This clause gives effect to certain of the proposals that were incorporated in the Budget this year, but it goes further in that it brings about a consolidation of amounts which were previously defined as an additional pension of R84, a bonus of R66 and a special allowance of R30. The effect of this clause is that those three amounts are now consolidated into an allowance of R180. I should like to know from the Minister the reasons why he decided to consolidate these three amounts into one amount, whereas it would have been possible merely to have consolidated two amounts, namely the bonus and the special allowance, into an amount of R96 per annum, and then the R84 could have been incorporated into the basic pension. The overall maximum pension for the White pensioner would still remain at R324 as provided for in this clause, but the effect of consolidating part of that allowance with the basic pension would have been to bring about a relaxation of the means test in regard to the income and the assets permitted in terms of the clause as it stands. In terms of the Act any person receiving an amount of more than R26 per month is disentitled to a pension. If the R84 was consolidated with the basic pension, making it R228, it would mean that a person could earn up to R33 a month before being disentitled to a pension. In regard to the property a person is entitled to own, the effect of increasing the basic pension would have relieved the position of those persons who are now being discriminated against due to an increase in the valuation of their property. The effect on them would be that instead of having this one amount of the allowance of R180, by having an allowance of R96 p.a. and proportionately increasing the basic pension it would bring about the position where there would be a tailing off in regard to those persons who now just fail to qualify for a pension. In terms of this clause, the minimum pension would be R12 a year, plus an allowance of R180, making an amount of R192 p.a., or R16 a month. If the allowance was R96 p.a., the position would then be that there would be a reduction in the minimum pension, which would bring it to R9 a month or R108 p.a. therefore the person who now just fails to qualify will in fact receive R9 a month, so that here will be a tailing off in regard to those amounts. Therefore I would like to know from the Minister whether he has given consideration to this matter, and the reasons why he should have consolidated those three separate amounts into this one allowance rather than to bring about an adjustment of the basic pension.

Another aspect I wish to deal with under this clause is in regard to the system applied to the Indian pensioner, whereby the amounts are adjusted in terms of this clause, which brings about a consolidation of the special allowance on the same basis as for the Coloured pensioner, which is one-half of that received by the White pensioner. However, the position in regard to the basic pension remains at five-twelfths of what the White pensioner gets, but that will be adjusted from 1 April 1965. I should like to know from the Minister whether it will not be possible to have that adjustment made as from 1 April 1964.

There is another aspect which is incorporated in this clause and on which I should like to address the Minister, and that is the pensions payable to the Bantu. During the second reading I made certain suggestions to the Minister, but I am afraid he misunderstood me. There are three separate amounts provided for in this clause in regard to the basic pension of the Bantu, who are divided into three categories, the city, the town and the rural Bantu, but with the provision of the allowances as provided for in sub-sec. (2) (d), the allowance of R23.40 p.a. is applicable to all three categories of Bantu. My suggestion was that the Minister should readjust these figures so as to bring into line the city and the town Bantu and then merely have an urban category of Bantu and a rural category. The Minister thought I had suggested the abolition of the differentiation between the city and the rural Bantu. That is not so. I would like to ask the Minister whether it is not possible to consolidate the city and the town Bantu and refer to them as the urban Bantu and to have a separate category for the rural Bantu. There are certain reasons why they should be divided into categories, but in terms of this clause the special allowance is the same for all three categories, but the basic pensions are in three categories. I should like to know why the Minister cannot adjust these amounts so as to bring about a consolidated amount for the urban Bantu and a separate amount for the rural Bantu.

With reference to the remarks of the hon member in connection with the first matter raised by him, namely the bringing into line with the basic pension, I have on previous occasions said that the basic pension remain the same for the time being. I added that changes were envisaged. The hon. member referred to a suggestion I have already made in this House. I have already told him that I shall consider all the suggestions thoroughly. I have already gone into his speeches. He raised the question of those persons who did not receive the basic pension under the existing arrangement because of the means test. What the hon. member is asking is whether I would be prepared to consider this matter. I have already told him that I am prepared to consider all possible changes within the ability of the country to carry them. I added that it would naturally take time. This is not a matter you can dispose of in a short space of time. We are dealing here with huge sums of money which are paid out monthly in small amounts and we shall have to have an estimate of what the position would be if these changes were effected. I can, however, give the hon. member the assurance that we are already attending to this matter. I have in addition said that in general changes have been effected from time to time which have relieved the position of the pensioners. I have added that that did not mean that having given that relief over the years the position should now be regarded as static. The Minister of Finance has also dealt with the question of whether the increase in pensions has kept pace with the increase in the cost of living He gave a full exposition of that question and I do not want to go into it again, except to say that he said he was satisfied with the comparisons he had made. The national income and pensions must both increase. He added that they had more than shared in the general prosperity of the country over recent years. He added that he was not at all satisfied with the amount we were providing for at the moment but that there should be some measure of relationship between the two and that over the past 15 years the growh rate in regard to pensions had been more rapid than in regard to the national income. That is also a matter which is receiving attention. I again wish to ask the hon. member and other hon. members to make suggestions in connection with any improvements we can possibly make. I shall always be prepared to consider any suggestion.

As far as pensions to Indians are concerned I can only say that I shall have to discuss that matter with the Minister of Indian Affairs under whom that section falls to-day. It was in consultation with him that we decided for administrative reasons to do so from 1 August 1965.

I misunderstood the hon. member when he spoke about Bantu pensions. I understood him to suggest that that system, the switch over from three categories to one category which we rejected in the case of White pensioners, should be introduced afresh. But this is a matter which has for some time already fallen under Bantu Administration. I shall, however, keep in touch with and consult the Minister concerned.

Clause put and agreed to.

On Clause 26,

I seek information from the Minister in regard to the provisions of this clause where certain words are inserted to the effect that authority may be delegated to other officials. I would be glad if the Minister would give some indication as to what rank of officials these powers would be delegated to.

I have issued an explanatory memorandum on this omnibus Bill. I regarded it as essential to issue it timeously so that hon. members may discuss it. The Bill is of a very technical nature and it is much better to issue such a memorandum; it has been issued and it has been discussed with hon. members. The position is that Section 24 of the Disability Allowances Act of 1962 authorizes the Minister to delegate the powers given to him by Sections 3 and 17 (1) of that Act to the head of the Department. This is an authority to appoint officials of the Public Service to certain areas as district pension officials. The amendment contained in Clause 26 briefly amounts to this. It enables the Minister to delegate these powers to other senior officials as well as to the head of the Department It is obvious that in view of the great amount of work this Department has to cope with the power should be delegated to others as well and not only to the head of the Department. The Minister is empowered here to allow the head of the Department to delegate the power to senior officials and they will be most senior officials. The object is to bring the disability allowances in line with the social pensions. In regard to social pensions the provision already exists whereby this power can be delegated to senior officials and we are now bringing the disability allowances in line with social pensions.

Clause put and agreed to.

On Clause 31,

I move—

(d) in sub-section (1) of Section 12 of the Prisons Act, 1959 (Act No. 8 of 1959); or

Agreed to

Clause, as amended, put and agreed to.

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

House Resumed:

Bill reported with an amendment.

Amendment in Clause 31 put and agreed to and this Bill, as amended, adopted.

I move—

The Bill which is now before the House for its third reading deals, amongst other things, with two of the main points which we think require attention. The provisions of the Bill, in a large measure, impinge directly on the lives and the future careers of many thousands of our young men just starting off on their careers, something in the region of about 20,000 young men each year, and just at one of the most critical times in the careers and lives of those young men. Like all matters dealing with human relations, I suppose it is one of the trickiest things that one has to handle either by legislation or by contract, and although I know that the hon. the Minister is most sympathetic and keen to see that things work smoothly in this direction, I would again stress the need for the utmost discretion in the implementation of this particular clause of the Bill.

In that regard I want to raise again very briefly the question which has been raised in the previous stages of the Bill, and that is that there has apparently been some misunderstanding or slip-up in regard to the administration of three of the main clauses both of this Bill and of the sections which it amends in the original Act, that is to say, the sections dealing with the call-up of bailotees for their period of training. While the hon. the Minister has given us the assurance that this matter will be looked into and put right, I have received a letter again just this morning from the University of Natal drawing attention to the fact that in their case the position has been just the same and that consternation has been caused by the call-up of a large number of third-year students who are going into their third year of the most important degrees in their career. I do not want to quote the whole letter—I think better results can perhaps be obtained if I discuss this matter with the Minister later—but I should like to quote one paragraph which sets out the whole issue clearly; it says—

Sir, I made that point in the earlier stages of the Bill, so I do not propose to take up the time of the House again at this stage, but I propose later on to discuss this with the hon. the Minister with a view to some action being taken.

The other matter is one which will be dealt with by the hon. member for North-East Rand (Brig. Bronkhorst) and relates to the question of medical benefits in regard to which there was a certain amount of misunderstanding in the debate last night. Sir, the other main feature of the Bill which I want to stress in this third reading, is that this Bill plays a major part in providing security for the Republic against any attempted external aggression. Much of the success or failure of this whole training scheme will depend on the administration of the powers provided for in this Bill. The amendments included in this Bill, which are largely the result of experience gained over a couple of years of administration of the principal Act, are undoubtedly designed to improve the practical implementation of this measure and to help the Department in its major task of providing security for the Republic in the event of any external aggression. There again we feel that the matter is so vital that the success or otherwise of our method will depend very largely on the administration of the powers provided for in this Bill. I would like to ask the hon. the Minister to bring that home, as I know he will do, to those who in practice will be administering the provisions of this measure.

Sir, we on this side of the House support this Bill, as we have supported it all the way through and as we generally support any measure which requires to be passed in the interests of the defence of this country. We hope that with the passing of this Bill, the work of the Department will be greatly facilitated and that there will be minimum interference with the private lives of the many thousands of young men who are called up, so that the position will be more palatable for them.

I rise once again to make representations to the hon. the Minister in connection with this medical fund to be established for Permanent Force pensioners. It is, of course, an excellent idea and one is surprised why previous Ministers or previous Governments have not come forward with a similar idea. We welcome it whole-heartily. At this late stage I once again wish to ask the hon. the Minister whether he cannot devise a formula whereby all Permanent Force pensioners, no matter when they retired, will be given the opportunity of joining this fund.

When I raised this matter during the second-reading debate the hon. the Minister said in his reply that only the rich person would be able to afford to join and not the poor man. I do not think the question of joining a medical scheme is a question of rich or poor people. There are people who unfortunately cannot afford to belong to a medical scheme. They are a burden on the State; the State has to look after their health.

Those who are included under this Bill, those who have retired since 1 January of this year, will have to make a contribution to the fund and the hon. the Minister will also have to devise a formula in respect of thse who have only contributed for two or three years before they retire on pension. My request to the hon. the Minister, therefore, is that, when he devise that formula, he should try to give those who have already retired, no matter when, an opportunity of contributing towards the fund so that they will be able to enjoy the benefits of medical treatment.

I wish to raise another point and that is that those who have already been on pension for five or ten or 15 years will not live as long as those who are going to retire now. The benefits they will derive from this fund will not be of such a nature that the fund will suffer as a result. In conclusion I again wish to ask the hon. the Minister, when he draws up the formula for those who have gone on pension since 1 January to think also of those who have retired at an earlier stage and to make some plan to bring them under the scheme as well.

The hon. member for Simonstown (Mr. Gay) has again raised the question of students at university being called up. He says he has again received a letter from the Natal University this morning in this connection. It is very difficult for me to go into that. As the hon. member for Simonstown knows this matter has nothing to do with my Department. The hon. member said the other day that he did not know whom he should hold responsible in this matter but surely the legislation is very clear. Last evening I read a statement by the Chairman of the Exemption Board; I cannot go further than that but my information is that the fault lies with the students themselves. They are given exemption from military training year after year and they naturally have to apply for exemption from year to year. The cases which have been brought to my notice have been cases where application has not again been made. On behalf of the Exemption Board I may just repeat that a student’s career at university will not be interrupted. The statement I have read out is very clear in this connection. I am sure that if those students who did not apply in the past were to apply now their university training will not be interrupted. I have given my personal views on the matter, although I have nothing to do with the matter, namely, that a student’s university career should not be interrupted. A student who has qualified is in many cases worth much more to the military people than the one who has not completed his course. It is so obvious that it is not even necessary for me to explain it. I do not think, therefore, that the university career of any student will be interrupted.

May I ask the hon. the Minister if he will take up this matter with his colleague, the Minister of Labour, because obviously the matter concerns both Departments.

I have already taken it up with him. It was after I had taken up the matter with him that this statement was made by the Chairman of the Exemption Board. I am quite convinced that the training of no student will be interrupted. However, I will take it up with the Minister of Labour again.

Then the hon. member asked me to keep a watchful eye over the position so that the careers of these bailotees will not be unduly disrupted. Well, I can give the hon. member the assurance that that matter will receive my attention and that of my officials.

*The hon. member for North East Rand (Brig. Bronkhorst) has raised a matter which will, of course, be viewed with sympathy by anybody who is not indifferent towards the fate of his fellow-beings. The reason why we have introduced this medical scheme is precisely because we are deeply concerned about the military people who retire and who do not belong to any medical society. While the man is young and healthy and strong he is prepared to serve South Africa in a way in which many other people do not serve it; he is prepared to serve South Africa in times of peace but he is also prepared to give his life for South Africa in times of danger. Everybody has the highest regard and all the sympathy in the world for that type of person. I personally have come across difficult cases in past years where, people have retired and are not covered by any medical scheme. It was then decided to introduce this covering scheme for all forces, for the Police Force as well as for the Permanent Force. We struggled for months to arrive at a final agreement as to how the scheme should operate. Hon. members would have noticed that this Bill was introduced at a late stage This legislation was ready, in the first instance, even before I took ill, but because we could not arrive at a decision as to how the scheme should operate, we postponed the introduction of the measure. The hon. member will agree with me that to introduce a scheme of this kind requires very comprehensive actuarial calculations beforehand. As far as members of the Permanent Force who have retired a long time ago are concerned it will require a very thorough investigation to determine what such a scheme will actually entail, how many dependants they still have etc. etc.; we shall have to go into all that. That is not somehing that can be calculated within a period of two or three months. The hon. member has discussed this with me privately and I know he realizes all this. The hon. member will also appreciate that if we want to do what he suggests the legislation will have to be changed because the legislation provides very clearly that it only applies to members of the Permanent Force who have retired since 1 January. However, if it is found that this scheme operates satisfactorily I think it would be quite in order to try to ascertain whether the scheme could be extended to include everybody who has retired prior to 1 January. That cannot be done at the moment because that would change the entire principle of the Bill.

Motion put and agreed to.

Bill read a third time.

This clause also bears some relationship to Clause 5. I have studied the relevant section in the Deeds Registries Act which this clause seems to amend. What concerns me is to know what the purpose of this amendment is because it looks as though it possibly arises out of recent litigation where the matter was taken on appeal to the Appellate Division. If it does arise from the case of Leif N.O. v. Dettman perhaps the hon. the Minister might explain for the information of the Committee just what the purpose of the amendment is.

Hon. members who have practised will know that up to the present it has been the practice in the Deeds Office to accept and to register cessions of real rights acquired in terms of a mortgage bond although they have not been notarially executed. That has been the custom in the Deeds Office for years. As the hon. member has rightly said it now appears from the judgment given in the case of Leif N.O. v. Dettman that the court’s interpretation of Section 3 (f) of the Registration of Deeds Act of 1937, read together with Section 16 of that Act, is to the effect that such cessions must indeed be notarially executed. As a result of this judgment the possibility exists that cessions which have been registered years and years ago since the Act came into operation may perhaps be invalid The object of the amendment contained in this clause is to prevent cessions which have already been registered from being invalid because of this judgment. What is more, the clause now validates the practice which has been followed by attorneys all these years in this connection.

Clause put and agreed to.

On Clause 12,

The amendment which is proposed here appears to be as follows: Where someone is tried normally before a magistrate’s court and it appears after his conviction that he has previous convictions which would warrant a sentence in excess of the magistrate’s jurisdiction, the proceedings may be converted into a preparatory examination, in which event the trial will take place in the normal course before a superior court. The purpose of the amendment appears to be that if the prosecutor is of the opinion that the previous convictions are such that a sentence not in excess of, say, three years, which is the jurisdiction of the regional court, would be warranted, then he may, instead of converting it into a preparatory examination and having the trial before a Supreme Court, send the matter to a regional court but, Sir, provision is made here for a fresh trial. I want to ask the hon. the Minister why a fresh trial is provided for. Why, if it is to go to the regional court and if in the view of the prosecutor a sentence of only up to three years should be imposed, cannot it go before that court as if it had been a preparatory examination. I wonder whether the hon. the Minister has considered this possible alternative.

The hon. member is aware of the fact that it often happens that a magistrate, after an accused has been found guilty, finds that the previous convictions of the accused are such that only the Supreme Court or a regional court can impose a suitable sentence. The magistrate is of course not aware of the previous convictions of the accused until such time as he has disposed of the case. This is particularly the posi tion where the accused has to be sentenced to compulsory imprisonment for the prevention of crime in terms of Section 334quat of the Criminal Procedure Act of 1955 and that, of course, means a sentence of at least five years. In such a case, of course, the magistrate cannot impose the sentence himself and has to refer the case to a competent court to impose the sentence. As the law reads at the moment the magistrate may convert the proceedings into a preparatory examination after which the Attorney General may order the accused to be tried in the Supreme Court or in a regional court. It often happens in practice of course that the magistrate converts the proceedings into a preparatory examination in spite of the fact that it did not commence as such. According to the legal advisers there is some doubt whether the magistrate may convert the proceedings in such a way. They are not sure whether he can do so and whether he has any discretion where it appears that a compulsory sentence must be imposed on the accused, a sentence which is beyond his jurisdiction. The procedure is cumbersome in those cases where it is clear that the regional court is competent to impose a sentence for the crime. He has to convert it if it goes to the Supreme Court; he cannot summarily refer it to the Supreme Court; he has to convert it into a preparatory examination for the Supreme Court. But it is a different matter in the case of the Regional Court. The amendment contained in this clause will make it possible for a case heard by a magistrate to be referred directly to a regional court to be retried; in other words, it is not a preparatory examination but a new trial which is heard by the regional court. That is all this clause provides. In other words, the moment it is beyond the jurisdiction of the magistrate and a case for the Supreme Court, he has to convert it into a preparatory examination. If, however, it is a case which falls within the jurisdiction of a regional court, he refers it for retrail to the regional court.

What happens to the record of the proceedings in the lower court?

The record falls away completely. The accused is tried de novo in the regional court and the record is not relevant.

May I ask the hon. the Minister whether the record is regarded as being pro non scriptol The accused may, for example, have given evidence and there may be findings in regard to credibility and all sorts of things which could tell against him in a fresh trail. Is that record regarded as pro non scripto’, can it be used in cross-examinations by the prosecutor or by the defending counsel or cannot it be used? In other words, is that record available in the same way as it would be if the trial had been converted into a preparatory examination? As the law stands now it would be converted into a preparatory examination; the case would go to, say, the Supreme Court and the evidence which was led at what was the trial (later converted into a preparatory examination) is, of course, available and cross-examination can take place on that evidence …

But it says “a fresh trial”.

