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