. To take that case and to say: “ There is an example of what is happening every day ” is a generalization which can never be true in practice.
That was one year.
I concede that that was the position in that one year, but why create the impression that this will happen every day because it has happened once? I want to leave Clause 1 and I want to devote my attention to Clause 3, that is to say the clause which amends Section 9 of the principal Act which deals with the exemption and the regulations. But I feel that this is the opportune time to move—
The House adjourned at
Bill read a first time.
Bill read a first time.
Bill read a first time.
First Order read: House to go into Committee on Indemnity Bill.
House in Committee:
On Clause 1,
In order to bring the provisions of Clause 1 in conformity with the provisions of the Republic of South Africa Constitution Act, I wish to move the following amendment to the wording of the clause—
I beg to move the amendment standing in my name on the Order Paper as follows—
I would say that the amendment of the hon. the Minister does not alter the position. The objection is an objection in principle to sub-clauses (a) and (b). The House will remember at the second reading I indicated that had it been possible to move an amendment making it clear that there was no objection to the indemnification of individuals, but the objection was to the indemnification of the State, we would have done so. The object of the amendment which I have now moved is that, by deleting sub-clauses (a) and (b) we will limit the indemnity to the individuals concerned, the police officers and other officers of the law, but at the same time will leave the liability which rests upon the State under common law. There, in the submission of this side of the House, it should belong.
The indemnity, as we know, is one which follows previous precedents. However, it goes further in one respect. This is a very much wider Bill that covers a very long period and a number of happenings. We have no information as to what Acts will be covered by this indemnity. In that respect it differs from previous Bills which have been passed. In all the circumstances of the various cases which we know will be covered, we believe that there is a very strong case for retaining the liability of the State itself. The hon. the Minister indicated, during the second reading debate, that there is a committee under the chairmanship of the State Attorney, which is going into the question of claims with a view to seeking to arrive at a settlement of claims in appropriate cases. I do hope that the hon. the Minister will accept the amendment moved, because I submit that the point which has already been raised at a previous stage is valid, that it is an error on the part of the Minister to constitute a committee of that nature.
Order, order! That committee is not under discussion here. The hon. member must confine himself to the clause.
Sir, I am attempting to give a reason why the hon. the Minister should accept the amendment which is before him. The hon. the Minister has stated, in effect he has conceded that there are cases where it is proper that liability should rest upon the Government. He has indicated that those cases are being examined by a committee …
Order! That matter was dealt with in the second reading debate. The hon. member must confine himself to the clause.
I am sorry that that is your ruling, Sir, I am trying to put my case for the omission of these sub-sections. Let me put it this way: no adequate steps have been taken by the hon. the Minister to deal with claims which the Minister himself feels should be dealt with by the State. The case we put is that the responsibility should rest upon the State. We agree to the remaining provisions which exclude liability from resting upon individuals. We feel it is proper, as they were acting in the exercise of their duty, that they should be relieved, and we say that the responsibility should rest upon the State. I do hope that even at this stage the hon. the Minister will agree to this amendment which, I submit, is in the interests of justice. If the amendment is agreed to, persons will have a direct claim upon the State and they will be able to negotiate with the Government on the basis of equality. In the absence of this amendment persons who may have perfectly justifiable claims will have to negotiate on the basis that they know that any offer which is made to them must be accepted, otherwise they might receive nothing. I hope the hon. the Minister of Justice will be prepared to accept this amendment.
I support the amendment moved by the hon. member for Springs (Mr. Tucker). The reasons to justify the amendment were made mainly during the second reading debate by this side of the House, and there is therefore no need to elaborate upon them. But, briefly stated, they are that the circumstances that prevailed at Sharpeville and Langa, and that can give rise to claims for damages or compensation by individuals against the state, (1) last for such a brief period of time and (2) resulting in the death or injury to a known number of persons, that no case has been made for exempting the state from judicial scrutiny and from legal liability for the acts of its officers in accordance with the common law principle of justice. In other words, the circumstances that prevailed can safely be left to the courts to examine and adjudicate upon in the interests of the individuals as well as in the interest of the state.
To confine claimants to some form of ex gratia compensation, and so to leave them at the mercy of executive charity can in no way be compared with a right of access to the courts. But it is, of course, to deny them access to the courts in the normal way, and that, we suggest, is not justifiable. It is also to deny to injured persons, and persons quite unrepresented in this House, the benefits and the privileges which we claim for ourselves from our common law.
My main purpose in entering into this debate was to refute an argument of the hon. member for Standerton (Dr. Coertze) which he raised during the second reading. I am sorry that the hon. member is not here, because I understood him to argue that the state only passively—that is by way of grace—accepts liability for the wrongful acts of its servants. He has suggested that there is no legal obligation to do so. It is clear to me that the hon. member based his argument on the wrong premises. The theory in the law of England that the King can do no wrong has never been part of our law. That is why the Union Parliament, as its first Act in fact, passed the Crown Liabilities Act No. 1 of 1910, which is now known as the State Liabilities Act No. 20 of 1957. That Act places beyond any shadow of doubt that the state is liable for the wrongful acts of its servants, that is capable of being sued in a court of law, and that it is therefore amenable to a judicial decree. It is true that Section 3 of that Act says, when talking about satisfaction of a judgment—
But the hon. member for Standerton has misread the reasons for that provision. The court is, of course, part of the state. The court exercises the judicial functions of the state. The hon. member for Standerton is fully aware of that because he actually had a hand in making that position abundantly clear in our present Constitution. Moreover, it is the state which executes the judgment of the court. The state does so in its executive capacity, and no Parliament would therefore even think of making provisions for execution by the state against the state in respect of an order of court. Surely to do so would be a bit of supererogation on the part of Parliament. Surely no Parliament would dream of placing an officer of the state who is responsible for executing the order of the court in the unenviable position of having to execute against his own master or against his own principal.
The provisions of Section 3 of the State Liability Act No. 20 of 1957 are there for very logical but very different reasons. The provisions of that section were commented upon by the Appellate Division of the Supreme Court in the case of the Minister of Finance v. Barberton Municipality in 1914, A.D., at page 353. I do not propose to read that judgment, it is a very lengthy judgment. I therefore use my own words to explain the reasons for the provision in the Act. The reasons for that may be conveniently stated thus: Just as the legislature proceeded on the lines in the Crown Liabilities Act—now the State Liabilities Act —of granting the court jurisdiction to entertain actions against the state and of treating any resulting decree against the state as being morally binding upon Executive Government instead of legally enforceable; just so the legislature assumed that Executive Government will obey the judicial decree against it and will respect its authority, and for the settlement of any judgment debt will provide for the expenditure involved in Estimates of Expenditure which are presented annually to Parliament. That has always been the position and the practice in the past, and I have no doubt it will continue to be the position and the practice in the future. That, too, is why no execution against the state is contemplated or provided for by law.
Mr. Chairman, I therefore refute the arguments that were advanced by the hon. member for Standerton, I plead with the hon. the Minister to accept this amendment which, I submit, was fully justified during the second reading debate, and which will preserve the principles of justice and of right intact in the Union so far as the state is concerned, and also the individual.
I wish to move an amendment to this clause as follows—
Firstly I want to say that I would like the hon. the Minister to tell me how a criminal act can be committed in good faith? Once an act is criminal it cannot be done in good faith, surely, and in my humble opinion this clause is a passport for indiscriminate violence. The perpetrator of that crime can now hide under the cloak of this clause and say “ I am completely covered, I am not responsible, I did it in good faith ”. But who is going to be the judge as to whether he did it in good faith or not? Surely the hon. the Minister does not intend to allow the police, by way of example, to commit indiscriminate actions of violence, and take no action, merely because somebody says “ I did it in good faith ”? Who is going to be the judge as to whether it was done in good faith? Will the hon. the Minister give us the undertaking that there will be some sort of enquiry?
The court will be the judge as to whether it is done bona fide or not. If it is done male fide, that can be proved.
But you could not prove male fides. And who is going to institute the proceedings in any event? This Bill says that no criminal proceedings shall be taken. Who is going to prove the male fides? Is it to be the Crown?
Mr. Chairman, I think that we must not make a farce of the law of this country. No Government desires that a criminal should escape the consequences of his actions if they are criminal. We know that there may be cases where people—and particularly the Coloured people and the Bantu—can be treated in a way in which we know they have been treated by some irresponsible people in the past. Criminal acts have been perpetrated against these people. Is the perpetration of those crimes now to be excluded from any criminal proceedings? In any event, we are not to depend upon the Attorney-General or whoever it may be, to go into the question as to whether an act is male fide or not. Who is going to institute those proceedings? If a man comes to the police and says “ I lay a criminal charge against A because he did this, that or the other thing ”, will the hon. the Minister give us an unequivocal assurance that that will be followed up? Will the Minister give us an assurance that every act of violence against people where a charge is laid will, in fact, be treated in the same way as it is done to-day, so that people shall not be prejudiced if, in fact, a criminal act has been committed against them? I can understand the aspect of the suspension of civil action against the Government, and I support that aspect because of the undertaking which was given by the hon. the Minister that no claims, if lodged, will be automatically repudiated but will be referred to a committee which will be set up. For that reason I am not excluding the words “ civil action ” in this matter. I hope the hon. the Minister will give me an explanation on this question which I repeat: How can a criminal act be committed in good faith? I move.
I now rise to move the amendment standing in my name—
The principle of the Bill has now been accepted that there should be exemption from legal liability for acts done, even for wrongful acts done, which fall within the terms of this Bill. Therefore, the last remaining question to be decided by the Committee of this whole House is the period over which this exemption should extend.
In the very nature of things an Indemnity Bill must have retroactive application. It is right therefore that the date from which the indemnity or the exemption from legal consequences of wrongful acts is to commence should be clearly stated. That is done in this Bill. This indemnity is to commence from 21 March 1960, the day when a state of unrest at Sharpeville and at Langa was outwardly demonstrated, and when persons were killed or injured by gunfire as the result of action taken by the police in dispersing assembled crowds at those two places. But what the Bill is designed to do is to suspend from 21 March 1960 the ordinary law of the land which regulates the institution of actions in courts of law for damages and compensation in all matters which are covered by the terms of this Bill. It is right, therefore, that the date which will terminate the period of suspension of the conventional rule of law which entitles the individual to have recourse to the courts in the ordinary way, should also be precisely stated.
I do not follow you. Why do you choose that particular date? Why do you say the 22nd?
I will come to that. The termination of this period of suspension is not precisely stated. It is left completely vague as to when the Bill will ultimately become law. That period should obviously be as short as possible and it certainly should endure no longer than the known circumstances or the known events giving rise to the Bill fully justify. I use the words “ known circumstances ” or “ known events ” because in his reply to the second reading debate the hon. the Minister chose to make much play of what he said might have happened over the three days, 29 to 31 May. if certain so-called subversive plans had taken place. The hon. the Minister quoted at some length from some document which had fallen into his hands. How authentic or spurious that document is I do not know. I see that in the Press this morning it is described as a leg-pull, or as a hoax. But whatever the position in regard to this document itself may be, the Minister was dealing with “ might have beens ”, and it sounded very much like the poison well story of his predecessor in office. It seemed to me that if the hon. the Prime Minister had been dealing with this document he would have called it a shot in the dark. Sir, what might have happened but did not happen is quite beside the point. The known circumstances here are that the state of emergency proclaimed in March 1960—that is immediately after the events of Sharpeville and Langa—came to an end on 30 August 1960. that date, 30 August 1960, would therefore be the logical final date to which indemnity should be granted by Parliament. Parliament should not have to take shots in the dark, it should deal with known facts.
I have said “ acts committed and contemplated ”.
“ Might have beens ”.
No, no, I am not referring to might have beens. I said “ acts committed and contemplated ”.
But we cannot deal with acts contemplated. Nor does the Bill deal with acts contemplated. The Bill deals with acts that have taken place and that can give rise to claims for compensation or for damages in a court of law. Therefore 30 August is the logical date when there should be termination of the exemption from legal liability.
The hon. the Minister, however, chose to issue a public statement to the Press on 21 October 1960, giving notice to all concerned that it was the intention of the Government to come to Parliament with this Bill. That is why I have chosen that date, because I feel I should give the benefit to the State of this longer period. I suggest, therefore, that the termination of this exemption from liability should be up to 21 …
What do you say to the inclusion in the Bill of the period round about 31 May this year?
I have indicated that there are no known facts on which Parliament can operate or legislate. As I say, we must deal with known facts. We cannot have shots in the dark in regard to serious and important restrictions on the rights of the individual in this way.
During the second reading debate I invited the hon. the Minister to tell us precisely how many isolated incidents there were, apart from the Warmbaths incident, which would be covered by this Bill, and the hon. the Minister has remained silent about the matter.
I come back, therefore, to the fact that Parliament cannot be expected to legislate for something in contemplation at some time unknown and undetermined. I know the hon. the Minister will point out that what happened in respect of indemnity measures which were passed in 1914 by Act No. 1 of 1914, and in 1915 by Act No. 11 of 1915, and in 1922 by Act 6 of 1922. Admittedly, in all those cases, the termination of the period of suspension was the date of the coming into operation of the Act. Let me quote just two of the incidents. In the case of the 1914 Act it came into operation on 8 January 1914 and expired on 23 March 1914, slightly over two months. The 1922 Act was much the same, slightly over two months. Admittedly the 1915 Act was of longer duration.
In 1922 martial law was proclaimed.
That Act started on 10 March 1922 and terminated on 16 May 1922. That was slightly over two months. I admit that the 1915 Act endured for a longer period, from 4 August 1914 to 20 April 1915, slightly over eight months, but that was during a period of war and the war continued to last for some years longer. The circumstances in this case, as has been pointed out repeatedly, are entirely different. If my amendment is not accepted, the period to be covered will be more than 15 months, and the known circumstances certainly do not justify a period of indemnity as long as that. I say it is important that Parliament should be precise about this matter. [Time limit.]
Perhaps I should deal with the points raised by hon. members in the order in which they raised them. The hon. member for Springs (Mr. Tucker) moved an amendment which, if accepted, would change the whole character of the Bill. It affects the entire principle of the Bill. The Bill might just as well be withdrawn completely, because it is the officials and the agents of the Government who act on behalf of the Government who commit certain cast against which the State protects itself, as has always been the case in respect of indemnity legislation in South Africa. The State has to protect itself against acts committed by people who act in its name. The hon. member now says we should indemnify those people, we should exclude them and say that the State is responsible. I cannot take it further than that. It is something quite new in the history of South Africa to introduce indemnity legislation and to make an exception of the agents and those people who act on behalf of the State. That was not done in the case of the two best peace-time examples, the best of which are Act No. 1 of 1914 and Act No. 6 of 1922. There it is stated quite clearly; I do not know what attitude the Opposition adopted in those days. I can only say that the attitude which General Smuts, who introduced that legislation, adopted, was that the State should be indemnified in all instances. Let me just in passing refer to what the hon. member for Boland (Mr. Barnett) had said. He should look at the provisions of the 1914 Act. Section 2 (1) says—
That includes civil as well as criminal actions. Section 2 (1) of the Act introduced by General Smuts in 1922 also says—
It includes both, civil and criminal, and it includes the whole list of State officials. During the second reading debate I said that it had become customary in South Africa that, in the case of legislation such as this, as was done in those two previous Acts and as is suggested in this Bill, the individual has always had the right to prove mala fides. I am in favour of that opening, and it will be retained if further indemnity legislation is needed in future. The custom on the part of the State to leave an opening to people to come forward if they can prove mala fides should be retained. That is a very reasonable attitude which is also adopted in this Bill. The hon. member for Springs adopts this attitude—if I may just have his attention for a moment—that the person should have direct access to the court. That sounds fine. When the hon. member pleads for it in that way, Sir, you are inclined to agree with him, but that is in the case of acts in general in respect of which no indemnity is required. When it is necessary to be indemnified you can say to the person that if the agents of the State acted bona fides he cannot take action against the State, and in that case that fine principle of the hon. member does not apply. It did not apply in 1914, nor in 1922, nor can it apply in 1961, except in the case of mala fides. I am very sorry, but I cannot accept the hon. member’s amendment.
In this connection, in answering to the hon. member for Standerton (Dr. Coertze), the hon. member for Johannesburg (North) (Mr. Plewman) quoted the State Liabilities Act, and his attitude was this: that it rests with the State to carry out the findings of the courts. For the purposes of legislation, this Bill does away with the State Liabilities Act. It says—
And then it gives a long list of those against whom no action can be instituted.
It is not a legal principle. That is a matter which the hon. member should settle with the hon. member for Standerton.
I think I have replied to the hon. member for Boland by saying that I regret it, but that I could not accept his amendment because that, too, would materially alter the spirit of this Bill. What does he want? He does not want us to do what was done in 1914, namely, “ all legal proceedings whatsoever ”. He wants to limit what was provided for in 1914 and in 1922 and in this Bill, to civil actions. I say that in that case you will materially alter the spirit of this Bill, and I cannot accept that. He wants to know how a criminal act can be bona fides. The hon. member wants to introduce a new legal principle for which I do not want to accept responsibility. That is as far as the amendments of the hon. members for Springs and Boland are concerned. Then we have the amendment moved by the hon. member for Johannesburg (North). He objects to the period. He says the period is too long, and that it was shorter in 1914 and in 1922. I agree that the period was shorter, but the circumstances of the day probably enabled the Government to make the period shorter. But here, apart from the objection raised by General Hertzog against the 1922 Act—I did not have an opportunity of going into it—his objection was that a period had been fixed and. no matter how short the period was in 1922, there was a stage when nobody knew what the State had in mind. As far as I was able to ascertain from General Smuts’ speeches, I could not find one instance where he mentioned what had happened during the week before martial law was declared. The hon. member now wants the Government to give chapter and verse in respect of what has happened in recent times, so that the most recent occurrences may be included in the Bill, but nowhere did I find that General Smuts gave chapter and verse in 1922 of what had happened during the eight days before the declaration of martial law.
But it was only for two months.
The hon. member is returning to the period, but circumstances often change the position. The hon. member knows that at the beginning of this year the Press and various people were already talking about what would happen on 31 May. It would, therefore, only involve the Government in extra work if it has to introduce new legislation next year if anything were to happen, part of which has already happened, to cover 31 May. Hon. members would then again say: “Why did you not introduce this Bill last year? ” We are covering two periods in this Bill, and I am somewhat surprised at the hon. member for Johannesburg (North) for adopting this attitude. I was really under the impression the other day that that was not the attitude of the official Opposition as stated by him to-day. We had to hear from him this morning that the Opposition was against it that the recent happenings should be included in this Bill. I do not want to attribute an attitude to the hon. member which I have no right to do. I merely wish to say that I was under a different impression the other day; I was under the impression that the Opposition was adopting the responsible attitude that, whatever has happened in recent times, they agreed that that should fall under the provisions of this Bill. This morning, however, we had a totally different story from the hon. member, namely, that they were against it that the most recent happenings should be covered.
I said that you could not be guided by facts that are known.
I do not want to be unreasonable towards the hon. member and I accept his word for it. In other other words, in principle the official Opposition is in favour of it that they should be included, but they only complain that the period is too long. My explanation is this. A government that knows in advance that certain things are going to happen will not introduce indemnity legislation early in the year to cover the happenings of the previous year if it knows that something may happen, even before Parliament rises, that might just as well be included, exactly as is happening here.
What has happened now?
I will tell the hon. member. As I have said certain acts have been committed and we expect further acts to be committed, and I have given certain indications. I went as far as I could under the circumstances during the second reading to lift the veil a little but I deliberately did not lift it too much because certain arrests have been made in connection with the matter raised by the hon. member, and I was pleased that he did not go further than he did go. Let us wait and see what attitude the courts adopt but he now wants to know what has happened. We must tell the House what has happened. My reply to the hon. member is that surely he understands that South Africa is a big country, that many things have happened, and that it is impossible for us to give the House chapter and verse as to what has happened so shortly afterwards and what has made it necessary for the Government to take action, action in respect of which it should be indemnified. If I were to give details—and there are certain details which I can give at this stage but not all details—it may be unfair towards people who are awaiting trial. For that reason I think the hon. member will forgive me if I do not go into details. No, I repeat this Bill will not operate for all time. I hope it will not only come into operation within a month’s time or whatever it may be. The Bill will come into operation; if the Opposition assists us to put it into operation to-morrow, it will come into operation to-morrow but not later. But that cannot happen because it still has to go to the Other Place. If we include the recent occurrences and the Opposition assists us so that the period does not become too long, we shall be assisting each other. It depends on the Opposition to what length the period is extended. The longer they detain the House—and they are quite entitled to do so—the longer will be the period before the Bill comes into operation. The Government’s attitude is that it should come into force this Session.
I think these are the points that have been raised and I am sorry that I cannot accept the amendments.
I rise to support the hon. member for Johannesburg (North) (Mr. Plewman) in the amendment he moved with regard to the limitation of time and I must say that I decry the protestations of the Minister, who always tries to draw a red herring across any argument that is put up, and leaves the House and the country under the impression that there is a constant state of unrest about which he cannot say a great deal. I think that is a disservice to the affairs of the nation. The Minister did originally, when he introduced this Bill, quote certain precedents in order to support the terms of the Bill, the basis of the Bill and the purpose of the Bill, and he has received a certain measure of support from this side of the House with regard to the persons to be covered, but it has been pointed out to him at all stages of the discussion that the limitation of the period is an important issue. It was an issue in all the other precedents he quoted with regard to overseas proceedings. Here we find ourselves in the position where there is no limitation of time. The other day the Minister quoted extracts from a certain pamphlet he had, and according to a disclosure in the Press this morning—the Minister has not dealt with that at all …
Order! The hon. member cannot deal with a report in the Press
It was disclosed as a hoax, but I will put it another way. The Minister referred to a certain pamphlet which he said he had received and from which he made certain quotations which indicated that there were still serious events taking place day by day of which he could not give the House details, but he quoted from the pamphlet to indicate how serious the position was. I would like to ask the Minister whether he is prepared to repeat the extracts from that particular pamphlet and to assert that he seriously regards that pamphlet as something so seriously subversive that he is justified in proceeding with the time indicated in this Bill during which the indemnity is to apply.
You are trying to bluff.
Is the Chairman prepared to accept that as a parliamentary term? I would like to lodge my objection, because the hon. member is Trying to impugn my position as a member of this House by saying that I am trying to bluff.
The hon. member may proceed.
I would like to lodge my objection to the remark of that hon. member that I am trying to bluff, because I say it as a reflection on me as a member of this House.
The hon. member may proceed.
The Minister is keeping this House and the country in a constant state of nervous tension because he suggests that the reason why he cannot accept a limitation of the period as suggested by the hon. member for Johannesburg (North) is that certain things are taking place and he is not prepared to have a limitation of time because he is not yet sure what it has to cover. Do we, e.g., in this Bill want to cover the proceedings that took place from 29 to 31 May? I say he had no right to refer to that if he is interested in the state of the nation and the sense of security of the people of the country; because although certain steps were taken no one knows whether they were completely justified, but nobody disagrees that the Minister was justified to take notice of certain information that came to his knowledge. But that is no justification in respect of unknown matters, to allow the period to be so protracted with regard to certain incidents which he admits took place well over a year ago and in respect of which he did in October, the date mentioned, state that he would introduce an Indemnity Bill to cover persons who had participated in those events and who had done things which might be illegal, but which he wanted to cover because it was in the interest of the State to do so. That I can understand, but the limitless period of time which the Minister is trying to defend for no reason at all is not clear to this House or to the country. There is no question here of pride, of maintaining it just because the Bill says so. Surely the Minister can appreciate it when a sound, logical and reasoned argument is put to him, which is in accordance with accepted practice in all Parliaments of the world. There, when indemnity is asked for, it is applied to the period which it was intended to cover, and it is not applied nebulously and vaguely in regard to events of which one knows nothing. That is the point this side of the House wishes to press upon the Minister. Nobody denies the indemnity. One does not require horror stories or fear stories from the Minister to justify what he is doing. All we want from him is some sound reasoning as to why he wants limitless time, and I do not think it is fair to the House to tell us that we do not know what is taking place. He cannot tell us what is taking place, but some things are taking place and he quoted a certain pamphlet as an example, which I do not think any of us is very happy about. But I think one must give concrete facts and reasons for these things, and not make emotional statements which get no one anywhere and which do not justify the limitless time asked for by the Minister.
I merely want to say to the Minister that whilst he quoted the two previous Acts, he did not apparently consider it necessary to follow the wording of those Acts, because in both Acts there is a special section which reads as follows—
In other words, in these two Acts the door to the court or the charge office was not closed to a person. An allegation could be made and proved. But in this Bill the Minister did not follow that wording. He excluded this particular paragraph in this Bill, because I think it was intended in the previous Act that a person would have the right to go and make an allegation and then say that he is prepared to prove it.
Read line 20 of the Bill.
It says: “It shall be presumed unless proved ”. No, just let me get it clear: “ It shall be presumed until the contrary is proved.” That is in line 37. By whom? There is nothing to say that the contrary shall be proved by the person complaining. As it stands here it is very vague, but the previous Acts were not vague. In terms of the previous Acts the person affected could make an allegation and the onus was on him to prove mala fides, but I say that the wording of this Bill is vague and embarrassing and it could be construed by the courts as precluding anyone from making even an allegation, because there is nothing in this paragraph to say who shall prove the contrary, whether it will be the police or the complainant, because the Minister must appreciate that as it is printed in my opinion, prima facie, because it is so different from the previous Acts it may be easy for the police or the courts to say: I am not prepared to take up this allegation because there is nothing in the Act which permits you to make the allegation. I ask the Minister that if he intends to follow precedents, he should follow these two previous; Acts and include this paragraph 2. I think this Bill could be construed as completely closing the door to any complainant in respect of any act which he thinks was done mala fide. I hope the Minister will reconsider the matter and use the phraseology used in the previous Acts.
I want to reply briefly to the hon. member for Boland (Mr. Barnett). The hon. member spoke like a layman as far as the law is concerned and I always understood that he was an attorney. The position is very clear. I did not have an opportunity of comparing it with previous Acts, but it is very clear what a person has to do if he wishes to go to court to institute either a criminal or a civil action. It seems to me that the hon. member’s difficulty is not so much in respect of civil actions but in respect of criminal actions.
I only said that I was not worried about civil actions because of what the Minister had said.
I gather from that that the hon. member is concentrating more on the criminal aspect. If anybody feels that he has suffered an injustice nothing prevents him from laying a charge with the public prosecutor or with the police. The Criminal Procedure Act lays down what he has to do. If a person has a complaint he goes to the charge office and here too the person who feels that he has suffered an injustice will go to the police who will take his statement and he will have to allege two things. He has to allege that what has been done to him was mala fides and also that it was done to him not in the course of suppressing the position described in the section. Of course, the police will take statements from the opposing parties concerned, and then the public prosecutor decides whether or not to continue with the case. That is the ordinary law. The prosecutor decides on behalf of the Attorney-General whether or not to continue with the case. If he refuses to prosecute the Criminal Procedure Act provides that he can lay a charge in his private capacity.
Where does the Bill say that?
It need not say it. The Criminal Procedure Act says it. The hon. member’s second difficulty is this. Imagine, Sir, the hon. member who is an attorney asks how a crime can be committed bona fides. Hundreds of crimes can be committed bona fides.
I can shoot you bona fides.
Yes, if you take me for a buck, and you will probably be justified in doing so. But I want to refer to the particular type of case with which we are dealing here. It will mainly be cases of assault and if you look at the definition of “ assault ”, Sir, you will find that it has to be done deliberately and unlawfully. It does not say that the action must have been male fides. A doctor may assault me male fides by performing an operation on me in the belief that I gave my consent to the hospital, whereas I had not. That is a case of technical assault. Male fides is not absolutely necessary particularly in the case of the type of contravention covered by this Bill. Male fides is not necessary. You can attack a person bona fide and yet unlawfully. Those were the two points that I wanted to explain to the hon. member.