One wonders, as this is a completely fresh trial, what happens to that record. Is it still available; is it still printed and may it still be used in the same way?

As far as the record is concerned, the position is that the magistrate at the Regional Court has nothing before him, unlike in the case of the Supreme Court where the Judge has the record of the proceedings at the preparatory examination before him. It is a public document which is at the disposal of either the defence or the prosecution and if a Crown witness or a defence witness gives evidence which differs from that he gave in another court, he can be cross-examined on that document which is available to both parties. But the magistrate, as such, has nothing to do whatsoever with those proceedings. If there is a finding in connection with the question of credibility, which is doubtful, it has nothing to do with him.

Is the position that the record is available to both sides?

Yes, to both sides, seeing that it is a public document.

Clause put and agreed to.

On Clause 13,

This is the clause which in effect abolishes our Commissions Act. One is constrained to ask the hon. the Minister why, after all these years, he finds it necessary in 1964 to amend the Commissions Act. One is constrained. Sir, to answer the question because it is a rhetorical question. It is being amended because there is to be an inquiry into the Broederbond, and the provisions of the Commissions Act are too much for the sort of inquiry the hon. the Prime Minister has in mind in relation to this organization. I think it is a great shame that our whole law on commissions has to be changed in order to meet one secret society and that we now have to provide for a secret commission to investigate this one secret society.

The commissioner in any event always has a discretion in terms of the Commissions Act to exclude certain evidence, if it is necessary, to allow certain cross-examination, if it is necessary and the Act gives protection to certain witnesses. The Commissions Act, for example, says you need not answer a question if you have just cause not to do so. But by ’ regulation this charter for commissions in South Africa, this charter which was established in 1947 and which has worked very well ever since, is now to be changed; all the provisions and protections contained therein are to be thrown overboard by the regulations to be made in terms of this amendment.

Hon. members have spoken about the Denning Commission. They have indicated that the sort of commission the Government has in mind is a Denning-type of commission. But it is quite clear that the Denning Commission was appointed to investigate security leaks. It was appointed to investigate whether or not there had been any security leaks relating to the affair which the Secretary for War was involved in with the lady concerned. This was a case par excellence for a secret commission. After all, the security of the State was involved. It had to be a commission of this sort which was proposed. In 1949 there was an inquiry under the Commissions Act into the riots which took place at Durban. And that great Judge of South Africa, the late Mr. Justice van den Heever, was the commissioner. He had certain observations to make in relation, for example, to the right of cross-examination, necessarily all the time; it is left to the discretion of the commissioner; his hands are not tied. What the learned Judge had to say was The right of cross-examination does not exist that—

That is very important, Sir, because this commission was held in terms of the Commissions Act. I read it again, Sir—

Then he lists various persons. The point he made was that if someone was to be prejudiced by the inquiry that that person should have the right of cross-examining witnesses. But this is worse because not only can that right be taken away, in other words, not only can a Judge’s discretion be taken away, but the persons who submit themselves to give evidence are now in a position where they do not have to submit themselves, they can be called and forced to answer questions, questions which, in terms of the law as it now stands, they would be protected by the law from answering.

You know, Sir, we do not have to go to England, we do not have to go to Lord Denning’s report, we do not have to go, as the hon. the Minister did in his reply to the second-reading debate, to America for the commission which investigated the assassination of the late President of America, to find examples. We have all the precedents we want here in South Africa.

On other occasions you are satisfied to go to England for examples.

I am satisfied with the experience we have had since 1946; I am satisfied with our commissioners; I am satisfied with the interpretations our Judges who have acted as commissioners have put on this Act; I am satisfied that every judicial commission we have had in South Africa under the Commissions Act, was as fair a commission as you will find anywhere in the world, mostly, of course, not because of the wisdom of the legislature, but mostly because of our Judges; mostly because we have Judges on these commissions. And our Bench and our Judges have no peer in this world. But what we did do with our Judges, Sir, was that we never tied their hands. It is now provided here that their hands can be tied completely. They can be put in a position, if the Government wants to, where they will not be able properly to investigate.

Do you think any Judge will agree to serve on a commission in those circumstances?

He does not know yet what the conditions are.

You are coming to conclusions without knowing the facts.

The commission has not been gazetted yet and it will not be gazetted until this Bill is passed. That is the object of this Bill. Have the conditions been promulgated already; does the Judge know already what they are? Will the hon. Minister answer that?

I shall tell you.

I hope the hon. Minister will. If that is the Minister’s case, why does he take the power, as he does in this Bill, to completely abrogate every provision of the Commissions Act? Why does he so frame this amendment that it has that effect; that he can do anything he likes. And I say to him: Why have a Commissions Act, why not just have one section saying “the State President may frame regulations for any commission he likes, may abrogate any law he likes and any protection he likes”? Why does the Minister not do that? That is the point, Sir. That is just what he does do. He leaves all the other provisions of the Commissions Act but takes the power to take them away.

There was once a commission in this country similar to the one the Government has in mind in relation to this particular organization, the Broederbond, and that was the commission of inquiry into the grievances of railway servants in 1950. That was one of the first commissions this Government appointed. What did it investigate, Sir? It investigated almost the opposite of what should be investigated in this case. There the complaint was that people did not get promotion because of their non-alliance with Government policy in regard to the war effort. Here the complaint is, of course, just the opposite. The complaint is that certain people get advancement because of their alliance …

I hope you will substantiate that before the commission.

What I said was that this was one of the allegations. That being one of the allegations, and there has been a similar allegation, how did the Government deal with it? [Time limit.]

The hon. member who has just sat down has done precisely what the United Party has been doing all these years namely, to assume the worst. I want to suggest to him that he thinks for a moment how ridiculous he really is. In terms of our Constitution anybody can become a minister if he qualifies to register as a voter. There is therefore nothing to prevent the State President from appointing a minor of, say, 18 years, as Minister of the Initerior. It is very possible although highly improbable that that Minister of the Interior may wish to marry a minor of under 16 years. It is therefore very possible that he will grant permission to himself to marry that minor. That is one of the ridiculous things that is possible. The hon. member for Durban (North) (Mr. M. L. Mitchell) suggests that when a commissioner is appointed, after the Act has been amended, regulations will be framed which will actually make it dishonourable for such a commission to act. Why does the member think that? His approach is that the regulations will be of such a nature that the Minister would have made himself guilty of one or other mal-practice. Does the hon. member really want to put it that way? That is his approach. He has not yet seen the regulations. Not one of us has seen them. In terms of the new Rules of Parliament there is ample opportunity for the hon. member to discuss those rules once they are submitted to the House.

When?

If they are drawn up after the commission has been appointed the stench, if there is stench, will be so much more unpleasant. And the hon. member for Transkeian Territories (Mr. Hughes) ought to know that. Is it his task to start the witch hunt; or is it his task to provide the Sunday Times with material in connection with Free-masonry and the Broederbond? Or is it his I task to rectify something which is really wrong in this country? The reason why there is to be an inquiry is to determine the facts. Has any hon. member opposite any reason at the moment to suggest that the commission will remain silent on certain matters? Why do they want to accuse the commissioner of dishonesty? [Interjections.] When we study the section concerned we find that the existing Commissions Act is not being abolished but that certain provisions are being amended to suit individual cases. The law is being improved, as I said last night. But the hon. member now says that if a witness appears before the commission he will no longer enjoy the protection which the Commissions Act gives him. How can he say anything like that? Will those regulations be of such a nature specifically to deprive such a witness of that protection.

If he wishes to give evidence he will have all the protection in the world.

The hon. member now has that assurance from the hon. the Minister. We shall be glad if the hon. member for Durban (North) would give evidence; the country would be pleased if he would repeat the allegations he has made against that organization. But I can tell you at this stage already, Mr. Chairman, that he will not; he has not got it in him; nor has he the brains to do so. There is another reason why the hon. member objects to this. When we have a riot in this country he joins his Leader in a chorus that a commission of inquiry should be appointed. Why? Simply to give bad publicity to a certain aspect of our country. We all know that the object of the application made to Judge van den Heever to cross-examine people was not at all to get at the truth, but to say certain things in public so that South Africa’s name could once again be besmirched. That was in 1947. One of the peculiarities in this country is the fact that we can always depend on that side of the House to be the mouthpiece of the enemies of South Africa, to be the pawns on the political chess board, pawns which are moved internationally. The reasons why they are opposed to this amendment to the Commissions Act is simply because they see another opportunity of giving South Africa bad publicity. It is their own fault that we are now amending it. Had it not been possible to abuse the Commissions Act in that way it would not have been necessary to make it impossible to abuse it. It is the hon. member and his Party who have encouraged those abuses. They are the people who have done so and that is why the Act has to be amended.

I cannot understand how hon. members can think that this amendment is being effected simply with a view to the pending investigation.

That is so.

That is the biggest nonsense in the world. The simple reason is that the Commissions Act needs to be revised. [Interjections.] Were you not here last night when I discussed the principle? I quoted from the Commissions Act to show that the chairman of a commission had the power to hear some evidence in camera but that he had to decide that ad hoc in the case of every witness. In the case of every commission such a decision is subject to criticism; in the case of every commission it provides an opportunity of exerting pressure on the commissioner or the chairman of the commission.

When did you discover that?

Who is “you”?

The Government.

how many commissions have we not had in the past? Just take the South West Commission. I was not a member of that commission but I can well imagine that in respect of certain matters the chairman decided not to air them in public. It may be; I do not know. But I do know this, and I have experience of this, that when the chairman makes such a decision, there is dissesion between the members of the commission and it creates an opportunity for all sorts of bodies outside to try to exert pressure on the commissioner or on the chairman. And that person should be able to do his work without being subject to any pressure. He must be covered by regulations. If it is such a delicate matter we should give the commissioner or the chairman the opportunity of doing his work without any pressure being exerted on him from outside.

Read Section 4.

I read that last night. I told the hon. the Leader of the Opposition what he needed was Section 4 and hon. members opposite said he needed Section 3 (4). Section 4 provides that all evidence should be given in public except where the chairman decides otherwise. That is why I say the chairman has to decide in the case of every new witness.

That is not so.

The hon. member for Musgrave (Mr. Hourquebie) is never in this House although he is here. That is my whole argument that it becomes very difficult and that it places the chairman in an embarrassing position when he has to decide in the case of every witness. You subject him to criticism from outside—in the newspapers and elsewhere. It makes his position very difficult. That is the reason why we are changing it. Personally I think it is a pity that it is done at this stage because it gives hon. members opposite an opportunity of bringing together two things which do not belong together at all, namely, the revision of the Commissions Act and the pending inquiry. [Time limit.]

I am rather astounded at the hon. member for Standerton (Dr. Coertze) standing up here and not dealing with the facts that are contained in this clause. All he has done is to throw a political aspect on our approach to this clause. He should be able to do much better than that. The first point in which he is wrong is this, that the hon. the Prime Minister said he would introduce amending legislation to deal with this specific inquiry. That was what the hon. the Prime Minister said. And this is the amending legislation. It is obvious that the intention of this particular clause is to deal with this particular inquiry. I do not think the hon. member for Standerton can argue any further on that particular aspect. He suggested that this amendment was just being effected because the Commissions Act needed amending generally.

It does need a general overhaul.

Why has it not been amended before then? It has been standing on the Statute Book for many years and the hon. member has sat on a commission for many years. Why has he not previously suggested that the Commissions Act should be amended?

That is ridiculous.

You see, Sir, he is still arguing that this clause is not the clause the hon. the Prime Minister said would be introduced to amend the Commissions Act to fit this particular inquiry. He still denies it. It is a fact, of course, and we accept it as a fact.

I want to make a point and I want the hon. member for Standerton to argue this one away if he can. As I see the original Commissions Act—and I am a layman—the power is given to the commissioner to make decisions as to what should be made public and what should not be made public probably in the interest of the people giving evidence, in the interest of the public, or in the interest of all concerned. This clause, however, takes that power away from him. He no longer makes those decisions. The original section which this clause amends says that he shall declare—

Those words are now removed and it says—

1. (a) declare the provisions of this Act or any other law to be applicable with reference to such commission, subject to such modifications and exceptions as he may specify in such proclamation.

Up to there it is fine. He can modify any laws to fit this particular commission. In other words, he can make any law apply in the manner he wishes it to apply. That is all right, but let us go on—

And then it goes on—

What is wrong with that?

What is wrong with that! I ask you the same questicgi—

Not the commissioners, Sir, but the State President—

In other words, the Government will lay down all the conditions under which such an inquiry shall be held. And that is what this clause says. We are not concerned with what the hon. member for Standerton says but what this clause says. I am a layman, the hon. member should be able to get up and criticize me. If he can break that simple case down, Sir, I think we might be getting somewhere. But he must not just stand up and say that this side of the House is attacking this clause just to help the enemies of South Africa, because he knows that is not true. He knows that is not true.

Order! The hon. member must withdraw the words “he knows that is not true”.

I withdraw them, Sir. I say he should not say that because it is untrue. I just want to make it quite clear that we want to see written into the law what should be in the law. When we consider this clause we have to take what is written in it and not what the hon. member for Standerton tells us is intended by this clause.

I personally am very very opposed to this clause as a layman, because I believe it takes out of the Commissions Act all the good that was ever there; it nullifies the Commissions Act; in future when a commission sits nobody will know the terms and conditions under which that commission is going to be appointed.

I forgive the hon. member for having taken part in the debate as a layman because the world would have been very uninteresting if laymen could not speak at all. In any case it would have been a very quiet world had we all just spoken on the subject we knew something about. I accept his challenge. These are the facts: It is the Cabinet who decides on the terms of reference of any commission. When the Cabinet instructs that a certain matter be investigated the terms of reference are formulated by the Cabinet. It is possible but improbable that the Cabinet will state in its instruction: This may not be inquired into, this may not be inquired into and this may not be inquired into. [Interjections.] But there is great objection to that. When a commission is appointed and it has to receive instructions ad hoc, instructions in which all the directions are given, it would be a very voluminous document. But when you issue a general regulation as to how the inquiry is to be conducted that commission has an indication as to how it ought to set about its work The possibility is not excluded that the Cabinet may apply the Commissions Act, just as it stands, to a commission but that it will add something in some cases as the section empowers it to do. That will be very necessary in some cases. There is one defect in the Commissions Act, however, a defect to which I already referred last night and it is this that it does not give a commission powers of search. Mr. Chairman, I can assure you that there are cases, as may be the case here, where it is very necessary for the commission to avail itself of the services of the messenger of the court and the police to find certain witnesses. It cannot do so to-day at all. That provision must be inserted in the Act. Let me say this to hon. members: When the Commissions Act was placed on the Statute Book conditions in our country were not as complicated as they are to-day; we were blessed with a more responsible Opposition; we did not have the various trends of thought we have to-day; we were not involved in a cold war. Due to all the changes which have come about it is essential that we appoint commissions which will act in one way in one case and differently in another case. I want to say to the hon. member for Umlazi that there are so many different situations that you cannot cover them all with one provision. That is why it should be made possible to deal with every individual case. That is also the reason why the Act is being amended. If the hon. member tells me the hon. the Prime Minister said that the Act was being specially amended to suit this investigation, that may be so because we are dealing here with an investigation in respect of which it is essential that these additional powers are granted.

Why?

The nature of the inquiry calls for it. The hon. member asks “Why?” Hon. members want to know before the commissioner has appeared on the scene to ferret out all the secrets there may be. It may be that the Broederbond has secrets. Hon. members opposite tell us it is a secret organization.. I know nothing about them. But, as I have said, if they have things to hide it will be very necessary for the commissioner to ferret them out himself.

I cannot understand why hon. members opposite try to make the task of the commission difficult seeing that they themselves have asked for an inquiry into this matter. This amendment is absolutely essential in view of the various kinds of inquiries we shall still have. It may be that once this Bill is passed the requests for inquiries hon. members opposite are continually asking may be granted more easily. I accept what the hon. member for Umlazi says, namely, that he does not want to besmirch South Africa’s name in the world outside, but I wish to point out to him that many of their allies are only too anxious to do so and that they even take advantage of commissions with that object in view. The United Party assists them, perhaps unwittingly, to achieve that object by continually asking for judicial commissions to be appointed every time we have riots in the country. A certain group of persons are very anxious to have a forum to air their views The forum of UNO is not good enough because they want it to echo in both directions. And the United Party is trying to assist those people.

Give us an example.

As I have said they may be doing so unwittingly sometimes because they do not always think the way they should. In those cases they are playing into the hands of those people. Why did the Leftist organization insist on one occasion on cross-examination before the Van den Heever Commission in 1947? They did so while there was no accused or a Judge who had to decide who was right and who was wrong, and while there were no complainants except that the State alleged that it had to ensure peace and good order? They asked for that right just to air the views of Manalil Gandi and to play into the hands of India who was our enemy in international forums. That is generally known. The passive resistance movement wanted a forum where it could state its case. While they encouraged other people to break the laws they themselves did not do so. They wanted an advertising medium to advertise their imaginary grievances.

I am sorry the hon. member for Umlazi entered the debate because this is a highly technical matter (laughter). Only people who have experience of it can talk about it.

I stated a fact.

I have replied to the hon. member on that by pointing out to him that life is so full of varieties and that there are so many things that can be inquired into that it is absolutely essential for the Government to be able to vary the procedure from inquiry to inquiry. The other idea that the witnesses may be subject to certain dangers is ludicrous. As a matter of fact it is a dishonourable allegation against this Minister and against the Government.

It is difficult to argue with the hon. member who has just sat down because so much on which he bases his arguments are unfounded. Let us just take the last two assertions he made. He said, for instance, that the United Party and its associates have frequently misused commissions and now he advances that as a justification for amending the Commissions Act.

Not misuse, but abuse.

But yet he cannot quote one single example where that has taken place, either by the United Party or on the part of anyone remotely associated with it. Yet the hon. member makes these wild, unfounded and irresponsible statements while he is quite unable to substantiate them …

They have done so in the courts.

There is also another point of the hon. member’s argument. He said that it was necessary that there should be changes in the Commissions Act and that the time has come for a review of the provisions of that Act. But we have had dozens of commissions operating under this Act since its adoption in 1947 and yet the hon. member cannot point to one single instance where a commissioner has made any reference, even a slight reference, to the desirability of changing that Act …

But that is not a commissioner’s function.

How do you know a commissioner has not done so?

To my mind the first thing a judicial commissioner would do if he found that the legislation was unsuitable to a proper functioning of his commission and hence hindered his inquiry, would be to mention that fact in his report.

How do you know a commissioner did not do so already?

Look at their reports.

As a matter of fact, in the case of those commissions I have seen and particularly the Paarl Riots Commission, the very reverse is the case. Nobody could be more favourably disposed towards the working of a commission in terms of the existing legislation than the hon. Mr. Justice Snyman in connection with the commission to inquire into the Paarl riots. But surely the extraordinary thing about this Bill is that we have legislation which has worked successfully for years. Now, however, it is sought to bring in a major change and yet not one single spokesman on the Government side has stood up and said why the present provisions are unsuitable or what the regulations will contain once they are published in terms of the amendment which it is proposed to bring in. One would expect that some case would have been made out for this. One would have expected the hon. the Minister or some senior member on the Government side to stand up and point to the difficulties which they envisage in connection with the inquiry which is to be held. They should say what the difficulties are they envisage and in what respect the present legislation is inadequate to meet those difficulties and which if not amended could cause an injustice to be done. If they say that it is for all these things that they propose these amendments, then we know and the House will know what is going on. But we have not had a single word. We did have a suggestion from the hon. the Minister that the procedure should be laid down in the regulations. But it is already laid down …

Where?

In the Commissions Act. But if the procedure had not already been laid down, how then did the commissions hitherto appointed manage? They, of course, follow the procedure of the Supreme Court, save that the judicial officer concerned has power to modify that procedure almost in every respect.

Where is it stated in the Act that commissions should follow the procedure of the Supreme Court?

In Section 3 (1) which reads as follows—

That is all it says.

Let us have a look at what Mr. Justice Snyman had to say about this matter. In paragraph 18 of his report, he said—

In other words, the very factor mentioned by the hon. member for Standerton was also mentioned by the hon. Mr. Justice Snyman. He was able to deal effectively with any possible abuse on this score under the existing rules.

I say that no case whatever has been made out for this change and we are entitled to raise objections when it is discovered that paragraph (b) of the amendment, i.e. says—

This gives the Minister power completely to change the provisions of the Commissions Act. Now, I do not know of any commission of inquiry—I do not say there has never been such a commission, but I do not know of any—where a Judge of Appeal has been the commissioner. I do not know of one. In every other case it was an ordinary puisne Judge who conducted the inquiry and for him the provisions of the present Act have been perfectly adequate for the proceedings. Here we have a more eminent and senior Judge than in any other case that I know of. Yet now we hear that the provisions of the existing Act are in some ways inappropriate and inadequate and accordingly the Minister must have power in order completely to change that legislation, and not merely in this or that small respect, but completely. Surely, in the circumstances we are entitled to say to the hon. the Minister that he should tell us why? Surely we are entitled to ask him to give us examples of the sort of thing he anticipates will arise, of the situations which he anticipates will arise, situations in which the provisions of the existing Act would not protect adequately either the individuals who might be giving evidence, or those organizations into whose activities there is to be an inquiry, or where the judicial officer will be placed at a disadvantage. I know of no instance up to the present where the provisions of the present Act failed to satisfy the requirements in every one of these respects. One has only to look at the commission of inquiry into the Paarl riots to convince oneself that organizations were protected, that individuals were protected, that cross-examination was limited where necessary and that secrecy were preserved where it had to be preserved. As a matter of fact, every conceivable aspect of the case hon. members opposite may put up in justification for this amendment was dealt with, and dealt with satisfactorily, by the commissioner in the case of the commission of inqury into the Paarl riots. I hope that before this clause is passed, at least one hon. member on the opposite side will get up and give us some indication of why he believes that the present law relating to commissions will be inadequate for the proposed inquiry. We shall then be able to come to grips with this clause

The hon. member for Zululand has referred to the commission which inquired into the Paarl riots and the one which inquired into the Langa riots. However, I want to put it to the hon. member that there are commissions and commissions …

You are quite right (laughter).

We had the commission of inquiry into the Langa riots and we had the commission which inquired into the riots at Cato Manor, at Paarl and at Sharpeville. I myself appeared before the commission of inquiry into the Paarl riots. Every one of these four commissions was in connection with riots. Let us look at the commission which has been requested to inquire into the Broederbond. It is alleged that the Broederbond is an organization dangerous to the State. A commission which has to inquire into that will therefore be in the same position in which the Denning Commission was in respect of the allegation that information which might endanger the State had been sent out of the country, possibly to Russia. That is the difference between these two sets of commissions and that is why this commission is being undertaken on a completely different basis. The commissions of inquiry into the riots at Sharpeville, Langa, Paarl and Cato Manor were something totally different. As far as the commission which has been requested to inquire into the Broederbond is concerned the allegation is that the Broederbond unduly influences the Government. In the case of the Denning Commission it was also alleged that information which could endanger the State had left the country. That was why it was not advisable for that commission to conduct its inquiry in public because in that case even the enemies of England would have known what was happening. The hon. Leader of the Opposition suggested that the commission to be appointed would be a “Star Chamber” commission. Are they suggesting that the Denning Commission was also a “Star Chamber” commission? Will either the hon. member for Zululand or the hon. member for Durban (North) tell me whether the Denning Commission was such a commission? According to hon. members opposite the security of the State is at stake as far as the Broederbond is concerned, because the Broederbond is a dangerous organization, according to them. The security of the State is at stake, therefore, and information may perhaps be revealed which should not reach the ears of the public and which should not be used by our enemies. That is the difference between commissions. The terms of reference of one commission are totally different from those of another and one commission also acts totally different from another one.

An appeal court Judge has been appointed in this case to conduct the inquiry. It has been argued that he will not be in a position to inquire properly into the matter. I maintain that that is a reflection on the appeal court Judge concerned. As a matter of fact, I think that argument on the part of the hon. Opposition is not to the credit of either themselves or the country.

Mr. Chairman, I am entering the debae at this particular stage with the object of supplying certain explanations and to refute certain allegations which hon. members opposite have made from time to time. The hon. member for Zululand for example, alleged that it was quite sufficient for a commission to have the same powers as a Supreme Court. But powers have nothing whatsoever to do with procedure. A Judge has no power ot decide on the procedure he will follow from case to case. He is bound by the rules of the court.

What procedure has been followed up to the present?

There is no prescribed procedure whatsoever. The hon. member has made the point that it is not necessary to prescribe procedure because the procedure to be followed is laid down in the Commissions Act itself. But no procedure is laid down in this Act. Section 3 (1) of the Commissions Act only provides—

That is all the law provides. No procedure is laid down.

Read on.

I shall be grateful if the hon. member would acquaint himself of the facts before he takes part in a debate. The law does indeed provide what the powers of the commissioner are in respect of the summonsing of witnesses etc. but there is not a word about the procedure the commissioner has to adopt. That is a defect in our Commissions Act. I know that is the case because in the case of the few commissions with which I have been concerned the Judge appointed has consulted the Judge who was in charge of the previous commission in order to determine what procedure should be adopted. That has been the position in the case of every Judge who has sat as a commissioner. No procedure is laid down in the Commissions Act. It does say what the powers of the commissioner are in certain given circumstances, but not a word is said as far as procedure is concerned. The hon. member for Zululand relied on Section 3 of the Commissions Act when he said the powers of a Supreme Court were sufficient for the purposes of a commission. But let me ask the hon. member whether a Judge in any civil or other case can go to an office and conduct a search there. Apart from an inspection in loco he cannot search for witnesses to appear before him?

Should he have that power?

We are coming to that. The hon. member says he should not have that power and I agree with him. That is not the function of a Judge. But it is indeed a function of the commissioner. Let there be no misunderstanding about that. If this commissioner finds it necessary to go to offices to ascertain what is happening there he will get the power from me to do so …

In that case you are making him an inquisitor.

I wish to point out what is happening to hon. members opposite. When we were small we used to say it was good to run away as long as you started timeously. Hon. members opposite are doing that now. When they noticed in which direction things were developing and that the Leader of the Opposition was washing his hands off the commission they thought that was the end of the matter. But they did not take the hon. the Prime Minister into account. That is their trouble. They believed that to be the end of the story and did not think that after the Leader of the Opposition had washed his hands off the commission, the Prime Minister would continue with the investigation. They thought the Prime Minister would simply leave the matter at that. They did not take the Prime Minister into account and now that he is continuing with the investigation hon. members opposite are running away from the commission in advance. They are doing so for two reasons. In the first place they are building up a defence in advance in case the commissions finds against them and find that the extravagant allegations they have been making are not true. In the second instance they are preparing an excuse why they lack the courage to give evidence before the commission.

Pure politics!

I can prove it within three seconds. Will the hon. member for Orange Grove, who is the authority on the Broederbond, give evidence before the commission?

Yes, if it can be given in public.

Yes, of course! The hon. member for Orange Grove will not have the courage to repeat under oath to a Judge the extravagent remarks he makes in public …

I shall give evidence under oath, but in public …

Why is the hon. member not prepared to repeat in private and under oath to a Judge the extravagant statements he so often makes here where he enjoys parliamentary privilege.

Then the country will not hear about it.

In other words, the hon. member is not interested in whether what he says is true or not. He is not interested in whether it should be possible for an Appeal Court Judge to decide whether what he is saying is true! No. He only wants to shout so that the country can hear him. Surely the cat has now been let out of the bag! And if the hon. member decides to repeat the extravagant statements he makes here to the Judge there is nothing to stop him from coming to this House and telling us what he has said to the Judge. If he wants the country to hear he has every possible opportunity under the Rules of this House of saying it here. But the hon. member is not prepared to allow a Judge of the Appeal Court to test the truth of the extravagant statements he makes here. I am prepared to recommend that the organization which the Judge has to inquire into should have the right of representation and if the hon. member tells his story there he will be cross-examined on it. Is that the reason why the hon. member does not want to appear before the Commission?

That is why I am asking that it should be in public.

If you make allegations as the hon. member has done in this case, you must have the courage, if there is any truth in them, to repeat those allegations under oath before a Judge. The hon. member says he will make them in public under oath but surely he knows at this stage already what the attitude of the Prime Minister is! Let me say that I agree with the Prime Minister that there is no reason whatsoever why the private affairs of an organization should be made public to the whole world, private affairs which have nothing to do with the inquiry, just for the sake of slander stories. I therefore accuse hon. members opposite not being interested in getting behind the truth of the matter. They are not interested in what a prominent Judge of the Appeal Court is going to find or is not going to find. The only thing they want to do is to conduct a smear campaign for months. This is not something I like saying to a man, but I now want to say to the hon. member for Orange Gove that if he does not give evidence before the Commission I shall regard him as a first rate coward.

Are you prepared to I give evidence?

I have not made any allegation whatsoever against anybody, but if I have made allegations, I shall have the courage to give evidence. What is more, if the hon. member wants to charge me before the commission and make allegations against me—he has made wild allegations—I shall defend myself against those allegations before the commission. The hon. member has i the opportunity now. He has the most wonderful opportunity in the world. To be quite honest, I am giving him a Judge as a present, so to speak, and I am asking him to lay a charge against the Prime Minister before that Judge, to lay a charge against the Minister of Posts and Telegraphs, whom the hon. member so often accuses, and to lay a charge against me or anybody else before that Judge. Sir, where do you want a more wonderful opportunity than the opportunity I am now offering the hon. member? The hon. member has never in his whole life had such an opportunity but he does not want to avail himself of it. He is running away as fast as he can …

Will I have insight into all the secret documents of the Broederbond as well as all its circular letters?

That is something interesting. The hon. member first wants insight into the documents of the Broederbond before he gives evidence. In other words, he does not know what he is talking about; he first wants to find something to talk about! He first wants to look for something to talk about!

I have seen some of the documents and they are shocking.

Surely the hon. member has said in the past that the position in regard to the Broederbond is this that and the other. Surely it is not necessary for him first to look for something! He tells us now, however, that he first wants to see whether there is anything that he can complain about before the commission!

I have seen some of the documents and they are shocking …

Things are getting more interesting, Sir. The hon. member says he has seen some of the documents and what he has seen is shocking! Very well. Will the hon. member be prepared to give evidence to the commission in connection with the shocking documets he knows about?

You will get a reply.

No, I want a reply now. The hon. member has just said he knows of shocking things. Surely in that case it is his moral duty to give evidence before the commission about those shocking things.

We are not going to reveal at this stage what we already know about the Broederbond.

I do not want the hon. member to tell me because I am not the commissioner. All I am doing is to invite him to tell it to the commissioner. I want to embarrass the hon. member still further by saying this: Many witnesses will appear before the commissioner, but the name of Mr. Etienne G. Malan will not appear on the list of witnesses. I go so far as to say that I shall plead that they do not summons him. If he lacks the moral courage to go of his own accord I am pleading in advance with the commissioner please not to summons him. I still want to see whether the hon. member does indeed have the courage to go of his own accord. But I go further. I have already advanced the argument—and I think I have proved it now—that where every court has rules to which it is bound as far as the procedure to be followed is concerned, no rules govern a commission. No rules are prescribed as far as the procedure to be followed is concerned; it is true that certain powers are conferred upon it.

Every Supreme Court has rules.

Yes, but powers having nothing to do with procedure. It is not stated here that he is bound by the rules of the court; he only has the powers which a Supreme Court has. That is all that is stated here. Surely the hon. member grants me that. He agrees with me; we are making progress. That was a defect in our Commissions Act. But let me tell hon. members that that is surely no secret. The hon. the Prime Minister has announced in this House that he does not want to make the private affairs of any organization public, except in so far as they relate to the finding of the commissioner, and what is wrong with that? Surely decency demands that you act that way and I gladly do so. I want to say to hon. members that when I approached the hon. Judge to ask him whether he would be prepared to undertake the commission I informed him of the confidential nature thereof. I told him he would only be allowed to make public information of a confidential nature in so far as he found that there had been contraventions, but not otherwise, and the Judge accepted that position. What is more the regulations to be drawn up will be drawn up in consultation with the Judge. I shall ask the Judge what he requires and what he suggests as far as the procedure to be followed by the commission is concerned, but I shall not only discuss that with that Judge. I shall also discuss it with Judge Diemont who has been in charge of a commission and with Judge Wessels and Judge Snyman who have been in charge of commissions. I shall discuss the regulations in regard to this commission with all of them and after I have drafted them I shall again submit them to the Judge. Hon. members wanted to create the impression that everything would go wrong. No Judge, or indeed no person with any self-respect, will serve on a commission if the regulations are an affront to his self-respect. Surely he is not obliged to do so. He can withdraw to-morrow if he wishes to do so. No, all they are doing is to sow suspicion. Hon. members are preparing an excuse in advance for their neglect to give evidence before that commission. Hon. members say they are in principle opposed to a secret commission. Is that right? That was how I understood the Leader of the Opposition. Hon. members will remember that the request was made in this House that I appoint a commission of inquiry, a judicial commission, and I refused. I went to the Other Place and the United Party suggested it there. They did not ask for a judicial commission, but they suggested a secret commission, a Denning Commission, as they called it. They laid down the condition that either Judge Centlivres or another Judge be appointed as commissioner. They have no objection, in principle, therefore, to it being in secret. They only wanted to ensure that the referee was the man of their choice. Sir, these are the principles of these people! No, no principle whatsoever is at stake here. We are simply prescribing the procedure to be followed by a commission, a commission which, as the Prime Minister has said, will conduct its business in private, behind closed doors. Hon. members can argue about that if they want to. The Prime Minister has given his reasons and I fully subscribe to them. It is in the interests of everybody that it should be done that way. Sir, you can say it is wise or unwise to do it that way but to create the impression that it is immoral or that it violates justice is surely pure nonsense. There is nothing of the kind. According to the machinery that has been created the Supreme Court prescribes the procedure. Hon. members know it. May the State President not have the right, because it is he who is appointing the commission for his own purposes, to prescribe the procedure which his commission has to follow in every individual case?

Let me give hon. members another example. Note well, there are no accused in this case. Until ten minutes ago we had a complainant but now we no longer even have one. The Judge has to investigate certain matters. Let me give the hon. member for Durban (North) (Mr. M. L. Mitchell) and other hon. members an example. Hon. members know that under the Finance laws complaints are from time to time lodged against certain big financial institutions whose affairs are not in good shape. Hon. members know that under the Finance laws an inspector can be appointed to go into the affairs of such companies. Have hon. members ever asked that such an inquiry be conducted in public?

That has been the ordinary practice over the years.

Yes, and it is a good practice and why it is not good in this case? There are no accused in this case. The people have not committed any offence. If it is found that there have been contraventions the commissioner will, as every other commission has done, mention it in his report and refer the matter to the Attorney-General concerned to take the necessary steps. I repeat. I explained what the reason was and I told hon. members frankly how it would work.

If it is a question of procedure why does the Minister not retain, as a right, the protection witnesses enjoy in terms of the Commissions Act?

But there is nothing in this Bill which says it is being taken away.

But it can be done.

Yes, very many things can happen. The heavens may come down and we may wear blue caps, but surely that is ridiculous. I want to put this pertinent question to the hon. member: Does he think any Judge will allow the rights of any witness to be violated?

But he has the right according to the law.

And he still has that right. I cannot say more than that. I repeat that hon. members are only interested in making propaganda out of this matter and that is all. They are not interested in improving the machinery of the Commissions Act. They are only trying to camouflage the fact that they are going to run away but they will not succeed in that because when this commission has sat, and I am saying this to the hon. member for Orange Grove in advance …

You are running away from the inquiry into Anglo American.

No, it is no good the hon. member trying to lead me away from the point. We have not run away from anything. The hon. the Prime Minister has stated his attitude very clearly but I want to say this to the hon. member for Orange Grove that if he does not give evidence before the commission his life will be very difficult in future. We shall remind him of it in season and out of season.

The Minister said that we on this side of the House are interested only in propaganda and that is why we are opposing this clause. I regard this comment as being beneath the reply, but what I do say is that the Minister and the hon. the Prime Minister are only interested, in introducing this clause, in preserving at all costs the position of the Broederbond. I know very little about the Broederbond, but what does worry me is to see how very much concerned the Prime Minister and the Minister of Justice and hon. members oppoiste are about the Broederbond. It makes me realize that there may be quite a lot in the allegations which are levelled against the Broederbond.

As so often happens, hon. members opposite, instead of dealing with the merits of the arguments advanced by us—what do we find from the Minister of Justice? We have had an argument across the floor with the hon. member for Orange Grove (Mr. E. G. Malan) as to whether he was going to give evidence before this commission. What has that to do with this clause? This is just to take up the time of the House and to make a bit of noise and to give the impression that the arguments which have been advanced have in fact been answered. But I wish to take up a matter with the Minister of Justice.

The Minister said that the Leader of the Opposition and we on this side of the House are only raising all these matters because we did not expect the Prime Minister to institute a commission of inquiry into the Broederbond, and now at all costs we are trying to shy away from it. Now I wish to put a pertinent question to the Minister. Will the Minister accept the Leader of the Opposition’s challenge made to him yesterday. If he thinks that the Leader of the Opposition is now trying to back out, then let the Prime Minister institute this commission of inquiry into the Broederbond and other secret societies in terms of the Commissions Act as it now stands. I ask whether he will do so or not, or whether he will recommend to the Prime Minister that he should do so. Of course he will not, because the Broederbonders in the Cabinet are not prepared to have an inquiry into that organization in terms of the Commissions Act as it now stands.

Coming to the other question raised by the hon. the Minister, whether or not members on this side of the House will give evidence before the commission, I do not know what hon. members will do. I have no knowledge myself and so I cannot help the commission, but what I want to say to the Minister when he makes an allegation of this sort is this. We have made it quite clear that we regard the type of commission which has now been appointed as futile, and in those circumstances how can the Minister of Justice expect people to waste their time giving evidence before that commission? Apart from anything else, the terms of reference deal with matters affecting the security of the State and so far as we on this side are aware it has never been suggested that the allegations made against the Broederbond affect the security of the State.