Certain points of important principle have been raised and I do hope that we will get complete clarity in regard to those points. I will come back to them in a moment, but in regard to the matter raised by the hon. member for Boland (Mr. Barnett) I would like to put certain points to the Minister. Perhaps I misunderstand the position although I do not believe so. The position is that the indemnity is in respect of proceedings, whether civil or criminal, by reason of any act committed in good faith. It seems to me that if an act is in good faith there cannot be any intent; that intent is an essential element of a charge of murder, for instance, and therefore it seems to me that it is right that there should be indemnification in the circumstances set out. This Bill requires that the act shall have been done in bad faith, in other words, male fide, before there can be any prosecution, it seems to me. I hope the Minister can make this point clear to us. It seems to me that in those circumstances it is reasonable that this Bill should cover civil actions in respect of criminal acts. The provision appears to me to be almost unnecessary. because if the act is in good faith I cannot see how there can be any intent which is an essential element of a charge of murder or assault, or other crimes. The point made by the hon. member for Boland does not seem to me to be a point of substance. It is quite obvious that if an action is brought which is in conflict with the provisions of this Act, then in the absence of an allegation that that particular act is not covered by the provisions of this Act, an exception to the proceedings must be upheld once this Bill has been put on the Statute Book. That being so, it seems to me that anybody who wishes to take action, whether it be civil or criminal, would have to include in the documents as one of his allegations the statement that that act was not done in good faith. If he can establish that it was not done in good faith, then the court must allow him to proceed. I rise to try to clear up this point because there seems no point in our having a debate on the point if in fact the Bill is not interfering with the position. It seems to me that criminal proceedings can be instituted in cases where there are male fides, but that would have to be alleged and in due course proved before there could be any conviction. If this is alleged, then apparently that case is excluded from the provisions in respect of which there is an indemnity and the court will have to hear it. It becomes a question of fact as to whether or not there were male fides. It is for that reason that no amendment was moved by the official Opposition to omit “ criminal”, We believe that the act is not criminal if it is done in good faith for the protection of the State. If the person concerned, for instance, used excessive force or was male fide in other respects, the complainant can so allege and proceed with his case and the court will decide. I shall be glad if the hon. the Minister can confirm that that is the case and I think the hon. member for Boland would then be satisfied. I think all he has been seeking to do is to make absolutely sure that this measure will not prevent criminal proceedings in cases where there is an absence of good faith. If that can be cleared up we can leave that point and deal with the other items in dispute.
I just want to return to this point that there is no difference whatsoever between the wording of this Bill and the wording of the 1914 and 1922 Acts, and I also want to say this to the hon. member for Boland (Mr. Barnett). If he looks at the two former Acts and to this Bill, he will find that there is no difference whatsoever in the meaning because the 1914 and 1922 Acts exclude “ legal proceedings whatsoever”. This Bill does the same only in different wording, but the meaning is absolutely the same. As far as the second point raised by the hon. member for Springs (Mr. Tucker) is concerned, it is clear that nobody can institute action against the State if the State can prove that the act was bona fides. But, in the reverse, if a person wishes to institute action the onus rests on him to prove that there was male fides and I think that is quite clear in this Bill as it reads at the moment. I do not know whether my colleagues see any difference, but it is absolutely clear to me.
I would like to come back to the amendment of the hon. member for Johannesburg (North) (Mr. Plewman). I would like to say to the Minister that it has been conceded that circumstances may arise where an indemnity is necessary. The difficulty which was raised by the hon. member for Johannesburg (North) is that here we are being asked to indemnify Acts when we do not know what those Acts are and we are not in a position to judge whether an indemnification is necessary or not. The date mentioned by the hon. member for Johannesburg (North) would cover all the events of last year. Sir, it should be noted that the hon. the Minister gave notice of this Bill on 11 April. The Minister appeared to indicate this morning that it was then known that this Bill would not be passed until after the present date. Surely, Sir, that is not correct. Indemnity Bills, as I understand the position, have always been introduced in the past when the emergency which they are intended to cover is past, and when it is a question of preventing the institution of claims. It seems wrong to pass a Bill when this House does not know the nature of the actions against which it is sought to indemnify the State. That is the underlying reason for the amendment moved by the hon. member for Johannesburg (North). The Minister in his reply has rather hinted that there are cases, but we do not know of any cases. I know of nothing that happened over the period ending 31 May which could be the subject of an indemnity in terms of this provision. I do submit that it is in the interests of all, where there is an indemnifying measure, that that indemnity should be in respect of matters which are known, and if the hon. the Minister knows of cases subsequent to the date mentioned by the hon. member for Johannesburg (North), I hope he will tell us so that we can judge on the merits whether there should be an indemnification or not.
I do not think I can omit to comment on the point raised by the hon. member because it is important and I want to add this to what the hon. member has said. I cannot believe that it will be expected of a Government to indicate at a stage such as the present, what all the occurrences are from which actions may possibly arise, particularly as far as the most recent happenings are concerned. However, the Government suggests that this period should be covered and it will only be covered until such time as the Bill becomes law; in that case it will not be necessary for us to come forward with another measure next year and once again to have the accusation levelled against us that we had waited too long. What did Great Britain do in her Indemnity Act of 1920 to which reference was made during the second reading debate? Hon. members must remember that the Indemnity Act of 1920 was passed when the 1918 war was over for all practical purposes. What does that Act say?—
Then these words follow—
That is different.
That includes all Acts.
That was during the war.
Yes, he says “ during the war ”, but because the war had not officially come to an end but had only factually ceased—that is the point I wish to make—they had to add that not only were the Acts up to the date of the passing of the Act covered, but if words have any meaning, it also covered acts committed subsequent to the passing of the 1920 Act, because it says “ if any such proceeding has been instituted, whether before or after the passing of this Act, it shall be discharged ”. If words have any meaning, it means that in Britain action could also be instituted after the law had been passed. We are not asking for that. We are only asking that a period should be covered that will include the period which we have in mind. I have already said that it is possible that there may be people who will commit acts on 26 June, the so-called freedom day, against which the State would like to be indemnified. I want to put it this way: If this Bill comes into operation before the 26th by reason of the prorogation of Parliament, I will be quite satisfied to exclude the 26th from the Act, but it is obvious that if the Bill only comes into operation after the 26th or on the 26th, it must be included. It would be wise on the part of any Government to suggest that. At the beginning of the year the Government realized that certain things might possibly happen in South Africa because people spoke about it and the newspapers wrote about it. It was therefore wise on the part of the Government to delay its indemnity measures until certain things had happened. Fortunately most of the things predicted did not happen, but nevertheless certain things did happen here and there and I contend that in view of the fact that we are so close to 26 June it would be just as well to include the 26th if the Bill does not come into operation before that date, but I want to repeat that if it is not possible to include the 26th by reason of the prorogation of Parliament or by the coming into operation of this Act, I am prepared to leave it at that but if necessary to introduce an indemnity measure next year. We will have the same complaints that we had on this occasion as to why we had waited such a long time, but that does not matter. I say it will be unwise on the part of the Government not to make the Bill as inclusive as we are doing. I am very sorry that I cannot meet the hon. members for Johannesburg (North) and Springs.
The hon. the Minister has now given this Committee a good reason for supporting the amendment of the hon. member for Johannesburg (North) (Mr. Plewman). He now tells us that this measure can be used to indemnify the State against acts which have not yet been committed. How can this House judge a matter of this description?
I said that during the second reading; it is not a new statement.
I know it is not new but I do not agree with that statement. I wonder if the hon. the Minister can help us. Certain dates have been given by the hon. member for Johannesburg (North). I wonder if the Minister can take this Committee into his confidence and tell us whether there are matters which happened after that date up to the present time—I am talking about past, not future matters—in respect of which he is of the opinion that legal proceedings might possibly be instituted if this Act is not amended in the way that the hon. member for Johannesburg (North) asks. On the face of it, cover is being taken over a long period without this Committee having any information on which it can base a reasonable judgment as to whether this additional indemnity is necessary. We have conceded the indemnity to individuals up to the termination of the emergency last year. We have asked that it be confined to indemnification of individuals but not of the State. I do submit to the hon. the Minister that it is unreasonable to ask this House to indemnify the State against acts of which we have no information and in fact it seems to me that there are no acts—we are being ultra-careful—except possibly that acts may yet take place. I say to the Minister that if that is so they should be the subject of a future Bill.
I would just like to join issue with the hon. the Minister on one matter which he raised in the course of his reply a few moments ago. and that is his reading of the first clause of the British Indemnity Act which was quoted here this morning. I do not know whether the Minister took note of the information which I gave him during the second reading debate, and that is that if he had looked at the footnote by Halsbury to that Act, Halsbury being an accepted authority, he would have found that the footnote made the specific statement that this Act only referred to events which took place during the 1914-18 war. The fact that you can take action after a Bill has become law is nothing extraordinary; it is the only way in which you can take action or avoid action.
But it is a 1920 Act.
Yes. it is a 1920 Act, but that does not matter. It confines itself to the period of the war. Our whole point is this: If the Minister wishes to quote an authority to the House and wishes to base his case on that precedent, then he must read exactly what the authority contains and this particular authority has a footnote which says that the period was limited to the 1914-18 war. Two specific years are mentioned; the war commenced in 1914 and terminated in 1918. The fact that no official peace was signed until some years later has nothing to do with the Indemnity Act. In Germany, for instance, they are still battling to-day to get a peace treaty signed, and it is some 16 years since the war came to an end. So that is not an argument for the hon. the Minister to use. We are perfectly prepared to meet the Minister in his difficulties, but he must bring us authoritative statements if he wants us to accept his argument. We are not advancing this argument to oppose him on some nebulous matter. The hon. member for Springs has pointed out clearly that we do not know what the Minister wants to cover, nor does he apparently know. He is hoping that in case something happens the State will be covered. May I draw the attention of the Committee to the fact that this Bill was introduced on 10 April. Let us assume that the second reading was brought before the House during April and that it was passed without any opposition.
Order! The hon. member must confine himself to the clause. When the Bill was introduced has nothing to do with the clause.
Nor has the Indemnity Act of England anything to do with the clause that we are debating.
I have already allowed the hon. member a certain amount of latitude.
Can the hon. the Minister tell us that at the date he did introduce the Bill, he intended to cover something that might take place one, two, three, four or five months ahead, without citing specifically in the Bill that this Bill is intended to cover everything that may occur up to the end of June, July or August? How can the Minister, as the initiator of this legislation, expect us to accept that this Bill, if it takes another three months to become law …
I stated clearly that this Bill would come into force during this Session.
Yes, but the Session might have lasted until the end of August. How can the Minister work that out in advance? Sir, that is not a sound argument. The Minister must stick to the grounds which he placed before this House and on which he based his case. He said that he was relying on a precedent abroad, in addition to what has happened in this country. The precedent abroad is important because it is based on a specific fact.
The hon. member has already dealt with that.
Well, I cannot stress it sufficiently.
I would like to ask the hon. the Minister a question. The indemnity covered in this Bill is a wider indemnity than, for instance, the one covered in the Pondoland regulations that we discussed the other day.
Order! That is not under discussion.
I want to know if this Indemnity Bill covers the conditions existing in Pondoland to-day. Surely, Sir, this is relevant.
Up to the date on which this Act comes into force.
As the hon. member for Johannesburg (North) (Mr. Plewman) has pointed out, we do not know what has been happening and what sort of actions are likely to be brought against the state for events that happened over the period ending 31 May; so too are we completely in the dark about any actions which might be pending as a result of the disturbances in Pondoland, because there is a complete veil of secrecy over that area. Nobody is allowed into the area and the Press is excluded and we are therefore utterly in the dark about any incident which might have occurred there and which might give rise to claims against the state. Therefore we want to support the amendment moved by the hon. member for Johannesburg (North) which would limit the operation of this Bill to the statutory state of emergency last year. We want to have more information before we are prepared to grant this blanket indemnity to the state.
Amendments proposed by Mr. Barnett put and negatived.
Question put: That the word “ the ” in line 6, proposed to be omitted, stand part of the clause.
Upon which the Committee divided:
Ayes—79: Bekker, G. F. H.; Bekker, H. T. van G.; Bootha, L. J. C.; Botha, M. C.; Botha, P. W.; Botha, S. P.; Coetzee, P. J.; de Villiers, J. D.; Diederichs, N.; Dönges, T. E.; du Pisanie, J.; Erasmus, F. C.; Fouché, J. J. (Sr.); Froneman, G. F. van L.; Greyling, J. C.; Grobler, M. S. F.; Heystek, J.; Hiemstra, E. C. A.; Jonker. A. H.; Keyter, H. C. A.; Knobel, G. J.; Kotze, G. P.; Kotzé, S. F.; Labuschagne, J. S.; le Riche, R.; le Roux, P. M. K.; Louw, E. H.; Luttig, H. G.; Malan, W. C.; Marais, J. A.; Maree, W. A.; Mentz, F. E.; Meyer, T.; Mostert, D. J. J.; Muller, S. L.; Nel, J. A. F.; Nel, M. D. C. de W.; Otto, J. C.; Pelser, P. C.; Potgieter, D. J.; Potgieter, J. E.; Rall, J. J.; Rall, J. W.; Sadie, N. C. van R.; Sauer, P. O.; Schlebusch, J. A.; Schoeman, B. J.; Schoeman, J. C. B.; Schoonbee, J. F.; Serfontein, J. J.; Smit, H. H.; Stander, A. H.; Steyn, F. S.; Strydom, G. H. F.; Treurnicht, N. F.; van den Berg, G. P.; van den Heever, D. J. G.; van der Ahee, H. H.; van der Merwe, J. A.; van der Merwe, P. S.; van der Walt, B. J.; van der Wath, J. G. H.; van Eeden, F. J.; van Niekerk, G. L. H.; van Niekerk, M. C.; van Nierop, P. J.; van Rensburg, M. C. G. J.; van Staden, J. W.; van Wyk, G. H.; van Wyk, H. J.; Verwoerd, H. F.; Viljoen, M.; Visse, J. H.; von Moltke, J. von S.; Vorster, B. J.; Vosloo, A. H.; Wentzel, J. J.
Tellers: W. H. Faurie and J. J. Fouché.
Noes—45: Barnett, C.; Basson, J. A. L.; Bronkhorst, H. J.; Butcher, R. R.; Cope, J. P.; de Beer, Z. J.; de Kock, H. C.; Durrant, R. B.; Eaton, N. G.; Eglin, C. W.; Fisher, E. L.; Frielinghaus, H. O.; Gay, L. C.; Graaff, de V.; Henwood, B. H.; Higgerty, J. W.; Holland, M. W.; Horak, J. L.; Lawrence, H. G.; Lewis, H.; Lewis, J.; Malan, E. G.; Miller, H.; Mitchell, D. E.; Oldfield, G. N.; Plewman, R. P.; Radford, A.; Raw, W. V.; Ross, D. G.; Russell, J. H.; Shearer, O. L.; Smit, D. L.; Steenkamp, L. S.; Steytler, J. van A.; Streicher, D. M.; Suzman, H.; Swart, R. A. F.; Tucker, H.; van Niekerk, S. M.; van Ryneveld, C. B.; Warren, C. M.; Waterson, S. F.; Williams, T. O.
Tellers: A. Hopewell and T. G. Hughes.
Question accordingly affirmed and the amendment proposed by Mr. Tucker dropped.
Amendments in lines 6, 7, 9 and 13, proposed by the Minister of Justice, put and agreed to.
Question put: That the words “ commencement of this Act” in line 21, proposed to be omitted, stand part of the clause,
Upon which the Committee divided:
Ayes—80: Bekker, G. F. H.; Bekker, H. T. van G.; Bootha, L. J. C.; Botha, M. C.; Botha, P. W.; Botha, S. P.; Coetzee, P. J.; de Villiers, J. D.; Diederichs, N.; Donges, T. E.; du Pisanie, J.; Erasmus, F. C.; Fouché, J. J. (Sr.); Froneman, G. F. van L.; Greyling, J. C.; Grobler, M. S. F.; Heystek, J.; Hiemstra, E. C. A.; Jonker, A. H.; Keyter, H. C. A.; Knobel, G. J.; Kotze, G. P.; Kotzé, S. F.; Labus-chagne, J. S.; le Riche, R.; le Roux, P. M. K.; Louw, E. H.; Luttig, H. G.; Malan, W. C.; Marais, J. A.; Maree, W. A.; Mentz, F. E.; Meyer, T.; Mostert, D. J. J.; Muller, S. L.; Nel, J. A. F.; Nel, M. D. C. de W.; Otto, J. C.; Pelser, P. C.; Potgieter, D. J.; Potgieter, J. E.; Rall, J. J.; Rall, J. W.; Sadie, N. C. van R.; Sauer, P. O.; Schlebusch, J. A.; Schoeman, B. J.; Schoeman, J. C. B.; Schoonbee, J. F.; Serfontein, J. J.; Smit, H. H.; Stander, A. H.; Steyn, F. S.; Strydom, G. H. F.; Treurnicht, N. F.; Uys, D. C. H.; van den Berg, G. P.; van den Heever, D. J. G.; van der Ahee, H. H.; van der Merwe, J. A.; van der Merwe, P. S.; van der Walt, B. J.; van der Wath, J. G. H.; van Eeden, F. J.; van Niekerk, G. L. H.; van Niekerk, M. C.; van Nierop, P. J.; van Rensburg, M. C. G. J.; van Staden, J. W.; van Wyk, G. H.; van Wyk, H. J.; Verwoerd, H. F.; Viljoen, M.; Visse, J. H.; von Moltke, J. von S.; Vorster, B. J.; Vosloo, A. H.; Wentzel, J. J.
Tellers: W. H. Faurie and J. J. Fouché.
Noes—46: Barnett, C.; Basson, J. A. L.; Bronkhorst, H. J.; Butcher, R. R.; Cope, J. P.; de Beer, Z. J.; de Kock, H. C.; Durrant, R. B.; Eaton, N. G.; Eglin, C. W.; Fisher, E. L.; Fourie, I. S.; Frielinghaus, H. O.; Gay, L. C.; Graaff, de V.; Henwood, B. H.; Higgerty, J. W.; Holland, M. W.; Horak, J. L.; Lawrence, H. G.; Lewis, H.; Lewis, J.; Malan. E. G.; Miller, H.; Mitchell, D. E.; Oldfield, G. N.; Plewman, R. P.; Radford, A.; Raw, W. V.; Ross. D. G.; Russell, J. H.; Shearer, O. L.; Smit, D. L.; Steenkamp, L. S.; Steytler, J. van A.; Streicher, D. M.; Suzman, H.; Swart, R. A. F.; Tucker, H.; van Niekerk, S. M.; van Ryneveld, C. B.; Warren, C. M.; Waterson, S. F.; Williams, T. O.
Tellers: A. Hopewell and T. G. Hughes.
Question accordingly affirmed and the amendment proposed by Mr. Plewman dropped.
Remaining amendments proposed by the Minister of Justice put and agreed to.
Clause, as amended, put and the Committee divided:
Ayes—81: Bekker, G. F. H.; Bekker, H. T. van G.; Bootha, L. J. C.; Botha, M. C.; Botha, P. W.; Botha, S. P.; Coetzee, P. J.; de Villiers, J. D.; Diederichs, N.; Donges, T. E.; du Pisanie, J.; Erasmus, F. C.; Fouché, J. J. (Sr.); Froneman, G. F. van L.; Greyling, J. C.; Grobler, M. S. F.; Heystek, J.; Hiemstra, E. C. A.; Jonker, A. H.; Keyter, H. C. A.; Knobel, G. J.; Kotze, G. P.; Kotzé, S. F.; Labus-chagne, J. S.; le Riche, R.; le Roux, P. M. K.; Louw, E. H.; Luttig, H. G.; Malan, W. C.; Marais, J. A.; Maree, W. A.; Mentz, F. E.; Meyer, T.; Mostert. D. J. J.; Muller, S. L.; Nel, J. A. F.; Nel, M. D. C. de W.; Otto, J. C.; Pelser, P. C.; Potgieter, D. J.; Potgieter, J. E.; Rall, J. J.; Rall, J. W.; Sadie, N. C. van R.; Sauer, P. O.; Schlebusch, J. A.; Schoeman, B. J.; Schoeman, J. C. B.; Scholtz, D. J.; Schoonbee, J. F.; Serfontein, J. J.; Smit, H. H.; Stander, A. H.; Steyn, F. S.; Strydom, G. H. F.; Treurnicht, N. F.; Uys, D. C. H.; van den Berg, G. P.; van den Heever, D. J. G.; van der Ahee, H. H.; van der Merwe, J. A.; van der Merwe, P. S.; van der Walt, B. J.; van der Wath, J. G. H.; van Eeden, F. J.; van Niekerk, G. L. H.; van Niekerk, M. C.; van Nierop, P. J.; van Rensburg, M. C. G. J.; van Staden, J. W.; van Wyk, G. H.; van Wyk, H. J.; Verwoerd, H. F.; Viljoen, M.; Visse, J. H.; von Moltke, J. von S.; Vorster, B. J.; Vosloo, A. H.; Wentzel, J. J.
Tellers: W. H. Faurie and J. J. Fouché.
Noes—46: Barnett, C.; Basson, J. A. L.; Bronkhorst, H. J.; Butcher, R. R.; Cope, J. P.; de Beer, Z. J.; de Kock, H. C.; Durrant, R. B.; Eaton, N. G.; Eglin, C. W.; Fisher, E. L.; Fourie, I. S.; Frieling-haus, H. O.; Gay, L. C.; Graaff, de V.; Henwood, B. H.; Higgerty, J. W.; Holland, M. W.; Horak, J. L.; Lawrence, H. G.; Lewis, H.; Lewis, J.; Malan, E. G.; Miller, H.; Mitchell, D. E.; Oldfield, G. N.; Plewman, R. P.; Radford, A.; Raw, W. V.; Ross, D. G.; Russell, J. H.; Shearer, O. L.; Smit, D. L.; Steenkamp, L. S.; Steytler, J. van A.; Streicher, D. M.; Suzman, H.; Swart, R. A. F.; Tucker, H.; van Niekerk, S. M.; van Ryneveld, C. B.; Warren, C. M.; Waterson, S. F.; Williams, T. O.
Tellers: A. Hopewell and T. G. Hughes.
Clause, as amended, accordingly agreed to.
On the Title of the Bill,
I desire to move an amendment to alter the Long Title also in conformity with the Republic of South Africa Constitution Act, as follows—
On a point of order, I should like to ask whether such an amendment is necessary. As I understand it the Constitution Act makes provision and allows the officers of this House to make these amendments, which I think is the more convenient way to do it, although I have ho objection to the alteration here.
The Interpretation Act has not yet been passed by Parliament, and to make assurance doubly sure, we are making this alteration.
Amendment put and agreed to.
Title of the Bill, as amended, put and agreed to.
Bill reported with amendments and specially amendments in the Title.
Second Order read: House to go into Committee on Police Amendment Bill.
House in Committee:
On Clause 1,
This and other amendments standing in my name are intended to give effect to the suggestions that were made by me during the second reading debate, namely that the rank of the commanding officers appointed or designated to perform certain functions should be stated in the Bill. The same comments will apply also to other amendments standing on the Order Paper in my name.
I am prepared to accept this amendment, as I indicated during the second reading debate, because this brings the legal position in line with the facts, and the same applies to the other amendments standing in the name of the hon. member, which I am also prepared to accept.
Amendment put and agreed to.
Clause, as amended, put and agreed to.
On Clause 2,
Clause, as amended, put and agreed to.
On Clause 4,
Amendments proposed by the Minister of Justice and by Dr. D. L. Smit put and agreed to.
Clause, as amended, put and agreed to.
On Clause 6,
The hon. Minister has indicated to me, very courteously, that he cannot accept this amendment, but with submission, Sir, I feel that the rank of the other commissioned officers designated by the Commissioner should be stated. Under Section 17, as I pointed out during the second reading debate, under Section 17 of the principal Act, this officer will have power to dismiss or to reduce in rank any member of the force who has become unfit for further service. I pointed out during the second reading that the procedure of such an officer may have very serious consequences on the future of the member of the force concerned. In the circumstances I would ask the hon. the Minister to reconsider his decision.
I am sorry, but I cannot accept the amendment. I want to refer the hon. member to the definition which I think is sufficient, the definition of “officer” in the Police Act of 1958, which says—
I have been advised to say that that is the practice that is being followed.
With leave of the Committee, the amendment proposed by Dr. D. L. Smit was withdrawn.
Clause, as printed, put and agreed to.
On Clause 7,
Clause, as amended, put and agreed to.
On Clause 9,
Clause, as amended, put and agreed to.
Remaining Clauses and the Title of the Bill having been agreed to,
Bill reported with amendments.
Amendments in Clauses 1, 2, 4, 7 and 9 put and agreed to and the Bill, as amended, adopted.
More than two members having objected,
Bill to be read a third time on 13 June.
Business suspended at 12.45 p.m. and resumed at 2.20 p.m.
Third Order read: House to go into Committee on Customs Amendment Bill.
House in Committee:
Clauses, Schedules and Title of the Bill put and agreed to.
Bill reported without amendment.
Fourth Order read: House to go into Committee on Excise Amendment Bill.
House in Committee:
Clauses, Schedule and Title of the Bill put and agreed to.
Bill reported without amendment.
Order of the Day No. V to stand over.
Sixth Order read: Adjourned debate on motion for second reading,—Bantu Education Amendment Bill, to be resumed.
[Debate on motion by the Minister of Bantu Education, upon which an amendment had been moved by Dr. Steenkamp, adjourned on 9 June, resumed.]
I wish to support the amendment that has been moved by the hon. member for Hillbrow (Dr. Steenkamp). Firstly I agree with the hon. member that the new definition of “ Secretary ” in Clause 1 is too wide and should be curtailed. Secondly, I object to the whole system of registration of Bantu schools as administered under Section 9 of the principal Act, which is now to be substituted with retrospective effect by Clauses 3 and 5.
The first point of my objection has been dealt with at some length by the hon. member for Hillbrow and there is really little to add. The amended definition goes too far and I regret that after what has been said, the hon. the Minister has not given some indication of his willingness to delete this provision. In the circumstances I feel it is desirable to stress our objections once again. We were talking on Friday to a very thin House, and I think it is as well that the points we made should be impressed on members on the other side. We say that the definition of “ secretary ” in Clause 1, to include any officer in the Department of Bantu Education designated by the Minister, goes too far. It means that a number of important functions for which the Minister himself is responsible under Sections 6, 10 and 12 of the principal Act, may now be delegated by the Minister to any officer in the department of whatever rank. We accept the assurance of the Minister that these powers will not be delegated to a junior officer of the department, but we feel nevertheless that the rank of the officer should be stated in the Bill. This, Sir, is the third attempt to define the term “ Secretary ”, each time with a wider significance. Act No. 47 of 1953 defined the term “ Secretary ” as including the Secretary for Native Affairs or his under-secretary; Act No. 33 of 1959 as meaning the Secretary for Bantu Education, and the Under-Secretary and any Deputy-Director of Bantu Education. The Bill now before us includes any officer designated by the Minister, whatever his rank, and these officers may exercise the following important powers: Under Section 6 of the principal Act, Sir, they will have control of the subsidization of Bantu schools, with power to withdraw or suspend any subsidy; under Section 10 to appoint, promote, transfer or discharge any member of the teaching staff; and under Section 12 to control Bantu schools and to constitute and control Bantu school boards and other similar bodies. These functions, particularly the control of subsidies and the appointment, promotion and discharge of teachers are of such importance that I do not think that they should be delegated to anybody except officials of the highest rank, who should, as I said, be specified in the Bill. We should not go further than that. We realize that the administration of such a big organization requires that the hon. the Minister should have some authority to delegate, but we must not go too far lest injustice should be done by autocratic action of subordinate officials, a thing which the Act of 1953 never contemplated.
I now come to the substitution of Clause 9 of the principal Act by Clause 3 of this Bill, with retrospective effect in terms of Clause 5. Before I come to my main objection to this clause I wish to ask the hon. the Minister how many Bantu vocational schools have been registered under the Act, and how many Native children are receiving technical training at Bantu primary schools, and what trade or other occupations are being taught. Last December the Minister of Bantu Administration and Development made a statement to the Press in which he said that a scheme for technical colleges for Natives was envisaged by the Government. We are anxious to know, before we pass this Bill, what has been done in this direction and whether any Bantu technical colleges have in fact been registered or are contemplated to be registered under Clause 3, and where they will be situated. Vocational and technical education for Native youth is of the utmost importance in Bantu education. Unfortunately, it has not in the past received the attention it demands.
That has nothing to do with this Bill.
I cannot hear the hon. the Minister. Personally I would like to think that this form of training would be open to any Native child, so that they may become useful citizens in the progress of our industrial development.
Another question I wish to ask relates to sub-clause (2) of Clause 3 of the Bill. Will the hon. the Minister tell us what is the Government’s policy in regard to the refusal or cancellation of the registration of Native schools? I refer particularly to night schools provided by universities or other bodies for the education of Natives in employment in the urban areas. These schools have been a great boon for the urban Natives in the past and have had a stabilizing influence over these people. In most cases it is not possible for Natives for whom accommodation is provided on the employers premises, or in hostels situated in the towns, to proceed to a school in a location, owing to the distance and the difficulty of transport after work. To illustrate my point I wish to refer to a particular case that took place in Cape Town last year, which is typical of what happened elsewhere. From May 1952 until July 1960 a group of students of the Cape Town University, under the auspices of the Young Men’s Christian Association ran a night-school for non-European servants, including a number of Natives. These non-Europeans, many of them illiterate or semi-illiterate, were employed in various occupations in the city. They attended these evening classes at the Methodist Parish Hall at Rondebosch where they were taught to read and write English and Afrikaans and other subjects that would improve their usefulness in life. The standards varied from Sub A to Standard VI. In July 1960 an order was conveyed through the Inspector of Bantu Education at Port Elizabeth closing down the school. This decision came as a bombshell to the pupils, and it does not require much imagination to appreciate the bitterness they must feel at being deprived of this simple benefit. At that time there were 40 pupils undergoing education at this school, one of whom was a Native constable. Another youth was employed in a Cape Town departmental store and his ambition was to study for matriculation and then to become a doctor. Whether he would ever have achieved that I do not know but that was his ambition. The same sort of thing has happened in Johannesburg and elsewhere. We cannot support an arbitrary clause like this. which makes it possible for that I would term such an abuse of authority. This, I submit. is one of the matters that should be examined by a Select Committee such as has been asked for by the hon. member for Hillbrow (Dr. Steenkamp).