What were the allegations then?

The allegations against the Broederbond were allegations of nepotism.

That is a new one!

If the hon. members do not know the meaning of the word, I suggest they look it up in the dictionary. I am indebted to hon. members for suggesting that that was one of the terms of reference which the Prime Minister suggested. But that particular term of reference—and this is very interesting—is limited. It does not include the various organizations and bodies and Government institutions in respect of which allegations of nepotism have been made against the Broederbond.

What bodies do you refer to?

Like, e.g„ the S.A.B.C. (laughter).

Is that a secret organization?

I repeat that if the Minister of Justice thinks that the Leader of the Opposition is now backing down on the challenge, let this commission of inquiry be instituted in terms of the Commissions Act as it now stands. But the Minister remains silent on this point.

Now I wish to deal with the merits of this matter. We have had a number of attempts by the hon. member for Standerton and the hon. member for Port Elizabeth (North) and the Minister to try to explain why this type of amendment to the Commissions Act has suddenly become necessary. The Minister makes the suggestion that at present there are no rules of procedure laid down for commissions of inquiry. The hon. member for Standerton apparently agrees with the Minister. In those circumstances one can safely assume that the Minister is wrong, but there are indeed other reasons why the Minister is wrong. Firstly, I would make the comment in passing that if in fact there are no rules of procedure, how have these difficult and complicated commissions of inquiry been held in the past? Of course there are rules of procedure. They appear in Section 3 of the Commissions Act. The Minister of course chose to read only part of the first sub-section of that section. If he reads the rest of the subsection—I have not the time to do it now— and he reads the other sub-sections, he will see that there are indeed rules.

Why do you not read it? You have plenty of time.

In my next ten minutes’ speech I will. [Time limit.]

It is clear to me that the hon. member has not finished yet and I want to give him the opportunity to finish.

I will start by reading Section 2, which provides firstly that commissions’ sittings may take place at any place in the Union or the mandated territory of South West Africa for the purposes pf hearing evidence or addresses. That deals with the procedure in regard to the place where the sitting shall take place. Then in regard to witnesses, Section 3 provides that for the purpose of ascertaining any matter relating to the subject of its investigation, the commission shall in the Union have the powers which a Provincial Division of the Supreme Court has within its province to summon witnesses.

Yes, those are their powers.

It goes on—

[Interjection.] The hon. member for Standerton appears not to want to hear about this, but I will go through it. Those powers are to summons a witness, to cause an oath or affirmation to be administered and to examine them and to call for the production of books, documents or objects. That is sub-section (1). Sub-section (2) provides for the method in which the summons for attendance shall be set out and how it shall be served, and it provides that the summons for attendance of a witness or for the production of any books or documents shall be signed by the Secretary of the Commission in a form prescribed by the Chairman and shall be served in the same manner as a summons for the attendance of a witness at a criminal trial in the Supreme Court. Then sub-section (3) provides for the taking of an oath and says that if required to do so by the Chairman of the Commission, a witness shall, before giving evidence, take an oath or make an affirmation, and it provides that the oath shall be administered by the Chairman of the Commission or some other official. Sub-section (4) provides that the witness shall be paid witness’ fees on the same scale as in the Supreme Court, and then it goes on to say that in connection with the giving of any evidence or the production of any books or documents, the law relating to privilege as applicable to a witness giving evidence in a court shall apply.

Are you going to read through the whole Act?

The hon. member does not seem to like to hear all these things, but the Minister would like to hear about these powers. Then we come to Section 4, which provides for sittings to be in public, which of course the members of the Broederbond who are in the Cabinet do not like at all. That is their real objection to the Commissions Act. It provides that the evidence and the addresses heard by the Commission shall be in public, but it goes on to say that the chairman of a commission may in his discretion exclude such persons or classes of persons as he deems desirable. I would like to pause here for a moment to deal with the point made by the hon. member for Standerton and the Minister. The hon. member for Standerton said that this section must be operated by dealing with each witness specifically. When a witness comes into the witness-box the commissioner must decide whether in respect of that particular witness the public should be excluded. The hon. member is, of course, quite wrong, because that is not essential. The commissioner may decide at the start of the hearing that certain classes of witnesses shall give their evidence in camera,or any particular witness, and he may also decide that all witnesses shall give their evidence in camera, as happened recently in the case of the Cillie Commission which is at present sitting to investigate Defence matters. Section 5 deals with obstructing the commission. In the light of all these powers, I would like the Minister to tell us what specific rules of procedure are missing or have been found to be lacking and in that way hampering to other commissions in the past. The Minister has mentioned one only, and that is that he says that under the Commissions Act the commissioner does not have the power of search. I doubt whether he is correct, because he is given specific powers in terms of Section 3 (1) to summons anyone either to give evidence or to produce documents.

He cannot go and search for documents and he cannot go and look in the office for documents.

Sir, the Minister may be right about this. I think it is a matter which is debatable, but the point is this: If that is the only shortcoming in this Commissions Act, why does this government not come forward with an amendment to the Commissions Act itself?

That is exactly what we are doing.

No, wait a moment. Sir. The Minister is trying to beat the gun. Why does he not come forward with an amendment to the Commissions Act so that the commissioner will have the specific power to go and search for any documents that he requires? It is very simple if that is the only object. But, no, that is not what the Government is doing. [Time limit.]

I think the Committee should be extremely grateful to the hon. member who has just sat down for going to the trouble to quote the provisions of the Act in order to enable hon. members on the other side who have been sitting there jeering and snickering to know what is contained in the Act. I was very disappointed in the Minister’s last address on this subject. He resorted to political propaganda instead of dealing with the actual merits of the case. Here we have an Act which does give a commissioner the right to compel witnesses to give evidence. The hon. member for Orange Grove (Mr. E. G. Malan) can be subpoenaed to give evidence.

May I ask the hon. member a question?

Sir, that hon. member also spent most of his time jeering at speakers on this side of the House and snickering. If he has anything to say, let him get up and say it, but let him be sure what he intends to say because unfortunately he suffers from an inhibition produced by the Press Commission …

Order! The hon. member must come back to the clause.

Let me come back to the point that I was dealing with when I was interrupted. Here we have an Act which gives the necessary right to the commissioner to compel witnesses to attend and to produce documents. As has been pointed out, the commission has the discretion to prevent evidence being given in public; it can exclude classes of persons such as journalists from being present at the sittings of the commission. All these powers are contained in the Act. The objection of this side of the House is that because a commission is to be established here for a certain purpose, the whole of the law can virtually be negated in order to serve the purpose of that particular commission. Sir, that is not the way to legislate. If you want to do something specific you do not change the entire law; you pass a special Bill for that purpose. In this case it could be called the Broederbond and other Secret Organizations Bill; we would then have a Bill before the House dealing with a specific issue and specifically prescribing the procedure to be followed by the commission, but do not take a law which has been in existence all these years and under which an important commission to inquire into defence contracts and the supply of raw materials is sitting at present and change that particular law entirely, virtually giving the right to the responsible Minister to negate the actual provisions of the law. Sir, what is wrong with the law as it now stands? We see nothing wrong with it at all. If there is any desire to maintain secrecy in regard to portions of the inquiry, that is already provided for in the Act. Surely you cannot take all discretion away from a judicial officer. Surely the objective is to appoint a responsible man from the Supreme Court or the Court of Appeal. What you are virtually doing now is to tie his hands and to say to him, “This is the way in which you are going to conduct the inquiry; you are not going to follow the recognized procedures; we will tell you whether or not to conduct the inquiry in secret; we will tell you exactly what you are to do”. I believe that that is a very poor way in which to deal with an inquiry of this nature. We have not run away from this issue; there is no question of propaganda.

You say that you have not run away. Do you always walk so fast?

Sir, that remark means nothing; I cannot even answer it. We are concerned with the law; we are not running away from the appointment of the commission. The hon. the Prime Minister told the House that he intended to appoint a commission and to provide for the way in which the inquiry was to be conducted. The hon. the Minister said that the objective of this measure was to deal with this commission. The hon. member for Standerton (Dr. Coertze) denies that that is the purpose. Which of the two explanations are we to accept? Our objective is to ensure that the accepted customs and practices are followed, in accordance with the spirit and the tradition of the Constitution of our country, not to have improvisations from time to time and ad hoc legislation in order to meet ad hoc cases. That, Sir, is the worst imaginable form of legislation. We would like the hon. the Minister to take into account what has been read out to him by the hon. member who has just sat down and to tell us why he finds it necessary to bring in this amendment when the powers which are applied already exist in the law. Let him try to put up a case not only to convince us but to convince the country that it is necessary to change the law. We cannot see that it is necessary. This clause will immediately give rise to fear in the minds of people as to the way in which this inquiry is to be conducted. If these organizations are to have their affairs investigated, there will be no accused and nobody will be afraid as to what will be disclosed. All that has been alleged is that certain things are taking place which are causing concern to the community, and the challenge was issued to the hon. the Prime Minister as a member of that organization as to whether he was prepared to have the organization investigated, and he eventually said, “yes”. Why then must we amend the law in this manner simply because the Prime Minister agreed to appoint a commission? Why has there been no suggestion that the law should be amended in the case of other commissions? If it has been found that it is necessary for the law of the country to be amended with regard to the procedure to be followed by commissions, why then does the Government not bring forward a new Bill and appoint a select committee to consider evidence as to the new procedure to be laid down? No, instead of that we get an ad hocamendment to meet a specific case, an amendment which can have the effect of negating the law and virtually making the entire provisions of the existing Act ineffective. Sir, I do not think that the hon. the Minister or those who have supported him have put a convincing case before the House.

I just rise to deal with three matters. The hon. member for Musgrave (Mr. Hourquebie) issued a terrible challenge to me. When he started I almost became frightened. I just want to tell the hon. member that the reply is simple; the hon. the Prime Minister stated it very clearly, and I repeated this morning that he was appointing this commission but that it is an absolute requirement, for the reasons mentioned both by him and by me, that the confidential nature of every organization shall be respected except in so far as for the finding of the commissioner, according to his terms of reference, it is necessary not to preserve secrecy.

Is the hon. the Minister not aware of the fact that these organizations themselves do not insist that the proceedings should take place in secret? They welcome a public inquiry.

That is the condition laid down by the hon. the Prime Minister and I fully agree with it.

Then why does he appoint it?

The hon. member has repeatedly heard the reasons here, and I am not prepared to repeat them. I just mention the fact that the Prime Minister set that condition. Sir, hon. members of the Opposition are now not only running away from the commission, but they also run away from the accusations they made, because the hon. member for Musgrave says that they never made any accusations of subversion. I just want to tell the hon. member in advance that every case which has to be investigated in terms of these instructions was taken by the hon. the Prime Minister from the speeches of members of the Opposition in which they have attacked this organization over the years. This accusation has been made here year after year. Every one of the allegations which are to be investigated was taken from the speeches of members of the Opposition. Further, I just want to tell the hon. member for Musgrave this. He is evidently the advocate for the hon. member for Orange Grove (Mr. E. G. Malan). He can have the S.A. Broadcasting Corporation investigated.

Under what terms of reference?

In terms of the accusation of nepotism which the hon. member himself mentioned. That was the basis of the complaint of the hon. member for Orange Grove.

Why does that not appear in the terms of reference of the commission?

But it is included in it.

Where?

The hon. member need only read the terms of reference. If complaints are laid that the Broederbond did certain things affecting the S.A.B.C., the commissioner may investigate those complaints. If hon. members want to retain their self-respect, they should exert a strong influence on the hon. member for Orange Grove to give evidence before that commission. If he does not do it, hon. members opposite will look quite ridiculous, because allegations are made here about the S.A.B.C. and the Minister of Posts and Telegraphs. Hon. members should now go and complain to the commissioner, because he is being appointed to investigate that very sort of complaint. It will be irresponsible of them and hon. members will make themselves quite ridiculous if in future they again come along with this sort of complaint, if they have not the courage to go to the commissioner and complain to him. Sir, let us differ across the floor of the House; let us talk politics; let us attack each other at times; let us get angry with one another; that is all part of the game, but we are all Members of Parliament and we do not want Parliament to be ridiculed in the eyes of the public outside. Hon. members should not consider their own party only; they should also consider the status of Parliament, of which we are all members. We as a Parliament will look quite ridiculous if the Opposition, which I still flattered yesterday by saying that they are the only Opposition in the House, make allegations in season and out of it and I then go out of my way to create an opportunity for them to substantiate their complaints and they do not avail themselves of it. I do not want to take the matter further at this stage. I have said everything which I wanted to say in this regard. I only trust that hon. members will not disappoint us in this regard, but that they will submit their complaints to this commission.

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

Afternoon Sitting

Clause put and the Committee divided:

AYES—65: Bekker. H. T. van G.; Bekker, M. J. H.; Bezuidenhout, G. P. C.; Bootha, L. J. C.; Botha, H. J.; Botha, M. C.; Botha, P. W.; Botha, S. P.; Coertze. L. I.; Cruywagen, W. A.; du Plessis, H. R. H.; Fouché, J. J. (Sr.); Frank, S.; Froneman, G. F. van L.; Grey ling, J. C.; Grobler, M. S. F.; Haak, J. F. W.; Hertzog, A.; Heystek, J.; Jonker, A. H.; Keyter, H. C. A.; Kotze, G. P.; Kotzé, S. F.; Labuschagne, J. S.; Luttig, H. G.; Malan, W. C.; Marais, J. A.; Marais, P. S.; Meyer, T.; Mostert, D. J. J.; Mulder, C. P.; Muller, H.; Muller, S. L.; Niemand, F. J.; Odell, H. G. O.; Otto, J. C.; Pelser, P. C.; Potgieter, J. E.; Rall, J. J.; Sadie, N. C. van R.; Schlebusch, J. A.; Schoeman, B. J.; Schoonbee, J. F.; Serfontein, J. J.; Smit, H. H.; Stander, A. H.; Steyn, J. H.; Treurnicht, N. F.; van den Berg, M. J.; van den Heever, D. J. G.; van der Spuy, J. P.; van der Walt, B. J.; van Eeden, F. J.; van Niekerk, M. C.; van Rensburg, M. C. G. J.; van Wyk, G. H.; van Zyl, J. J. B.; Venter, W. L. D. M.; Verwoerd, H. F.; Vorster. B. J.; Vosloo, A. H.; Waring, F. W.; Wentzel, J. J.

Tellers: D. J. Potgieter and P. S. van der Merwe.

NOES—43: Barnett, C.; Basson, J. A. L.; Basson, J. D. du P.; Bloomberg, A.; Bronkhorst, H. J.; Cadman, R. M.; Connan, J. M.; Cronje, F. J. C.; Dodds, P. R.; Durrant, R. B.; Eaton, N. G.; Emdin, S.; Field, A. N.; Fisher, E. L.; Gay, L. C.; Gorshel, A.; Graaff, de V.; Henwood, B. H.; Hickman, T.; Higgerty, J. W.; Hourquebie, R. G. L.; Lewis, H.; Miller, H.; Mitchell, M. L.; Moolman, J. H.; Moore, P. A.; Oldfield, G. N.; Radford, A.; Raw, W. V.; Steenkamp, L. S.; Steyn, S. J. M.; Streicher, D. M.; Suzman, H.; Taurog, L. B.; Taylor, C. D.; Timoney, H. M.; Tucker, H.; van Niekerk, S. M.; Warren, C. M.; Waterson, S. F.; Wood, L. F.

Tellers: A. Hopewell and T. G. Hughes.

Clause accordingly agreed to.

On Clause 14,

Sir, this is, of course, the Sobukwe Clause as the hon. the Minister of Justice calls it. The hon. the Minister will recall that he introduced this clause last year. We opposed it last year and we will oppose it again this year. The Minister has indicated that he needs this clause to deal with one man only at the moment. The hon. the Minister apparently would have us believe that only Robert Sobukwe will be held under this clause in the course of the next year, for the clause is only to last for one more year, unless it is re-enacted by both Houses of Parliament. But, Sir, the powers which the hon. the Minister has under this clause, are to say the least of it, Draconian powers because the Minister takes the power to detain for the rest of his natural life, if he so pleases, any person convicted by the court of certain offences, after his sentence of imprisonment has expired. Either this is a reflection on the legislation which the hon. the Minister has proposed to deal with these matters or it is a reflection upon the courts of this country to keep this provision in our law for yet another year. Unfortunately—I do not think the hon. the Minister can escape this although he has tried—he is going to have to put more people inside under this clause if he has to keep Robert Sobukwe. As I understood the hon. the Minister’s reply to the question as to whether he would put in anyone else under this clause, he said that he had no one else in mind at the moment, and then he said that the other persons who were convicted of being members of the organization, of which Sobukwe was the chief, had been sentenced to longer sentences of imprisonment and that therefore the question did not arise at this stage. When it arises during the next year, it is the duty of the hon. the Minister to tell us. I also want to point out to the hon. the Minister that what he is providing for here is a most unsavoury thing. Regardless of how you look at it it is a sort of concentration camp. If it is only Sobukwe then surely we do not need a blot like this on our Statute Book? For one man, do we have to have a clause like this? Do we have to have a law like this for one man? Sir, it is a very sad reflection on this Government that for one single person they have to pass a law like this and keep the man under detention, if necessary, for the rest of his living life. I want to ask the Minister whether he does not in fact have the power, without this clause, to deal with this one man, this one man who holds the whole Government up to ransom; he holds the whole of our law up to ransom. Surely with all the powers which the Minister already has he can deal with Sobukwe, with one man.

At the conclusion of the Rivonia trial one of the accused, I think his name is Bernstein, was found not guilty and discharged. The hon. the Minister must feel he has a case against Bernstein otherwise he would not have been prosecuted in respect of offences which amounted to high treason. Is Berstein not also in the hon. Minister’s mind a dangerous man? But Bernstein has been released because he was found not guilty. He has been allowed bail. But nevertheless the hon. the Minister has put him under house arrest; he has to report to the police I do not know how often. The Minister can put all sorts of restrictions upon Bernstein and he has done so. Whether he has done so correctly or not is not the point. The hon. the Minister knows what information he has about Bernstein. The hon. Minister knows what information he has about Sobukwe.

It is precisely because I have that information that I have done it.

Is the Minister saying that with all the police in South Africa, with all the powers and organizations the Minister has, he cannot contain one man? He cannot contain one man, Sir, if he has to have somebody watching him every hour of the day and night! Is it asking too much of the hon. the Minister to ask him to sacrifice this clause for the sake of South Africa? When anybody says: “You have concentration camps in South Africa” it is very difficult to defend that sort of statement. This is precisely what this clause provides for. At the moment it is Sobukwe who is kept there. One was invited to go over there, one saw Sobukwe and one saw the circumstances in which he was living. But that is not the point. The point is that the hon. the Minister is going to have to put other people in under this clause at some time or another and when he does so, Sir, these things will become concentration camps. All the Minister is asking this Committee to do is to approve this clause for one year. It lapses at the end of one year. If he does not propose to put anyone else inside under this clause, but Sobukwe before the end of the year, then surely the Minister can cope with this one man. Surely he can cope with him with all the powers he has, with all the police he has, with everything he has. Will the hon. the Minister indicate why this one man is so different from any other one man, and why this Government is so afraid of this one man that it cannot deal with it.