My next point relates to the large number of Bantu secondary schools that have been established at great cost to the education account without sufficient qualified teachers being available, particularly teachers in the English language. We think that this is bad both educationally and financially. During the debate on the Minister’s Vote, I drew attention to the fact that a large number of secondary schools were being registered without regard to the availability of the necessary trained teaching staff. The number of the secondary schools referred to which are so registered has risen from 94 in 1949 to 288 in 1960. I then called attention to the great number of failures in the matriculation results, owing to this defect. This was attributed by the Secretary for Bantu Education to the fact that many of the teachers in the secondary and high schools were not properly qualified. According to the figures supplied by the Minister’s Department, out of 716 students who entered for examination, only 128 passed, or 17.9 per cent, with 28 exemptions. The Minister will remember, also, that there was a statement by Professor Ross, the Director of the Bantu University College at Fort Hare, in which that officer attributed the drop to the fact that the examiners were not in sufficiently close touch with the schools. He called for a thorough research into the causes of the failures. We agree with that point of view.
In his reply the hon. the Minister quoted statistics to show that the failures were in fact due to the standard in the English examinations of the Joint Matriculation Board. I think that that reveals a sorry state of affairs. It contradicts the statement made by the head of the Minister’s Department and by Professor Ross. I think it is an attempt to run away from the real issue. If what the hon. the Minister says is correct then it is perfectly clear that since Bantu education was taken over by the Government from the missions seven years ago, the teaching of English in these schools has been pushed into the background by the Government. That is borne out by a statement that was made by Professor I. J. van Rooyen, the Regional Director for Bantu Education for the Transkei. According to a Press report—I refer to the Argus of 13 May 1960—he said at Umtata that the subjects that had caused the high number of failures in the 1959 examinations included English A at 68.4 per cent, and he added that it was anticipated that English A as a compulsory subject was to be done away with in Native schools in the whole of the Union and would be replaced by English B. In that way, he said, it was hoped to improve the number of examination passes at the Bantu schools in future, especially in the matriculation standards.
Mr. Speaker. what is happening is that the Natives are not being given a fair opportunity of learning English, a subject that is essential to the progress of every child of every race. In that way the Native student is being shut off from the wider literature of the outside world. Whether the hon. the Minister likes it or not, English is becoming the lingua franca of the modern world. The Native languages can never be international. I read somewhere that the South American countries had made English the first foreign language in their secondary schools, and that this example has been followed by Soviet Russia, by China and Indonesia amongst other countries. They are all doing the same and they are applying for teachers from English colleges. In this country the English-speaking teachers have largely disappeared from the Bantu colleges as a result of the Government’s policies, and I say that the fault lies at the door of the Minister of Bantu Education.
Here again, Mr. Speaker, we feel that these and other aspects of Bantu education, and the registration system under Section 9 of the principal Act as amended by Clause 3, should be referred to a Select Committee for thorough overhauling before the second reading is approved.
I can divide the speech by the hon. member for East London (City) (Dr. D. L. Smit) into three sections. The first covered the same field as hon. members of the Opposition already covered on Friday afternoon, namely the hon. members for Hillbrow (Dr. Steenkamp) and Kensington (Mr. Moore). In the second section he put a few questions to the hon. the Minister to which the Minister will certainly reply; and the third section of his speech in my opinion really had nothing to do I with this Bill.
I should like to reply to the criticisms which the hon. member for Hillbrow tried to put forward on Friday. Just as in the case of the hon. member who has just sat down, this criticism was levelled mainly at Clause 1, with particular reference to the words “any officer in the Department of Bantu Education designated by the Minister”. The hon. member for Hillbrow went on to allege that the powers which the Minister has under Section 15 of the principal Act would be delegated to this officer; and he then mentioned quite a few of the approximately 18 or 19 points contained in that section. In my opinion that is quite incorrect and it is not relevant. As I see the position the hon. the Minister can only delegate four powers to such an officer. Under the principal Act, the following powers can be delegated to the Secretary for Bantu Education and therefore to such officers as well: (1) Under Section 12 (4) of the principal Act, the constitution of school committees; (2) Under Section 8 (3) of the principal Act, the making of grants-in-aid to State-aided Bantu schools which inter alia includes the erection of buildings on the £ for £ system; (3) under Section 10 (2) (a) of the principal Act, the appointment and promotion of teachers; and (4) under Section 6 of the principal Act, the granting of financial assistance to Bantu community schools. This in turn includes salaries, subsidies and grants of a financial nature. These are the only powers which the principal Act delegates to the Secretary, or certain of the powers concerned. I want to emphasize that these are some of the powers which can also be delegated to this officer.
The hon. member for Hillbrow then mentioned that the Minister would be able to delegate powers to any junior officer. That is incorrect as well.
As far as I have been able to ascertain, this officer can only be a regional director or an administrative control officer.
Where does that appear in the Bill?
That is to say, only an officer with particular experience. In other words, a senior officer. Mr. Speaker, this amendment to Clause 1 has resulted from a recommendation by the Public Service Commission. The hon. the Minister has already mentioned that there are about 4,800 Bantu school committees, and that one-third of them have to resign annually and be re-elected. That is to say, every year 1,600 school committee elections have to be held, and this very often within the period of three or four months. This colossal task rested on the shoulders of the former Under-Secretary for Bantu Administration and he had to approve the appointment of the persons elected. It was physically impossible for any person to do that work properly. The Minister can now delegate these powers to one of his regional directors, and each regional director can deal with the matter in his particular region; and he will also be able to do so efficiently.
The granting of building subsidies on the £ for £ system can also be more effectively dealt with by the regional directors concerned in terms of the provisions of this clause.
Then I should like to point out that this clause as a whole does not embody a new principle. This is being done to facilitate the administration and to expedite the work; it is being done to eliminate delays, and these are very practical administrative adjustments which are being made. The concern expressed by the hon. member for Hillbrow to the effect that a junior officer will now have to exercise far-reaching powers is therefore unfounded. Furthermore, the Minister continues to bear the final responsibility and it is understandable that he will not appoint inefficient, inexperienced and junior officers to do this work.
There is another point to which the hon. member for Hillbrow has objected, namely the fact that this Bill is to be of retrospective effect. Apparently the hon. member sees something sinister in this provision. Unfortunately he has not given one example of where any party can possibly be harmed by the fact that this Bill is being made of retrospective effect. The Minister has, for example, granted the temporary registration of schools so that they can continue to function, and the action of the Minister is now being validated under Clause 9 of the Bill. Mr. Speaker, I want to emphasize that no party will be harmed by this amendment as contained in the Bill. Where there was uncertainty, the interested parties are now being given certainty. This change is. therefore, only of a positive nature and its effects will also be positive.
Then I want to refer to the speech of the hon. member for Kensington. He has discussed Clause 3 of the Bill and has emphasized the refusal of registration and the withdrawal of registration. If the Bill is carefully studied and compared with the principal Act, it will be noticed that no change or amendment is envisaged in this regard. Refusal and cancellation of registration can still take place in the same way as in the past. The hon. the Minister envisages a great concession, and apparently this concession has not been noticed. It is the concession embodied in Clause 9 (3). In his explanation the hon. the Minister mentioned specifically that while under the existing legislation he can withdraw the registration of a school if a prescribed condition is not complied with, he will now offer such a school the opportunity to make representations to him. The existing legislation does not contain that provision. In future schools will have the right to submit representations to the Minister before he considers withdrawing registration. Is this not a concession?
Furthermore the hon. member for Kensington has related the refusal of registration to the proposed Clause 9 (4). In my opinion this provision has nothing to do with the refusal of registration. It clearly deals with the conditions which can be laid down on registration. The hon. member has also discussed Clause 5 (4). which also refers to sub-section (4). Clause 5 is essential in order to validate the existing legislation and conditions which were laid down on registration. In other words, this provision is in fact necessary to prevent all registered schools having to make application for registration afresh. The hon. member’s reference to sub-section (4) as referred to in Clause 5 was incorrect, because it is definitely not aimed at imposing a new set of conditions on existing schools or to make use of such cases in order to cancel registrations.
Mr. Speaker, I want to conclude by saying that seeing that this Bill makes practical adjustments in order to facilitate the functioning of the legislation and thereby its administration, I should like to make an appeal to the Opposition to withdraw their amendment calling for a Select Committee which would investigate the whole Act, so that this Bill can be passed for the sake of the better organization of the Department.
I shall deal with several points raised by the hon. member for Pretoria (East) (Dr. Otto) in the course of my speech, so I hope he will forgive me if I do not follow him immediately.
This corner of the House has fundamental objections to the principal Act, objections which are well known and I would not be permitted to state them here again to-day. We feel that our objections are of a fundamental kind and that no amendments to the Act will make us like it any better. We want a totally new set-up in regard to Bantu education, and we want the principal Act repealed as soon as we have the power to do so. That governs our attitude towards this whole problem generally. However, the Bill which is now before us introduces one or two matters to which we do take exception. There are one or two aspects which may be regarded as improvements, but there are one or two other aspects to which we take exception and with which I will deal. When it comes to the vote, we shall, of course, vote against the Bill because of our objections.
The hon. the Minister gave us a fairly lengthy explanation of Clause 2. I want to say something about the effects of Clause 2. This clause amends Section 6 of the principal Act. I will just repeat the present position briefly because it is necessary, in the course of what I have to say, for that to be quite clear; the position is that State Bantu schools have the right to expend money on the building of hostels, clinics and so forth, but community schools cannot do so. What the hon. the Minister now seeks is that community schools shall have the right, out of whatever funds may be available. to provide hostels, clinics and other buildings of a similar kind. There are one or two considerations that arises out of this important point. The first is this, that one of the main reasons why the Minister wishes to have this power in regard to community schools is that he visualizes an increasing number of Bantu children, particularly in secondary schools, being sent from the urban areas to these community schools in the rural areas. The hon. the Minister is anxious to encourage this to be done on a tribal basis. For instance, parents belonging to a particular tribe who happen to be resident in an urban area should be encouraged to send their children, especially for secondary education, back into a country district. And to meet that the hon. the Minister visualizes the necessity for building quite a large number of hostels at these community schools. I want to say that of course there can be no objections whatsoever to any scheme where parents desire to send their children back to a rural area, and have the means to do so, in order that those children may possibly escape certain unpleasant influences in the towns. If the parents elect to do so, and have the finances to do so, nobody would for a moment object. If on that simple basis the need for additional hostels were to arise, then I do not think anybody could quarrel with the hon. the Minister.
However, the matter is not as simple as that and it needs very close examination in this respect: the hon. the Minister is not prepared to leave it at that, he wishes to bring compulsion to bear upon town parents to send their children back to the rural areas, which is, one imagines, a matter of Government policy. The way in which the hon. the Minister is seeking to bring this compulsion about is, firstly, to limit secondary educational facilities in the towns and to utilize most of the available funds for the development of secondary education in the rural areas. In other words, this is now a matter of Government policy. The policy is that wherever possible parents in the towns should be compelled to send their children to the rural areas for education. I want to say at once that from that standpoint we have very strong objections.
In the first place, many parents may not desire to do that. They may desire to have their children with them. They may be in a financial position to keep their children with them in the towns, and there should be no element of compulsion whatsoever upon them to send their children away to the rural areas. Secondly we have, of course, very strong views on the question of the permanency of the urban African. Surely it should not be policy for the State to say, “ We shall limit education of this kind in the town areas and make our major development in the rural areas ”? Surely education should be developed where education is needed, and to the best of my belief the greatest need for secondary education is in the urban and not the rural areas.
Why do you say that?
I therefore say the hon. the Minister is tying this question of hostel development to a question of Government policy. That is something which we do not like at all. One feels that there is a fallacy here and that this matter needs close examination.
I now come to the next point in relation to this question of the development of hostels. It concerns the financing of these institutions. If the financing of Bantu Education generally were on a different basis perhaps one would not object, but the position is that the contribution from the Central Reveneue Fund to Bantu Education is fixed. If there is to be a development of hostels for these community schools, one asks from where the money for the development of these hostels is to be derived. The obvious answer is that it will have to come from the Bantu themselves which will mean, in nine cases out of ten, that these rural communities will have to impose a levy—if they do not have one already—in order to find the funds for the building of these hostels.
One wonders whether the Minister has thought this out very carefully, because if children from the town areas are going to be encouraged to go to the rural areas in considerable numbers, where should the responsibility for financing lie if that responsibility is not going to fall upon the ordinary taxpayer, the Central Treasury, but on the Bantu them-selves? I feel that the Minister should give us a clear indication as to where he visualizes the finances for this development coming from if it takes place on any large scale. If, of course, it does not take place on a large scale and the Minister visualizes that there will only be a hostel here and there, this consideration is not quite so important. But if, as I suspect, it is going to be the general policy of the Department to take as many children out of the urban areas as possible and educate them in the country areas, the limitation of the schools in the urban areas and the development of secondary schools on a far larger scale than in the rural areas—if that is to be the policy I feel that the Minister should give an indication as to where these finances will be found. So much for Clause 2.
I just want to say a word about Clause 1, as the result of what the hon. member for Pretoria (East) said. The hon. member, quite rightly from his point of view, pleaded the case for decentralization. May I say at once that the case for decentralization along the lines cited by the hon. the Minister is a very good one. Decentralization is usually a very good thing, and here it is an excellent thing, be-cause I wonder whether the House knows that there was a very great need for decentralization to relieve the congestion that was taking place through over-centralization in regard to Bantu education? Many people, including myself, felt at the outset when the Minister set up this Department that there would be over-centralization, and we could not see how the Department could work efficiently with this type of centralization which the Minister brought about. Experience, of course, proved that it was a bad thing. I feel that the Minister tried to take too many powers and to do too many things himself, and, of course, he could not do it and the Department got into a state of chaos and great congestion, and the Public Service Commission had to step in and sort out the position and put it on a more efficient basis. The P.S.C. saw at once that one of the defects was over-centralization and that there should be substantial decentralization, and that is what the Minister is doing now. He is bringing about decentralization, and in my opinion it is a good thing. The Minister visualizes going even further, not only the delegation of more and more powers on a regional basis, but ultimately handing over powers to some of the territorial authorities. As far as I am concerned, I would again say that is a very good thing, but I just want to put this to the Minister. If he does that, will he hedge around the powers he gives to the territorial authorities? If these authorities are given fairly substantial powers of administration, are they going to be content with administrative powers only? They will demand more than that. They will want to have a say in the type of education, the syllabus, etc., and the Minister knows that at the moment there is dissatisfaction amongst the Bantu with certain aspects of education itself. One can be quite sure that the territorial authorities, should they be asked to exercise additional administrative powers, will also want to have a fairly substantial say in the kind of education, etc. Will the Minister say no, you can only administer but you can have no say at all? I do not think he can do that. I think experience will show that he will have to give a bigger and bigger share to the territorial authorities in regard to education, and I would say that that would be a good thing. Therefore on the whole I welcome the decentralization which is visualized in Clause 1.
Coming now to Clause 3, this deals with registration, and I think the case here was put very aptly and at considerable length by the hon. member for Kensington, and I do not want to waste the time of the House by going over what he said. But I would like to make this observation, that here again I think experience in regard to the question of registration is a further illustration for the chaotic conditions which were developing in the Department. Here again, the Minister wanted to do too much himself and did not visualise the consequences. The Minister confesses that he was caught with an enormous flood of applications, particularly in relation to the Catholic and Seventh Day Adventist schools when the time came when their subsidies ceased and they had to be registered and the Minister could not deal with it. So he issued temporary certificates in the hope of straightening this out later, and then he learnt that this was an illegal act. Obviously one does not mind the fact that the Minister is trying to straighten out the position. I merely mention it to show that this is a further difficulty that developed in the Department largely because there was over-centralization and the Minister himself tried to do far more than it was possible or desirable for him to do.
Clauses 4 and 5 are consequential to Clause 3. The objections we have to Clause 3 have been stated by the hon. member for Kensington, and I do not want to repeat them.
In conclusion, I repeat that we, as a party, object very strongly to the Bantu Education Act. We do not think that this amending Bill improves the Act at all, and, when it comes to the vote, we shall vote against it.
In the first place I want to say that I cannot accept the amendment of the Opposition asking that this Bill should be referred to a Select Committee because I do not think this is the type of Bill which should go to a Select Committee. It is not a complicated Bill containing a large number of clauses which can be closely examined. It is a Bill containing a comparatively small number of clauses, and is a comparatively simple Bill except in so far as the legal position of one clause is concerned. I think that if there is any possibility of improving the Bill it can just as well be done in Committee of the whole House. This is not a Bill which we should refer to a Select Committee in order to improve its clauses.
Another type of Bill which could perhaps go to a Select Committee is one which involves general principles which require further investigation. Such provisions are not present in this Bill because no new principles are really being introduced. This Bill merely presents an adjustment of the principles which have already been followed since the beginning in respect of Bantu education. But what hon. members really want is not that this Bill should go to a Select Committee, but what they want was clearly shown in the speech by the hon. member for East London (City) (Dr. D. L. Smit). They want the whole policy of Bantu education investigated by a Select Committee. We cannot do that, because we shall certainly not be able to reach agreement since our policy differs so vastly from that of hon. members opposite. But what is more, hon. members opposite differ so greatly amongst themselves that they would not be able to reach agreement amongst themselves on a Select Committee. The hon. member for Hillbrow (Dr. Steenkamp) says that he pities me because I have to implement the Bantu Education Act while I am in fact faced on the one hand by what I should like to do and on the other hand by popular public opinion. Between these two conflicting interests I do not know where I stand; and he therefore says that I was forced on a recent occasion to say that what we were doing in respect of Bantu education, we were not doing out of love for the Bantu. I want to say at once that he has completely misquoted what I said. He has quoted what he has read in the newspapers, and what the hon. the Prime Minister has already stated in this House in reply to a question, namely that this was a distorted newspaper report. What I said was that we were being accused of only doing what we were doing for the Bantu in respect of education and the development of the Bantu areas because we were kafferboeties and because of our love for the Bantu. I then added that that was not the intention; that was not the only reason why we were doing so, because our whole policy was based on the principle of developing the Bantu areas and also the Bantu for the sake of the future of the White man in South Africa.
That is not what the report said.
Of course not, but it has been stated in this House that that was an incorrect report. The hon. member for Hillbrow has said this, but on the other hand the hon. member for Drakensberg (Mrs. S. M. van Niekerk) has stated at a meeting in Glencoe that while she was pleading for railway crossings, Willie Maree was outside playing with his little Natives.
That is not true. I was present. [Interjections.]
I am merely mentioning this to show that hon. members opposite differ so greatly amongst themselves as to their approach to this matter, that they cannot even decide amongst themselves what the real reason is why they want to send this Bill to a Select Committee, because they hold differing opinions. The sum total of the reasons which have been put forward here as to why this Bill should go to a Select Committee and why hon. members opposite have objections to the Bill is in effect that they have objections in three respects.
In the first place there are objections to the clause which gives the Minister the power to delegate certain functions which must be exercised by the Secretary to other officers of the Department. I must point out that hon. members have apparently overlooked the fact that when one acts under this provision and one delegates the implementation of the legislation to an officer other than those officers who are specifically mentioned, in other words to an officer other than the Secretary, the deputy-Secretary and the under-Secretary, then it must be done by a specific instruction in respect of certain specific functions only. But such a delegation can in the nature of things not be of a general nature; it must be specific if one mentions a specific officer. But I leave that on one side. I want to say at once that hon. members are using this argument in order to arouse unnecessary suspicion, and to meet them and to show that our intentions are sincere, I am prepared, if it will satisfy them, to move an amendment in the Committee Stage and instead of saying “any officer”, we can say any officer of a grade not lower than that of a senior administrative officer. I hope that will satisfy them because it will limit us to the few most senior posts in the Public Service. Below the under-secretary we have the administrative control officer and then the principal administrative officer and then the senior administrative officer. In other words, apart from the three most senior posts, only three grades of officer will be involved. I cannot ask for less than that because the senior administrative officer is the person who must take charge of the office of the regional director when the director has to be away from office for a day or more, but for such a short period that an acting incumbent cannot be appointed in his place. I think that this is the least we require if we are also to comply with the recommendations of the Public Service Commission. I hope that hon. members will be satisfied with such an amendment, but it is not necessary to send the Bill to a Select Committee for that purpose. We can agree to that here.
A further objection is against the fact that certain clauses of the Bill are being made of retrospective effect. Hon. members say that this is an indication of the chaotic position in which the Department has got and that it is an indication of the weakness of the original legislation. These are the usual old stories which one always hears from an Opposition. If another party had sat on those benches, we would have had the same type of story. But the fact of the matter is simply that we are here dealing with an Education Act which was adopted in 1953, which covered a vast field, which represented a great new experiment and which brought about a great change in the existing order. The fact that during the past eight years we have so seldom needed to amend that legislation and have experienced so few difficulties, proves precisely the opposite of what hon. members opposite have claimed. They have spoken of chaotic conditions, but I want to testify that, while I have been concerned with Bantu education from the initial stages onwards, first as a member of the Native Affairs Commission and later as Minister, there are certainly few Departments in the history of South Africa which have had to start from scratch in the way which this Department has done and which have required so few amendments and adjustments to its policy as this Department. Contrary to what hon. members opposite allege, I want to say most emphatically that there is no such thing as chaotic conditions in my Department, but that this is one of the Departments which is functioning the most smoothly and the most easily despite the problems with which we have been faced in the past. While saying that, I want to take this opportunity to say a few words of particular thanks to Mr. de Villiers, the Secretary for Bantu Education, who is going on pension in the near future. The contribution which he has made from the beginning, coupled with his past experience of the education of the Bantu, has been of tremendous value to the Department, and the success which we have achieved in this Department has to a large extent been the result of his faithful service and of the good work and the co-operation which we have received from him and which he has built up with his officials. We want to thank him very much for the work he has done.
Then there is a further objection. In connection with this provision that there will be retrospective effect, I want to make it quite clear once again that nothing new is being made of retrospective effect; that no provision can be made or decision taken in future under this legislation and made of retrospective effect in terms of this provision. All this provision is doing is to validate what has already been done in the past under the existing regulations, because every one of these provisions which are being made of retrospective effect forms an essential part of the regulations in terms of which we have operated hitherto. There is therefore no new decision which will now be made of retrospective effect. This is merely a validation of the steps which we considered we were taking legally under the existing regulations, but which are now not intra vires in terms of the decision of the law advisers. The hon. member for East London (City) was a member of the Select Committee on Native Affairs which approved of these particular regulations and which reported on them without comment to Parliament. At that time I myself was still a member of that Select Committee. In other words, the hon. member is co-responsible for these regulations and he did not raise any objection to them. In other words Parliament is jointly responsible for the whole principle in accordance with which we have dealt with the registration of schools hitherto under those regulations. The policy which we have applied under those regulations is something quite different. I do not ask him to agree with that. The policy we have followed under the regulations, the considerations which have weighed with us in considering specific matters are our responsibility, but he is co-responsible for the regulations them-selves which we are now embodying in legislation. I therefore cannot understand why they are objecting to the fact that the legislation is being made of retrospective effect.
I cannot remember it at all.
That is not my fault. Then the hon. member for Hillbrow has once again put forward the argument that he is opposed to the principle that anything should be made of retrospective effect. I agree that no Parliament lightly takes a decision and then makes that decision of retrospective effect, but I clearly said that in this case it was quite a different matter. Here we have a set of regulations which in the nature of things constitute legislation, which have been approved of by Parliament, and in accordance with which we have acted for all these years, but the law advisers now say that in certain respects they are ultra vires. However, the fact that they have come to this decision has not detrimentally affected one single person outside the State. As a matter of fact, no one out-side the State Department concerned with this matter raised any objection or pointed this out to us. We discovered it ourselves, and all that is now being made of retrospective effect is merely a validation of what has already been done bona fide and under regulations which have been approved of, but which it later appeared were ultra vires. I do not know what objection there can be to the validation of such actions with retrospective effect. This is after all not something which one can investigate on a Select Committee. One cannot after all have objections in principle to such a step. I repeat that in this case this objection is once again nothing but a fig leaf behind which hon. members are hiding in order to conceal the fact that they are not prepared to co-operate in the slightest in any matter affecting Bantu education.
After all Parliament is sovereign.
I do not blame you if you do not follow it.
I now come to the argument of the hon. member for East London (City), namely that the Opposition cannot support the Bill because they ate opposed to the use which we have made of Section 9 in registering schools; our whole approach to the registration of schools is wrong and therefore they cannot approve of this Bill because it would in effect be giving approval to those acts which we have done. As regards the registration of schools, he has referred to three points. I want to deal with them. In the first place, he has said that there is a very great need for vocational training for the Bantu and he wanted to know, before they gave their approval to this provision, what we were doing as regards vocational training. We have already made it quite clear on various occasions that there is a very great need for vocational instruction of the Bantu in various directions so that they can serve their own people. I just want to mention that in the course of the discussion of my Vote I pointed out that I was actually surprised that hon. members opposite had not said one single word about the important development which had taken place during the past few years in Bantu education. I then gave certain information, but despite that, the hon. member asks me to-day what we are doing in that regard, and how many schools have we registered to meet that need. I just want to say this. At the moment there are 13 private schools providing vocational education. There are 17 schools which are purely vocational schools, and of them three have been established during the past year. Furthermore six new ones are being planned which the Department will build during 1962-3. The House can see that there has been a great development. Last year already we started with three new schools and six new ones are planned for the next two years. Then courses were also introduced at 12 high schools last year in order to provide vocational training for a technical junior certificate. I do not think that I need expatiate any further on this point. This is quite sufficient to show the hon. member that this important problem is in fact receiving the full attention of the Department. On a previous occasion I mentioned the various subjects in which instruction is being provided, and in addition I mentioned that the general impression was that when we speak of vocational instruction for Bantu children, we are referring mainly to the training of building workers. No, that is not the position. Our experience has been that building workers and such people can actually be trained more quickly and more easily by training them in service, and that the subjects which we are providing are actually directed at a very much wider field, such as electro-technics, tailoring, etc.
May I ask what steps are being taken to give effect to the statement made by the Minister of Bantu Administration that plans are now being drawn up for the building of technical colleges for these Bantu and not merely industrial schools? Are there any plans for the establishment of such institutions?
I have just said that during the past year we have already established three technical high schools and that six new ones are planned for the next two years. These are not the same as the technical colleges which serve the Whites but they represent the first step in that direction. One must start from the bottom; one cannot start from the top. These are technical high schools which provide instruction up to the matriculation standard. The next matter which he has mentioned in connection with the registration policy which is covered by this clause is the question of the registration of night schools. He has given one particular example. Unfortunately I do not have the information relating to this particular case at hand in order to be able to say immediately what the position is in that regard. I can only tell him what my general policy in respect of night schools is. In the first place the principle which we apply is that night schools are welcomed in the Bantu areas, in the Bantu residential areas and in Bantu compounds and in more or less all Bantu residential areas, in the urban locations and in all compounds night schools are already in existence. There are many of them. There are a vast number of night schools where adult Bantu males can receive instruction. But in the White areas there were also a large number of night schools in the past serving Bantu workers who were employed in the White areas. We have found that many of these night schools which were situated in White areas not only serve the Bantu workers who sleep on the premises of their employers in the White areas, but that many of these night schools attract large numbers of Natives from the locations into the White areas in the evening. This we have stopped but we have not stopped night schools in the White areas. When there is a night school in a White area or if it is desired to establish one, the inspector of education consults the local Bantu Affairs Commissioner and the latter has to establish whether there is any objection to the school being run on the particular premises; he must establish whether there is any objection from a group areas point of view as regards an occupation permit for those premises. He must establish whether Whites who live in the vicinity of such premises have objections to such a school because it is in the first place a White area and the White’s interests are of primary importance. But if the Whites in the vicinity have no objection and if an occupation permit can be obtained for the continuation of the school on those premises and if the teachers who teach in the school are persons who are providing bona fide education to the Bantu and not persons who are striving to serve propagandists purposes, we register night schools in the White areas as well. I cannot say what happened in this one particular case to which he has referred. One deals with such a great number of these cases that one cannot remember every one of them, but I think that the principle which I have put forward and in accordance with which we act, is sound. I do not think that the hon. member can have any objection to it.