I want to make it quite clear that I am against this clause in principle; whether it be one man or 100 men makes no difference to me. Under no circumstances should the Minister be given the power to keep in imprisonment a man who has served his sentence for a crime he committed and for which he has been punished. Sobukwe, to my mind, is no different from anybody else in this respect.

I tried to tell the House last night that we had lost all sense of proportion about this man Sobukwe. The crime for which he was committed to gaol was the crime for incitement against the pass laws. For that he was sentenced to what, the Judge said, was a severe sentence of three years’ imprisonment. Now the man is to be kept in gaol indefinitely until the Minister decides that he is satisfied that Sobukwe had dissociated himself from the Pan African Congress. As I pointed out, when the Paarl riots took place last year Sobukwe had already been in gaol for his three-year imprisonment. Since then he has been in gaol for a further year. He could clearly not have had anything to do with those occurrences. Sobukwe, in fact, was called to give evidence in a case at Kimberley on 24 January last year. In the course of that case he stated that as far as he knew, the Pan African Congress had died when it was banned; that as far as he knew it did not now exist. What is more he said, to his knowledge, when it did exist, its aim was not to foster racial hatred nor did it countenance violence. Since those days, the Pan African Congress has changed its outlook, maybe its aims, and therefore the hon. the Minister considers it is dangerous to let Sobukwe out. I consider it the height of injustice on the part of the hon. the Minister to keep this man locked up because he anticipates that he may again associate himself with the Pan African Congress, an organization which is banned and which, as I said, before, the Minister can easily prevent him from having anything to do with.

The hon. member for Heilbron (Mr. Froneman), who is not here at the moment unfortunately, read me a little lesson last night on what he considered to be the rule of law. My basic objection to this clause, of course, is that it goes counter to every basic concept of the rule of law, which is that a man may not be imprisoned, or detained, unless he has been found guilty of a crime by a properly constituted court of law. This, of course, has not happened in Sobukwe’s case. I am not impressed by the argument of the hon. member for Heilbron when he was quoting to us from 1066 and all that last night. The case he quoted to illustrate his idea of the rule of law was, first of all, a case which had happened way back in the 14th century when they were still burning people at the stake, when they were using the stocks as a form of punishment, when they chopped off a hand if a man stole a chicken and so forth. For him to quote that as an example of modern law in England is, of course, the height of nonsense. The other case he quoted of putting away an enemy before he could do any damage, was a case in 1917 when England was at war. That he did not point out to the House last night. So I hope that nobody in this House was influenced in any way by the absurd argument advanced by the hon. member for Heilbron last night in defending his archaic and mediaeval ideas of what the rule of law means.

On this Sobukwe Clause, Sir, I want to say that this man is held virtually in solitary confinement on Robben Island. It is true that his quarters are better than those of an average prisoner. The hon. the Minister told us that the Red Cross visitor who had visited Sobukwe last year had described the quarters as similar to those of a high-ranking officer in a prisoner-of-war camp. [Interjections.] Yes, but he is still in solitary confinement; he is still in prison and he is still there for no crime whatever. He has committed no crime since he has served his original term of imprisonment. Therefore, under whatever conditions he is held will make no difference to my basic objection to this clause.

I want to refer to the reporting on the Sobukwe case as it appears in the Digest of 26 December 1963. It is headed—

Not another word about 90-day detainees! In fact, Sir, Robert Sobukwe is not, and never was, a 90-day detainee. While we are talking of reporting and false impressions I wonder if the hon. member for Standerton (Dr. Coertze) would tell me if his Press Commission would have labelled this reporting as faulty, bad or very bad reporting because it is a completely misleading headline. I say this because I want to point out to the hon. the Minister that this island is going to be under the eyes of the world. It has become an infamous island now. I think the hon. the Minister had some gay badinage with the hon. member for Germiston (District) (Mr. Tucker), it was, I think, one day, in which the member for Germiston (District) had referred to Robben Island as Alcatraz, and the Minister said: “Not Devil’s Island!” or something to that effect. Whatever the hon. Minister calls Robben Island I hope he realizes that from now on that island is going to be focussed in the limelight of the world. I hope he will take the greatest possible care to see to it that the strictest conditions of discipline are maintained on that island as far as the treatment of prisoners is concerned. In other words, that he will see to it that warders are properly selected, that there will be no cause for complaints of prisoners suffering any assaults or ill treatment on that island. Because I can assure the hon. the Minister …

Order! The hon. member must come back to the clause.

This man is on Robben Island, Sir. This is the Sobukwe Clause.

The hon. member is taking it too far.

Very well, Sir. I have said all I wanted to say on that matter.

Before I sit down I want to ask the hon. the Minister what he means by the new subsection (c)—

While any notice issued, etc the period of the prohibition in question specified in such notice may be extended by a notice under the hand of the Minister addressed and delivered or tendered to the person concerned.

Does this mean that Sobukwe can be kept in even if this clause is not, in fact, re-enacted by the House?

No.

It is absolutely certain that this clause has to be re-enacted next year, and even although Sobukwe is at present in under this clause, his period of detention specifically cannot be extended otherwise?

No.

Well, I am pleased that we have established that. My basic objections to this clause remain untouched. I voted against this in principle last year. To me it was one of the cardinal principles of last year’s General Laws Amendment Bill and was why I voted against it last year, and, of course, I shall do the same this year. I voted against the principle of the Bill and I will vote against this clause.

I stated in my second-reading speech what our reason was for detaining Sobukwe. I also foreshadowed under what circumstances this detention could come to an end. We discussed this matter last year. I gave my reasons. I have now looked at Hansard again and I see that there was little discussion on this clause last year. The events were very fresh in our memories. For those same reasons I am compelled to continue this detetion until such time as the circumstances to which I referred are present.

The hon. member for Durban (North) (Mr. M. L. Mitchell) had a strong enough case— that is the only reason why I rose—not to make himself guilty of exaggeration in this regard. The hon. member said that the Minister was taking powers which could result in this man being detained for the rest of his natural life. That is not so. The Minister is taking no powers in this regard. I am taking no powers for discretionary action, of which I am so often accused. I come to the highest body in South Africa, Parliament, and I ask it to order that the man should be detained.

You will have it as long as you want it.

Fortunately for South Africa, I am in a stronger position in this Parliament than the hon. member for Houghton (Mrs. Suzman). That is so, but it is Parliament which decides in this case, and not the Minister. If Parliament refuses I can take no decision in this regard. But it will not be for the rest of the man’s life. At most it is from year to year, as long as Parliament approves it. I just set this right for the sake of the record, Sir. People read what the hon. member has said and I feel I must explain what the position is in that regard. I do not wish to detain this man longer than is necessary. Hon. members must just take it from me that circumstances, which I am quite prepared to disclose to the hon. member for Durban (North) privately, make it necessary for me to do so at this stage. I bear the responsibility. While hon. members were talking last night, I thought how easy it was for hon. members opposite, particularly the hon. member for Florida (Mr. Miller) to talk. It is very easy to talk, but it is the Government’s duty to preserve peace in South Africa. The Government accepts that duty. The Government does certain things because it has the information available. Hon. members know how often I foreshadowed things—surely we are dealing with matters of security and we are not making political propaganda—and how my predictions were proved correct time and again. I can understand—and I said so last year— that hon. members may object to it in principle. I share those objections with them, but I bear the responsibility in this regard. Hon. members surely know to what organization this man belongs. Hon. members must just accept it from me that had it not been necessary this detention would not have taken place. I cannot take it further than that.

Clause put and the Committee divided:

AYES—72: Badenhorst, F. H.; Bekker. H. T. van G.; Bekker, M. J. H.; Bezuidenhout, G. P. C.; Bootha, L. J. C.; Botha, H. J.; Botha, M. C.; Botha, P. W.; Botha, S. P.; Coertze, L. I.; Cruywagen, W. A.; du Plessis, H. R. H.; Fouché, J. J. (Sr.); Frank, S.; Froneman, G. F. van L.; Greyling, J. C.; Grobler, M. S. F.; Haak, J. F. W.; Hertzog, A.; Hester, J.; Hiemstra, E. C. A.; Jonker, A. H.; Keyter, H. C. A.; Knobel, G. J.; Kotze, G. P.; Kotzé, S F.; Labuschagne, J. S.; Loots, J. J.; Luttig, H. G.; Malan, A. L; Malan, W. C.; Marais, J. A.; Marais, P. S.; Martins, H. E.; Meyer, T.; Mostert, D. J. J.; Mulder, C. P.; Muller, H.; Muller, S. L.; Nel, J.A.F.; Niemand, F. J.; Odell, H. G. O.; Otto, J. C.; Potgieter, J. E.; Rall, J. J.; Sadie, N. C. van R.; Schlebusch, A. L.; Schlebusch, J. A.; Schoonbee, J. F.; Serfontein, J. J.; Smit, H. H.; Stander, A. H.; Steyn, J. H.; Treurnicht, N. F.; van den Berg, M. J.; van den Heever, D. J. G.; van der Spuy, J. P.; van der Walt, B. J.; van Eeden, F. J.; van Niekerk, M. C.; van Resburg, M. C. G. J.; van Wyk, G. H.; van Zyl, J. J. B.; Venter, W. L. D. M.; Verwoerd, H. F.; Visse, J. H.; Vorster,

B. J.; Vosloo, A. H.; Waring, F. W.; Wentzel, J. J.

Tellers: D. J. Potgieter and P. S. van der Merwe.

NOES—43: Barnett, C.; Basson, J. A. L.; Basson, J. D. du P.; Bronkhorst, H. J.; Cadman, R. M.; Cronje, F. J. C.; Dodds, P. R.; Durrant, R. B.; Eaton, N. G.; Emdin, S.; Field, A. N.; Fisher, E. L.; Gay, L. C.; Gorshel, A.; Graaff, de V.; Henwood, B. H.; Hickman, T.; Higgerty, J. W.; Hourquebie, R. G. L.; Lewis, H.; Malan, E. G.; Miller, H.; Mitchell, M. L.; Moolman, J. H.; Moore, P. A.; Oldfield, G. N.; Plewman, R. P.; Radford, A.; Raw, W. V.; Ross, D. G.; Steenkamp, L. S.; Steyn, S. J. M.; Streicher, D. M.; Suzman, H.; Taylor, C. D.; Timoney, H. M.; Tucker, H.; van Niekerk, S. M.; Warren, C. M.; Waterson, S. F.; Wood, L. F.

Tellers: A. Hopewell and T. G. Hughes.

Clause accordingly agreed to.

On Clause 15,

I told the hon. the Minister last night that I was opposed to this clause which is an extension of the clause I opposed in last year’s Bill. I oppose it for much the same reason as I opposed last year’s clause. In last year’s amendment the crime was restricted to actually undergoing training—although “training for sabotage” was never mentioned in the clause itself—outside the Republic or actually obtaining information from a source outside the Republic, if such training or information could be of use in furthering the objects of Communism or of any unlawful organization. The present amendment goes very much further. It extends the ambit of the offence to cover persons who undergo training in the Republic—and again “training” is completely undefined—and it extends the ambit of the offence to cover not only people who undergo training or obtain information themselves, but also people who aid or advise other people. It also extends the ambit to people who have consented or taken any steps to undergo training and not merely to those who have in fact undergone training. It includes people who have attempted to take steps to undergo training etc. This should hardly be necessary, Sir, as there is a provision in common law whereby an “attempt” is equated to the actual commission of the offence and can carry the same penalty. So altogether this goes very much further than last year’s clause. It means that the net can be cast so wide as to include South Africans who are engaged on perfectly lawful business.

What lawful business?

Any lawful business, such as studying Marxism, for instance, at a university here or overseas. That can be considered training in order to advance any of the objects or aims of Communism or of an unlawful organization. I want to point out to the hon. the Minister that year after year the definition of Communism has been extended so as to cover practically everything. This is a very wide clause indeed. Last year and when the Sabotage Act was under discussion in 1962, and we were talking about the definition of “sabotage”—I shall come back to that in a moment—the Minister told us that this was never his intention. What I want to point out to the hon. the Minister is that the Judges are not going to worry about his intention but about the actual wording of the clause. That is how they have to interpret it.

I was much persuaded by the eloquence of the hon. member for Durban (North) (Mr. M. L. Mitchell) in 1962 when he was opposing the very wide definition of “sabotage”. In those days he used some very extraordinary examples. He said the definition was not specific and that it covered all sorts of activities. Let me remind the House of the sort of examples he gave us on that occasion, examples far beyond the example I have given. Such as studying Marxism or taking a public relations course so that you can influence people and persuade them to support the same sort of thing that you stand for, such as trade union rights, or a minimum wage or the removal of Bantu education, which is one of the objects of the unlawful organization which objects are undefined. The hon. member for Durban (North), in arguing against the wide definition of “sabotage” in 1962, said that under the ambit of that badly defined clause, could be included going into a telephone kiosk and pilfering the tickeys. I do not suggest anything as absurd as that, Sir. But I do say that this clause is so widely worded as to allow all sorts of training to be brought under the general umbrella of the penalties of this clause. That is one objection I have. I have several others. I refer, for instance, to the fact that the crime is made retrospective. This is always one of my major objections to the legislation the Minister introduces. What was not a crime when it was committed, now becomes a crime in retrospect. In America such legislation would be invalid in terms of the American Constitution. They cannot pass retrospective legislation in America and I believe this House should not be passing retrospective legislation. I mentioned the vagueness of the clause, and, Sir, the onus of proof of innocence. After all this is a crime for which the penalty may be the death penalty. And as the hon. member for Germiston (District) (Mr. Tucker) eloquently argued also way back in 1962 when the sabotage Bill was under discussion, when a person is on trial for his life, he said, he is entitled to have the onus placed squarely where it belongs, namely on the State. Now we have a crime again where the penalty may be the death penalty and the onus of proof is not placed squarely where it belongs. This point was also eloquently argued by other hon. members in the United Party of those days. Now it appears they do not mind where the onus is placed. It is a cime carrying the same penalty as sabotage. The onus of proof is placed on the accused, and not only has he got to prove his innocence on a preponderance of probability, or “balance of probability”, but he has got to prove it “beyond all reasonable doubt”, which is a very difficult thing indeed. That is another objection to this clause.

Then of course I object to this extension of the death penalty itself. In all civilized countries throughout the world the scope of the death penalty is being narrowed. In South Africa it is constantly being widened. Our punishments are constantly getting heavier and more brutal: Compulsory whipping, minimum sentences—that is another objection I have, the minimum sentence of five years; the sentence should be left to the discretion of the court. That is also a point hon. members in the United Party argued very eloquently in those days.

Mr. M. L. MITCHELL: It is not as heavy as in Britain.

Not as heavy as in Great Britain, but the discretion of the court comes into play, and I am quite sure that the crime is far more clearly defined than it is defined in this Bill here to-day.

The other major objection I have to this Bill and this particular clause is again an objection which the United Party raised last year, and that is that juveniles are not excluded from the severity of the sentence. On this clause the hon. member for Durban (Umbilo) (Mr. Oldfield) had a great deal to say. These are very cogent reasons why I object to the retention of this clause.

Therefore to sum up, I object to this clause because it is retrospective, it extends the death penalty, it does not exclude juveniles, it does not leave the discretion to the courts, and because the definition of “training” is far too wide under this clause. So far as I am concerned I am against sabotage, but I want “sabotage” defined much more narrowly than we defined it in our 1962 legislation. Just as the hon. member for Durban (North) is against what Sobukwe stands for, I am against sabotage. But two minutes ago the hon. member voted against the clause which gives the hon. Minister the power to lock Sobukwe up for another year without trial. Just as I was against sabotage in 1962 …

Are you?

Yes. I happen to be against violence, although believe me, Sir, that many a time in this House it has taken me all my control to contain myself and not to change my mind. But in fact I am basically against violence.

Are you sure you have not already changed your mind?

I have not. I have never been in favour of violence, and if the hon. Minister can bring one iota of proof that I have ever advocated, propagated, in fact encouraged or aided violence, I challenge the hon. Minister to bring it on to the floor of the House, so that we can discuss it here and see what evidence the hon. Minister has. I shall certainly vote against this clause for all the reasons that I have mentioned.

I just want to indicate briefly the attitude of this side of the House. We will not oppose this clause. The hon. member for Houghton when she speaks about all the objections that we had last year, must be reminded of the fact that we had no objection last year to the section of the Act which is being amended by this Bill. We have no objection to it for the simple reason that in the first place anybody who trains for sabotage …

It does not say “sabotage”.

It does not say so, but it is clear that this is included in it, it is clear that this is what it aims at. Anyone who does that may incur the supreme penalty as far as we are concerned if a court in its discretion, if one of our Judges in his discretion, feels that the circumstances of that case warrant such a sentence. I think the hon. member for Houghton must remember when she talks about the death sentence, that the death sentence is to be applied by a Judge of the Supreme Court, and the hon. member ought to know that any person when he has a complete discretion so far as the death sentence is concerned, applies it with reluctance, applies it only when the circumstances justify it.

When the hon. member then talks about the student being covered by it, I want to check that argument. The clause says that in her student’s case, for example, if you can show that you did not undergo such training or obtain such information (as in the example she gave) for the purpose of using it or causing it to be used for the furthering of the achievement of one of the objects of Communism or the achievement of one of the objects of an unlawful organization, the P.A.C. or the A.N.C., then you will not be guilty of this crime. So the matter is in the hands of the courts and I fail to see how a person who trains for sabotage in South Africa is any less guilty than a person who trains for sabotage in Dar-es-Salaam. I fail to see how a person who commands someone else to commit an act of sabotage, or command someone else to go and train for sabotage is any less guilty than the tool he uses to commit that act. I fail to see how the person who instigates other people, who aids them, who advises them, who encourages them or procures them to commit these acts, acts which are in essence acts of treason, is any less guilty. We on this side of the House will support this clause as a natural extension, as the hon. member for Houghton herself has said, of the original offence. The offence itself is abhorrent to us and an instigation to commit it is part of the offence.

I would be interested if the hon. member for Durban (North) would tell me wether the offence of sabotage was not offence to him two years ago. In 1962 when the Sabotage Act was passed by the hon. the Minister, the United Party put up a struggle against the definition of “sabotage”, against the onus of proof being placed on the shoulders of the accused. The hon. member quoted absurd examples of what the wideness of the definition could lead to. The hon. Minister of course does not need to come into this fight. He can sit there with what I would call his usual inscrutiable expression and watch this argument going on between the hon. member for Durban (North) and myself. But I would like to get this quite clear: Why did the hon. member put up such a passionate defence two years ago when the Sabotage Bill was under discussion and why has he changed his mind now? Sir, the same arguments were advanced. And let me tell the hon. member that two years ago it also had to be a properly constituted court, it also had to be a Judge who had to pass the death sentence, that the accused then could prove that he had not committed sabotage—and then too he had to prove it beyond all reasonable doubt, which is a completely impossible thing to do as far as I can see, namely to prove a negative thing on intention. For instance if he took a train from one place to another and if that were described as going somewhere for training, he had to prove that it was not his intention, beyond all reasonable doubt. A most difficult thing to prove as the hon. member ought to know from his training as a lawyer. All these things applied two years ago when the Sabotage Bill was under discussion, even retrospectively. The hon. member was very eloquent then. This is what he said—

And then he went on to say, after an interjection, probably from the hon. member for Heilbron (Mr. Froneman)—

That is what the hon. member said. And he continued that that was not sabotage. The same applies here. The whole definition is too wide, the same sort of absurd thing all over again, although I do not go to the same length of absurdity as the hon. member went. It simply says “training”, intellectually or otherwise; it does not say “training for violence”, it does not mention “training for sabotage”. All these things fall within the ambit of the broad definition. Now I will tell the hon. member why he takes up the attitude now, so he need not even answer me. I will tell him why two years ago the United Party took up that attitude, whilst now they are voting for this clause. Two years ago when they voted against the Sabotage Bill, the following recess Nationalist members went throughout the length and breadth of the country, and Nationalist newspapers throughout the length and breadth of the country accused the United Party of supporting sabotage, of being pro-sabotage, and the members of the United Party were worried stiff in case their supporters throughout the country would think that they were backing sabotage. So next year they changed their mind. They not only did not vote against the principle of the Vorster 1963 General Law Amendment Bill, but they did not specifically vote against the 1963 version of this clause which did not go nearly as far as the Sabotage Act. And then what happened? The hon. member for Durban (North) rushed around from constituency to constituency trying to explain things …

Order! The hon. member must discuss the clause.

… accusing me of the very things that the Nationalist Government accused them of.

The hon. member has asked a question. I will answer it very briefly, and I will attempt in the process not to indulge in any abuse as the hon. member did. I would like to say to the hon. member that the difference between our attitude on the sabotage clause and on this clause is very simple. We were against sabotage. We were in favour of sabotage being an offence. We were not in favour of the way in which that offence was defined in the Bill which was then before us, as Hansard will show. With this clause we are against people training for sabotage. We wish that to be an offence. We have not the same objections to the way in which the offence is phrased in this Bill. It is as simple as that.

Clause put and agreed to. (Mrs. Suzman dissenting).

Clauses 16, 17, 18 and 19 put.

These clauses all appear to be in order. They are amendments of the Patents Act. But in the first place the commissioner is no longer to be appointed; he is designated as in fact the Judge-President of the Transvaal Provincial Division, and this is a good aspect. And the other aspect is that there are no longer to be appeals to the court on points of law. Because the commissioner himself is a Judge and can decide. This also is good.

But the clause I wish to ask the hon. Minister about is Clause 18 which provides that the word “commissioner” should be substituted by the word “registrar”. In Section 64 of the Patents Act of 1952, the word “commissioner” is used. I will read the relevant portion and where I say “commissioner” one must now read “registrar”—

What I want to ask the hon. Minister is this: It seems to me that the functions which are here to be administered are in effect judicial functions, and the Registrar and not the commissioner will have these powers and I hope the hon. Minister will indicate whether this was intended or not, and whether in fact the hon. Minister agrees with it or not. I understand that there has been a deputation to see the relevant Minister and that this is an agreed measure between them.

The position is that in the past we had the Commissioner of Patents. He had a dual function, a judicial function, as it were, and an ordinary official function, if I may put it that way. Now the judicial function goes to the Judge, and now the note drafted by the Department of Commerce and Industry, in which they state their standpoint, is as follows—

The relevant functions were in any case, according to that Department, formerly assigned to the commissioner by mistake, and the amendment of this clause will now grant the necessary relief in that regard.

Clauses put and agreed to.

On Clause 22,

During the course of the second-reading debate, the hon. the Minister was given an indication of the objections to certain portions of this clause. Now the amendment itself is intended to bring into line a preparatory examination where a person is joined, with a similar provision already existing under Section 65bis, where in the course of a preparatory examination when an accused person or persons in respect of whom the preparatory is being held is absent, the purport and a brief summary of the evidence given during his absence, is to be put to him when he returns to the court during the course of that preparatory examination, and later even during the course of a trial. Here similar provision is being made, but there is some difference, and that is that in the particular case with which this amendment deals, it concerns an accused who is absent ab initio, in other words at the commencement of that examination he would normally not have been before the court. It is during the course of the examination that he is joined with the other accused, and evidence has already been led, and placed before the court, of which he would at that stage have no knowledge. In order to enable him to know something of it, it is intended to change the procedure whereby normally the evidence would have been read over to him. Now it is intended that instead of wasting the time of the court and having that evidence read over to him, he should be briefly informed of the nature and purport of that evidence. Now whereas in 65 bis it says that the court shall give him a brief summary and the purport of the evidence …

These are the exact words which were used in the old provision.

No, Sir, I would like to read Section 65 bis. That is the comparison the hon. Minister gave.

No I spoke of Section 60. Read that and you will see that these are the same words.

I will refer to Section 60. It is the proviso which the Minister is amending and it says—

Now instead of the words “shall be read over to such person”, we now have “provided that such person shall be briefly informed of the nature and purport of the evidence given by any witness before such joinder”. That is how the hon. Minister intends to amend it. But in Section 65bis it says in sub-section (4)—

“The court shall …” Here it does not say that. It merely says “provided that such person shall be briefly informed”. I think it is important if one follows the way this legislation has been generally drafted, to be specifically clear that the court should inform the person joined so that we know it is done by the presiding magistrate. Otherwise it is not clear. For instance there is no definition or any other means of interpreting “a person” who is before a court as that person “or his representative”. If reference is made to a person for instance who is cross-examining, it would say “that person or his representative”. Therefore unless there is any defining of who should convey that information to the accused at the preparatory, then, it is my submission, we should insert the words that the court shall briefly inform him of the nature and purport of the evidence, in order that it should be clear, because this Act is interpreted very, very strictly.

The section never had those words.

That is not the point. In 1957, there was an amendment to the Act to provide that the evidence could continue in the absence of an individual should he be absent for certain reasons from a preparatory, and there is also provision that even when a person were to be absent at a trial, evidence could take place in his absence. But an amendment was made at the time, and if the hon. Minister will read some of the discussions in Hansard, he will find that reference was made to a similar situation in the English courts. But in amending the section in 1957, it was specifically said that a court should do so. It is very important that he should know precisely what it is and the court should give him that information. It may be sufficiently widely interpreted, because of the absence of that word, that the prosecutor might be entrusted with the duty of informing him, and I feel that it is essential in conformity with the normal drafting of this Act and the wording of the Act that we should have that wording inserted.

Now in regard to the other point, the new sub-section (3), one might very well find an individual—you have quite a number in this country who are completely illiterate, particularly among the non-Whites—who does not appreciate the purport of the evidence or the brief resume of the evidence, despite the fact that the court gives it to him, and it would be helpful to him to have a copy of the record. Now provision is made that he can cause a copy to be made himself, or that he can inspect the record. Now records to-day, particularly in preparatory examinations, are usually done through tape-recording or shorthand writing. It is now very uncommon for the magistrate himself to write down the particulars, and one also very often finds it difficult to decipher the handwriting of a magistrate who is obliged to write very quickly to record the evidence as given. Therefore we feel that now that this amendment is before us, it would be advisable for a copy of the record to be given to the accused or his representative free of charge. The reason for that is this. A copy of the record has to be made in any case, and it is not lost for the purposes of the court because if the examination results in anything at all the copies will be needed. The transcription of records, either recorded in shorthand or on tapes, is accepted practice. Therefore the provision of a copy of the record to the accused is not love’s labour lost. The value of the record remains and at the same time it puts the person joined in the charge in the position that he has a copy of the record so that he can study it and cross-examine a witness who gave evidence previously. I move—

I have no objection to the insertion of the words “by the magistrate”. It makes no difference at all. There is only one man who can read the evidence to him, and that is the magistrate himself. That is why in the old Section 60 there is no reference to the magistrate either. It says “provided the evidence given by any witness before such joinder shall be read over to such person”. It was not necessary to say that the magistrate should do it, because he is the only person who can do it. It is not necessary to insert it here, and because of the lateness of the Session and the printing costs I do not wish to insert it here. But if the hon. member tells me after the debate that he is still wedded to these words, I shall insert them in the Other Place, and then we will not have all these technical problems.

In regard to the record, the Act already provides in Rule 62 (8) that the magistrate can provide any person who cannot pay for the record with a free copy. It is also the accepted practice in the magistrates’ courts to povide such persons with records. We need not write that in here either. I shall certainly not give it to the man who can afford to pay for it, but to the man who cannot pay the rules make this provision and it is done in practice. Therefore it is not necessary to accept that amendment.

I understand that we need no longer discuss the matter of the magistrate reading the record, but as far as copies of the record are concerned the Minister’s amendment provides that if an accused person is joined after the preparatory examination has already begun and evidence has been led, he is entitled to inspect the record and he may cause copies thereof to be made. If, as the hon. member for Florida has pointed out, the transcript is done manually by the magistrate concerned, it is almost impossible for anyone to read that record except the magistrate himself. In those circumstances it is of no assistance to an accused person, assuming he can read the language in which the evidence has been recorded, to give him the right to inspect the record, and in respect of the great majority of criminal trials the accused persons are illiterate, and that does not help them. The only way they can get knowledge of the evidence is to hear it with their ears. Causing copies to be made is not of the slightest assistance to the majority of accused persons either, because they are very often paupers. They cannot make copies themselves, because in nine cases out of ten they are illiterate and they cannot cause copies to be made because they cannot afford it. Consequently they have to rely entirely on the résumé or prices of the evidence given to them. These sections of the Minister’s amendment are quite clearly intended to supplement the résumé of evidence that is given to the accused. I hope it is clear that in many cases there will not be such supplementation of the evidence for an accused because they will not be able to read the record or cause copies to be made. I go further and say that even in the case of the man who can afford it, I do not see why he should be required to do so. It is not his fault that he is brought before the court only at a later stage, and it is not his fault that the evidence was not read over to him, and it is wrong that even a person of moderate means should be put, in many cases, to considerable expense in buying a copy of the record, merely to know what evidence has been led against him. After all, we have to try to balance the inconvenience in some cases—not in every case—of having to read over lengthy evidence which may take some hours, on the part of the State, with the inconvenience of the person who is not being charged but is merely brought into a preparatory examination prior to being charged, and who may be perfectly innocent. I think the only way to balance the scales is to ensure that he is given free and as a matter of right a copy of the record of evidence up to the stage where he comes into the case.

I want to appeal to the Minister to drop this sub-section (3) at this stage, because it is quite wrong. It will only cause hardship, not only to the rich but to the poor. I move—

I know what goes on to-day. Due to the number of cases and the time it takes to try a person, there are shorthand records and tape recordings and it is not always possible for the transcript of evidence to be done when the trial continues the next day or the day after. It takes some time and it is no use saying the magistrate must give him some idea of what is going on. It is of no value. Any person wants to know what the evidence was which was given before he became a coaccused, and his lawyer wants to see it to know what case they have to meet. I appeal to the Minister to withdraw this clause now and to introduce it in the Other Place on the basis I am suggesting, that he can be joined but his trial cannot proceed until the magistrate is satisfied that he has had the opportunity of obtaining the record of evidence given prior to his being joined. That is fair enough. There can be no prejudice to the State. They cannot expect an accused to meet the points given in evidence against him within a day or two. The Minister as a barrister should realize what consultations are necessary with the client and the witnesses. How can you expect a man who is suddenly joined to be ready with his defence without knowing what is going on?

I just want to make a brief point. Assuming that the individual takes advantage of the provision to inspect the record of evidence or to make or cause copies to be made, if the evidence is mechanically recorded it will have to be transcribed in any event, and also if it was recorded in shorthand. All it will virtually mean is that in order for the Clerk of the Court to make a copy available, it will have to be transcribed and copies are made, so that the amendment will enable the accused to get a copy of the record and the cost of the copy will probably not even cost the State anything because the cost has to be incurred in any event.

I would have agreed with hon. members had we been dealing here with a summary final trial, but it applies only to a preparatory examination. There can therefore be no prejudice to the accused at all. He can recall the witnesses. Now what is more important to him, that a concise summary of the evidence is given to him, or that it be read out to him at the rate of 100 miles an hour in court? It is much more important to him to have the first-mentioned. For the rest, he can consult the record. If it is recorded on a tape, it can be played over to him. If he is a poor man who cannot afford it, there is provision for his receiving a free copy. As hon. members know our magistrates, do they think they would continue with a case for a single moment if a man was not aware of the evidence against him? But even if one finds anyone foolish enough to do it, nothing can go wrong finally with the accused, because this is just a preparatory examination and in most preparatory examinations no questions are put in cross-examination. In probably 80 per cent of preparatory examinations there is no cross-examination.

We as attorneys know the difficulties and the Minister must accept our assurance that we are not trying to obstruct the clause; we merely want to make it workable. The Minister says this is a preparatory examination and that at some future date he can get the evidence, but the Minister must realize that there are many cases where people want to be discharged at the end of the preparatory examination because they do not want the charge hanging over their heads, and they do not want to wait to get the evidence in dribs and drabs. I ask the Minister to accept this amendment. He will not be prejudiced.

Hon. members know the courts as well as I do. Where an attorney or an advocate appear, we need not be concerned because then nothing can go wrong. We have in mind now only the case where the accused appears in person, and the hon. member more particularly has in mind the case where a Coloured or a Bantu is appearing. What will now happen in practice? The magistrate will tell him: So-and-So said this and that about you; do you want the witness to come back so that you can cross-examine him? This is the most effective way of dealing with it. If he cannot read or write, what use is it to give him a statement? That is not the system at all. In practice it is much better if the magistrate tells him: The witness said you did this; what have you got to say, and do you want to question him about it? Surely no injustice can take place then.

We do not wish to prolong the discussion of this clause in view of what the Minister has said, that if the hon. member for Florida considers the matter and later makes representations to him again and he still wishes the words “by the magistrate” to be included, the Minister will insert them in the Other Place. In view of that, we will not press the amendment now, but I want to tell the Minister that with regard to the second amendment, in regard to supplying a free copy of the record, we shall also reconsider that in view of what the Minister said and make our recommendations to him again in that regard.

I think technically that amendment is wrong, because it will require the State President’s authority to incur additional expenditure.

As was pointed out, in any event if the accused is committed for trial a copy of the record will have to be made and that will not involve extra expenditure. [Interjection.] But we can discuss that with the Minister afterwards also. I think we are at one with what is required, and the question is how to bring it about, and we are prepared to drop the matter at this stage and we will discuss it with the Minister before the Bill goes to the Other Place.

With leave, the amendments proposed by Mr. Miller were withdrawn.

Amendment proposed by Mr. Barnett put and negatived.

Clause, as printed, put and agreed to.

On Clause 23,

This is the 12-day detention clause, which empowers an Attorney-General to order that a man shall not be released on bail for a period of 12 days, thus extending the period from two days to 12 days. The rule has always been that a suspected person shall not be detained in custody for more than 48 hours before being brought to court and charged. That has been extended year by year and this side of the House has always been opposed to this provision, particularly now, in view of the many assurances we have had from the Minister and the Prime Minister that so far as the security of the country is concerned everything is now under control and that the various subversive organizations have been broken and that there is really only a little mopping up to be done. Now, one does not require this provision in order to do the mopping, and consequently we feel that now, less even than last year or the year before, no case has been made out for this provision, and accordingly we are against it.

I want to draw the attention of the Minister to certain cases on this point which were dealt with in 1961 when this provision was first brought before the House. I would like to quote an extract from one of the cases, the case decided in the Transvaal in 1909, in which the application for bail in a murder case was refused by the court after an objection had been taken by the Attorney-General. The court put it this way, and this has been good law ever since—

In other words, there always has been a very wide discretion left to the courts with regard to bail. Our impression at the time was that it was very difficult for some of these accused to be arraigned within 48 hours, but I think, from the way the section reads, the accused still has to appear. All that the Attorney-General can do is to say that he should be held for 12 days without bail. But there has always been a very full discretion left to the courts and I do not think the Minister should proceed with the re-enactment of this provision.

I can understand hon. members being opposed to the clause, but I have said that certain Attorneys-General think that they can do without it at this stage, while others feel that they cannot. It is particularly those who are near the Protectorates who feel that they need it, for very sound reasons. A man is arrested and there is a strong suspicion that he has a fairly bad record in regard to subversive activities, but it is just impossible to ascertain precisely within 48 hours what his record is and then to make arrangements that if he is granted bail—because unless one can indicate sound reasons why he should not be granted bail the courts will grant it—he will not escape. Hon. members know that many people have tried to escape in spite of the fact that bail was high. Some got away; others were pursued and caught. Now hon. members will understand what our problems are in this regard. The hon. member for Durban (North), who knows what goes on in the courts, knows that the Attorney-General of Natal has not abused this provision and has made very sparing use of it. Other hon. members also know that the Attorneys-General use it very sparingly. We are not dealing here with a politician who may possibly be accused of having exceeded his discretionary powers. We are dealing with a responsible official, the Attorney-General, who must intervene personally, because he must issue a certificate, and he will not do so unless it is absolutely essential. I therefore regret that for the present I must insist that this provision be extended again.

The Minister says he is sorry that for the present he must retain this provision. It was originally introduced in 1961, and again in 1962 and 1963, and now again, and it looks as if this is going to become a permanent part of our legislation. I objected to it originally and I object to it again now. I have not the slightest doubt whatever that the Minister will come back again with it next year, although he says for the present he must retain it.

If necessary, I will.

We are opposed to this clause. The Minister himself says he does not like the provision, but he says that because certain Attorneys-General still need it he intends to re-apply it. Our position remains the same. We are still opposed to it and we shall vote against it.

Clause put and the Committee divided:

AYES—74: Badenhorst, F. H.; Bekker, H. T. van G.; Bekker, M. J. H.; Bezuidenhout, G. P. C.; Bootha, L. J. C.; Botha, H. J.; Botha, M. C.; Botha, P. W.; Botha, S. P.; Coertze, L. I.; Cruywagen, W. A.; du Plessis, H. R. H.; Fouché, J. J. (Sr.); Frank, S.; Froneman, G. F. van L.; Greyling, J. C.; Grobler, M. S. F.; Haak, J. F. W.; Hertzog, A.; Heystek, J.; Hiemstra, E. C. A.; Jonker, A. H.; Jurgens, J. C.; Keyter, H. C. A.; Knobel, G. J.; Kotze, G. P.; Kotze, S. F.; Labuschagne, J. S.; Loots, J. J.; Luttig, H. G.; Malan, W. C.; Marais, J. A.; Marais, P. S.; Martins, H. E.; Meyer, T.; Mostert, D. J. J.; Mulder, C. P.; Muller, H.; Muller, S. L.; Nel, J. A. F.; Niemand, F. J.; Odell, H. G. O.; Otto, J. C.; Pelser, P. C.; Potgieter, J. E.; Rall, J. J.; Sadie, N. C. van R.; Schlebusch, A. L.; Schlebusch, J. A.; Schoonbee, J. F.; Serfontein, J. J.; Smit, H. H.; Stander, A. H.; Steyn, J. H.; Treurnicht, N. F.; van den Berg, M. J.; van den Heever, D. J. G.; van der Spuy, J. P.; van der Walt, B. J.; van Eeden, F. J.; van Niekerk, M. C.; van Rensburg, M. C. G. J.; van Wyk, G. H.; van Zyl, J. J. B.; Venter, M. J. de la R.; Venter, W. L. D. M.; Verwoerd, H. F.; Visse, J. H.; Vorster, B. J.; Vosloo, A. H.; Waring, F. W.; Wentzel, J. J.