Then he has asked what principle we apply as regards the registration of secondary schools, bearing in mind the tremendous shortage of qualified teachers, as reflected by the poorer examination results. I do not want to say too much on this point. I have made it quite clear on previous occasions that gradually more and more secondary schools will and must be established; but the registration of secondary schools depends on the one hand on what necessity there is for such a school in the particular area and on the other hand on the teachers available. I admit that in recent times secondary schools have been established under circumstances which have resulted in a draining away of the best teachers from the matriculation schools because the best teachers in the matriculation schools become principals of these secondary schools which only go as far as Junior Certificate. This is all part of a process of growth which we must undergo in order to meet the increasing needs of the Bantu people. We are aware of the fact that this has caused a draining away of the best teachers from the matriculation schools but the fact that we have established additional secondary schools has not meant that the educational standard has been lowered. As a matter of fact the junior certification examination results show that quite clearly, seeing that there has not been a fall in the percentage of passes despite a tremendous increase in the number of students. I just want to add the following: It is alleged in certain quarters that the junior certificate examination is controlled by the Department of Bantu Education and is therefore of a lower standard. I want to deny that most emphatically, and I want to make it quite clear that the standard laid down in the cases of the Junior Certificate examinations is comparable in all respects with the standard required in the case of the provincial Junior Certificate examinations which are held in the various provinces for Whites, Indians and Coloureds. As far as the standard is concerned, there is no difference at all. I think that this is proof that there has not been any lowering of standards, but it has resulted in some of the best teachers leaving the schools which provide instruction up to the matriculation standard in order particularly to become principals in these new schools. This is a transition stage which we must undergo; this is an interim position which we must overcome and we shall do so in the course of time.
Are there any definite figures available showing the percentage short-age of teachers in the matriculation classes as a result of this draining away?
There is very definitely a great percentage shortage of trained teachers for the matriculation standards in particular. At the moment only approximately one-third of the Bantu teachers in high schools hold university degrees. There are many of them who are qualified teachers, but we consider that they should be teachers with university degrees, particularly in the case of matriculation classes. There is a shortage of such teachers and this shortage we are meeting by granting loans, bursaries, etc. It is not necessary for me to cover that whole field. We are quite aware of the overall position and we are giving it our full attention.
I now just want to deal with the accusation that since the taking over of Bantu education English has been shamefully neglected in the Bantu schools. I reject that allegation with the contempt it deserves. Anyone who really knows what is happening in the Bantu schools will testify to the fact that we have specially appointed certain English-speaking persons as members of the inspectorate in order to assist in promoting the teaching of English and to help and to ensure that greater attention is given to it in Bantu education as a whole. We have taken particular steps with this in view. From time to time refresher courses are held to bring Bantu teachers of languages, particularly of Afrikaans and English, and also arithmetic, up to date as far as their work is concerned. From time to time special steps are taken to give attention to these subjects. There is therefore no question of English being neglected in the schools—not at all—and the hon. member must not come with the story that the introduction of mother tongue education in the lower standards in Bantu education is the cause.
I never said that. I based my standpoint on your statement during the discussion of your Vote.
No, the hon. member has misinterpreted the statement I made during the discussion of my Vote. He has said that we have neglected English shamefully and I say that is not so, and that is what I am now discussing. I shall say a few words about my standpoint presently.
Did you not say during the discussion of your Vote that the increased percentage of failures in the matriculation standard is due to a deterioration in the standard of English?
I deny that emphatically; I did not say that. I said that it was as a result of a lower pass figure in English A…
It comes to the same thing.
… which is something quite different and I am now coming to that. I shall explain it once again in the hope that the hon. member will understand the position. In this regard I want to say this: The hon. member for East London (City) has also coupled his argument to the effect that we are neglecting English with a statement which Inspector van Rooyen has supposedly made to the effect that English A would be abolished in Bantu schools. The hon. member has not quoted Mr. van Rooyen correctly either. What Mr. van Rooyen said was this: He referred to a decision which had been taken, not by the Department but by the Joint Matriculation Board, namely that instead of just taking English A or Afrikaans A, Bantu students would in future be given the option of taking one of the two or a Bantu language in the A grade. This means that if they take the Bantu language in the higher grade for the matriculation examination, then they must at least still take English in the B grade and Afrikaans in the B grade as well. At the moment they have the option of either taking English in the higher grade or Afrikaans in the higher grade, but why should such a student have that option and why can he also not have the alternative of taking his own language in the higher grade? The writing of examinations in a language in a higher grade is really intended for students who are fully at home in that language and one cannot expect the Bantu students to pass English or Afrikaans in the higher grade in large numbers. This is simply an impossible demand which is being made on them. He should be able to take a Bantu language in the higher grade, and he is being given that choice without any obligation. If he prefers himself to continue taking English in the higher grade, it is his affair, but then it is also his affair if he does not pass. What I indicated in my earlier speech was that English A was still a stumbling block in the case of Bantu examinations and that until 1958 the percentage who passed in English was in the vicinity of 50 per cent. Later it fell to approximately 30 per cent. And I attribute that decline to the fact that the pass percentage in English was increased per subject by the Joint Matriculation Board two years ago. In other words—I speak subject to correction—whereas one previously required 331/3 per cent to pass in this subject …
In an A subject.
In any case, two years ago the pass percentage was increased not only per subject. but also as far as the total for the examination was concerned, and this increase in the percentage required for a pass in the subject and in total, was the main reason for the decline in the pass figures for the past two years. I say this on the basis of a close analysis which was made of the examination results, as is also apparent from the figures which I recently gave relating to the percentage of students who passed the other subjects. But I think that is all I need say as far as the objections raised by that hon. member are concerned.
I now come to the hon. member for Park-town (Mr. Cope). I do not think it is necessary for me to reply any further in respect of the question of the definition of “ Secretary I have already dealt with it. Nor do I think it is necessary for me to reply in respect of the other clauses. As far as the hon. member is concerned I just want to reply to two points. In the first place he has said that I have given an indication that one of the benefits of decentralization will be that it will then be easier to transfer powers of control from the regional offices to territorial authorities. He has asked whether the intention is that only administrative powers will be transferred to them, or whether general powers of control in respect of Bantu education will also be transferred. I want to tell him at once that my intention is to start in the first place by merely transferring administrative powers, but that in providing Bantu education in general I shall maintain close contact with the territorial authorities, that I shall obtain the opinion of the territorial authorities in connection with any policy decisions and that we shall continue to do so until the time comes, sooner or later, when the Government or the authority of a particular Bantu area or national unit will be able to take over full control over their own education. I believe that time will come and I am glad to see that the hon. member has indicated that as far as this aspect is concerned we are moving in the right direction. It seems to me that we have obtained completely unexpected support for our policy of separate development.
Is that separate development?
Of course it is. If it is not separate development, what then is separate development? It seems to me that we shall have to explain to the leader of the Progressive Party what our policy is; he does not even understand it.
You do not understand it yourself.
The hon. member has put certain questions in connection with Clause 2. He has asked what the intention is as regards the building of hostels in the Bantu areas, and he has said that we want to impose a certain obligation on the Bantu to send their children from the urban areas to the platteland areas. He has said that because the greatest need for secondary schools actually exists in the urban areas, he is for that reason opposed in principle to this whole tendency. I want to point out that recently I also investigated the results produced by the secondary schools in the urban areas and the secondary schools in the platteland areas, and it was simply astonishing to see how unfavourable the results of the secondary schools in the urban areas were. Large schools with 200 to 300 students, schools which entered 50 students for the matriculation examinations, did not have one pass the examination in the urban areas.
What is the reason?
There are two reasons. The one is that these are Bantu community schools which do not have White teachers. We do not have White principals in the urban locations and it is impossible in practice with the conditions prevailing in the urban locations to have Government Bantu schools with White principals. The whole development in the past had been against that before we took over. The urban location is the first place where the Bantu demands the right to be the teacher in his schools; and it is difficult to take the Bantu away and to place a White person in charge; it would only cause trouble. That is the first problem. The second problem is that the students in the urban areas enjoy too much freedom. They are not congregated in hostels. They have to study at home. At home there are not always the necessary facilities or the opportunity for them to study. They lead a less disciplined life in the cities; they walk around the streets. There are tsotsi gangs which distract them from their studies and the result is that there is no after-school control over those students. The parents work or are not interested in the children or are not there. That is why the results are so disquietingly poor in the urban locations. If we must therefore spend more money on Bantu secondary schools, then I should at least spend that money where it will achieve results, and for that reason I must give preference to schools in the Bantu areas. This does not mean that I shall not allow the establishment of any additional secondary schools in the urban areas. There may be large Bantu urban areas which do not yet have any secondary school facilities and that must be taken into account. I shall not stop the establishment of such schools completely, but in the nature of things I must give preference to schools in the Bantu areas and in the platteland areas where the results achieved are better, because we need results; we need people who can go to university in order to become the leaders of the Bantu in various spheres. It is pointless establishing schools merely for the sake of doing so without achieving any results.
This brings me to the hon. member’s second question, namely where the money is to be found. He has said that if we wish to erect hostels on a large scale, it means that large sums of money will have to be found for this purpose. and where are we going to find that money? I want to say at once that what is envisaged is not that hostels will be built with Bantu education funds. What is envisaged is that the Bantu Education Account can make a contribution to the erection of hostels. In other words, we are not going to make it obligatory: we are not going to build hostels ourselves. We merely wish to comply with the request which has come from the Bantu communities themselves. There are numerous tribal areas which have already collected funds for this purpose, which have been collecting funds for years past and which now wish to erect hostels. They are now asking us for assistance and hitherto we have always had to say: We cannot assist you to build hostels; you must do so entirely on our own. All we now want to do is to make a contribution on a R for R basis towards the cost of building such hostels. In other words, we are not launching a scheme. This is merely assistance which we are offering when the community itself takes the initiative. This is a first step which we must take, and at the moment it gives us so much scope for doing good work that we need not think any further at this stage.
Will the contribution on the R for R basis come from the Bantu Education Account?
Yes, one rand will come from the Bantu Education Account and the other rand from the community which wishes to build the hostel itself.
I just want to conclude by saying this: Objection has been made to this type of hostel in the Bantu areas and the fact that we want to encourage Bantu parents rather to send their children to hostels in Bantu areas. The objection has been raised that these hostels are expensive and that the parents will not be able to afford it. I have seen whether in the limited time available I could obtain details in this regard. Unfortunately I do not have them at hand at the moment, but last year I investigated the funds which had been collected by Bantu school boards, what they had spent and what balances were left. I found that there were large sums of money lying unspent in the hands of the Bantu school boards throughout the country. They derive revenue from school funds which they receive on a voluntary basis from the children. There is no obligation: they receive such funds voluntarily from the children. They hold functions, etc. and they collect a great deal of money. I asked them not to let this money lie idle; the Bantu school boards in the various areas should use these funds to make it possible for promising students from their own communities or their own areas to attend high schools if they are not already doing so; they should use that money to make bursaries and loans available to promising students. The amounts which they are making available for this purpose are particularly large. One school board in the Pretoria area where they have two school boards, had a credit balance of £8,000 at the end of the year before last. This shows that they have the money to use for these useful purposes and the possibility does exist that they will be able to help promising students who are not able to attend the school in the area in which he lives at present, to go to a hostel where he can in fact attend such a school. That is one of the reasons why we want to help them to build hostels so that they can use these funds to assist promising students to get ahead.
I think that I have now dealt with most of the important arguments.
Question put: That all the words after “That”, proposed to be omitted, stand part of the motion.
Upon which the House divided:
Ayes—82: Bekker, G. F. H.; Bekker, H. T. van G.; Bekker, M. J. H.; Bootha, L. J. C.; Botha, M. C.; Botha, P. W.; Coetzee. B.; Coetzee, P. J.; de Villiers, C. V.; de Villiers, J. D.; Diederichs, N.; Donges, T. E.; du Pisanie, J.; du Piessis, H. R. H.; du Piessis, P. W.; Froneman, G. F. van L.; Greyling, J. C.; Grobler, M. S. F.; Heystek, J.; Hiemstra, E. C. A.; Jonker, A. H.; Keyter, H. C. A.; Knobel, G. J.; Kotze, G. P.; Kotzé, S. F.; Labu-schagne, J. S.; le Riche, R.; le Roux, P. M. K.; Louw, E. H.; Luttig, H. G.; Malan, A. I.; Malan, W. C.; Marais, J. A.; Maree, W. A.; Mentz, F. E.; Meyer, T.; Mostert, D. J. J.; Muller, S. L.; Nel, J. A. F.; Nel, M. D. C. de W.; Otto, J. C.; Pelser, P. C.; Potgieter, D. J.; Potgieter, J. E.; Rall, J. J.; Rall, J. W.; Sadie, N. C. van R.; Sauer, P. O.; Schoeman, B. J.; Schoeman, J. C. B.; Schoonbee, J. F.; Serfontein, J. J.; Smit, H. H.; Stander, A. H.; Steyn. F. S.; Strydom, G. H. F.; Treurnicht, N. F.; Uys, D. C. H.; van den Berg, G. P.; van den Heever, D. J. G.; van der Ahee. H. H.; van der Merwe, J. A.; van der Merwe, P. S.; van der Walt, B. J.; van Eeden, F. J.; van Niekerk, G. L. H.; van Niekerk, M. C.; van Nierop, P. J.; van Rensburg, M. C. G. J.; van Staden, J. W.; van Wyk, G. H.; van Wyk, H. J.; Venter, M. J. de la R.; Venter, W. L. D. M.; Verwoerd, H. F.; Viljoen, M.; Visse, J. H.; von Moltke, J. von S.; Vosloo, A. H.; Wentzel, J. J.
Tellers: W. H. Faurie and J. J. Fouché.
Noes—46: Barnett, C.; Bowker, T. B.; Butcher, R. R.; Connan, J. M.; Cope, J. P.; Cronje, F. J. C.; de Beer, Z. J.; de Kock, H. C.: Durrant, R. B.; Eaton, N. G.; Eglin. C. W.; Fisher, E. L.; Frielinghaus, H. O.; Gay, L. C.; Graaff, de V.; Henwood. B. H.; Higgerty, J. W.; Horak, J. L.; Lawrence, H. G.; Lewis, H.; Lewis, J.; Malan, E. G.; Miller, H.; Mitchell D. E.; Oldfield, G. N.; Plewman, R. P.; Radford, A.; Raw, W. V.; Ross, D. G.; Russell, J. H.; Shearer, O. L.; Smit, D. L.; Steenkamp, L. S.; Steytler, J. van A.; Streicher, D. M.; Suzman, H.; Swart, H. G.; Swart, R. A. F.; Tucker, H.; van Niekerk, S. M.; van Ryneveld, C. B.; Warren, C. M.; Waterson, S. F.; Williams, T. O.
Tellers: A. Hopewell and T. G. Hughes.
Question affirmed and the amendment dropped.
Motion accordingly agreed to and Bill read a second time.
Seventh Order read: Report Stage,—Water Amendment Bill.
Amendment in Clause 2, the omission of Clause 4, and the amendments in Clauses 9, 11 and 12, put and were agreed to.
In Clause 17,
Amendments in Clause 17 put.
Mr. Speaker, the effect of this clause is to give the hon. the Minister the right to grant loans for irrigation works in amounts of £30,000 but without limit, and without going into the details. The hon. Minister knows our attitude towards this, we made it clear in the Committee Stage, and we cannot support this provision because we believe first of all that it is not good and secondly, it does not fulfil the undertaking which I understood the Minister had given us at the second reading stage whereby he indicated that he would in fact more or less restore the clause to its original form. Now the original form was such that any loan over £30,000 had to be laid on the Table of this House. The hon. the Minister’s first amendment indicated that he would have the right to grant loans without referring them to the House up to an amount of £100,000. The present amendment gives him the right to grant virtually any amount in multiples of £30,000, because each particular loan will be treated as an entirely new loan, although it may be made against the same work, and consequently we on this side of the House cannot agree to this, as we indicated to the hon. the Minister in the Committee Stage, and we will vote against it.
The House divided:
Ayes—83: Bekker, G. F. H.; Bekker, H. T. van G.; Bekker, M. J. H.; Bootha, L. J. C.; Botha, M. C.; Botha, P. W.; Botha, S. P.; Coetzee, B.; Coetzee, P. J.; de Villiers, C. V.; de Villiers, J. D.; Diederichs, N.; du Pisanie, J.; du Piessis, H. R. H.; du Piessis, P. W.; Erasmus, F. C.; Froneman, G. F. van L.; Greyling, J. C.; Grobler, M. S. F.; Heystek, J.; Hiemstra, E. C. A.; Jonker, A. H.; Keyter, H. C. A.; Knobel, G. J.; Kotze, G. P.; Kotze, S. F.; Labuschagne, J. S.; le Riche, R.; le Roux, P. M. K.; Luttig, H. G.; Malan, A. I.; Malan, W. C.; Marais, J. A.; Maree, W. A.; Mentz, F. E.; Meyer, T.; Mostert, D. J. J.; Muller, S. L.; Nel, J. A. F.; Nel, M. D. C. de W.; Otto, J. C.; Pelser, P. C.; Potgieter, D. J.; Potgieter, J. E.; Rall, J. J.; Rall, J. W.; Sadie, N. C. van R.; Sauer, P. O.; Schoeman, B. J.; Schoeman, J. C. B.; Scholtz, D. J.; Schoonbee, J. F.; Serfontein, J. J.; Smit, H. H.; Stander, A. H.; Steyn, F. S.; Strydom, G. H. F.; Treurnicht, N. F.; Uys, D. C. H.; van den Berg, G. P.; van den Heever, D. J. G.; van der Ahee, H. H.; van der Merwe, J. A.; van der Merwe, P. S.; van der Walt, B. J.; van Eeden, F. J.; van Niekerk, G. L. H.; van Niekerk, M. C.; van Nierop, P. J.; van Rensburg, M. C. G. J.; van Staden, J. W.; van Wyk, G. H.; van Wyk, H. J.; Venter, M. J. de la R.; Venter, W. L. D. M.; Verwoerd, H. F.; Viljoen, M.; Visse, J. H.; von Moltke. J. von S.; Vosloo, A. H.; Wentzel, J. J.
Tellers: W. H. Faurie and J. J. Fouché.
Noes—48: Barnett, C.; Basson, J. A. L.; Bowker, T. B.; Butcher, R. R.; Connan, J. M.; Cope, J. P.; Cronje, F. J. C.; de Beer, Z. J.; de Kock, H. C.; Durrant, R. B.; Eaton, N. G.; Eglin, C. W.; Fisher. E. L.; Frielinghaus, H. O.; Gay, L. C.; Graaff, de V.; Henwood, B. H.; Higgerty, J. W.; Holland, M. W.; Horak, J. L.; Lawrence, H. G.; Lewis, H.; Lewis, J.; Malan, E. G.; Miller, H.; Mitchell, D. E.; Oldfield, G. N.; Plewman, R. P.; Radford, A.; Raw, W. V.; Ross, D. G.; Russell, J. H.; Shearer, O. L.; Smit, D. L.; Steen-kamp, L. S.; Steytler, J. van A.; Streicher, D. M.; Suzman, H.; Swart, H. G.; Swart, R. A. F.; Tucker, H.; van Niekerk, S. M.; van Ryneveld, C. B.; Warren, C. M.; Waterson, S. F.; Williams, T. O.
Tellers: A. Hopewell and T. G. Hughes.
Amendment accordingly agreed to.
Bill, as amended, adopted.
Eighth Order read: House to go into Committee on State Land Disposal Bill.
House in Committee:
On Clause 3,
Clause 3 makes a very fundamental change in the principles of the common law by providing that after a lapse of ten years acquisitive prescription shall cease to operate against the State. That is a startling change to make in a Bill which is designed to regulate the disposal of State land. I would therefore like to ask the hon. the Minister whether for instance the views of the Judges, or the Committee on Law Revision, or the Bar Council, or the Law Societies in regard to so fundamental a change in the principles of our common law have been canvassed. This provision makes a drastic inroad into the rights of individuals, and it is those bodies which are there really to watch and see that the interests of the individual are safeguarded. The hon. the Minister justified the provisions of this clause on rather strange grounds. During the second reading debate, he quoted two instances where he said there had been some pruning of the legal principle that acquisitive prescription shall cease to operate against the State. He mentioned two types of instances, namely, in the case of beaches and in the case of forest areas. He mentioned that this change, this pruning had been made during the term of office of the previous Government. And based on that pruning, the hon. the Minister now wants to justify going the whole way. Surely that is far too drastic a step to take, because both in the case of the beaches and in the case of forest areas, you are dealing with very distinctive areas, and clearly defined areas. But now steps are being taken simply to hack down the principle, and the Minister justifies it on what I call a “ slight pruning ” previously.
The clause is unsatisfactory for a different reason as well. I made the point during the second reading, and I think I should point out again that the law of prescription in South Africa has been codified and it is set out quite comprehensively in the Prescription Act No. 18 of 1943. This change now is of so fundamental a nature that there should really be an amendment of the code itself, and not this random alteration of so vital a legal principle as prescription. Therefore even at this late stage, I would appeal to the hon. the Minister to withdraw this clause from this Bill, and to re-introduce it in a form in which it will amend the Prescription Act. Even in this Bill the clause might be so worded as to ensure that this provision will bring about an amendment of Section 13 of the Prescription Act which relates to the principles of prescription being binding on the Crown. You see, as the clause now stands, it is going to repeal portions of Section 13 of the Prescription Act by implication, and I think something so important and of such lasting nature should be in the form of a specific repeal of the provision. I want to read again, what I read to the House last time, viz., sub-section (3) of Section 13 of the Prescription Act which says—
This of course is now going to be entirely negatived, because it will now provide that there will be no prescription after a period of ten years operating against the State in respect of State land. It is very important that there should be certainty about the land; but it is far more important that there should be certainty than that there should be good law, and I think this is an instance where there should be greater certainty than will take place if the measure goes through in its present form. I believe this matter has already been before the Senate, so that the opportunity to bring about some change in Another Place, cannot operate. I would therefore earnestly plead with the hon. the Minister to frame Clause 3 in such a way that it specifically amends Section 13 of this Prescription Act, rather than having a change brought about by an implied appeal in a random manner such as is suggested now.
The hon. member’s objection seems to be more a question of procedure than the contents of the clause. He wishes us to rather specifically say in this clause that we are altering the Prescription Act of 1943, whereas in this clause we merely state that Government property will not be able to be acquired by acquisitive prescription after a period of ten years from now. He also mentioned that it could not be altered in Another Place, because this Bill has already been there. It was already fully discussed in the Other Place, and in the original Bill the intention was to make acquisitive prescription not possible as from the time of the passing of this Bill. After discussing this matter with the Opposition, we came to a compromise which satisfied them. We then said that the prescription rights would run for another ten years. Now it might be a better way to say here that we are amending the Prescription Act of 1943. but in effect what we are doing here is exactly the same. I do not know if the hon. member wants to go into the merits. There are definite merits in favour of us having this provision.
The principle was accepted at the second reading.
Yes, and I think it is a good principle to be inserted. I am not saying that it was passed by other people, by his party for instance in two Acts, the Strand Act and the Forestry Act, but I would point out that the Forestry Act was amended in 1944, that was a year after the Prescription Act of 1943 was coded, and at that time it was not felt that the alteration which was put into the Forestry Act, in very similar terms to this, was wrong, or not in the most suitable fashion. It was considered that it was necessary to put it in to protect State land belonging to the Forestry Department, and the arguments in favour of protecting State land belonging to the Forestry Department from acquisitive prescription are exactly the same as those which apply in respect of other State land. It might be—I am not committing myself as to whether the procedure suggested by the hon. member would be better than this, but this procedure is good, and I think we must accept it as it is.
Order! I have allowed the hon. member to raise this point and the hon. Minister to reply, but I cannot allow any further discussion on this point.
I have a somewhat different point to raise than that taken by the hon. member for Johannesburg (North)(Mr.Plewman), and it is one which I asked the hon. the Minister about at the second reading. Mr. Chairman, the attitude that I have taken up is that I have no objection to the abolition of the right of prescription against the state in general terms, which the hon. the Minister is asking. The hon. the Minister will recall that during the second reading he pointed out that generally the State land which is here concerned consists of tracts of inaccessible land, where hardly anybody ever goes, and where it is not possible for the State to protect its rights in the way in which a private owner can protect his rights. The hon. the Minister is therefore asking for an amendment of the law of prescription to protect the State, but he is specifically excluding private owners. I have been disturbed about the position of owners who are intermediate between the State and private owners, particularly local authorities. The hon. the Minister does not protect local authorities. It is apparently therefore the Minister’s intention to regard local authorities as private persons in that prescription may still be obtained against a local authority. Now we have this specific case of lands which I referred to during the second reading debate, which are registered in the name of the State, but in terms of every other concept of ownership are vested in the local authorities—the lands which comprise of streets and in respect of which the question of prescription can arise. Now it seems to me that without infringement of the principle adopted at the second reading that prescription should not run against State lands, a special proviso could be inserted in the legislation even at this stage to provide that prescription could run against land which is registered in the name of the State, in fact is vested in a local authority. I wish to press this point because it seems to me that if we pass the Bill in its present form, we are in effect giving protection against prescription by local authorities in respect of certain lands which, as I say, vest effectively in them, although they are still registered in the name of the State, whereas we are agreed that for land which is registered as well as vested in a local authority the right of prescription should be able to run. I want to ask the hon. the Minister whether he has considered this matter and would be sympathetic to an amendment of that sort?
I have considered the clause and I told the hon. member last time that I would go into the matter. I have considered it and have also had discussions with the Administrator of the Cape, and I am afraid that I could not consider it sympathetically after the discussions that have taken place. It is only a question of certain streets, generally speaking in the older towns, which are still registered in the name of the State, but for all practical purposes belong to the local authority. We do not want them to be registered in our name. We would be perfectly willing to divest ourselves from them, and from time to time we do divest ourselves from them, because it is only just a nomenclature that they are in our name, and it means nothing; for practical purposes they belong to the local authorities, and in every case where a local authority has come along to us and requested us to hand over the land to them de jure as well as de facto, we have been prepared to do so. That I think is the solution of the whole problem. If the provincial authorities or the municipalities come along and there is no specific reason why we should retain ownership, which there generally is not, we are perfectly willing to hand them over to them
The clause as it stands raises more questions really than it answers. The hon. the Minister has indicated that there is a better way of providing for this change in a very fundamental principle of our law which goes back ever since we adopted the Roman Dutch Law in this country. As the hon. member for Maitland (Dr. De Beer) has indicated, difficulties are likely to arise, are inevitably going to arise. I do not want to go into the principle of the matter. I have kept away from that because we are in Committee. But I did ask the hon. the Minister whether there had been consultations with various legal bodies who after all have a fundamental interest, a profound interest in seeing that changes of this nature are made only for very good reasons and after considering all the circumstances that might arise. It seems to me, therefore, that if there is a better way of putting this information on the Statute Book that method should be adopted. We feel that so much is involved in it and the principle is so great that we cannot support the clause as it stands, and we will have to vote against it. I know that there was a form of compromise in the Other Place. I know that the original proposal was that acquisitive prescription should terminate immediately the law became effective, and that after consideration the Minister did bring in some form of compromise by saying that they would give a breathing space of ten years. But that does not alter the very significant aspect of the matter that I have already indicated, namely that it is far better to have certainty about the law than to have it this way. In the circumstances we will vote against the clause.
Referring simply to the point I raised about the streets in the older municipalities, I am glad to have the hon. the Minister’s view after consideration, and if we may take this assurance as the policy of the State where possible, and when convenient, to transfer the registered ownership of these streets to the municipalities, that does, of course, meet the point I have raised. As far as that narrow point is concerned I will be satisfied.
I might say that, as far as the other provinces are concerned, all their property is vested in the State.
It is all registered in the name of the State, the schools, the hospitals and everything. It is only in the Cape Province that there is a difference between them and the other provinces. That is not, however, with regard to these streets, that is with regard to other properties and not necessarily streets. In the Transvaal and in the Free State and in Natal, all provincial property is vested in the State. In the Cape Province many of the streets are but other property is not.
I am afraid that in that case the hon. the Minister has not made it easier for us to support him and to take up a co-operative attitude, if what we are now being asked to vote for means, in effect, that all sorts of property dotted about in the middle of cities, such as small plots to which hundreds of people go every day and which can easily be supervised—in terms of what the hon. the Minister himself said in the second reading—if all this property is being protected hereby, then one’s objections to the Bill grow rather than diminish.
Might I set the hon. member’s mind at rest. Where we have altered this so that these prescriptions will only cease after ten years, it means that we have ten years in which to discuss and consider these matters. If it is not going to work well we have ample time to reconsider the matter, and I think time alone will show what the right procedure is.
Clause put and the Committee divided:
Ayes—72: Bekker, G. F. H., Bekker, H. T. van G.; Bekker, M. J. H.; Bootha, L. J. C.; Botha, M. C.; Botha, S. P.; Coetzee, B.; Coetzee, P. J.; de Villiers, C. V.; de Villiers, J. D.; Diederichs, N.; du Pisanie, J.; du Piessis, H. R. H.; du Piessis, P. W.; Froneman, G. F. van L.; Greyling, J. C.; Grobler, M. S. F.; Heystek, J.; Hiemstra, E. C. A.; Jonker, A. H.; Keyter, H. C. A.; Knobel, G. J.; Kotze, G. P.; Kotzé, S. F.; Labuschagne, J. S.; le Riche, R.; le Roux, P. M. K.; Luttig, H. G.; Malan, A. I.; Malan, W. C.; Marais, J. A.; Mentz, F. E.; Meyer, T.; Mostert, D. J. J.; Muller, S. L.; Nel, J. A. F.; Otto, J. C.; Pelser, P. C.; Potgieter, J. E.; Rall, J. J.; Rall, J. W.; Sadie, N. C. van R.; Sauer, P. O.; Schoeman, J. C. B.; Schoonbee, J. F.; Smit, H. H.; Stander, A. H.; Steyn, F. S.; Strydom, G. H. F.; Treurnicht, N. F.; van den Berg, G. P.; van den Heever, D. J. G.; van der Ahee, H. H.; van der Walt, B. J.; van Eeden, F. J.; van Niekerk, G. L. H.; van Niekerk, M. C.; van Nierop, P. J.; van Rensburg, M. C. G. J.; van Staden, J. W.; van Wyk, G. H.; van Wyk, H. J.; Venter, M. J. de la R.; Venter, W. L. D. M.; Viljoen, M.; Visse, J. H.; von Moltke, J. von S.; Vorster, B. J.; Vosloo, A. H.; Wentzel, J. J.
Tellers: W. H. Faurie and J. J. Fouché.
Noes—48: Barnett, C.; Basson, J. A. L.; Bowker, T. B.; Butcher, R. R.; Connan, J. M.; Cope, J. P.; Cronje, F. J. C.; de Beer, Z. J.; de Kock, H. C.; Durrant, R. B.; Eaton, N. G.; Eglin, C. W.; Fisher, E. L.; Frielinghaus, H. O.; Gay, L. C.; Graaff, de V.; Henwood, B. H.; Higgerty, J. W.; Holland, M. W.; Horak, J. L.; Lawrence, H. G.; Lewis, H.; Lewis, J.; Malan, E. G.; Miller, H.; Mitchell, D. E.; Oldfield, G. N.; Plewman, R. P.; Radford, A.; Raw, W. V.; Ross, D. G.; Russell, J. H.; Shearer, O. L.; Smit, D. L.; Steenkamp, L. S.; Steytler, J. van A.; Streicher, D. M.; Suzman, H.; Swart, H. G.; Swart, R. A. F.; Tucker, H.; van Niekerk, S. M.; van Ryneveld, C. B.; Warren, C. M.; Waterson, S. F.; Williams, T. O.
Tellers: A. Hopewell and T. G. Hughes.
Clause accordingly agreed to.
Remaining clauses, the Schedule and the Title of the Bill having been agreed to,
Bill reported without amendment.
Ninth Order read: House to go into Committee on National Parks Amendment Bill.
House in Committee:
On Clause 1,
I rather gathered from the hon. the Minister at the second reading that he would be prepared to amend Clause 1 (2) dealing with the objects of the Bill, that is, dealing with the objects of the constitutions of the national parks. I must admit that I thought the hon. the Minister said that he would move an amendment to that. The point here is that, as the Bill reads, the objects for the constitutions for the national parks is for the benefits and enjoyment of visitors to the national parks. I think there is a very strong feeling that the language in the original Act goes very much further than that, and that it is highly desirable that we should point out that there are other aspects in connection with the establishment of a national park which were not merely associated with the benefits and the enjoyment of the visitors.
We are here laying emphasis on the enjoyment of visitors as a playground, as a place of recreation. But the purpose of setting up a national park is more than that. It covers for wider grounds than that. It deals with the whole question of scientific investigation of a character associated with the ecological study of so many aspects. Wild life in a park, not only animate, but flora as well as fauna, is all subject to scientific study which is very necessary indeed. So far as the National Park Board of Trustees are concerned, they are themselves carrying that out, and it is one of the most valuable aspects of a park. If I could give an example in respect of an area other than the Kruger National Park, there is work being carried out in connection with the ecology of the area concerned, which includes the whole question of the relationship between browsing and grazing animals. In that connection they are studying what is called bush encroachment. That is the encroachment over something like 400 miles in South Africa where bush is encroaching. It is a question of taking the necessary scientific steps to stop them. In a national park that can be dealt with quite undisturbed by the human element. In the case of the Hluhluwe Game Reserve in Natal we have been able, on a very large scale, to show how it is possible to curtail bush encroachment at a reasonable cost so as to hold the balance between grassland and bushland. And the return to grassland of much of our bushland is something which is highly desirable in the case of the pastoral farms of South Africa. I merely give this as one example of the necessity of having a wider definition than that which we have here and which appears to regard a national park as an area merely set aside for the benefit of visitors and for their enjoyment.
I hope the hon. the Minister is going to give his attention to this matter and give us a far wider definition. Even the definition in the original Act itself is too narrow. The concept to-day is not that it is a reservation for human enjoyment. but it is a concept of preservation as part of conservation. And that goes for all the national wild life of this country, flora and fauna in every one of these areas. This is a fundamental point striking at the very basis on which a national park is established, and I do hope the Minister will decide to give us a wider definition.
There seems to be some misunderstanding between the hon. member for Natal (South Coast) (Mr. Mitchell) and myself. What I suggested to him was that I was not opposed to having a wider definition. I suggested that he discussed it with my Department and drew up a suitable amendment which I would be willing to accept. Unfortunately, there does seem to have been a misunderstanding. However, I think we can meet the position by inserting the following amendment—
It will then read this way—
The words “ and for the benefit and the enjoyment of visitors to the parks ” does not mean that the other work is being done for them, but it is an adjunct; it is also for them.
It makes it an additional reason.
Yes, it makes it an additional reason, and I think if we put the word “ study ” in there, it will meet the hon. member’s objection. I move.
Amendments put and agreed to.
Clause, as amended, put and agreed to.
On Clause 5,
I want to register my protest on this clause to the right of an Administrator to appoint himself. I dealt with this matter very briefly in the second reading debate. I now want to make the point emphatically that an Administrator, in our opinion, is not an individual, a natural person, who should …
You were an administrator, were you not?
… one who should be appointed or be given the right to appoint himself to a post of this character in a statutory body of this kind. This particular statutory body does not only collect public monies direct from the public in very large sums, the body of which any such Administrator would be a member is in receipt of a very large subsidy from Parliament annually. In brief, the body of which such an administrator as a person, not in his corporate capacity as an administrator of a province where he sits with members of an executive committee—that is not the position in which he appoints himself. He appoints himself here as an individual, and, in that capacity, he sits as a member of a body which, as I say, receives a large subsidy from Parliament. It deals direct with the public and it handles very large sums of public money. And I hope that, as the years go by, it will handle larger and larger sums of public money. That body has to have its accounts audited and so forth. In the very nature of things it is possible for circumstances to arise where suspicion may be cast on the handling of public monies by that particular board. That has happened in the history of the National Parks Board of Trustees. What the outcome was does not matter for the moment. What happened is that allegations were made and suspicion was cast on the members.
I do not think that a person in the position of an Administrator as an individual should be permitted to place himself in the position that that kind of allegation can be made and that that kind of shadow can be cast upon him as a person. I think that is completely wrong. The whole concept of the position of an Administrator as an individual is foreign to the idea of him handling public monies for which the public can call him to account. He handles public money but he does not do so in terms of a situation where he can be called to account. He handles it only as it is expended for the public of his province by means of legislation passed by the Provincial Council. Even in the case of an Administrator using a Governor-General’s warrant, which he can do for certain purposes, he still has to come back to the Provincial Council to obtain validation for the use of that money. But as a member of a board of this kind he, in common with the other members of the board, can expend public money without any let or hindrance as far as Parliament is concerned. I think it is completely wrong for an Administrator to allow himself to be placed in such a position.
The fact that there is an Administrator in that position to-day is, as far as I am concerned, regrettable. I hope it will be understood that nothing I am saying here to-day will in any circumstances be construed as being aimed at any particular member of the board at any time. I am not sure but there may be two Administrators on the board at the moment.
There are two.
The hon. the Minister says there are two. Mr. Chairman, the objects of the clause here, I believe, suffer from being based on the best intentions. Two of the provinces which to-day have National Parks which are controlled by the National Parks Board of Trustees, have on their boards of control their Administrators. The other two Administrators have not been given seats because they have not yet any National Parks within the borders of the provinces in which they administer. So this is to give them an opportunity of coming on to those boards. But there is another reason altogether, and that is that an Administrator is in a position to influence the expenditure of public money in his province. He is in an extraordinarily advantageous position to influence the expenditure of public money by his Provincial Council. Again, I think that that is quite wrong.
I think that when the question of the expenditure of public money by a province is under consideration, the Administrator should sit there in a completely objective and quasi-judicial capacity. There should be no question whatever of his own interest—not his personal interest but his interest in the general sense that a man may have an interest in game preservation or wild life conservation or whatever it may be. That is a personal interest in the wider sense of being interested in something. It is not a question of having a pecuniary or direct interest of a pecuniary character. He ought not to have any such consideration when he is dealing with the public monies of his province. But an Administrator can influence public monies of his province very much indeed. If he has an interest in matters of wild life conservation he can influence the expenditure of monies of his province accordingly. For both of these reasons I think it is highly undesirable that an Administrator should be a member of such body. If the Administrator appoints a member of the executive, and the other members of the executive agree, then there is blood on their heads. It has been done elsewhere and it is being done at the present time. If people are prepared to accept that responsibility well and good, but in my opinion that is not a responsibility that should be carried by the Administrator, any more than I would expect it to be carried by a Minister. I would not expect the Minister of Lands to himself provide for himself to be a member of a board such as this.
What is going to be the position if there is a question in regard to the expenditure of public monies and the Minister is a member of that board? An accusation may be made that the public funds have been misappropriated or ill-spent in an evil sense. If that kind of accusation is made and a Minister was a member of that board, it would be an intolerable position.
I hope that the hon. the Minister will reconsider the position. Leave Administrators off the board and let members of the executive committee be appointed. But it should not be the Administrator as an individual person.
I wish to move the amendment standing in my name on the Order Paper—
(b) by the substitution in sub-section (2) for the word “ ten ” of the word “ twelve ”.
This is merely a formal motion. It could not be passed according to the law in the Other Place. and it had to be inserted here.
I think that the argument of the hon. member for Natal (South Coast) (Mr. Mitchell) that an Administrator should not serve on the Parks Board is very far-fetched indeed. In the first place, we must consider that we already have two Administrators who have served on the Parks Board for very many years, very faithfully, one of whom is the Chairman of the Parks Board at present. And there has never been any question of them serving on that Board. If I were to accept the suggestion of the hon. member it would mean that two excellent members of that Board, who have served for very many years, would now have to resign from the Board. I am not prepared to do that. It would be a slap in their faces.
With regard to the question that an Administrator should not serve on such a board but that it could be another member of the executive committee, exactly the same argument holds. If it holds with regard to an Administrator it holds with regard to a member of the executive committee. It is not necessarily the Administrator who serves on the Board; it might be the Administrator or it might be a member of the executive or a member of the Provincial Council nominated by the Executive Committee. That is the person who would be appointed. It may be the Administrator but it is not necessarily that Administrator. There are many members of the executive committees who serve on the various boards. For many years in my time there was a member of the executive committee of one province serving on the Transport Board. There is one serving on the Publicity and Tourist Association Board. It might be the Administrator. But the argument which the hon. member advanced here does not hold water. If it did it would apply equally well to a member of the executive committee.
I am not prepared to tell two members who have served on that Board very faithfully that they cannot be appointed in future. I think that point is exaggerated. The hon. member says something might go wrong with the funds and you will have to hold him responsible. If that is an argument against appointing anybody to a position like this then it is an argument against appointing anybody to any position whatever. It is so wide and so general that the argument defeats itself. Generally that hon. member makes good suggestions, but this one I am afraid I cannot accept.
I am sorry, but I think the hon. the Minister is now on very poor ground indeed. Let me take his last argument first. He says something may go wrong with the funds of his Department. But there is an accounting officer in his Department. The Minister is not the accounting officer, surely he realizes that. If something goes wrong with the funds in his Department there is an officer there who is going to be called to account. Care has been taken to avoid precisely what the Minister is proposing to do here. The Administrator is not the accounting officer of the province, any more than the Minister is the accounting officer in his Department. He knows that the secretary is the accounting officer. The Minister is making the Administrator in person one of the people who may stand accused if something goes wrong. I will not labour it further, but I say the Minister’s argument is wide of the mark. Then in regard to the boards of which members of the Executive Committee are members, he said it might just as well have been the Administrator. But, of course, it could not have been the Administrator. The Government would never contemplate for a moment appointing an Administrator to a board like the National Transport Commission. Of course, it could not happen. I want to remove from the Minister’s mind the idea that he has to say to two people whom he trusts that after rendering good service they must get out. That is not the case if this clause is deleted. The matter can be left so that those two gentlemen can remain there, and there is nothing to prevent the Minister from appointing Administrators if they are prepared to accept the appointment with the approval of the Executive Committee. I say I think it is wrong, but where it is wrong at present it is made doubly so where special provision is made for it in the statute, as the Minister now proposes doing. But the Minister leaves this out. He does not interfere with the two hon. members who are now on the board.
According to you they should not be there.
I say the Minister must not make provisions specifically for the appointment of Administrators. He has appointed gentlemen who were members of the board before they were Administrators and they carried their position on the Park Board with them when they became Administrators. If the Minister wants to leave it at that he can do so. This clause, amended as I would like to amend it, will leave these two gentlemen where they are, but I do not want to move an amendment. However, I think it is wrong. The Minister cannot say it is right in principle to allow Administrators to appoint themselves. The fact that there is a carry-over of two members who have served the board well does not affect the position, but where public money is concerned this should be frowned upon.
Amendment put and agreed to.
I just want to get the facts right. There is nothing here that makes provision specifically for the appointment of an Administrator. It merely says that an Administrator may be appointed. The Executive Committee will make the appointment. They can appoint a member of the Executive Committee or the Administrator or a member of the Provincial Council, but not an official. But then the hon. member argues that an Administrator should not be a member of the Parks Board but he says I can leave the two who are there, and then his argument falls away because it must apply to them also, and to be logical they should also be removed, but he says no, these two men who did good work can stay there but no more Administrators should be appointed, and that does not hold water.
I would like to make this point. It says that an Administrator may nominate himself as a member of the board. Surely that is wrong and he should not nominate himself, or does it not mean what it says?
No, it does not mean what it says. The Administrator may make the nomination but he must do so on the advice of the Executive. He is merely the machinery that does it. It is really the p>Executive that does it through the Administrator.
Clause, as amended, put and the Committee divided:
Ayes—80: Bekker, G. F. H.; Bekker, H. T. van G.; Bekker, M. J. H.; Bootha, L. J. C.; Botha, M. C.; Botha, P. W.; Botha, S. P.; Coetzee, P. J.; de Villiers, C. V.; de Villiers, J. D.; Diederichs, N.; Donges, T. E.; du Pisanie, J.; du Pisanie, H. R. H.; du Piessis, P. W.; Erasmus, F. C.; Faurie, W. H.; Fouché J. J. (Jr.); Froneman, G. F. van L.; Greyling, J. C.; Grobler, M. S. F.; Heystek, J.; Hiemstra, E. C. A.; Jonker, A. H.; Keyter, H. C. A.: Knobel, G. J.; Kotze, G. P.; Kotzé, S. F.; Labuschagne, J. S.; le Riche, R.; Louw, E. H.; Luttig, H. G.; Malan, A. I.; Malan, W. C.; Marais, J. A.; Maree, W. A.; Mentz, F. E.; Meyer, T.; Muller, S. L.; Nel, J. A. F.; Nel, M. D. C. de W.; Otto, J. C.; Pelser, P. C.; Potgieter, J. E.; Rall, J. J.; Rall, J. W.; Sadie, N. C. van R.; Sauer, P. O.; Schoe-man, B. J.; Schoeman, J. C. B.; Schoonbee, J. F.; Serfontein, J. J.; Smit, H. H.; Stander, A. H.; Steyn, F. S.; Strydom, G. H. F.; Treurnicht, N. F.; van den Berg, G. P.; van den Heever, D. J. G.; van der Ahee, H. H.; van der Merwe, J. A.; van der Merwe, P. S.; van der Walt, B. J.; van Eeden, F. J.; van Niekerk, G. L. H.; van Nierop, P. J.; van Rensburg, M. C. G. J.; van Staden, J. W.; van Wyk, G. H.; van Wyk, H. J.; Venter, M. J. de la R.; Venter, W. L. D. M.; Verwoerd, H. F.; Viljoen, M.; Visse, J. H.; Vorster, B. J.; Vosloo, A. H.; Wentzel, J. J.
Tellers: D. J. Potgieter and J. von S. von Moltke.
Noes—48: Barnett, C.; Basson, J. A. L.; Bowker, T. B.; Butcher, R. R.; Connan, J. M.; Cope, J. P.; Cronje, F. J. C.; de Beer, Z. J.; de Kock, H. C.; Durrant, R. B.; Eaton, N. G.; Eglin, C. W.; Fisher, E. L.; Fourie, I. S.; Frielinghaus, H. O.; Gay, L. C.; Graaff, de V.; Henwood, B. H.; Higgerty, J. W.; Holland, M. W.; Horak, J. L.; Lawrence, H. G.; Lewis, H.; Lewis, J.; Malan, E. G.; Miller, H.; Mitchell, D. E.; Oldfield, G. N.; Plewman, R. P.; Radford, A.; Raw, W. V.; Ross, D. G.; Russell, J. H.; Shearer, O. L.; Smit, D. L.; Steenkamp. L. S.; Steytler, J. van A.; Streicher, D. M.; Swart, H. G.; Swart, R. A. F.; Tucker, H.; van Niekerk, S. M.; van Ryneveld, C. B.; Warren, C. M.; Waterson, S. F.; Williams, T. O.
Tellers: A. Hopewell and T. G. Hughes.
Clause, as amended, accordingly agreed to.
On Clause 8,
I have serious objection to this Clause 8, which provides for the sale of liquor in the parks. Under the original Parks Act all sales of liquor in the parks were prohibited, It is now provided that liquor may be sold without restriction. I think it is a tragedy to allow liquor to be sold in our parks for many reasons. One reason is that tourists who have access to liquor may act in a way which is not in the interest of the animals. I do not think it is right for us to allow liquor to be sold in our parks which should be preserved for our children.
They take along all the liquor they want when they go to the park.
But they cannot carry along an unlimited supply in their cars. There has never been any over-drinking in the park in all its history. People take along their liquor and treat their friends to sundowners, but we cannot find fault with that. But now we are going to have a new Liquor Act which will allow Natives to buy liquor and there is a Native population in the parks. They will have the indiscriminate right to purchase liquor and drink it to excess, and I think it will be a disgrace. I think temperance societies throughout the Republic will be shocked at this provision. The founders of our parks felt very strongly that liquor should be prohibited. I appeal to the Minister. The Minister may put up a case that caterers in the parks should have the same right to sell liquor as hotels, but this clause provides for bottle licences to sell liquor wholesale to anyone in the park, including the Natives, and it may create a shambles and it may be detrimental to the interests of our parks of which we are so proud.
I want to raise one or two points about this provision because it is a far-reaching one. There is, of course, a measure of appropriateness in permitting those who go to the Kruger Park to drink Lion Lager or Old Buck Gin! But nevertheless this is an innovation and I hope that the Minister will ensure that there is adequate control. Sub-section (1) provides that off-sales and on-consumption facilities may be granted by the board in various camps. Sub-section (2) provides that the provisions of the 1928 Liquor Act relating to the application for the holding of any licence shall not apply. It seems to me that there are a certain number of dangers in that regard. The hon. member for Albany (Mr. Bowker) has hinted at the possibility of unrestricted sales of liquor by the bottle. One of the main means of keeping a check on bottle stores is that they must keep a register; and every time liquor is sold they have to enter the name of the purchaser and the amount sold.
What clause is the hon. member discussing?
Clause 9 (2).
But we are busy with Clause 8 now.
I do not want to repeat myself at a later stage. When the hon. member for Albany discussed the matter, I thought he was discussing Clause 9.
The hon. member for Albany (Mr. Bowker), for whom I have great respect, is worried and he says that if we sell liquor to people in the game reserves we will change the character of the parks and that there will be drinking orgies and that the amount of liquor consumed by the people will have a detrimental affect on the animals as well. I want to say to the hon. member that a subsequent clause provides that you may not feed the animals…. [Interjections.] I do not know why it was originally inserted in the Act that liquor should not be provided in the parks, I think that was a big mistake. I am not against the use of liquor, but against the abuse of it. Recently in particular many people from overseas visiting the game reserves have expressed their surprise at the fact that they could not get liquor there and wanted to know why we were so old-fashioned and whether we were afraid that it would be abused. We should modernize our views and keep pace with the development in the world. We are busy teaching the people in South Africa to drink properly. You go for your meal and yet you cannot get any liquor. I like my liquor when I dine consequently I have my meal in my rondavel and not in the restaurant. The people will not drink more because they can get liquor there. They are to-day bringing in large supplies of liquor and what happens is this that because the person cannot obtain liquor in the camp he makes sure that he brings along a sufficient quantity and very often a day or two before he leaves he finds that he still has a large stock on hand and because he does not want to take it back with him he consumes it all. If drink can be obtained in a proper way, I can assure the hon. member that there is nothing wrong in that and we shall see to it that the fact that liquor is available does not detract from the attraction of the camps because of the improper use of such liquor. We shall exercise strict control. I do not want to do what many people do. As soon as their liquor is finished they go home otherwise they go to one of the nearby towns to buy liquor. Why must I do that? It is not a sin to buy a bottle of liquor and to drink it. It is only a sin when you abuse it. I should like the people to have what they are entitled to have.
I am nervous regarding the Minister’s control of what happens in the park. I am not objecting to people obtaining the facilities provided by our hotels, but this goes very much further. These people will not be under the control of liquor licensing courts. They are free of licences and are quite independent, except that the Minister says he will control it, but what organization has the Minister? Will he get the police to watch what is done at these bottle stores? Before licences are granted every year the police must report to the licensing board, but this Act will allow people to sell liquor for all time. There is no annual application or the obligation to carry out their responsibilities. I disagree with the Minister about the large quantities of liquor that can be carried into the park. I can tell him large quantities of liquor are not carried into the park, but if bottle store licences are allowed there, what control will there be over the sale of liquor? Even the Natives will have liquor available to them. If the Minister thinks that a man who drives a car when he has had too much liquor is not a danger to the animals, then I do not agree with him. We have not the police facilities to control people who are under the influence of liquor. I think the Minister should reconsider this clause and withdraw the bottle store facilities from the caterers. The next clause provides that the caterers can also have bottle store licences.
I move the amendment standing in my name—
It is just to add the word “ dams ”.
I also want to direct an appeal to the Minister. I feel it is essential to provide liquor with meals; that is a need which has existed for a long time, but to go so far as to issue licences for bottle stores will spoil the whole atmosphere of the camp. It is true that people take liquor there with them, but to allow them to buy as much liquor as they like will lead to hotels eventually being established there.
I am glad the Minister says that, but I want to appeal to him that he should confine it solely to the restaurants at meal-times, and exclude the bottle stores.
I do not think these arguments are valid. The hon. member for Albany assumes that there will be no control; it will be like the ordinary bottle store and the Natives will be able to buy as much liquor as they like. But the position is quite different. These things are controlled by the Parks Board, and the primary object of the Board is to maintain the amenities in the Park at a high level. The man who has a bottle store outside works on the basis of wanting to sell as much liquor as possible. But it will be under control and they will be able to sell as much liquor to any person as they like—not as much as he wants to buy but as much as they want to sell, and it is not necessary to sell liquor to the Natives, nor will they do so. The Liquor Act we are going to pass will give the Natives the right to buy liquor, but it does not compel the seller to sell it to him. I cannot see why a man should drive out to White River to fetch liquor. When he has driven that long distance he will be thirsty when he gets back. We must be somewhat more liberal.
I differ from the Minister when he says that liquor will not be sold to the Natives. That is not logical. If we pass legislation here permitting Natives to buy liquor, we will not be able to withhold it from them, and those Natives who work in the Park will buy liquor and that will completely spoil the atmosphere of the camp.
You are quite wrong.
I want to plead that no bottle store licences will be granted.
The seller has the right to sell just as much liquor as he thinks fit.
I still do not agree with the Minister. The Liquor Licensing Commission reported that there were many irregularities and malpractices with regard to the sale of liquor, and now it is proposed to open the doors to everybody and to allow people to purchase liquor on a system of trial and error. We know that the members of the National Parks Board will not actually be selling this liquor themselves. We know that their agents who work for them would like to have a good turnover and show good returns. It is difficult enough now that liquor is not available in the Park to stop those who obtain it illegally, but if they can now claim that they obtained the liquor legally, and if one cannot arrest a Native who is found with a bottle of liquor, as can be done at present, the conditions in the Park may develop in a scandalous way. I have no doubt that people who have studied the evils of liquor will feel that it is a tragedy to allow bottle store licences in the Park which will be under the sole control of the Parks Board. These members of the Board are not always in the Park. These catering establishments in the Park will develop into bottle stores and hotels at the same time. They will have both these privileges. They will be able to sell a bottle of liquor at the table while you order your drink. I think it is quite unnecessary. If visitors to the Park can order drinks at mealtimes, I think they should be satisfied. The Minister says that because the visitor could not obtain liquor he was not inclined to patronize the catering department, and that he could quite understand why people would prefer to prepare their own food in the camp where they can then have their own liquor with it. Well, if it is as bad as that, can you imagine how bad it may become if they can finish all the liquor that they brought into the Park and then re-stock their supplies from the Park? One cannot carry an unlimited quantity of liquor in a motor-car.
You can carry quite a lot.
You cannot carry an unlimited quantity, and that privilege has not been abused. During the seven years that I served on the Board I never saw anyone the worse for liquor. I did not see people reach the talkative stage under the influence of liquor. People have been most moderate in the use of liquor, and generally they only took liquor into the Park in order to entertain their friends at sundowners where they discussed their experiences in the Park during the course of the day. That is the only reason why they took liquor to the Park, but now we are going to create conditions which lend themselves to drinking orgies in the Park. We know that there are many people who get away to hotels over their week-ends to have a real drinking bout. They disgrace themselves and their families, and here we are going to open the Park with all its quietude to people to commit offences of this nature. They are going to use the Park to have a week-end spree. It is not my idea of a National Park that it should be used for week-end sprees. It is a place to which people should take their children and educate them in the love of wild life. It is not a place of entertainment where people should indulge in liquor and become a danger even to the animals. A person who has had too much to drink is a danger to our animals on the roads. It is not enough to say that those who transgress will be punished. I know that the promoters of this Act in its original state felt very strongly with regard to liquor facilities in the Park. My feeling is that this measure is prompted by a material desire on the National Parks Board to increase their returns from visitors, and I think we should get away from that idea. We know that hotels are run for profit, and I think it would be a tragedy if we had to say to the public, “ We cannot give you the necessary accommodation in our parks without liquor facilities to increase our profit”. Sir, that is the only reason why these facilities are being asked for. It is not in the interests of these overseas visitors about whom the Minister is so concerned. This is due entirely to a material desire to increase the returns in the parks by the sale of liquor to tourists and visitors and I feel that that is wrong.
I do not want to intervene in this debate at this stage, but I want to say that laughter that has come from the Government benches …
And from your side.
… at the protest which the hon. member for Albany (Mr. Bowker) has lodged is not in accordance with the traditions of this House, not when we are dealing with a serious matter like this. I too want to lodge the strongest protest against the granting of a bottle licence in any of our parks. I say that it is bound to lead to very grave abuse. There are large numbers of Natives in the Parks who drift over from the Portuguese territories. They are not only our own Natives but also Natives from other areas, and there can be no possible control over these people or the manner in which they deal with the liquor that they obtain at the bottle stores. There is nothing in the amending Liquor Bill to make it a criminal offence for the licensee of this bottle store to sell liquor to Natives.
The licensee is the board.
If the Liquor Bill goes through as it is framed in its present form, I do not think we will be able to prevent that. This new Liquor Bill which removes all restrictions on the sale of liquor to Natives through bottle stores, is one of the biggest dangers that this country has to face, and I do not think the Minister is right in introducing the same danger into the parks. Sir, I think it is a shame.
Amendment put and agreed to.
Clause, as amended, put and agreed to.