Tellers: D. J. Potgieter and P. S. van der Merwe.

NOES—44: Barnett, C.; Basson, J. A. L.; Basson, J. D. du P.; Bronkhorst, H. J.; Cadman, R. M.; Connan, J. M.; Cronje, F. J. C.; Dodds, P. R.; Durrant, R. B.; Eaton, N. G.; Emdin, S.; Field, A. N.; Fisher, E. L.; Gay, L. C.; Gorshel, A.; Graaff, de V.; Henwood, B. H.; Hickman, T.; Higgerty, J. W.; Hourquebie, R. G. L.; Lewis, H.; Malan, E. G.; Miller, H.; Mitchell, M. L.; Moolman, J. H.; Moore, P. A.; Oldfield. G. N.; Plewman, R. P.; Radford, A.; Raw, W. V.; Ross, D. G.; Steenkamp, L. S.; Steyn, S. J. M.; Streicher, D. M.; Suzman, H.; Taurog, L. B.; Taylor, C. D.; Timoney, H. M.; Tucker, H.; Warren, C. M.; Waterson, S. F.; Wood, L. F.

Tellers: A. Hopewell and T. G. Hughes.

Clause accordingly agreed to.

On Clause 26,

The amendment embodied in this clause is to restate sub-section (1) of Section 191, and as I read it it does not change the meaning at all. It is merely a re-wording of the existing provision, and all I wish to ask is why we are re-wording the clause if it still has the same meaning.

The wording of Section 191 (1) as it reads now is not clear and consequently it creates confusion. It is provided, inter alia, that if it appears from the evidence that the accused is guilty of attempting to commit the crime with which he is charged, he can be found guilty of an attempt to commit another crime. What is really meant is that he can be found guilty of an attempt to commit that crime if a conviction of that crime is a competent verdict on the indictment with which he is charged. In other words, he cannot be found guilty of an attempt to commit any other crime, but only of the crime with which he is charged. The intention is just to state it clearly.

Clause put and agreed to.

On Clause 27,

Sir, it is Clauses 27 and 29 which, looked at together, constitute some of the worst aspects of this Bill as far as we are concerned. This clause amends Section 212 of the Criminal Procedure Code. Section 212 reads—

And, Sir, note the following words—

Then sub-section (2) says that if he again refuses to do so at the resumed hearing of the proceedings, then the court may again adjourn and may again commit him to jail. Sir, this is a provision which has been here for a long, long time, and it is to provide that witnesses who are called shall be sworn. The object of that section was to persuade that witness to give evidence in those proceedings but note, Sir, that he could refuse to do so if he had a just excuse, and a just excuse would be that he might give evidence which would incriminate him.

That is still in the clause.

Yes, it is still in the clause, except when you look at Clause 29, then it is not still in the clause if the man is an accomplice because he no longer has a just excuse; he can no longer be excused from giving evidence on the ground that it might incriminate him. He is now obliged to give evidence which will incriminate him, and that is the big difference. It is all very well for the hon. the Minister to say that it is still in the clause; I know it is still here, but so far as accomplices are concerned it means nothing whatsoever any more. Sir, the object of this clause is changed now because what is provided for in this clause is that if he fails to give evidence he may be sentenced to imprisonment for a period not exceeding 12 months. Those words are not used in the present section which is being amended by this clause. I want to say to the hon. the Minister that this clause, if you read it together with Clause 29, provides exactly what the hon. the Minister has in terms of Section 17 of the General Law Amendment Act of 1963—the 90-day clause. He can do here, through the court, exactly what the police can do under the 90-day clause, because he is sentenced to imprisonment for 12 months because he refuses to give evidence incriminating himself, subject to the proviso that that sentence can be reduced or set aside if he then decides that he will give that information, and it is information that they want from him. That is what is wanted from 90-day detainees. I want to ask the hon. the Minister in all sincerity whether he proposes under this clause to adjourn the trial at which a witness refuses to give evidence for 12 months. I do not think the hon. the Minister would have that in mind. I doubt that any court in this country would grant an adjournment of a trial for 12 months.

I do not think so either.

No, I thought the hon. the Minister would not. If the hon. the Minister does not visualize that then I am right. The object of this is not to adjourn the proceedings so that he will give evidence at those proceedings; the object of this clause is to make the man give some information to the court; it is to force an accomplice to give evidence. What disturbs me about this is that obviously the hon. the Minister has in mind only accomplice evidence in relation to these matters, otherwise he would not force accomplices to give evidence. This is the clause by which accomplices are forced to give evidence. They can be put away for 12 months. It is quite true that the court may proceed, but I want to ask the hon. Minister another question: How many cases are there going to be where the accused will not have to be discharged if an accomplice refuses to give evidence and he is imprisoned for up to 12 months because of his refusal to give evidence? Obviously the accomplice will not be called before the court as a witness …

You are arguing on Clause 29 now.

No, I am arguing on this clause but I am applying Clause 29 to it; it must be read together with Clause 29, and it is in relation to accomplices that all my remarks here apply, accomplices to whom this clause is to be applied. These persons are going to come before the court to give evidence. They can only be called after the accused has been arraigned, after he has pleaded. Sir, these are accused persons in respect of whom the accomplice is a sociiscriminis, and if they have pleaded and the accomplice refuses to give evidence, those accused would be entitled to be discharged, and what is the hon. the Minister going to do then. I can hazard a shrewd guess as to what is going to happen then; then they are going to reverse the roles and charge the accomplice and put the accused in the witness-box as accomplices and get them to give evidence against him, and so the procedure could go on ad infinitum and forever and neither the accused nor the accomplice might ever come out of the circle which could be-created by this clause. I do not think that the hon. the Minister must use the powers that it has under the 90-day clause in terms of these two clauses. If he has to do this sort of thing then he must do it in terms of the law that he has at the moment but he must not use the courts to do the work which the police are doing under the 90-day clause. Sir, I say that my remarks here apply only to accomplices. But the hon. the Minister has on the Order Paper two amendments which he says have been suggested by the Cape representative of the General Council of the Bar, and we will, of course, agree to those amendments because they will put the law back to what it was; the wording of this will remain just the same as it was except that instead of eight days it will be 12 months and instead of just adjourning the proceedings for eight days it will be a case of sentencing the man to imprisonment for up to a whole year. Sir, that clause by itself still would not look so bad were it not for the amendment contained in Clause 29. I hope the hon. the Minister will give us some explanation as to why he has decided at this stage that he has to have this power.

Hon. members will recollect that I said in my second-reading speech that the representative of the Bar Council had agreed with me in respect of Clause 29. That was so. During the course of the morning, however, I received a note from him, and I just mention it in fairness towards him, in which he told me that he had reconsidered the matter last night and this morning and that he did not think, after having considered the matter, that he ought to agree with me further. The position is therefore that he no longer agrees with me, as he did yesterday, in regard to Clause 29.

It is very fair of you to tell us that.

At this stage I just formally want to move the amendment of which I gave notice—

In regard to Clause 27, I cannot believe that any hon. member can have any objection to the new provision that instead of eight days it is within the discretion of the court to make it a longer period, but not exceeding 12 months. I shall tell hon. members what gave rise to this matter; I think I mentioned it in my second-reading speech and the newspapers were full of it. What gave rise to this amendment was the protracted sabotage case in Cape Town in which the hon. Judge van Heerden sat, the case of Alexander and Others. In that case certain accomplices offered to give evidence for the State. They were called after this case had lasted for several months and then they simply refused to take the oath and to give evidence. There was absolutely nothing one could do about it because they were accomplices. But these people deliberately abused the court procedure. What would the hon. member have done had he been the prosecutor in that case? These people offer to give evidence for the State; he needs their evidence to support his case; he is under the impression that they are bona fide and that they are telling the truth and that they wish to tell the truth in court, well knowing that if they later refuse to give evidence there is nothing he can do to them except to charge them. That means that one has to set afoot a process lasting for months again. In this particular case the evidence of the people concerned was not so essential that it hampered the State; the State in any case still obtained a conviction, but surely this is abusing the procedure of the court. Neither the hon. member nor I, nor any other lawyer, will call a witness unless we know what he is going to say, because if a witness gives evidence for one’s client one is bound by the evidence he gives. Therefore one does not call him unless one has consulted with him; one does not go to court with a witness who is unwilling right from the beginning; it would be foolish to do so. In practice, therefore, this applies only to cases where people have offered to give evidence for the State and who then leave the State in the lurch at the last moment, either because they had always intended to do so or because in the meantime they had got cold feet or possibly because they were threatened. I am quite honest with the hon. member; I am telling him quite frankly why I need this amendment. I do not want to have a repetition of what happened in the Alexander case, and this is the only way to prevent it.

In regard to Clause 29, I shall argue it when we come to that clause. But in regard to Clause 27, the position is that all we now have before us is the old section, the only difference being that instead of eight days it is now 12 months. It is also 12 months in Britain, and nobody has ever quarrelled with Britain because the Supreme Court there has that power.

The hon. the Minister is revealing a prejudice in favour of Britain in this case.

I do not mind doing that when it is necessary—not at all. I will of course not do it if it harms South Africa, but when it benefits South Africa I do not mind doing it. We are not dealing in Clause 27 with the accomplice; we deal with him in Clause 29, and then I will discuss the matter on its merits. I am just dealing now with Clause 27 as it stands here.

I should like to take one other point in addition to those which have been raised by the hon. member for Durban (North) (Mr. M. L. Mitchell), and it is this: The hon. the Minister will no doubt make the case that there is really no change so far as the proposed procedure is concerned because there was always an indemnity …

That is Clause 29.

I appreciate. Sir, that that is Clause 29, but the effect of it is really under Clause 27 because you cannot argue Clause 27 without referring to Clause 29. I may say that I do not propose to put up the same argument under Clause 29 because the matter will have been dealt with already.

If I may interrupt, do you suggest that we should argue both Clause 27 and Clause 29 now get it over with.

That is a good idea.

Yes, I am prepared to do that.

On Clauses 27 and 29,

Sir, the argument will be that there can be no objection to the proposed procedure because if the person concerned gives evidence to the satisfaction of the court then an indemnity will be given to him. I appreciate that that is the position at the present time, but the important difference is that at the present time the accomplice concerned has an option as to whether or not he is prepared to accept the position that he will give evidence for the State subject to an indemnity; that rests on him; there is no compulsion on him in that regard; he makes up his own mind, and if there is any chance to be taken that he might thereafter be prosecuted or put in prison then it rests on him; it is a chance which he himself is taking. He no longer has the option now to make up his own mind in that regard; it is going to be compulsory. He may get an indemnity in respect of the offence with which the accused are then being charged in those proceedings; there is no indemnity in respect of any other offence with which he may be charged as a result of the evidence which he has been compelled to give. That is the position.

Look at Section 255.

The wording of Clause 29 is perfectly clear—

Sir, it is very seldom that the evidence which the person is required to give can be limited if his evidence is to be useful at all …

Even if it incriminates him.

… particularly when it is a statutory offence of the kind where you have 101 different offences very closely related, all of which can be drawn out of one particular set of facts. The difficulty one has then is that although he may be given an indemnity in respect of the offence which is the subject of those proceedings in which he has been compelled to give his evidence, there is not necessarily an indemnity at all in respect of any other offence which may arise out of the evidence which he has been compelled to give in those proceedings. Consequently it is no answer at all in many cases to say that the man is protected because he has been given an indemnity. Under the present law that is a chance which he takes for himself. What is the factual position in a trial of that kind? He is an accomplice or an accused person. The State wants to strengthen its evidence by calling the evidence of someone who was involved in those proceedings; the State goes to the individual concerned and says, “If you will give evidence for the State we will give you indemnity.” and the man makes up his own mind as to whether he is going to take that chance or not. The chance is that if he goes on in those proceedings he might be convicted whereas if he elects to give evidence for the State he may get away scot-free. Well that is a fair chance and it is a chance that he has to take and he makes up his own mind, or if he has legal advice he gets legal advice. Sir, that is an understandable position; it is reasonable and it has worked reasonably well. But the danger which arises out of Clause 27, read with Clause 29, is that he may, as the hon. member for Durban (North) said be compelled to disclose evidence whereby he himself can be charged. Sir, that is against our whole system.

That has never been the position.

As I read the clause, it can be the position.

Read Section 255.

That has nothing to do with it.

It amounts to this that you can compell a man to be the detective against himself. I think we would all consider that to be wrong, and that is one of our objections to this clause.

I cannot understand the difficulty of hon. members opposite, because in the first place, in terms of the section as it is now amended, i.e. Section 212, such an accomplice or accessory can in any case not be prosecuted for the same offence if he gives evidence for the State. This section gives him that exemption. I think hon. members will surely agree with me on that: it says so in the section. But the hon. member for Durban (North) (Mr. M. L. Mitchell) put it even better. He says it is possible that such a witness may give evidence which may be used against him in another criminal case.

I did not say so, but it is nevertheless true.

That is what the hon. member meant. The hon. member is now arguing as if Sections 212 and 254 are the beginning and the end of the whole of our criminal procedure. But there is Section 255 which expressly provides that where such an accomplice has given evidence, then that evidence— and you should note the words, Sir—will not be used against him in any other criminal prosecution. The section provides—

Again we get the indefinite article “an offence”; it does not matter which offence; it also includes all the other offences falling outside that particular offence. Therefore Section 255 already solves the problem which exists only in the imagination of the hon. members for Durban (North) and Zululand (Mr. Cadman). I think all hon. members will agree with me on that point. For the sake of the record in respect of the amendment we are making to Section 212 by means of Clause 27, I just want to say this: At present there is no sanction which can be applied to an obstinate witness. His evidence is perhaps very essential and indispensable. To send him to prison every time for eight days is in the first place unnecessarily to advertise the case, and secondly it is not really a punishment because he does not actually go to prison; he is also an embarrassment to the prison authorities because he is not a convict. We are the only country among the Anglo-Saxon countries, as I said the other night, who deal with a witness in that way. In terms of the British law, if a person knows something about an offence and he is called by the court to give evidence and does not do so, or if he is called and is sworn and he refuses to answer questions, then it is contempt of court; it is an offence. What the punishment is does not matter now.

Is tosition in America also?

I do not know what the position is in America, but I have been informed that it is an offence in Britain. It is contempt of court.

And what about the accomplice?

Anyone who is competent and compellable commits an offence when he does not give evidence when asked to do so.

An accomplice is not compellable.

Let me quote to the hon. member from Phipson on Evidence, at page 480—

I can also quote to the hon. member from two places in Hailsbury. Hon. members say that because an accomplice cannot be compelled to give evidence this rule does not apply to him, if I understand them correctly. That is their argument.

Yes.

The section we are amending, viz. Section 212, deals with the case where a witness has said that he would give evidence for the State; he must have agreed to do so. He offered to do so. Well, when he offers to do so, then the privilege which he has of not being compelled to give evidence falls away; we now make it an offence if he refuses, and although we could have sent him to prison three or four or five times for eight days at a time under the old Act, we can still send him to prison for three, five, six or eight days as a convict, because surely the court has a discretion.

Now we come to the other case, where an accomplice at his own request goes to give evidence. Hon. members are now concerned that such a person who formerly had the right to refuse to give evidence because he was not compelled to do so and was not obliged to do so and could not be compelled to do so, but who has now through his own actions put himself in a position …

That is not provided in Clause 27. They can only call him if he is present in court.

On that argument any accused person in the court may be told: “Now you must give evidence”. Surely that is nonsense. Hon. members always think of absurd things and then they say they are possibilities, even though they are highly improbable. They now give that interpretation to the words, “anyone who is present in the court”, but all the accused persons are present in the court. Which Judge, magistrate or Attorney-General or prosecutor will ever get it into his head to say: “Because you were brought here by the police you will go into the witness-box and give evidence against yourself”?

We were not referring to the accused persons.

The hon. member for Transkeian Territories (Mr. Hughes) should not forget that if he knows anything about a crime, even though he is not in court, it is his duty to inform the police about it. It is his duty to go and give evidence in court. But nobody really concerns himself with that hon. member, even though he knows about a crime. That is why the police do not fetch him. But the fact is that if he is in court …

You are twisting your argument now.

No, not at all. I say that if the hon. member for Transkeian Territories is in the court, there is a duty on him to give that evidence. When the court tells him: “You know something about it; give evidence”, then he must do so. If he does not do so, it is an offence, if we pass this clause. What is wrong with that? If there is a duty on an individual and there is no sanction, then it is an imperfect law which gives one that duty, and it is our task to make that imperfect law perfect. I have now interrupted myself, Sir, and you must forgive me.

You are the only one who listens to yourself.

The hon. member was looking for it. I come back to this case. The hon. member for Durban (North) evidently knows more about it than the hon. member for Transkeian Territories. The hon. member for Durban (North) is very concerned that somebody may have to give evidence against himself. I repeat that we have Section 255 which refers to any trial and any offence. The hon. member for Zululand shakes his head. It seems to me he cannot understand this section. Even if a witness in a trial gives incriminating evidence, it can never be used aganst him— neither in that trial nor in any other trial. That is contained in Section 255.

Sir, as I have said, Clause 27 brings us into line with what is accepted in regard to sanctions for obstinacy. Clause 29 does no injustice and causes no prejudice to an accomplice who gives evidence, because he is already covered by Section 255 of the Criminal Procedure Act.

I just want to add a few points to the arguments which have already been advanced. The one is that the period of imprisonment is now being extended from eight days to one year—one year at a time. And I gather that this can indefinitely be re-imposed.

In the discretion of the magistrate.

In the discretion of the magistrate …

Provided the case is still on.

Yes, I realize that. It is a very extensive penalty—from eight days to one year at a time. And it can be re-imposed thereafter. I must say I do take a little comfort in the fact that the court at least must impose it. If anybody has to have this power I would rather the courts have it than for the Minister to use the power under Section 17. Here I differ from the point made by the hon.. member for Durban (North) (Mr. M. L. Mitchell). That is just one point I want to stress.

The other is an even more important point, I think, and that is the question of who is and who is not an accomplice. I understand that this is a very complex consideration and one which has exercised the minds of legal authorities for many years. The existing law says that it has to be “in the knowledge” of the prosecutor. Now it is “in the opinion” of the prosecutor. That is a very important change. I think our Statutes are far too frequently sprinkled with the words “in the opinion of”. The court should be dealing with facts and not opinions.

Where do you read “in the opinion of”?

In line 39 of Clause 29. We are discussing Clauses 27 and 29 together, as the hon. member knows or should know. Line 39 changes the existing law of “whenever the prosecutor at any trial or preparatory examination informs the court that any person produced by him as a witness on behalf of the prosecution has, in his knowledge …” to “in his opinion”.