On Clause 9,
I also object to this clause. This clause provides hotel facilities to the caterers in the National Parks. I agree with the Minister that the licensees will be the National Parks Board. At present the National Parks Board do all the catering themselves, so naturally they are the licencees. But that in no way improves the control over the sale of liquor, because they delegate those powers to somebody else.
They have their own caterers there. Not a single member of the Parks Board serves as a caterer himself or runs any of the many institutions at our various camps. They have the right to provide liquor at all the camps where they cater for the public, where they provide food, refreshments, etc. My objection to this Clause is that the place of catering, the feeding room, may also be a bottle store; they are combined, and this is a privilege which is not granted anywhere else in the Republic. Although the National Parks Board will make considerable profit out of the sale of liquor they are exempt from licence fees and I object to that. I think if they sell liquor for the purposes of making money, they should pay the ordinary licence fees. I also feel that they should have to apply to someone annually for the renewal of their licence. Under this Bill they have not got to do so. They do not come under the control of the liquor licensing boards in any way. The liquor transgressions in the national parks can be hidden. The people running the national parks belong to a large family and they will suppress transgressions as much as possible. There will be no police in the parks to see that the regulations are observed. This is a privilege over which the Government should exercise control if it grants it. Under this Bill the Government will have no control whatsoever. The Minister has great faith in the National Parks Board, but the members of the National Parks Board do not live in the park. They pay a flying visit to the park once a year during the season. I do not regard that as control. Although the Minister says that they do not delegate their control to anybody else the catering is done by people hired by the board, and those people are supposed to show a good return to the National Parks Board. They would be out to sell as much liquor as they can. I am not objecting to this part of the clause that states that ordinary hotel facilities will be available to visitors at the parks. I am objecting to the fact that these facilities are being granted without any governmental control; that these people will not be subject to the control of the police. Is the Minister going to tell us that policemen will be deputed to visit the parks? Will detectives in plain clothes be sent into the parks to watch the sale of liquor and to find out how visitors respond to the provision of this facility? Here we are just going to let loose liquor without any Government control, without the enforcement of the provisions of the Liquor Act. When the Government puts through its new Liquor Bill, which I hope it will not, liquor will be available to quite a considerable Native population in our parks too. I want to say again that I am not objecting to hotel facilities in the catering departments in the parks; I am objecting to the bottle store facilities, but in this particular clause I object to these privileges being granted without the payment of any licence fees and without any control by the liquor licensing boards when it comes to a renewal of the licence. If the Minister would say that the National Parks Board will have to apply annually for a renewal of the licence, I would feel somewhat happier because when they apply to him for a renewal of the licence they would have to give a report of their sales, and then the Minister would have a certain amount of control over the disposal of liquor in our national parks, and I think it is the Minister’s duty to establish a right of that nature. In the same way that our hotels have to apply to the liquor licensing boards for a renewal of their licences, the National Parks Board, I feel, should annually come to the Minister and furnish a report before they are granted a renewal of liquor licensing privileges.
If I may say so with respect, I was not quite as far off-side as I thought I was, Sir, or as you thought I was!—when I was speaking on the previous clause which refers to facilities “including the sale of liquor” as provided in this new Section 12bis. However, I have risen to emphasize what I was trying to say earlier, that while I do not necessarily take the gloomy view put forward by some of the speakers this afternoon. I am entirely convinced of the need for really effective control in respect of what is an innovation. After all, the Minister by virtue of this clause proposes to put the sale of liquor in the hands of a quasi-statutory body—or is it a statutory body? It is not trading in the ordinary sense of the word. The right of trading is taken away from the individual and put into the hands of a statutory or quasi-statutory body. In the circumstances I think there is no alternative. If liquor is to be provided in the parks then I believe that that is the proper course to take. Because obviously the trading there will be profitable trading, and it might be very dangerous indeed if one were to create a monopoly in the hands of individuals in places like the Kruger National Park and elsewhere. So if liquor is to be provided to visitors at these establishments, then I think it should be done through the Board itself; and in that respect I agree with the Minister in what he has suggested about comment from overseas. I remember when I was in the United States of America finding how convenient it was, when one visited similar places offering the attractions of the Kruger National Park, that if one wished to have a drink one did not have to take it with one, but that it was provided on the spot. I think that the Minister is providing for a need by giving these facilities. But I would like to have an assurance that the licensee will be merely an employee of the board and that no monopolies are going to be given to any individual; that no private trading rights are going to be given to any individual. This innovation provides for profitable trading by the State; and it seems to me that the provisions of a recent amendment to the Liquor Act, providing that licensees in respect of on-consumption licences shall exhibit a minimum number of brands of wines and spirits and so on, should apply in this case also, otherwise there is a danger of favouritism in regard to a particular wine or other producer. The Minister may remember that in 1956 or 1957, I think, there was an amendment to the Liquor Act which compelled licensees to exhibit in the bar of hotels a minimum number of South African wines, malt liquors and spirits. It seems to me that a regulation to that affect should be laid down in respect of whatever licence is granted and that it be one of the conditions under which the privilege is granted to the board to carry out this particular trading. The provision in this clause that the facilities should be provided in premises set aside in the camps is, of course, essential. It would be quite wrong to have these facilities available anywhere else. I think the Minister might bear in mind the possibility, which the hon. member for Albany (Mr. Bowker) has suggested, of perhaps excessive quantities of liquor being bought and taken round in cars travelling through these parks during the daytime, not necessarily for the purpose of taking it out. In other words, I think some measure of control will have to be worked out to ensure that visitors to the national parks will be able to have the reasonable facilities they need at meal times, and reasonable facilities for purchasing liquor by the bottle to take to their rondavel so that they do not necessarily have to go to the dining-room, but that there should be some means of preventing liquor being taken out in cars in large quantities while people are travelling round by day, possibly consuming it and then possibly finding themselves committing indiscretions which are not only against the interests of the animals but which may be dangerous to themselves and others. I think simple rules should be laid down. I do not anticipate the orgies to which the hon. member referred. It might be said that there is a danger that we are possibly providing tourists now with the opportunity of seeing not only white rhino but also pink elephants! But at worst I do not put it much beyond that! With adequate control that can be prevented from happening. But I do emphasize that there is a need for control; that where we place facilities of this sort in the hands of a government or semi-government institution, every step should be taken to ensure that the supply of liquor to that institution is available to all producers and that no monopolies are set up. Subject to those considerations, I am prepared to support this clause.
I must thank the hon. member for Salt River (Mr. Lawrence) for his constructive criticism. I can help him with regard to quite a number of the matters that he raised. In the first place he said he thought it was only correct that the distribution of liquor there should be in the hands of the officers of the Parks Board. That provision is not only made in the Bill but it states specifically that the Parks Board may not pass it on to somebody else; they have to do it themselves. The second point was the question of the degree of control. Well, they fall under the provisions of the Liquor Act except that they do not have to apply for that licence; it is given to them by this Bill. They do not have to apply for the licence and they do not pay a licence fee, because they do not pay licence fees for any of their trading concerns in the national parks; that is an accepted principle but for the rest they fall under all the provisions of the Liquor Act with regard to hours of sale, with regard to the number of brands that they must exhibit and so on. I can assure both the hon. member and the hon. member for Albany (Mr. Bowker) that there is not going to be any indiscriminate selling of liquor. The hon. member said that Natives would now all buy liquor there. Natives need not buy liquor there; it is for the licensee, which in this case is the Parks Board, to determine to whom they are going to sell liquor. If a Native gets the right to purchase liquor, it does not mean that the seller is forced to sell it to him. It is in his discretion. We will use our discretion and refuse to sell to people whom we find are making misuse of it. I can assure the hon. member that this has been gone into very carefully. Indeed it has been dealt with in the best interests of the people going to the parks. What we want to get rid of are those people who make misuse of the national parks, and we will continue to do so. I think we will have better control over those people when we sell liquor to them ourselves than we have when they bring in liquor from outside. But all the provisions of the Liquor Act are enforceable there, including the provisions with regard to the number of brands that must be offered for sale.
The Minister says that provision has been made in this Act that only the board itself can exercise this privilege, that they cannot delegate it to anybody else. I would like to know where the Minister finds that in the Act, because I find that these rights were delegated by an amendment of the original Act. In the original Act, in terms of which the board was granted the privilege of catering, they were debarred from selling liquor. This amendment provides for the removal of that restriction with regard to the sale of liquor. During all the years I was on the National Parks Board we sold our catering licence to a company. We did not carry on the catering ourselves. The present National Parks Board are running the catering themselves, but at any future time they can sell their catering rights to some private institution. I cannot find any safeguard against the sale of their liquor rights in this Bill.
Look at Clause 8 (c).
Perhaps the Minister will explain the position. We would like to have it on record. I know that under the old conditions the board sold the catering rights to private institutions.
It has to be under the board’s control.
Is the board compelled by law to do its own catering?
It is not compelled by law. It does its own catering because that is the board’s own desire, and as far as the liquor licence is concerned, it will have to be run by the board. They have not got the right to hand it over to anybody else.
The Minister says that it is their own desire. But a new board may be appointed and it may have different wishes. It may get tired of running this catering and they may be offered a profit which is greater than they themselves could make.
Then they lose this right.
I do not see it specified anywhere.
Look at Clause 8 (c).
The Minister has indicated that in so far as the Liquor Act is concerned, the licensee will fall under the same restrictions as any other licensee outside the National Parks. What is the position in respect of activities which were not covered by the Liquor Act to which the Minister in his wisdom would object? Does it mean that he would have to come to this House and obtain an amendment to this clause if he wished to intervene in any way? Has he got the power to intervene?
My general powers over the board are those of a father confessor rather than those of a dictator. I appoint the board and they consult with me with regard to any important change that they may want to make. Because they know very well that if they were to run counter to what I regarded as being in the public interests, I would probably not appoint the members of the board again. The result is that I hold a velvet hand over them, but I hold it over them with sufficient firmness where necessary.
Clause put and agreed to.
On Clause 13,
I would like to move an amendment which I think meets the hon. member for East London (City’s) difficulty—
(c) by the insertion after sub-section (2) of the following sub-section:
“ (2)bis Sub-sections (1) and (2) shall not apply in respect of a convicted person under the age of eighteen years, in so far as those sub-sections provide for a minimum penalty.”.
That is the amendment which was moved by the hon. member but it has been put in better form.
That is exactly what I moved in my alternative amendment, but I have another amendment. I have my main amendment which I wish to proceed with now. Sir, I move the main amendment standing in my name on the Order Paper—
The effect of this amendment will be to remove the minimum penalty from each of sub-Clauses (1) and (2) of Clause 13, but in each case to leave the maximum penalty as it is and to restore the judicial discretion of the courts of justice, leaving it to the courts to impose such penalties as it may think the circumstances justify. As I stated during the course of the second reading debate it was wrong in principle for Parliament to fetter the presiding judicial officer by compelling him to impose a severe minimum sentence. The fixing of the punishment to fit the crime is one of the most important functions entrusted to our courts, and provisions of this nature reduce them to the position of automatons in the administration of justice. We might as well delegate this authority to an officer of the Parks Board and cut out the courts altogether.
The new definition of “ animal ” in Clause 17 to include any member of the animal kingdom, embraces every living creature great or small, including every creeping thing. And Clause 13 read with that clause means that if you kill a rat or a mouse or so humble an animal as a bushtick, you are guilty of an offence and liable to a minimum fine of R100 or not less than three months imprisonment. I think it is fantastic. I am sure that is not what the Minister has in mind, but that is the effect of sub-section (2), and it shows how ridiculous we are making ourselves by considering such a state of affairs. I have here a note of a case brought to my notice by a retired magistrate that shows where we are drifting to in legislation of this kind. A man who had a licence to hunt, saw a movement in the bush. Thinking it was a buck of the species he was entitled to shoot, he fired. When he came up to the bush, he found he had unwittingly shot a Native. He was charged with culpable homicide and convicted. The court held that he had no right to fire until he was certain of what he was firing at, but as there was no gross negligence on his part, he was fined but £50. If in the same circumstances, Sir, he had shot a species of the royal game referred to in sub-section (1) of Clause 13, he would have been liable to a minimum penalty of R400 or a year’s imprisonment. What this clause is doing is to attach much greater importance to the death of a buck or a bird than to the death of a human being in the same circumstances.
I gathered from the Minister’s reply during the second reading debate that his idea was to bring the National Parks Act into conformity with the existing provincial legislation. That statement is only partly correct. Of the four national parks to which this Bill applies, only one—the Kruger National Park—falls within the Transvaal Province. The other three are all in the Cape, and the penalties and other provisions differ widely. The penalties in the Transvaal are much more severe. In some respects Clause 13 of this Bill follows Section 13 of the Transvaal Game Ordinance No. 23 of 1949, only with added severity. Clause 13 of this Bill provides in the case of 25 classes of animals or birds a minimum fine of R400 with a maximum of R800, and in default imprisonment of not less than a year and not more than two years, plus a whipping of ten strokes where the contravention is wilful. In the Transvaal, for hunting protected game, the ordinance prescribes a general minimum penalty of R200 and not exceeding R400, and in default imprisonment for not less than six months and not exceeding 12 months, and it is only in the case of elephant, rhinoceros or hippopotamus that the minimum penalty is raised to R400 with a maximum of R1,000, and in default a minimum of one year and not exceeding two years. And there is no corporal punishment. In effect, the penalties under sub-section (1) of Clause 13 of the Bill are in the case of many classes of game double those imposed by the Transvaal ordinance. In the Cape, where most of the national parks are situated, the penalties are much lighter. True, there is a minimum penalty under Section 21 of the Wild Life Conservation Ordinance No. 23 of 1937, for hunting lion, elephant, zebra, buffalo, hippopotamus or black wildebeest of R100, or not less than one month with a maximum of R400 or six months imprisonment. For ordinary game, the minimum is R30 or 14 days. Here again there is no corporal punishment. In Natal the national parks are under the control of the Natal Parks Board constituted under a provincial ordinance No. 35 of 1947. Within the parks the penalties in respect of elephant, rhinoceros or hippopotamus are a fine not exceeding R1,000 or two years imprisonment. In the case of other species of game a fine not exceeding R200 or 12 months is imposed. But there is no minimum and no whipping. Outside the parks, the Natal Game Preservation Ordinance No. 11 of 1955 applies. Here again the penalties vary from R1,000 or two years in the case of elephant, rhinoceros or hippopotamus, to £25 or three months for ordinary game. No minimum and no whippings. In the Orange Free State under the Game Protection Ordinance No. 6 of 1937, the general penalty is R20 or three months and for a subsequent conviction R50 or six months. No minimum, no whipping.
I think I have said enough to illustrate how much this Clause 13 differs from all the other laws in force throughout the Republic in its severity.
I wish to add that it illustrates too the utter state of confusion that exists in all the provinces. Instead of tinkering with these amendments to the existing laws, what is needed is a consolidating measure that will enable one to know with some degree of certainty what is required of a visitor to any game reserve.
When the hon. member talks about the rather chaotic state between the different provinces as far as the game ordinances are concerned and that they should be co-ordinated, then I am in complete agreement with him. Our game laws differ from province to province. We have taken here as a basis the Transvaal game law because the greatest national park, the Kruger Park, with the most game in it, is in the Transvaal Province, and what we are trying to do here is to apply the penalties of the Transvaal Game Ordinance to the Kruger Park. I think, Sir, you will agree with me that it would be very illogical if we inside the National Park, where we are trying to preserve animals, were to impose lesser penalties for illegal hunting and poaching than we apply to somebody who goes outside the National Park. That would be completely illogical. That is the reason why we have introduced these new severe penalties which, as I say, are practically the same as those in the Transvaal Province Game Ordinance. On the other hand, we have to ask ourselves this question: Are we serious in preserving our game? Hon. members might not know the amount of poaching which is taking place in the Kruger National Park, an enormous amount of poaching. We have got to put a stop to that, and only by such severe measures will we be able to put a stop to that poaching. If we do not do this, our game will be killed off in South Africa, as it is being killed off in the rest of Africa. Outside the National Park, our game is being slaughtered off, mostly by Natives using steel wire to catch them, killing them in the most hideous way. But we can’t have lesser penalties inside the park than we have got anywhere else outside the park. That is why we had to make these penalties so severe.
Amendments proposed by Dr. D. L. Smit, put and negatived, and amendment proposed by the Minister of Lands put and agreed to.
Clause, as amended, put and agreed to.
On Clause 14,
I move the amendment standing in my name—
Sub-sections (1), (2) and (4) follow Sections 28 (5), 28 (10) and 28 (12) of the Transvaal Ordinance No. 23 of 1949 and create a number of presumptions which place a heavy and unjust onus upon a person charged with contravening the provisions of the National Parks Act, as amended. I have already dealt very fully with this matter during the course of the second reading debate and it is not necessary for me to cover the same ground again.
But I wish to draw attention to the fact that there are no such presumptions in the Wild Life Conservation Ordinance No. 23 of 1957 of the Cape where three of the four national parks are situated, or in the game laws of Natal. What is happening here is, as in the case of Clause 13, that the Minister is slavishly following the Transvaal procedure and ignoring the more judicial outlook of the older provinces of the Cape and Natal. I repeat what I said during the second reading debate that the presumptions contained in this clause (I refer particularly to sub-sections (2), (3) and (4)) are unreasonable and unjust and should not be allowed to disfigure our law of evidence and procedure.
The whole basis of our law of evidence is that the onus of proof is on the person who affirms and not on him who denies, and this is particularly so in criminal prosecutions. There are, it is true, a number of exceptions to this rule, such as in the case when it is a question of fact peculiarly within the knowledge of the accused, or any exception or exemption created by statute. But none of our statutes goes so far as to dispense with the onus that rests upon the prosecution of proving the essential elements of the offence as this clause seeks to do. Sir, our Judges have laid down time and again that it is the duty of the prosecution to prove the guilt of the accused beyond reasonable doubt. As a rule this onus of proof never changes. The burden all through is on the prosecution, and it is only when a prima facie case has been made out by the prosecution that the accused can be called upon for his defence. Sir, Curlewis, J. put the matter very crisply in the case of Rex v. du Plessis (1924 T.P.D. 124) when he said this—
Sub-section (4), which allows a record, book or document kept by an officer of the Board to be admitted as prima facie proof of the facts stated therein, on its mere production by an officer of the Board, without calling the officer who made the entries to give evidence viva voce and in open court so that he may be cross-examined, is particularly pernicious. Section 28 (12) of the Transvaal Ordinance from which this presumption has evidently been taken uses the words “ prescribed record, book or document ”, which indicates, I imagine that the type of record referred to is a routine document prescribed by regulation to be kept as an official record—certainly not a note made by an officer giving particulars of an offence observed by him. In the Bill before us, the word “ prescribed ” has been omitted. Whether that has been deliberately or not, I cannot say. But the fact remains that as sub-section (4) stands, entries made by a ranger in his notebook containing details of an offence observed by him—and that however long afterwards, the notes may have been made—may be put in in evidence at the trial of an accused as prima facie proof of the facts alleged therein, without calling the ranger as a witness. Sir, that is fundamentally bad in law and is bound to lead to serious miscarriages of justice, particularly in cases where an ignorant, undefended Native is involved. The ordinary rule is that the ranger may refer to his notes in the witness-box in order to refresh his memory, but this procedure is regulated by well-known safeguards which have been clearly laid down in a number of cases. I want to refer to the case of Rex v. Isaacs (1916 T.P.D. 390). in which Judge - President de Villiers said—
May in his “ South African Cases and Statutes on Evidence ” adds this—
Sir, we are departing from that rule which has been recognized in all our courts in recent years. Under Section 239 (4) of the Criminal Procedure Act, 1955, the evidence of an expert witness who is skilled in various scientific processes, may be admitted as prima facie evidence by way of an affidavit by such expert, subject to this safeguard that the court may in its discretion summon such person to give oral evidence in the proceedings, or may cause written interrogatories to be submitted to him for reply. In either case the witness may be subjected to cross-examination. But there is no safeguard under this sub-section. The whole procedure laid down under this sub-section is a most dangerous innovation and should be deleted.
I want to refer, Sir, to the amendment which I have put on the Order Paper which I have taken from our Criminal Procedure Act where affidavits are admitted, and although the Minister may not accept my main amendment, to delete the whole of the clause, I do plead with him to accept this one safeguard which is essential.
The hon. member raised two points. The first is the question of the onus of proof. In terms of this Bill the onus rests on the suspect to prove that he did not illegally acquire the game he has in his possession. That is how the Transvaal Ordinance reads at the moment, and we are again busy taking over the Transvaal Ordinance. In previous times the position was always that the State had to prove the commission of a crime, but in many instances it has already been found in South Africa, as well as in other countries, that in regard to certain crimes it is practically impossible for the State to prove it and that the onus of proving that he did not do so should rest on the accused. There are many such instances. In the Transvaal, where they have much to do with poaching, they found that they could do nothing if the onus remains with the State to prove that the man acquired the game illegally, and that was the only way of making it possible to convict these people. The man has a buck in his possession and now you have to prove that he shot it in the park. He may even be found in the park with that buck, but you must prove that he did not take that buck into the park but shot it inside the park. That is impossible. Rightly or wrongly, the existing law has been departed from in regard to the onus of proof in many Acts, not only in South Africa but in many countries of the world. In some countries the onus of proof always rests on the accused to prove that he is innocent. Here we are simply taking over the Transvaal Game Ordinance, because we found that this was the only way to put a stop to game poaching and to convict the people who do it. We are simply compelled to do so.
In regard to the second amendment proved by the hon. member, viz. that a man should be able to hand in a document which can serve as prima facie evidence in a case, he said that this is allowed in circumstances where a man is an expert witness, but it does not apply only to expert evidence. There are other such cases also. There is, e.g., the hotel register which can be handed in as prima facie evidence that somebody booked into that hotel for the night. But I have sympathy with the hon. member in this regard, viz. that the court should have the right, when a man hands in an exhibit, a document, as prima facie evidence, to cross-examine that witness. I submitted this matter to the law advisers and they say that the court has that right. But if the hon. member now thinks that it does not have that right it makes no difference to me if I accept his alternative suggestion, even though it is not necessary.
I would like to move it. It is in the Criminal Code.
I will accept it, but the law advisers say it is not necessary at all. The law advisers say that it has the right, if there is any doubt about that documentary proof, or it is considered necessary, to bring that person before the court and to cross-examine him. Our intention is that he should have the right and if the hon. member wants to make even more sure of what according to my information is already sure, I am quite willing to accept it.
Then with the leave of the Committee, I will withdraw my amendment.
With leave of the Committee the amendment was withdrawn.
I now move—
Provided that the court in which any such record, book or document is adduced in evidence may in its discretion cause the person who made the entries therein, to be summoned to give oral evidence in the proceedings in question.”
Clause, as amended, put and agreed to.
On Clause 17,
Sir, I want to refer to the new definition of “ animal ”, as given here—
That definition is altogether too wide. The definition contained in Section 22 of the principal Act reads—
This is also rather ridiculous, but not as fantastic as the new definition. According to the Oxford Dictionary, Sir, “ animal ” means “ a living being endowed with sensation and voluntary motion ”. Sir, I cannot do better than also quote a definition of “ diereryk ” in the Woordeboek van die Afrikaanse Taal, page 159, which reads as follows—
This definition here would cover not only mammals and birds and fish and reptiles, but every form of insect life, and as I endeavoured to explain in the second reading debate on Clause 13, if you were to kill a rat or a mouse, or even a cockroach, you would be liable to the minimum penalty laid down in Clause 13. One does not suggest for one moment that any officer would be so stupid as to institute a prosecution in such a case, but the clause as now drafted, renders such action possible. In the provincial game laws, the various species of game it is desired to protect are set out in schedules for everyone to read. Why not adopt the same principle here? This is an absurd definition, and I think we are making ourselves ridiculous by it.
Clause put and agreed to.
Remaining Clauses, Schedule and Title of the Bill put and agreed to.
Bill reported with amendments.
Business suspended at 6.30 p.m. and resumed at 8.5 p.m.
Tenth Order read: Second reading,—Payment of Members of Parliament Bill.
Mr. Speaker, the question of the salaries and allowances of Members of Parliament is one of the most difficult things on which to decide because it places Members of Parliament in a very unenviable position, where they have to decide on their own emoluments. Nor is there anybody else who can decide the question. But it is always considered outside by people who want to criticize Parliament and its activities that members really do not have the right to change their salaries and emoluments. When it was realized, and I think quite correctly, that the emoluments of Members of Parliament and the officials of this House had not kept pace with modern circumstances, also taking into consideration the value of money to-day, this matter was discussed by the Whips of the various parties. It was then suggested that we should not ourselves decide what our emoluments should be, but that we should do what has already been done several times in Australia, namely to appoint a commission consisting of people outside this House who have the necessary responsibility. knowledge and competence, and that they should investigate the whole matter and make recommendations. It was felt that by doing that the onus would not be placed on Members of Parliament themselves to decide what the emolument should be. The Government then appointed a Commission consisting of Judge Thompson, a Judge of the Appeal Court, Dr. M. S. Louw, the head of one of the big financial houses in Cape Town, viz. the Sanlam group, and Mr. Clive Corder, a director of Syfret’s Trust and of numerous other companies. We asked them to go into the whole matter and to make recommendations to the House. They did so and this report we received and which has been incorporated in legislation contains all the recommendations made by this Commission.
Now I want to say, in the first place, that many changes have come about in the duties of Members of Parliament, even in the comparatively short time I have been in this House. In the old days, when people were elected to Parliament they were elected as the representatives of the constituencies, in the sense that they had to come to Parliament to interpret the views of the people whom they represented. Thereafter multifarious duties were placed on the shoulders of members, so that to-day a member is not only the representative of his voters to interpret their views here, but he has become a sort of Government-paid agent for the majority of his voters, to solve all their difficulties and to be a link between them and the Departments of State. Where the link between a Member of Parliament and his individual voters in the old days was merely a very slender one, that link is much stronger today and he must continually carry out a multiplicity of duties on behalf of his voters, organizations in his constituency, local organisations, management committees, etc. That has resulted in the fact that whereas formerly a member had comparatively little work to do in connection with his constituency and his voters, to-day he works practically full-time. Formerly, after Parliament adjourned, the member, except for the fact that he perhaps visited his constituency once a year, had very little to do with the voters. But at present the work of the member of Parliament is often much more during the recess than it is when Parliament is in session.
I just want to quote what the Commission found in this regard. They said—
In short we are satisfied that a substantial annual expenditure is inseparably associated with being a Member of Parliament. In principle we consider that the member should, in the main, be reimbursed for this.
Another thing which should also be remembered in regard to the demands now made on Members of Parliament. but which were not made on them in 1910, is that as the result of those demands it is practically impossible for members to practise their professions. Take, e.g.. a medical practitioner, an advocate or any professional man. If he has to sit in Parliament for six months or five months of the year, and for the rest of the time he is mainly busy with the activities in his constituency, it is quite understandable that it is practically impossible for him to continue practising the profession which gave him his income before he became a Member of Parliament. That is something we see every day, and it makes it impossible for many persons of that type, particularly the younger ones whom we would like to have in Parliament, to stand for Parliament and to become members, because by that time they have not as yet made sufficient provision for their families. The result is that those people are lost to us, or else they come here at the sacrifice of a large proportion of their income. Another matter which should be borne in mind is the uncertainty of the position of a Member of Parliament. Often he comes here and before long an ungrateful electorate decides that they do not want him any more. He has given up his own business. He no longer derives an income from it. He is often too old to start anew, and he is left in that position.
Mr. Speaker, this briefly is the main reason considered by the Commission when coming to the conclusion that sufficient emoluments should be given to a Member of Parliament to allow him to maintain a proper standard of living and to safeguard him from the actual shortage of income many members have to suffer when they become Members of Parliament. The Commission also stated—
Mr. Speaker, I said that we instructed this Commission to investigate the position, and it has submitted its report. This report was discussed between the Whips of the various parties, and it was agreed to accept the report as we received it. That report is embodied in this legislation.
Mr. Speaker, the hon. Minister has put the case as appearing in the report of the Emoluments Committee for the provisions contained in this Bill. I would like to say at the outset that, as he rightly put it at the end of his speech, there have been discussions between the Whips, and I get up to say that the official Opposition, the United Party, supports this Bill. But in doing so it might be just as well to add a word or two or one’s experience in these matters.
In the past there has been, quite understandably, a reluctance on the parts of hon. members to deal with this question in a proper manner. The hon. the Minister quite rightly said that up to the present time it has been left to members to deal with and, by agreement, legislation pertaining to the emoluments of members was passed. There was a hesitation and a reluctance, and understandably so. The idea was put forward that there should be outside body representing public opinion which should express itself on this question and make recommendations. With that end in view the Committee referred to by the hon. Minister was appointed, consisting of a Judge of Appeal and two leading businessmen. The important part of their terms of reference was the fact that they were to inquire into this question to establish whether it was necessary to alter the emoluments, and to make recommendations in regard to their findings. In other words, they could either recommend that the emoluments could be altered upwards or downwards. They had a free hand to go into the whole question.
In the past we have, in my opinion, rather tinkered with this subject. There have been many alterations since 1910, namely, in 1920, 1926, 1946, 1951, 1956 and 1932 a voluntary reduction. There have been many variations over the course of the years since Union. Changes in emoluments were all too frequent, coming before Parliament on frequent occasions after a lapse of a few years. It is believed, and I think all hon. members hope that the proposals contained in this Bill before us this evening will settle this question for the foreseeable future, and that it will be a permanent settlement and we will not need to come back on frequent occasions to this House on a subject of this matter.
The relevant committee heard extensive evidence from members, and we may say they did their job thoroughly and well, and came forward with recommendations without necessarily accepting all the suggestions that were put before the committee. They made up their own minds and submitted the recommendations now embodied in this proposed legislation.
It is necessary to do this, because in the experience that I have had in this House—and I have now graduated from the back bench over a period of years until I am sitting here, and I have seen what has happened in my capacity as Chief Whip of this Party, both on the Government side and on the Opposition side. I have seen members of great promise who have come to this House, members of good parliamentary material and, after a short time, we lose them. In other words, they are unable to stay here because of the financial implications and the restricted opportunities of earning income once they come to Parliament. It may be said generally that a member’s opportunities and capacity to earn income are considerably restricted. One could name members who have come to this House in the past years and gone again because they were not able to look after their families on the emoluments then being paid in Parliament. I have also seen members who have stayed here a number of years as Members of Parliament, and by the time they have retired, either voluntarily or otherwise, have been so impoverished that we have had to have petitions on the matter before our Pensions Committee. That was before we had the Parliamentary Pension Scheme. Even to-day, to my certain knowledge, we have members with a little capital but that is being used up during their office as a Member of Parliament and disappears in the course of time as a result of the necessity to keep up their position. That is quite wrong, and there is no doubt that what is being proposed here tonight should be done.
The principle enshrined in this Bill is a sound one and is based on the principle enunciated in paragraph 12 of the report. The Committee refers to what the Prime Minister of Australia has said about the question of adequate remuneration. He once remarked that “ public office should not be a means of profit, but it should not involve such loss or financial embarrassment as to make it difficult for people without private means to enter Parliament ”. That is a sound principle, and I believe it is the principle on which the committee concerned have based their recommendations. They have said that they have fixed the emoluments on a figure which would enable the “ poorest man ” to come to Parliament.
It should also be appreciated that any member who has an outside income obviously suffers a greater tax rate and therefore gets little or no benefit at all from these particular increases. I do not think that is generally realized. That is as it should be. The other principle which has been adopted as a result of the committee’s recommendations is that a member is now subject to income tax in the same way as any other ordinary citizen. That too is a very wise recommendation. The emoluments now proposed will be fully taxed, outside of the expense allowance granted to members. Previously there was what one might call a cost of living allowance, plus half the emoluments which were tax free. This method had grown up on a historical basis, but in principle I do not think it is correct. That has now been corrected and it places a Member of Parliament in the same category from the point of view of income tax as any other citizen in the country.
The hon. the Minister referred to the plight of younger members who come to this House. It is hoped on all sides of the House that these emoluments will attract people to give public service and will enable them to live at the standard at which they should when in office in Parliament. It is hoped that this will attract material to Parliament which is worthy of this House. I think it will tend to do so. Everybody accepts that that is one of the objects in making these recommendations. I therefore, Mr. Speaker, support this Bill, fully realizing the necessity for it. It is my opinion, and that of many hon. members that it is long overdue and. as I have said, I hope this will remain in effect for a long time and we will not have to examine this question again.
In conclusion I should like to add one other point and that is this: criticism is made from time to time that this is not the time to do a thing like this. People have an eye to a possibly deteriorating economic situation and similar questions. But I believe that members have the responsibility—as they had previously in 1932—that if such an occasion should arise in the future, they would give a lead to the rest of the community as they did then, and voluntarily come forward and say, “ We should suffer with the rest of the community ”. It was done then when the necessity arose and I have no reason to believe that it would not be done again. I think that is the reply to the question of whether this is timeous or not. We have to look to the future. We have to look to the time when the economic situation is normal. I believe that to-night we are doing the right thing in the interest of Parliament, and this side of the House therefore supports the Bill.
In all the countries which have adopted the parliamentary system there is a tradition that anyone who has the honour to serve in the highest council of his country should be prepared to make, at least, a sacrifice of time to that end. I think that is a good principle. There is another principle, that before a man should offer himself to the electorate for such high office, he should have proved himself either in character or in success in some particular sphere, so that those who elect him can judge to a certain extent the matter of character or ability on which they elect him. I think that is also a good principle. But there is another principle that members of a council such as this have to take into account, and that is that in following a certain tradition and in following a certain custom the degree of exclusion that is thereby brought about. For example, in following the first principle that I have mentioned, a principle that sprang from the time when the members of the mother of Parliament were largely members of the privileged class and therefore naturally could regard themselves as independent of economic circumstances; if you follow that principle to the extreme, then only here will we find those people the public considered fitted to represent them, but chosen from an exclusive group, those who have made a success in those occupations which pay highly. It is possible for a man to make a great success in an occupation which does not pay highly, in the terms in which I am speaking. For example, in the sphere of religion, the academic sphere, the leadership of trade unions and so on; men who have proved themselves as men of great ability and as leaders, but on the grounds of economic success could not qualify for office here.
The hon. the Leader of the House, in introducing this Bill mentioned another exclusion which springs from the traditions I have been outlining, and that is exclusion on the grounds of youth. There are few young men—and I speak relatively because I am not speaking in terms of very young men—young in the sense of still being adapted to the environment which they have found, and ready to change that environment. Without disrespect to any members of this House I think we will all be happy to see a lower average age in the membership of this House in relation to the environment in which we find ourselves which demands a great adaptability in order to change it. It was on the basis of the degree of exclusion that we of this party supported the idea that an independent commission should investigate this question. It does seem to us that that is a very important concept, the thing that has been mentioned by both speakers so far, that no man by reason of his economic circumstances should be excluded from the possibility of representing the people of his country if he has the necessary ability and the necessary confidence received from the electorate so to do.
This commission which has reported had before it information which is known to all of us, that is to say, the situation in comparable legislatures in comparable countries. It is interesting to remark that there is no comparable country which has not had to compromise in the sphere of what I might call the managerial revolution in politics. It has taken place in the economic sphere and now it is coming into this sphere. One cannot avoid the comment in passing, Mr. Speaker, that it is a curious thing that it is only in politics and perhaps, to some extent, still surviving in sport, that the term “ professional ” is a term of derogation. In almost all other professions the amateur is regarded as the inferior but in politics it has become a stigma, whereas in most other cases it is to the professional that people would turn.
What the commission has had to do is to strike a happy mean, or the best it could, between certain conflicting principles. The idea that a man coming here should regard himself as following a calling higher than a mere profession; the idea that nobody should be excluded by means of economic circumstances; the idea that a man should be prepared to take the occupational risks of his profession—and sometimes, in addition to the causes mentioned by the Chief Whip of the Party on my right, conviction may lead a man to take occupational risks and so shorten his term here. I think all these things should be taken fully into account. I am not speaking humorously at the moment Mr. Speaker. A member of this House, in a certain sense, should be almost like a Judge in that what he decides to the best of his ability and according to his lights, should be entirely independent of any economic pressure or any other circumstance connected with his private life.
The commission that investigated this matter had before it evidence that is not before the generality of us here; the evidence of what I might call the marginal case, the member who can only just afford to be here but may nonetheless be one of the most able contributors to our deliberations. It is on that that the difficulty of our decision rests, as it does in most other economic factors in life; the question of where we should fix the degree of sacrifice that we ask; where we should fix the reward that we offer so that that marginal man—not the wealthy man to whom the fixing of this level is not a matter of great moment, nor the man who has resources outside so that even a low level of emolument here is still adequate, but the man who has the ability but not the resources. In order that that man shall maintain a position here and not feel inferior it is demanded that the State should make to him an adequate reward, or that that reward should come from the people whom he serves—because I distinguish between the State and the people. The commission had that special information that we did not have. For that reason, although it has been said that when it comes to detail evolving from principle there will always be a minority and a majority view as to where the line shall be fixed. And when it comes to the degree of sacrifice there will also be that division of opinion. And because this independent body came to certain conclusions on information not available to the generality of us—I am sure that they examined this position from all angles, as the report makes evident—for these reasons we of this party accept the recommendations.
Mr. Speaker it is not necessary for me to add very much to what has been said in connection with this report. I do, however, want to say this, that whatever arguments we raise, and despite the findings of the independent commission, there will be criticism. Particularly therefore do we as a group representing the Coloured people have to consider very seriously and carefully the position in regard to this legislation. The people we represent are people of the lower income group whose economic position is not what we believe it should be. We felt that that was a question which we will, in time—as we have in the past—bring constantly to the attention of the Government in the hope that there will be a realization that arguments that are good in regard to the finding of this commission may be equally applied to those people we represent. We came to the conclusion that this one subject should be dealt with on its own merits, and we can find very little to argue against the findings of the commission so ably led by a Judge of the Apellate Division and two financiers of high repute. Accordingly our group will also support this legislation.
Motion put and agreed to.
Bill read a second time.
Eleventh Order read: Second reading,—South African Citizenship Amendment Bill.
Mr. Speaker, this amending Bill now before the House is a Bill to amend the Citizenship Act which on the 2 September this year will have been in operation for twelve years. After an Act has been administered for twelve years with no amendments in the intervening period, it is of course self-evident that experience has taught us a great deal regarding what amendments aimed at improving the Act can be effected and where essential changes should be effected. This legislation now before the House embodies three important principles, and these three important principles are the following which I shall also deal with seriatim. The first is that certain restrictions on the acquisition of South African citizenship by descent are being abolished—certain restrictions which are imposed on the acquisition of South African citizenship in the principal Act are being abolished. The second is that certain concessions are being made to prospective citizens; and the third is that the provisions relating to the loss of South African citizenship are being improved. A White Paper which sets out these objects very clearly has been laid on the Table. I hope that hon. members have made a very thorough study of that White Paper because it will greatly facilitate the discussion of this Bill.
I want to say a few words on the first point, namely the acquisition of South African citizenship by descent. The amendment which is being effected is more or less to the effect that all South African citizens except a few who are specifically excluded will be given the right to confer their citizenship on their children who are born outside the Republic. This is an amendment of Section 6 (b). What are the present limitations and why did we insert these limitations in the present Act in 1949? The present limitations are to be found in Section 6 (1) which lays down that South African citizens by descent, except those born in South West Africa may not confer their citizenship on their children born abroad. The second limitation contained in the present Act is to be found in Section 6 (2). This withholds South African citizenship from children born in Commonwealth countries, where such a child acquired citizenship of such a Commonwealth country through birth. The reason for this provision in the original Act was to eliminate dual citizenship in Commonwealth countries in the hope that other Commonwealth countries would follow the same example as South Africa set in her citizenship legislation. But unfortunately the other Commonwealth countries have not done so and the children who are born to South African citizens in other Commonwealth countries are therefore detrimentally affected by this provision and they are to a large extent excluded from acquiring South African citizenship. The amendment now being effected is therefore an attempt to remedy this position and to delete these provisions from Sections 6 (1) and (2).
I assume that they were born while their fathers were still South African citizens?
Yes, but our legislation excludes them from acquiring South African citizenship. In the amendment I am now introducing, the father must still be a South African.
The reason for the first amendment of the provisions of Section 6 (1) is that descent cannot freely confer South African citizenship on their children born abroad. At that time Section 1 (b) of the Union Nationality and Flags Act No. 40 of 1927, permitted persons outside the country to retain their citizenship for an indefinite period, But a second reason which caused us to word the 1949 Citizenship Act in this way at that time was that many citizens abused the privilege of continued citizenship as provided for in the old 1927 Act. I want to give an example. After the last World War, South African citizens demanded assistance from the Union Government by virtue of the fact that they held continued citizenship. That is why the law was amended in 1949 so that this position could no longer arise. The question now is: What is the necessity for this amendment? Why am I introducing this amendment? I am doing so for various reasons.
The first reason is that the present legal position causes great hardship in certain cases. I am thinking in the first place for example of persons who are living in the neighbouring territories such as the Fęderation, Nyasaland, Kenya. Tanganyika, Bechuanaland, etc. There is a continuous flow to and from these areas, and it is only reasonable that such citizens should have the choice of conferring their citizenship on their children. The children who are born in such areas often wish to join the Public Service, the Permanent Forces, the South African Navy, and as the position now stands, these careers are closed to them. That is why the right which is being granted here is a long postponed one for which provision should long since have been made. But I want to point out to the House that this right which is now being given to South African citizens in this Bill in respect of their children who are born outside the Republic is not an automatic right. The onus rests on the parents to ensure that the birth of children who are so born outside the Republic is registered in the Republic. It is not an automatic right whereby. if children are born to South African citizens outside South Africa, they will automatically become South African citizens. The parents must register them.
But the parents must give the children the option to choose when they become 21.
Yes. The birth can be registered at any stage. Of course one always has the right to make one’s choice, but if these persons are not registered as South African citizens by their parents, they must then naturally go through the normal process if they wish to acquire South African citizenship.
The other reason why this amendment is necessary is the fact that former South African citizens, people who were citizens of South Africa and who have lost their citizenship through a voluntary or formal act and who are now returning permanently to the Republic, will also be able to regain their citizenship immediately. I shall explain the reasons for this later, but for this purpose it is necessary that. subject to the registration of the births concerned, this type of parent, this former South African citizen who is now returning permanently to the Republic should also have the right to have his children born outside the Republic registered as South African citizens. This is the first principle embodied in the legislation before the House.
The second principle involves concessions to prospective citizens, to persons who want to become citizens of the Republic. There are five important concessions especially with which I want to deal briefly. The first concession is that the Bill greatly simplifies the procedure relating to the submission and consideration of applications for registration and naturalization. The application for registration by a citizen of a Commonwealth country can now be submitted after four and a half years’ residence in the Republic. The six months’ reduction being granted allows time for the necessary enquiries, and the application can be considered immediately the period of six months has elapsed.
In the second place, the benefits in respect of naturalization are still greater. We are abolishing the principle we always had, namely that a person who wished to become naturalized had to signify his intention to make application a year in advance.
That was introduced in 1949.
Yes, but that is the Act we are amending. I am not amending the other old Acts at the moment. There were certain reasons for the 1949 provision, if that is more to the satisfaction of the hon. member for Salt River, namely that a person had to signify his intention to become naturalized a year in advance. Time had to be allowed for making certain inquiries into the suitability of the applicant, and in the second place for enlightening the applicant as to the responsibilities and privileges involved in South African citizenship. This procedure has not been a success because in the first place experience has shown that in many cases it has delayed naturalization by a year. Only after they have complied with the residential qualifications, do such persons normally signify their intention. A second reason is that other persons who signify their intention omit to submit the actual application. We therefore foresee that the new procedure which we are proposing will work far more satisfactory and for the following reasons. All the disadvantages are being eliminated, while the same objects will still be achieved. Secondly the consideration period of six months is important in the case of both naturalization and registration and particularly in the case of the latter, that is to say the registration of persons. In the case of naturalization, a record of the person concerned is still available, but in the case of registration there is normally no record and it is essential that there should be this period so that the person’s suitability, etc., can be thoroughly investigated.
A second concession which is being made is that prospective citizens who have had previous residence in the Union will now be granted an additional concession. The position is as follows. In Clause 8 which inserts a new subsection (3)bis and Clause 10, half the previous period during which such a person has resided in the Republic is granted to him as a period which is regarded as residence, provided it does not exceed two years. This can then be regarded as residence for the purposes of Sections 8 (1) (c) and 10 (1) (d). The effect of this provision is that persons who resided in the Republic but who for one reason or another interrupted their period of residence can now have part of that previous period of residence in this country recognized for citizenship purposes, up to a maximum of two years.
A third concession is that Clauses 8 and 10 (3)ter reduce the residential qualifications in respect of applicants for registration and naturalization by one year if they are able to read and write both official languages. I think this is so self-evident and will be generally welcomed because it has a praiseworthy object, namely to encourage such persons to become integrated into our South African way of life as soon as possible.
The fourth concession is contained in Clauses 8 (1) (c) and 10 (1) (d) which extend the period during which residential qualification must be required by prospective citizens by a year in order to offer such a person the opportunity to be absent for a longer period during the initial stages of his residence in this country to deal with his arrangements connected with coming to this country.
Hon. members will find the fifth concession in Clause 16, i.e. former South African citizens who return from African territories to the Republic for permanent residence can now apply immediately on returning for the restoration of their original citizenship and they need not wait for a longer period. These are former citizens who are returning permanently. The present Act says that after a year’s residence in the Republic they must wait and undergo the normal procedure through registration or naturalization, despite the fact that they were previously citizens even by descent.
Why is this being done specially for people living in other African territories?
I think the hon. member should rather ask that question at the Committee stage. I am dealing with the principles. The reason why we are doing so—the hon. member has not even heard the reasons—is to extend a definite invitation by this provision to former citizens who are now living in African territories to emigrate back to South Africa. That is the first reason and the second reason is to give such persons who return to the Republic as a result of the uncertain conditions prevailing in those territories the opportunity to be absorbed into our community in South Africa as soon as possible.
I now come to the third principle of the Bill which relates to the loss of South African citizenship. These amendments have two objects in mind. The first is the imposing of essential restrictions on the loss of South African citizenship in time of war and in the second place to extend the provisions dealing with the loss of South African citizenship in certain instances. In the one case it lays down restrictions and in the other case it extends the provisions. The amendments relating to these principles are the following: In the first place, the provisions relating to the loss of citizenship. These are contained in Clauses 10 and 11 (b). These provisions are being introduced to prevent a South African citizen who colludes with the enemy during a time of war escaping the implications of his actions by relying on the fact that he has lost his South African citizenship. People sometimes want it both ways with their citizenship. On occasion it is to their advantage to retain their citizenship, but when they collude with the enemy they would very much like to lose their citizenship so that they cannot be punished. This limitation is now being imposed on such a person.
The second is the extension of the provisions relating to the loss of citizenship. I know that hon. members will get something of a fright. One is always afraid that one will take citizenship from someone who should perhaps not lose it, but the main amendment here relates to the automatic loss of citizenship by persons who become prohibited immigrants. Hon. members will immediately ask: What is the scope and the extent of this amendment? In the first place I must point out that a very minute number of South African citizens have ever become prohibited immigrants. They do not constitute a large group. In the second place I must point out that only those persons who were not born in the Republic can be affected by this provision. It therefore only affects persons who were not born here. In the third place, under the immigration laws, a person who was not born here becomes a prohibited immigrant if he is found guilty of certain serious offences, and the Immigration Act, No. 22 of 1913, lays down what are regarded as serious offences. If he is deported, he loses his citizenship and I want to make it quite clear so that there will be no misunderstanding that a person who is a citizen through birth or descent, cannot be deported. It is only persons who are not South African citizens through birth or descent who can be deported. That is laid down in section 7 (a) of Act 52 of 1956. A South African citizen who was not born here can become a prohibited immigrant through his own actions. If he leaves the Republic he loses his domicilium after an absence of three years. If he wishes to return, he must comply once again with the immigration requirements and as hon. members know he of course has the right of appeal to the immigration board. The previous Union nationality legislation, that is to say the Union Nationality and Flags Act, 1927, went in certain respects far further than these amendments. Section 1 (b) of the old law laid down that a British subject became a Union citizen after two years’ domicilium and lost his citizenship when he no longer was domiciled in this country. If that law was still valid to-day, it would mean that South African citizens who find themselves outside the Republic as prohibited immigrants to-day, would automatically lose their citizenship. The amendments I now propose here do not envisage a return to that old position, but only envisage that a person who does not have the legal right to enter the Republic will be deprived of his South African citizenship. In the main it therefore amounts to this. If a person is an undesirable in habitant, he is also undesirable as a citizen. That is the intention of this provision. If we do not want him as a resident and he is a prohibited immigrant, we want him still less as a permanent citizen.
In this respect the Republic is not unique in introducing these amendments. I refer to the legislation of our neighbouring state, that is to say Section 28 of the Citizenship of Rhodesia and Nyasaland and British Nationality Act, 1957, which reads as follows—
We are therefore not unique. This is not a new principle. I am merely mentioning that this principle is already being applied to the same extent in our neighbouring country. Furthermore, this legislation contains a new provision to the effect that citizens of Commonwealth countries who accept South African citizenship will take an oath of allegiance to the Republic.
In conclusion I want to point out that not one of these proposed amendments flows from the fact that the Republic is no longer a member of the Commonwealth, with the sole exception of the definition of a Commonwealth country which is being improved to meet that situation as well. I move.
The hon. the Minister has the opportunity in this Bill of giving us some examples of putting right what perhaps would never have appeared in this law had his predecessor in office been prepared to listen to criticisms of the original Act. I want to say that although this Bill is going some distance to meet some of these matters I hope that this Minister will regard it as firstly within the competence of this House to make suggestions to remedy other provisions, but above all I would express the hope that this is a first instalment towards liberalizing out citizenship laws in this country. I believe that this Government can well do that especially at this time when South Africa is looking for immigrants. I believe that much can be done quite apart from what is being done in this Bill. It is tremendously important that we should attract immigrants and I know of nothing which will have a better effect in attracting immigrants than to make it easy for people to become citizens. I express the hope that the Minister will, before the Committee Stage, give serious consideration to doing one thing which I believe is overdue. There are still in this country thousands of immigrants who came here and who were promised that they would become South African citizens after a period of two years in terms of the 1927 Act passed by Dr. Malan, to which the hon. the Minister has referred. They who have refused to apply for citizenship in South Africa although urged to do so and although they are in fact good South Africans, because they feel so strongly about the fact that after having arrived in this country the law was altered and they were prevented from automatically becoming citizens of South Africa. I hope the Minister will seriously consider, in the case of these persons who have proved themselves to be persons who will be good citizens, whether it is not possible to remedy this matter. I know of nothing which will give greater satisfaction than if the Minister is prepared to take his courage in both hands and deal with that matter.
The Minister has referred to this Bill as one which is eliminating difficulties. I do not wish to go into details, but I believe that it will be possible to show in the committee stage that in certain respects possibly the Bill might have the reverse effect. I would like to say to the Minister at once that this side of the House will try to use this opportunity to improve our citizenship laws. I want to assure him that the thing we are not going to worry about is the political implications. We want to improve our citizenship laws, and I am glad that the Minister has been able to tell me that the Committee Stage will not be taken until Wednesday. That will enable us to give careful consideration to what he has said to-night and to put amendments on the Order Paper. We will give the Minister advance copies of those amendments. I hope we will be able to discuss this question of citizenship on its merits with a view to improving our citizenship laws wherever possible It is in that spirit that we will approach the matter. I would like immediately, just to give an example, to draw the attention of the Minister to one or two difficulties which I think will bear examination. I do not propose to go into details; I am dealing purely with principles.
I refer to the provisions of Clause 24, which declares that certain provisions came into operation at the time of the original Act. Now it is true that in certain cases the result will be to give citizenship retrospectively, or at any rate to confirm it—perhaps the points were in doubt—but I believe the Minister will agree that that same provision may have the effect possibly of taking citizenship from persons who would have been citizens in terms of the original Act of 1949 and who might not qualify in terms of the new requirements set out in the amendment. That is a matter which can be gone into in detail at a later stage.
Then there is a very good provision which is included. It is the acceptance of the principle of taking into account portion of the period of previous residence in the Union. I would like to say that I hope the Minister will be prepared to consider going even further than he has done. We want to do everything to attract people to this country. Where there are cases of persons who are in the Union for nearly the full period and then through circumstances beyond their control they have to leave the country and later come back, it does seem that a case can be made out for taking into account a longer period than two years of previous residency for taking into account a bigger percentage than 50 per cent. I mention this because in this case it will be an immigrant who was accepted into the country a second time and who has shown that he wishes to come backs permanently and to become a South African citizen. I do not want to look a gift horse in the mouth, but I believe the Minister would be wise to consider liberalizing this provision still further. I should like to raise one possible difficulty and I do not know whether the hon. the Minister will be able to reply to me. As the hon. the Minister probably knows it has been possible for South African advocates and attorneys to practice in some of the adjoining territories, such as Swaziland for example and the Protectorates and the Rhodesias. The practice in respect of advocates and attorneys who have practised in certain of these territories, has been that they must take an oath of allegiance. I know that that requirement is still there. Now the position is that unless something can be done to deal with this matter advocates and attorneys in this country will, as a result of our ceasing to be a member of the Commonwealth, lose that right of practice even if it is protected in the stand-still provisions which have been enacted by the governments concerned, for the reason that they would be required as officers of the court to take an oath of allegiance and that would automatically disqualify them from remaining South African citizens. I doubt whether the hon. the Minister will be able to deal with this matter when we come to the latter stages of this Bill but I hope that it will receive his attention as the Minister concerned and that he will see if something can be done. It is obviously something in the interests of South Africans and I believe of South Africa too. [Interjections]. As the hon. member for Salt River (Mr. Lawrence) says, it can be adjusted quite easily. I believe that by a proper approach it will be possible to clear up that matter. It would be most unfortunate, Sir, if this right which South African advocates and attorneys have had over a long period of years, were to fall away.
There is a provision in relation to delegation of powers. I would like to say that I think it is wise to have such a provision. It is obviously impossible in the circumstances of a modern state to-day for a Minister personally to deal with all applications. I mention it here because I hope the hon. the Minister will consider a principle that I wish to put to him with a view to dealing with it at a later stage. While conceding that it is right that there should be delegation, I hope that in the vital matter of citizenship that that delegation would extend only to the granting of citizenship. In cases where the person to whom there is a delegation feels that an application should be refused or in the reverse, that there should be a taking away of citizenship, that case or any cases of that nature, will be referred to the Minister for his personal attention. It would be sounder if the persons to whom powers are delegated could deal with the positive side only and that if negative action was required, that those matters should be referred to the Minister for his personal decision. I say that, Sir, because the question of citizenship is a very vital right so far as persons are concerned. I believe it is only right that we in this House should not be in the position where we disagree with any decision, to be told, when we raise the matter, that we are attacking an official who cannot defend himself. The hon. the Minister should bear personal responsibility. He should take that action personally. The hon. Minister says that there have been three groups of improvements. I concede that although the details will be examined very carefully at a later date. I would like to suggest to the hon. the Minister that great care should be exercised to make sure that when liberalizing one is in fact liberalizing the law. I hope that in respect of those coming back to the Union,—because what we want is really to attract more of the right type back to the Republic,—we should try to deal with the matter on a broader basis than is dealt with in this Bill. I can see no reason why a South African when he returns to South Africa from any part of the world should not be accepted back as a citizen of this country provided he is a person whom in other respects we consider to be fit and proper person to receive citizenship. I agree entirely with the hon. the Minister that we wish to make a very special invitation to those of our friends and relatives who have gone to the North. We in South Africa would like to see very big numbers of our citizens coming back also from other countries for the very reasons that the hon. the Minister has given. I hope that he will very seriously consider giving effect to the suggestion which was put to him in a question by the hon. member for East London (North.)
In regard to the period for naturalization, the hon. the Minister has referred to the reduction of the period and the fact that the period of notice has not been effective. Perhaps that is so but I wonder whether in cases where a person has come here, established a business or has gone into some profession and has proved himself to be a suitable person, it would not be advisable to consider reducing the period even further. I have in mind the case of a person who has come to this country, established a big business and is making a big contribution to the welfare of this country. I think where a person has done that and has provided considerable employment for South Africans there is just as much reason to consider giving him a concession as there is in the particular case with which the hon. the Minister has dealt and, with which I entirely agree, namely a person who has made himself so much at home in this country that he has become proficient in both languages. In other words, I am suggesting that the hon. the Minister might very well consider whether there are not other circumstances in which the period can be shortened. I say that especially because in all these cases of citizenship the final say as to whether a person is to be granted citizenship or not rests in the hands of the Minister and in cases of doubt he could obviously refuse the application. There is a provision in this Act which might well extend the period. It is the provision that a person who has made application cannot again make application within six months. But it goes further. The Minister is actually debarred from considering an application again until a period of six months has passed. I want to say to the hon. the Minister that that is all very well in the case where citizenship is refused on the ground that the person is not a fit and proper person to become a South African citizen. But I would like to draw the Minister’s attention to the fact that even in a case where on information which is shown to be incorrect, the citizenship had been refused, notwithstanding the fact that the Minister is prepared to reconsider it, he is debarred by law from reconsidering that case for a period of six months. The hon. the Minister will agree that the provision goes further perhaps than it was intended. I hope he will be prepared to consider amending it.
I have dealt with the question of return to the Union and I asked that that be liberalized in respect of persons from other territories.
Adjusted rather than liberalized.
Perhaps if I say “ nationalized ” it might appeal more to the Minister! The question was raised of a person not being able to divest himself of his citizenship without consent in time of war. That is obviously a wise provision and we know that that is a matter that has been tested in the courts of various countries. That is one of the provisions with which I entirely agree. I know that there will be very considerable discussion at the Committee Stage. I do not want to go further into the details, but I would like to end where I began by saying to the hon. the Minister that in so far as things are being made easier we welcome this Bill. I particularly welcome the fact that the distinction between persons who have come from Commonwealth countries and from other countries is being maintained. I hope that that will continue. That will give great satisfaction. I say again to the hon. the Minister that I hope that it will be possible during the passage of this Bill, and if not then, then in a further amending measure, for us to go even further than we are now doing. I regard this Bill as a step in the right direction and I can only hope that the Minister will be prepared to consider it as a first instalment.
We cannot too strongly stress the fact that this country is in need of immigrants. I believe that by the simplification of our laws, by making it easier to acquire citizenship—the control always remains in the hands of the Minister—we might take a step towards reversing the flow of immigrants. All of us regard it as a tragedy that immigration has been on the debit side now for quite a while. It is time that we reversed that flow and the hon. the Minister has it in his hands, I believe, to take a step which will help to reverse that flow and to bring additional numbers to this country. I do hope that at the later stages of this Bill we will be able to help the Minister to iron out some of the problems which will arise from amendments and perhaps put a more satisfactory Citizenship Act on the Statute Book. I hope the Minister will think very carefully to-night about the question of dealing with those persons who have felt aggrieved now for a period of some 12 years. Remember they came here having been promised in writing that they would obtain citizenship within a certain period. They have been in this country as good citizens, they have made a great contribution to the welfare of the country over this period and it will be all to the good if something could be done to meet the position of those persons and that they be put in the position that they expected to be in in the year 1949.
The hon. the Minister, in introducing this Bill, said that it consisted mainly of concessions. We believe that that is correct. This Bill tidies up a number of provisions which perhaps were not altogether satisfactory in the 1949 Act. It goes further than that—it makes concessions to people who wish to become citizens of South Africa. We certainly support those concessions. Like the hon. member for Springs (Mr. Tucker) who has just spoken, we should like those concessions to go further. We believe it is very important indeed that people should be attracted to South Africa. Nevertheless we support the provisions which the hon. the Minister has introduced in this Bill. They will go some way towards making it easier for persons to become South African citizens. For instance, the hon. the Minister spoke about the clause which will allow South African citizens who are outside the Republic, to transfer their citizenship to their children born outside the Republic. That is certainly an improvement which we support. Further, in terms of this Bill the Minister will be able to give recognition to people who previously resided in South Africa and who later return and wish to become citizens. That obviously is a provision which should be supported. There are other provisions which we hope will attract people to South Africa by making it easier for them to obtain citizenship. Most of the provisions of this Bill can more properly be discussed during the Committee Stage, but nevertheless there are one or two that I should like to deal with at this stage because of their general interest. We have the provision in Clause 16 which gives the Minister the power to grant citizenship immediately to former South African citizens who went to other territories in Africa and now wish to return to South Africa in order to live here and take up citizenship here. The Bill favours them in two ways. Where previously these people had to wait for a year before they could apply for citizenship, they can now make their application immediately and it can be granted immediately. So that that is an advantage to them. Further, where previously they would have had to apply for citizenship by registration or else by naturalization, depending on whether they had gone to a Commonwealth country in Africa or to a so-called foreign country, the hon. the Minister now has the right to grant them South African citizenship by birth, if they were citizens by birth before they left South Africa. That is a considerable advantage. The hon. the Minister has the right to deport certain people if they are guilty of crimes. He has the right to deport a citizen by registration or by naturalization but not to deport a person if he is a South African citizen by birth. Now these people coming back from other territories in Africa, if they were previously South African citizens by birth, can once more in terms of this amending Bill be granted South African citizenship by birth. They therefore have full South African citizenship with the extra advantages which that gives. So that these people coming back from other territories in Africa to South Africa are to enjoy considerable advantages. Mr. Speaker, we support that entirely, but we would like that advantage to be given not only to persons who left South Africa for other territories in Africa but also to those people who left South Africa for other countries. I put the question to the hon. the Minister why in fact he was prepared to give this concession to former South African citizens who had left for other territories in Africa but not to others. The hon. the Minister said that that could better be discussed at the Committee Stage, but he did in fact give a reason which was that the Government wished to extend a special invitation to these people to come to South Africa. If that is the main reason, Sir, I see no reason why this should not also apply to persons who had left for other countries. The invitation should be extended as widely as possible. We are in need of immigrants in this country and I cannot see why this provision should not be extended and applied to persons who had left for countries outside South Africa. I hope the hon. the Minister will agree to that in the Committee Stage. It is not going to be an automatic provision because the Minister retains the right to grant citizenship at once or to refuse it. Therefore it seems to me that there is no reason why former South African citizens who have gone to countries outside Africa should be excluded from this concession which the hon. the Minister is prepared to give.
In another clause a similar provision is introduced to facilitate the granting of citizenship to people who went to Angola and the Argentine. There was some publicity given to those people who returned to South Africa last year and there are others who went to the Argentine prior to Union in 1910. These people are now being given a concession which will encourage them to return to South Africa. We are in favour of this kind of concession and we believe that it should be extended as widely as possible. This is not very suitable for further extension but again I wish to stress the point that we should like these concessions to be made as wide as possible in order to encourage people to come to South Africa.
There is a provision which reduces the period a person has to be resident in South Africa before he can apply for citizenship either by naturalization or by registration. The period of notice which was previously necessary is now done away with and if I understood the hon. the Minister correctly a person may apply for citizenship by registration after he has been in South Africa for four and a half years and he will obtain his citizenship as soon as the five year period has elapsed. There is a similar provision which reduces the period of residence before a person can become a citizen by naturalization. We are in favour of those reductions. Here too, as the hon. member for Springs has said, we should be only too happy if the period could be further reduced. We shall certainly try to persuade the Minister in the Committee Stage to give even greater concessions. There is also a provision which enables the hon. the Minister to reduce the period in each case by a year if the applicant for citizenship is able to read and write both official languages. I do not think that is a very great inducement for people to come to South Africa but so far as it goes we will support that provision as well. We hope the Minister will be able to think of other similar provisions to encourage people to come to South Africa and to become citizens. Speaking about encouragement to people to come here, we noticed with satisfaction that the hon. the Minister had administratively done away with the requirement of the payment of £5 by every person who applied for citizenship. That was done earlier this year and we are very glad that it was done, because there was great objection to the payment of £5 amongst a large number of people. We are glad that the hon. the Minister has done away with that administratively.
These were the three principles that I wished to deal with shortly at this stage. For the remainder we shall deal with the Bill in the Committee Stage. May I just repeat the request which has already been made by the hon. member for Springs to the Government to liberalize its policy. May I put it in slightly different words: We would like the Minister to adopt a more progressive policy in regard to citizenship.
One is gratified by the reasonable attitude which both the official Opposition Parties have adopted towards this legislation. We stand on the threshold of a new period in South Africa, a period in which we hope that we shall succeed in making far more rapid progress towards creating one nation in this country. We have reached the stage where we can no longer doubt the South African citizenship of any South African citizen. We have become a Republic in South Africa and for that reason it is right that we should try by means of this legislation to eliminate anomalies which have existed in the past. I am gratified at the support we are receiving from hon. members opposite. The hon. member for Springs (Mr. Tucker) has urged that we should revert to the provisions of the former legislation in respect of Commonwealth citizens. Under the previous legislation, that which applied in 1949, Commonwealth citizens became citizens of South Africa by registration after two years. Under the 1949 legislation that period was extended to five years, while citizens from other countries which I shall describe as foreign countries outside the Commonwealth, had to reside in this country for six years before they could become citizens of this country. Together with the hon. member for Springs I am glad that we are retaining this preference which we give to Commonwealth citizens. I think it is necessary that I should set out clearly what the privileges are which we are giving Commonwealth citizens. Before an immigrant from a country other than a Commonwealth country comes to South Africa he must first be approved of by the immigration selection board and he must have an offer of employment in South Africa. He must give proof that he is coming to South Africa to take up employment here which is available to him, while citizens of Commonwealth countries come to South Africa without having an offer of employment and without being screened. They can come ashore here in Table Bay harbour if they comply with a few requirements. In the first place they must have a good police record; in the second place they must be healthy and in the third place they must have a few pounds in their pockets, sufficient to keep them alive until they can take a job. If they comply with these three requirements, no other requirements are imposed upon them before they may come to South Africa. This preference which is given to Commonwealth countries is still retained to-day. The group of people to whom the hon. member for Springs has referred came to South Africa with the idea that they would obtain their citizenship after two years. He spoke of a promise made to them, but I do not know whether the previous government made such a promise—I do not know of it. I do want to say that seeing that these privileges are being given to Commonwealth citizens—this very definite preferential treatment as compared with citizens from countries outside the Commonwealth—I feel that as we are now a Republic—I do not advocate equal treatment —we should retain this preferential treatment but that we should nevertheless not revert completely to the policy which prevailed prior to 1949. I therefore say that I feel that the hon. members are asking for a little too much when they ask us to revert to the position which prevailed prior to 1949 while we are still granting such a great measure of preferential treatment to Commonwealth citizens, notwithstanding the fact that we are now a Republic.
I am glad that hon. members also accept the provision relating to African countries. The hon. member for Springs has referred to the people who are returning from African countries to South Africa to-day and who were formerly South African citizens. I want to explain to the hon. member for East London (North) (Mr. van Ryneveld)—because I do not think that he understands the position correctly —that not only persons who were South African citizens by birth, but even persons who acquired South African citizenship at some stage or other by naturalization or registration can now return to South Africa under this new provision and immediately regain their citizenship. This is not merely applicable to former South African citizens by birth, but it is also applicable to former South Africans who acquired South African citizenship either by naturalization or by registration.
I hope the hon. the Minister will not mind, but I should like to urge that other people in Africa who are prepared to come to South Africa under the present circumstances should be treated not on exactly the same basis, but we must see whether we cannot make a concession to them as well. Mr. Speaker, a person who comes from Africa to South Africa under the present circumstances, knowing what the position in Africa is, and who is prepared to establish himself here, is giving an indication that he is prepared to fit in with the South African way of life within the borders of the Republic of South Africa. I do not urge that he should be treated on exactly the same basis as we treat our former South African citizens. It would be unreasonable because we do not want to cheapen our citizenship. But seeing that these people wish to leave Africa because they feel that they have no future but are nevertheless prepared to come to South Africa, I want to recommend to the Minister that he should nevertheless make certain concessions in such cases. I do not want to make specific recommendations, but I merely suggest this for consideration. I know of many people who are so dissatisfied with the policy of the metropolitan powers that they do not want to return to those metropolitan countries. They prefer to come to South Africa. I think we should encourage these people who feel to-day that the South African way of life is the right one for the White man in Africa, to come to South Africa. I think we should see whether we cannot make one or other concession in that regard.
Then I want to make a final plea. I do not know whether it is possible. When the 1949 legislation was adopted we adopted a position which fell between that of various Commonwealth countries. We adopted a middle of the road position as regards educational tests. Canada and Australia for example have an educational test or a residential qualification of 20 years. The United Kingdom only has an educational test. We have followed a middle of the road policy and said that a certain concession is made to people who have lived in South Africa for more than 20 years and that they will not have to undergo an educational test as proposed in the legislation, but an easier test in respect of speaking and reading, but not writing. I do want to urge to-day not that we should grant complete exemption, but that in the legislation we should give the Minister the discretionary power to give a person who has been living in South Africa for 20 years and who has not succeeded in learning the Afrikaans language or the English language the opportunity to become a South African citizen. We should like to build up a bigger White population in South Africa and in the case of people who have lived in South Africa for 20 years and who have made a contribution towards building up this country I urge that there should be a discretionary power whereby they can be granted citizenship after 20 years without their undergoing an educational test. I believe that these people have made a great contribution towards the building up of our country and I hope that the hon. the Minister will consider this suggestion. What I want to say is that we are here improving our citizenship legislation and I want to repeat that I am thankful that the hon. members opposite have adopted such a reasonable attitude towards this legislation.
The first point I should like to make this evening, Sir, is in reference to the statement by the hon. the Minister that this Bill contains a large number of concessions. I should like to point out to the hon. the Minister and hon. members opposite that I hope they do not think that those concessions are being made to this side of the House. I hope they recognise the fact that the concessions are being made by South Africa towards its citizens or pending citizens and that it is not a case of the Government saying to this side of the House: “ We are making concessions in this policy that we are adopting It is South Africa that is making the concessions and it is in that spirit that we are taking part in this debate. My hon. friend, the member for Springs (Mr. Tucker) has dealt with that group of people who expected to get South African citizenship after two years and he pointed out that there was great disappointment and a sense of bitterness amongst them. The hon. member for Pretoria (West) (Mr. van der Walt) has quite unconsciously pleaded, and pleaded very eloquently, the cause of those people. The hon. member pleaded not only for those South African citizens who have left South Africa and have gone to other countries in Africa and so have lost their South African citizenship, to be given a certificate in terms of this Bill on their return to South Africa, taking into consideration all the circumstances existing in this continent, but he went much further than that. He, namely, brought within the ambit of his plea people who never were South African citizens but who, on account of circumstances prevailing in the continent of Africa to-day, comprise a group of people who, in his opinion—and I think quite rightly—would be very welcome immigrants to South Africa. They would be welcome to obtain South African citizenship. But look at the arguments that hon. members used in relation to that group of people who came here prior to 1949 and who believed that after the prescribed two years’ sojourn they would acquire South African citizenship! These people have now been here for 12 years and they have either proved themselves to be good South Africans, or they have not. If they have not, then we presume that the Government has dealt with them because it has the power to deal with them. But why should people who never were South Africans and for whom that hon. member has pleaded, be particularly welcome in South Africa and be given South African citizenship, whereas people who have been here for 12 years and who came here believing that after two years they would acquire South African citizenship, are not going to be treated as generously?
I did not say that the first-mentioned group of people should get citizenship rights immediately.
I am not suggesting that you said that they should be granted citizenship rights immediately, but I say that you made a special plea for them as a group to get special consideration. But I say that if there is going to be extended special consideration to any group, that group should be those who have already proved that they are good South Africans and have not yet been granted South African citizenship. This is a group who have selected themselves as good South Africans and surely the hon. Minister can make a gesture to them as well? Concessions and gestures are now being made by the people of South Africa towards citizens whom we would like to have in South Africa and surely people who have been here for 12 years already should also be included?
They have a stake in the country.
Not only have they acquired a stake in the country, but they have established themselves here for 12 years and surely this is a group of people towards whom a concession can be made? Welcome them, because they are the people whom we should welcome! Do not let us leave them with bitterness in their hearts after 12 years’ sojourn in our midst, but let us welcome them. They are a special group to whom such a gesture can be made.
Now, we on this side are in this difficulty with regard to this Bill that it is, as an hon. member has already pointed out, more a Bill to be properly considered at its Committee Stage because clause by clause introduces changes into the existing law and it is difficult to deal with one overriding principle contained in this Bill. Clause after clause introduces a variation of minor principles which have already been adopted in the principal Act. There are, however, one or two clauses to which I would like to refer. The hon. member for Springs (Mr. Tucker) also dealt with some points. I do not know how far the Minister will be able to deal with them in his reply to the debate. but if he could reply it would help us considerably at the Committee Stage. The first clause with which we are having some difficulty and with which I would, therefore, like to deal is Clause 6. Paragraph (b) of this clause which substitutes a new sub-section (2) for the existing sub-section (2) of Section 6 of the Act, states that—
he suffers from the disabilities narrated in sub-paragraphs (a) to (c). One of the barriers narrated here and which prevents him from becoming a South African citizen is if
It is quite clear, Sir, that it means that a man coming to the Union cannot become a South African citizen if his parents had been resident in the Union prior to his birth and had been married under circumstances which would render that marriage unlawful in the Union. Has the hon. Minister taken into consideration in this connection a union and the issue of a union between a Japanese and a European? You see, Sir, that a Japanese is now, in terms of the Groups Areas Act and for the purpose of our national register, being classed as a White person and, presumably, White would be entitled to marry White in this country. I take it that although the issue from such a marriage would be of mixed parentage, such a marriage is not prohibited under extant laws, nor is the issue of such a marriage prohibited from coming to South Africa and acquiring South African citizenship. There are many cases like the one I have quoted but I dealt with this particular case because a determination has been made by the Minister in regard to the race classification of Japanese for the purpose of the Group Areas Act. It is the the position, Sir, that associated nations in the East—nations of a like racial descent—have not yet been classified in South Africa.
I would now like to deal with Clause 8. Here, Sir, I am in difficulties. I have no intention, Sir, of starting out at this stage on a detailed discussion on clauses which can much better be dealt with at the Committee Stage but the hon. Minister can assist us by giving us information at this stage. The last three lines of Clause 8 (b) nullify, as I interpret them, everything that goes before. I have consulted legal people as to the meaning of this clause but I must admit that up to now we have been unable to unravel this particular riddle. I deal with this merely because it is our intention to see that good European folk who will make good South Africans, are given an opportunity of coming to South Africa. This clause deals, inter alia, with people serving on aircraft based on South Africa. These people are domiciled in the Republic for the purpose of our laws although while flying the aircraft they may be away from the Republic for most of their time. Nevertheless they are being deemed to be domiciled in South Africa and to have acquired habitation in South Africa for the purpose of this Act. With that we, on this side, agree. There are, however, new words which are now being added, namely “ or a public means of transport ”. “ A public means of transport ” may cover many things, inter alia, employment on a ship operating from the Republic. I can understand that all these means of transport, like ships, aircraft, etc., must operate from the Union but then the following words are added at the end of paragraph (b) of Clause 8—
This creates a difficulty. Is the hon. Minister trying to bring people who intend to become South African citizens and who serve on ships which periodically, but regularly call at South African ports?
People on Union Castle boats?
Or the Holland Africa Line or any line whose ships are habitually calling at South African ports. These ships will not be registered or licensed in the Republic but they would be habitually calling here. Here I take it that if a person on a ship continually comes back to the Union on regular schedule and after five years on that ship feels that he would like to acquire South African citizenship, will be accepted as having complied with the prescribed period of domicile.
Must the ship be on the South African register?
No, and that is the point. The ship need not be “ registered or licensed in the Union ”. That is stated so at the end of paragraph (b) and this puzzles us.
There are a few other points I still would like to deal with. One of these is Clause 21 which inserts a new Section 36bis into the principal Act dealing with the delegation by the hon. Minister of his powers and functions to an officer in his Department. It is stated that after such powers have been exercised by the officer concerned, such powers and functions “ shall be deemed to have been exercised or performed by the Minister ”. Now, we would like the hon. Minister to take account of this possibility, namely that where such an officer refuses an application for citizenship such refusal be taken on appeal to the Minister.
That point has already been raised by the hon. member for Springs.
Then I will leave it at that. Another clause I would like to deal with is Clause 24. Sub-section (2) of this clause fixes the date of the commencement of certain of the provisions of the Bill. Now, the wording here in the English version does not correspond to that of the Afrikaans version and for this statement I do not rely on my own knowledge of Afrikaans but on the opinion of one who does have a good knowledge of the language. My limited knowledge indicated to me that there was a discrepancy here because it is stated—
That should read “ shall come into operation ”.
We thought that the word “ have ” was erroneously inserted here although grammatically it is not wrong, but if the word “ have ” is omitted from the English version then that version corresponds with the Afrikaans version.
Mr. Speaker, this is all I wish to raise with particular reference to some of the clauses of this Bill and if the hon. Minister can clear up some of our difficulties at this stage, it may save a lot of debate in the Committee Stage.
It is a pity that the hon. member for South Coast (Mr. Mitchell) cast this reflection on the concessions the Minister is now making in regard to citizens of Commonwealth countries, viz. that it has a political colour. I do not think that citizenship is something which should be given a political slant, and I hope the hon. member did not intend it that way. When one invites somebody to become a citizen of one’s country, one does not ask him beforehand what his political convictions are, and when once he has accepted citizenship he must also be accepted as he is.
I really rise, Sir, to say something about the concessions being made to former citizens of the former South African Republics, or to South African citizens who went to other states in Africa but who later returned. In this regard I would like to refer to that group of immigrants who have returned to our country from Angola during the last two years, and I want to say that I am particularly glad that in this Bill the Minister makes provision for these people to obtain their South African citizenship very easily. This group of immigrants at the moment amount to approximately 380, of whom about 210 are under the age of 21 years. They faced a very difficult time in South Africa because they could only obtain temporary employment, because they could not accept permanent employment due to the fact that they were not yet South African citizens.
This is perhaps a suitable opportunity to convey the thanks to the Government of these people who came from Angola in regard to the assistance given to them in connection with their transportation to South Africa, to the various central committees which were established all over the country to assist in collecting money to finance the transportation of these people, also to the churches which catered for them and played an important role in housing these people in this country. I am told that things are going quite well with this group of immigrants who have now become citizens of South Africa. I have here a report which appeared in the Burger and in which Dr. Albert Coetzee, the chairman of the Central Committee for the Angola immigrants, said that the repatriation could in general be regarded as a success. He also said that altogether R40,000 had been collected for the funds of the National Committee for Angola Afrikaners which was established two years ago. The report further reads—
It is a good thing that we thought of this group of immigrants from Angola, so that they can now live happily in our country. I want to point out, however, that we should not expect too much from them. An immigrant is initially still in a testing period in the new fatherland he enters, and among them there will also be failures, as in the case of many other immigrants. I think, however, that we should not pay too much attention to such failures. In 1928 another group of immigrants also came from the same territory, and they showed that they could make a great success of things, and to-day from their ranks we find some of the most eminent professors, ministers, lecturers, school principals, medical men, magistrates, business men and officials and some of our best farmers. I am convinced that this group who entered the country during the past two years will also find their feet in their new fatherland and make a success of things. To them, as well as to other immigrants from the African territories, I wish, however, also to issue a warning, namely that whilst South Africa is a good and a friendly country, hospitable and with a great future for those who want to work, and one which gives the fullest privileges to its new citizens, it is also a country which lays great obligations on those who choose to accept its citizenship. It is a nice place to live in and a country where a great future can be built, but it is also a country which makes great demands on any new immigrant who wants to settle here. Therefore I want to tell them, and particularly the new Afrikaners from Angola, that they will have to help us to develop the country; they cannot be lazy or sit back in an armchair, but each one will have to play his humble part.
Many years ago the proudest boast of a Roman was to say: Civus Romanus sum—“ I am a citizen of Rome.” That was before the fall of the Roman empire. I myself regard it as a proud boast to say that I am a citizen of South Africa. What the hon. Minister is trying to do in this Bill is to encourage people who wish to become citizens of the country. That, by and large, is the intention of the Bill as I see it. While I cast my eye over its provisions, my mind goes back to the days of 1949 when we had a very controversial Bill before this House which occupied much time in debate. But I am glad to learn, from what the hon. Minister has said to-night, that the Government has realized that it had made mistakes. I do not, however, propose to go back to the past because the hon. Minister, in introducing this Bill, has shown a realistic approach to the present position.
I have said that it is my proud boast to be a citizen of South Africa; and I would like that to continue to be my proud boast and also the boast of others. That depends, however, on a number of factors which cannot be discussed in this House now, because we are only concerned now with how one becomes a South African citizen. I say that what is essential for the acquisition of citizenship by anyone wanting to become a citizen of the country, is good character first of all and, secondly, a capacity for work so as to be able to make a contribution to the progress of the country whether in the economic or in the spiritual sphere. Thirdly, there should be the desire on the part of an aspirant citizen to share with other South Africans the problems of our State, not on an ideological basis, but on the basis of goodwill and a spirit of “ live, and let live ”. We are not prepared to offer our citizenship to those who wish to turn this into a communistic State. That is common cause on all sides of the House. Now, I want to say that I am absolutely convinced that the hon. Minister is on the right lines when he seeks to eliminate red tape, and I want to encourage him to do that. When I say this, I refer to decisions as to whether an applicant for citizenship should succeed in his application. Various requirements are laid down for that: there are the requirements of residence, of character, and of security; there is the requirement that the applicant should be able to read and write one of the official languages; and the provision that if he can read and write both languages, he should be considered for the grant of a special concession.
What is essential is to have a flexible, as opposed to a rigid, outlook. Where certain provisions have been laid down in a Statute, the tendency on the part of officials of the Department concerned is, very naturally, to stick to the exact letter of that law. I do not blame them for that attitude; it is their duty to do so and if they do not do so, they feel they will be stepping out of the four corners of their functions. Therefore I feel that the hon. Minister should not delegate his functions in regard to decisions on applications for naturalization and registration, because I do not consider it sufficient to allow certain officials to take a decision with what, in effect, would be an appeal to the Minister. I would rather see that the Minister should have the benefit of advice from his officials and that he decides himself. Then he would not be placed in a position of having later, on account of additional information or something of that sort, to overrule the decision of administrative subordinate. That would be better than to have a system where the Minister would sit in appeal on a decision of one of his administrative officers. The Minister could then, should it be necessary to make an adverse decision to the applicant at a certain stage, rectify the matter later if suitable information comes to his possession. That is what I would like to see. I know from my own experience that there is a tendency to stick to the exact letter as opposed to the spirit of the law.
There was a time when tests, for instance, were put to applicants for citizenship as to whether they could write English or Afrikaans, and which were of a nature quite unsuited to the particular applicant being tested. You may, for instance, have a man who is a managing director of a company having no difficulty whatsoever with a lingual test. But, on the other hand, you may have persons who, although having been in the country for 15 or 20 years, are still artisans and not very literate because of special circumstances. These persons may make very good citizens. And yet, from my own experience, I can say that such persons have been refused in the past purely on account of the fact that they could not pass the language test. That is why I say that the hon. Minister should be flexible in regard to these matters. If a man can talk a language, surely he can make a good citizen even though he is not literally educated.
Do you not think he should also be able to read the language?
Many people, although not capable of writing a language, can read and talk it properly. I think it is a question of adjustment in each particular case, so as to determine whether an applicant has a proper knowledge of the language in order to get by with other South Africans.
Less stress on lingual qualifications should be laid in some cases than in others. I refer to this because it falls within my experience, and I had on occasion also to interfere because I thought too much stress was being laid on academic aspects. I rate character very high; that is to me the first essential. If a person is prepared to throw in his lot with South Africans particularly under present circumstances where we find ourselves alone with our present difficulties, I think the Minister should go a long way towards meeting that person if he is not able to qualify in respect of literary requirements to the last letter of the law. It is to make this plea that I have entered this debate to-night. I welcome this Bill, and I endorse the remarks made by the hon. member for Springs (Mr. Tucker) and the hon. member for East London (North) (Mr. van Ryneveld). The objects of the Bill are, obviously, to encourage immigration by facilitating the acquirement of citizenship of our country; and anything which can be done to relax unnecessary restrictions, is to be welcomed. I am glad to learn that aliens, who come to this country on a temporary permit, will now be permitted to apply for permanent residence while still in the country. There was a time when that was not permitted, and when they had to return first to their countries of origin before putting in an application for permanent residence in South Africa. It is good that that has been eliminated. That, together with the relaxation in this Bill of some of the rigidity and foolish provisions of the 1949 legislation, will help—if anything can help—to encourage persons to come to South Africa, where they are urgently needed under the circumstances prevailing at the present time.
Mr. Speaker, I would like to express my appreciation for the way this Bill has been received on both sides of the House. I want to express my appreciation for the unanimous agreement on all sides of the House with the principle that this amending Bill is an attempt to facilitate the acquisition of South African citizenship, and also to safeguard our country, whenever necessary, against the granting of citizenship to undesirable persons. Consequently I am in a very good mood and am willing to make even further concessions. I want to assure hon. members that all the points raised fall within the scope of the principles of the Bill, and that in the Committee Stage—it is, as was correctly said, really a Bill to be dealt with in the Committee Stage—we can devote further attention to it, so that we need not prolong this discussion unduly. In order to assist in the drafting of amendments of which hon. members intend to give notice. I think it is necessary for me now to indicate what concessions I intend making. All the speakers on the other side agreed that I should give an assurance that all refusals or withdrawals of citizenship would not be done by virtue of delegated powers, but that it would be done by the Minister himself. I would like to give that assurance now. We are not so concerned about the cases where citizenship will be granted, but we are concerned about the cases where applications for citizenship are refused because that might be detrimental to these people, and I am therefore prepared to say that such applications will receive attention on the highest level. It is a serious matter to deprive somebody of his citizenship or to refuse consent to his becoming a citizen of the country.
At 10.25 p.m. the business under consideration was interrupted by the Deputy-Speaker in accordance with Standing Order No. 26 (1), and the debate was adjourned until 13 June.
The House adjourned at