Who else could it be?

Oh. dear! Honestly, Mr. Chairman, it astonishes me. The hon. gentleman is supposed to be trained in the law. I am not questioning the person who decides. I am questioning the grounds on which that same person decides. As the law stands it must be “in his knowledge”, which means he has to produce evidence; he has to produce reasons why “in his knowledge” he believes this person to be an accomplice. Now it is “in his opinion” and that is an important change.

He has offered to give evidence and the prosecutor knows about it.

Can the hon. member tell me why it is necessary to change the existing law which has apparently stood this country in good stead for a very long time. I say our Statutes already have far too many of these expressions “in his opinion”. It is either the Minister’s opinion, or the Attorney-General’s opinion, or the opinion of the Commissioner of Police or somebody else’s opinion. Let us rather deal with facts based on evidence; then we are on much surer ground. I therefore suggest to the hon. the Minister that the least he can do in Clause 29—and I think I shall move such an amendment, if I may—in line 39, after the word “has” …

It is to the advantage of the accused if your interpretation is correct.

An advantage to the accused? Perhaps the hon. Minister will enlighten me on this before I move an amendment.

Let us now look at the theory and the law in regard to this matter. Let us argue it step by step and see whether we are doing any injustice or prejudicing any person. If hon. members can prove to me—and we can argue this matter for just as long as hon. members wish to—that we are doing any injustice to any individual, then I am prepared to withdraw both clauses. Because that is not my object and under no circumstances do I want to do any injustice to anybody. I have considered this matter and I have discussed it for a long time, and with the best will in the world I cannot see that we do any injustice or that we prejudice any person. Any private individual—it does not matter who he is—may be summoned, however inconvenient it may be to him and whatever the consequences flowing from it might be to him; in other words, he may be forced against his will and his wish to give evidence in court. I take it that the hon. member for Durban (North) agrees with me?

Yes.

Any person who has already been convicted by a court, any person who is already serving a sentence, can in theory, in terms of our law, be summoned to give evidence. Attorneys-General and public prosecutors do not do this very often, but it may be done. There is nothing against it in the law.

The defence often does it.

Yes, the defence particularly often does it. In other words, it is not immoral; there is nothing wrong in calling as a witness a person who has already been convicted. The hon. member for Durban (North) and I may commit a crime together. For some reason they cannot trace me. In the meantime the case against the hon. member has been disposed of and he is serving his sentence. Now they arrest me. In theory and in practice he may be called to give evidence against me, in spite of the fact that he is an accomplice. There is nothing wrong with that, and nobody has any objection to it. Now take the case where they arrest the hon. member and me together. The hon. member now offers to give evidence against me. He is now subpoenaed to give evidence against me. Now the hon. member must tell the court not only what I did, but also what he did. If I make use of that in order to charge the hon. member later, on the basis of what I forced him to say as a witness, that would be highly immoral. Then it is wrong; then one must condemn it and it cannot be tolerated. Now what is the difference between the person who has already served his sentence and who is then called as a witness, and the person who has not yet served his sentence? There is only one difference, and that is the only difference that hon. members can mention to me. The only difference is that it is against our concept of morality, against our understanding of the law, to force a man to give evidence against himself, evidence which may later land him in trouble. That one dare not do. But the moment one tells him—and this is what hon. members do not realize—“If you tell your story (and I am now the cause of your being in the witness-box), I will not prosecute you because you have told your story”; surely there is nothing immoral in it. It does not prejudice him; it is not wrong to do so. The exemption from prosecution is in the hands of the court, and it may happen that he gives his evidence in such a way that the court refuses to exempt him from prosecution. Then Section 255, which is not being changed, provides that that evidence may not be used against him in any other case. Therefore, also in that respect, there can be no prejudice whatever.

Hon. members now argue as if we will just tell the person who is there as the accused: “You must now give evidence”. They argue that the prosecutor will force him to give evidence in court. Surely I have already advanced the argument that no prosecutor and no advocate will ever call a witness from whom he does not have a statement and when he does not know what he will say. Surely that is the most certain way of ruining one’s case, particularly in such cases, by calling such a witness. One just cannot imagine it ever happening in practice.

If I understood the hon. member for Zululand correctly, his argument was as follows. It is true that he receives exemption from prosecution for this offence, but he may be forced to give evidence in connection with another offence. But he has a right to say no, he will not give evidence in regard to that other matter. That right remains untouched. We are just dealing with this offence, and not with other offences. In other words, there can be no prejudice to the witness. If he tells the truth, he walks out as a free man. If he does not tell the truth, according to the judgment of the court, he just runs the risk of being charged. He can be charged in any case. Where is the injustice and what prejudice is there in any way? If hon. members can prove that to me—and I shall listen to them very attentively —I will be the first person to withdraw these two clauses.

The hon. the Minister says the only difference between a convicted person and an accomplice is that you don’t want to force a person to give evidence against himself and that our law distinguishes between them on that basis. That was how I understood the hon. Minister.

That is right.

That is of course quite right. But you see, Sir, that is precisely the basis of our objection to these two clauses. It is basic to our whole concept of criminal law.

What prejudice is there?

Of course there can be prejudice.

I would love to hear your argument.

I shall do so immediately, Sir. In the first place the law at the moment says that if you are an accomplice you may choose whether to give evidence or not. You take it upon yourself because the prize you get for giving evidence as an accomplice is a discharge in respect of the offence for which you would otherwise be found guilty on your own evidence. So that is your prize. If you don’t give evidence correctly or to the satisfaction of the court what happens to you? You dont’ get a discharge. You have disclosed all sorts of things about yourself which would otherwise not have been known. Surely that can be prejudicial.

When the hon. the Leader of the Opposition talked about this last night the hon. Minister said he must look at Section 255 of the Crinimal Procedure Act. The point my hon. Leader was making, if I remember correctly, was that he could be prejudiced in another way in the sense that he may be an accomplice in one offence and give evidence relating to another offence.

He has the right to say he is not prepared to give any evidence relating to the other offence because that will prejudice you.

But is that so, Sir? The Minister’s reply last night was: Look at Section 255. It says this there—

Provided, of course, he does not commit perjury. One hon. member laid stress on the words “any offence”—“No evidence given by an accomplice … in respect of any offence … shall be admissible against him.” It is quite clear that this means only the evidence in relation to that particular offence. It says “any offence” but the words “any offence” is prescribed by the words of the section. It says—

That means “any offence”; i.e. all offences not particular offences—

Let me not give the hon. Minister my view. Let me give the hon. the Minister the view of the learned authors of Gardiner and Lansdown which is accepted by our Courts. On page 664 they say this about this Clause—

It does not refer to any evidence in relation to anything else that might have come up.

My point is this: If he is asked anything about another offence he can refuse to answer because that might prejudice him; it has nothing to do with that offence in regard to which he is giving evidence.

I would like to examine that. The hon. Minister says he does not want to do anyone an injustice. He said he would listen to us carefully and that if we could prove it to him the hon. Minister might withdraw these two clauses. I am sure we shall prove it to him. And I am going to prove at a later stage to the Minister that he is going to do an injustice to our courts. He is going to do an injustice to our system of justice.

Don’t get away from the argument.

No I am not, Sir. The distinction between accomplices and anyone else, as the Minister himself has said, is that you don’t force a man to give evidence against himself. If the Minister accepts that …

You don’t force a man to give evidence in order to convict him.

Ah, to convict him, but you force a man to give evidence which can incriminate him …

So that you can convict him, obviously.

Does the hon. Minister say that this provision in our law, has, in fact, been quite unnecessary all these years. [Interjections.] No, it is a fair question. The hon. member for Heilbron (Mr. Froneman) must not sit and groan in his corner; he must rather make a contribution. I think it would be a better contribution than that we have had from the hon. member for Standerton (Dr. Coertze). This is the question I want to put to the hon. the Minister: If I understand him correctly, his argument is: “Look, we are not really doing anything wrong; this has been unnecessary in our law ever since time immemorial”. Does the hon. the Minister say that?

My argument is that now that you indemnify him there is absolutely no reason why you should not force him to give evidence.

But he has always been indemnified, Sir. Accomplices have always been entitled to an indemnity from the court. Is that not so?

Yes.

Well, then I still do not understand the hon. Minister’s argument. He has always had indemnity. The hon. the Minister says he now has an indemnity, but he has always been entitled to that. Does the hon. Minister say our law has always been wrong in this regard? I know it has always been in the discretion of the court. I say that, Sir, because last night by way of interjection the hon. the Minister seemed to indicate that something new was being provided; seemed to indicate that the court was being given a discretion where it did not have a discretion before; that the court could now give an indemnity whereas the court did not give it before. I think we have not understood the Minister’s argument. I hope the hon. Minister will put it a little more clearly. Because if his argument is what I understand it to be then he is saying that the law in relation to accomplices has always been wrong.

I never said that.

Well, then it has always been unnecessary.

It was different.

Yes, it was different. Let me put it this way to the hon. the Minister: What extra protection is he giving the accomplice under this clause.

I shall come to that.

If the hon. Minister can show me what extra protection he is giving to the accomplice then I may begin to understand what the hon. the Minister is getting at. Because quite frankly, at the moment, unless the hon. the Minister can say that his argument does not appear to have any substance.

Having missed some of the debate on this clause and having had to miss much debate on the whole Bill to-day, I am perhaps a little bit reckless to get up on this clause. But I am constrained to do so because of the fact that the hon. the Minister has stated, quite fairly, I believe, that if any disadvantages and prejudices can be shown to an accomplice or other witness he is prepared to withdraw these clauses. I think that is a very proper attitude because the Minister has come with these clauses at a time which has not made it at all easy for representations to be made from the Bar. I do not know whether the Bench has had any opportunity of expressing their views upon this question.

Where the prize is to have this clause withdrawn, one would, even in a hurry, seek to try to show that prejudice does exist. I venture to suggest there is this prejudice: As the law has always stood an accomplice could choose whether to do a deal with the State and give evidence, under the possibility of an indemnity, or not have any protection at all. This is a very important choice he has to make, because if he was an accomplice he had to decide whether the possibility did not exist that those with whom he was perhaps an accomplice might set upon him and do away with him if he came forward to give evidence. He therefore had to weigh up his position, namely, the possibility of vengeance being wreaked upon him if he came forward to assist the State and, by contrast, the protection of the State if he was prepared to come clean. The Minister asks very fairly whether we can show prejudice. I suggest that if this clause goes through as it stands the accomplice will be placed in a position where he no longer has that choice. He will be in a terrible position knowing how prepared people are to wreak this vengeance upon him. If the law goes through as the Bill provides, he will have no choice. It is true that the State gives up its interest in, as it were, exacting punishment from him, but when he walks out into the street he can very well be struck down as retaliation for what he has done. I suggest that that is a most important prejudice to him.

I venture, as I say, in these special circumstances to try to advance another prejudice to him. The hon. the Minister has pointed out that where a person has been convicted it is the custom that they can thereafter be called as a witness. They frequently are. The Minister suggests, as I understood his argument, that the accomplice, in the position in which the Minister is planning to put him, will be in no worse position because he will get a complete indemnity if he tells his story fully and satisfactorily. I think there is another factor here. It is true the accomplice himself is protected (as far as that aspect is concerned), but there is the question of the other principle which comes into the picture, namely, the value of the evidence itself. When the man has been convicted he is relieved of the temptation to exculpate himself and incriminate others. The witness in the case we are now considering is in a different position. He is in this position, that only if he gives his evidence fully and satisfactorily will he get an indemnity. He knows that if he does not do so he will get no indemnity. I venture to suggest that this is the type of situation our Code has always set its face against, i.e. to place in front of a witness the temptation to incriminate others thereby buying his own freedom. I suggest it is for this reason that our law is on the basis it is on now. This is also a clear prejudice, not in so far as the accomplice is concerned, but in so far as the accused is concerned. It is a material prejudice as far as the accused is concerned.

I submit that these are two cases of prejudice which strike one at first sight and I also submit that it is not impossible that upon careful examination of these provisions, other prejudices may emerge. As a matter of fact, other prejudices have already been referred to so far in the debate on this clause.

If I understand the position correctly, the General Council of the Bar remains opposed to these two clauses when they are taken together. The hon. the Minister nods his agreement with what I am saying. Consequently, the view of the General Council of the Bar is that there is prejudice here although it may not have been in a position to outline it clearly to the Minister as yet. But they believe there is prejudice. Prejudice has also been shown by this side. Consequently, I should like to ask the Minister, since he has taken up the very fair attitude that, if he can be convinced there is prejudice, he will not proceed with these clauses, to accept that a prima facie case of prejudice has been made out; and rather than putting these clauses through at this stage, let us instead consider them calmly to see whether there are perhaps points where it would be fair to help the police and where better justice could be achieved. Indeed, such a case may be made out, but not as these clauses are drafted now.

I should once again like to explain the position in this regard. In the past accomplices were called as witnesses, and in very few cases did they refuse to give evidence. I have referred hon. members to the Alexander case, where accomplices abused that opportunity.

Or a mistake was made by the prosecutor.

No, no mistake was made by the prosecutor.

Then in his opinion.

These people offered to give evidence and the prosecutor accepted that offer as a bona fide offer.

Then it was an error of judgment.

Therefore the calling of such witnesses was not wrong in the past. It was not condemned. In fact, it was the accepted practice. And only those people were called who were willing to give evidence. It is my standpoint that one will still call only those people who are willing to give evidence. One will not call a man who is unwilling or who was unwilling originally. One will not simply pull a man out of the dock and say that he has no choice but that he has to give evidence instead of remaining in the dock. That is how the hon. member for Pinelands argues. That will not happen in practice. I want to go even further and say that it cannot happen in practice.

Will you admit that as things are at the moment an accomplice who has offered to give evidence has the right to change his mind before he is sworn in as a witness? And if the Minister admits that that is so, what justification is there for changing this position?

I shall reply to that question when I have concluded my argument. Now I have said that the practice in this regard in future will not differ from the practice followed in the past. All that will happen now is that if a person offers to give evidence he will no longer be able to make a fool of the court as has happened in the past, because that is what it amounted to. I shall tell hon. members why I argue like this. The hon. member can imagine that he is in the position of any Judge. Does he think that any court will allow, if a prosecutor says that he wants to call accused A to give evidence, and accused A says that he has never offered to give evidence, nor does he wish to give evidence, that the court under those circumstances will force that person to give evidence?

The clause reads that he may be compelled to give evidence.

Let us look at the provisions of Clause 27.

No, Clause 29.

But we are arguing on the basis of both clauses together. Let us look at Clause 27. In order to get a witness to give evidence, two things must happen. It is not only a matter of the prosecutor subpoenaeing him, but something independent of the prosecutor’s action must also happen. It is provided very clearly in the proposed Section 212 (1>—

It is therefore not only a matter of getting the witness to come to court, but the court must still tell him—the court and not the public prosecutor who can bully or force him—whether he is expected to give evidence or not. Therefore there is another independent decision on the part of the Judge. If the Judge says he does not think the person need give evidence, then the public prosecutor or the Attorney-General can do what they like but they cannot disobey the Judge. The court is the master. If an ordinary witness is called, the prosecutor is the master, and the court cannot say this or that witness cannot be called. The prosecutor is then master of his case, and as such he can call whom he likes. But in these specific circumstances the court must grant consent to the prosecutor calling such a witness. Can the hon. member see what protection there will be? Can he see the totally different set-up there is?

Are you prepared to accept an amendment to the effect that an accomplice will not be compelled to give evidence unless he agreed earlier to give evidence for the State?

But that is the present practice and it will also be the practice in future. No prosecutor will call a person to give evidence who has not made a statement or who is not willing to give evidence. No prosecutor will be prepared to call a witness in such circumstances. If the hon. member wants to argue with me on the new basis that has now come to the fore, I am quite prepared to listen to his argument. This is an argument which surely has not been advanced before. Nor was it necessary to advance it, because it is simply inconceivable that anything like that could ever happen in practice. If the hon. member, however, thinks that he has a point there, then I am prepared to listen to him. Does the hon. member, however, grasp my point that in this case it is not only within the discretion of the prosecutor or of the Attorney-General to call a person as a witness, but that independently thereof the court must decide as to whether the man should give evidence? That is the important point in this regard.

The hon. member for Musgrave asked whether a man has the right to change his opinion. He has that right. There is not the least reason why he should not do so. Of course one does not want the truth to be toyed with, or that the procedure in the court should be toyed with in that way. But when it becomes clear, as it became clear in the Alexander case, that a person deliberately abuses the procedure of the court, then it is a different matter. Then it is quite a different matter and then I do not mind if steps are taken against him, because I regard it as being much worse than contempt of court. In fact, it is a total misleading of the court if someone acts in that way.

When I put the point a short while ago that I believed prejudice was shown in this clause against an accomplice because he could be compelled to give evidence and in that way disclose the case against himself, the hon. the Minister and the hon. member for Standerton replied by referring to Section 255 of the criminal code. They were rather astonished that I made the statement which I did make in view of the provisions of Section 255. But, Sir, when I made that statement, I was well aware of the provisions of that section. It provides—

and I want to emphasize the word “evidence”…

… on behalf of the prosecution in any criminal proceedings in respect of any offence …

“Any offence.”

Yes, and I accept that for the purposes of this argument.

What the hon. gentlemen opposite do not appreciate is that there is all the difference in the world between evidence, and facts emerging from that evidence. That was the point which I made in my initial argument. Nobody can for one moment suggest that the State is going to use, as a sort of confession—which is the only way in which his evidence can be put before the court—the evidence an accomplice has given during previous proceedings for the purpose of convicting him of that offence or any other offence. What procedure could possibly be employed to get his evidence before a subsequent court except by way of producing a transcript of what he has said and put it in as a sort of confession? It is quite impossible to do it that way. But what could well be done, and this is the prejudice of which I spoke at the beginning, is that he can be compelled to disclose facts, circumstances or a situation as a result of which disclosure evidence could be gained to prosecute him in respect of another offence. The hon. the Minister said that when he was asked about another offence he could refuse, and that consequently there is no prejudice for him to suffer. But an accused person, or a witness, is not asked to give evidence about an offence. He is asked to give evidence about a set of circumstances as a result of which a man is being charged with an offence. The hon. the Minister knows as well as I do that very often from a given set of circumstances two or three or half-a-dozen offences may emerge each of which can be charged separately. That is a prejudice which has certainly not been shown to be ill-founded. We see this prejudice in this clause.

He can never be charged.

But he can be charged. I do not believe the hon. the Minister has ever been involved as defending counsel in the sort of deal one does with the State in matters of this kind. What is the position? When one goes in to do a deal with the State advocate in this sort of case under present law, you ensure that an undertaking is given in respect of all the offences which you can see emerging from that evidence, and not merely in respect of the offence which is in the charge and which the man has to face. You make sure that there is going to be no prosecution in respect of any other offence you can see. That is what happens in practice.

As I say, under this amendment you can force a man to give evidence in regard to a set of circumstances, a happening from which one particular charge is laid in those proceedings, and in dealing with that set of circumstances—and he has got to deal with it fully, otherwise he will not get his indemnity in respect of those proceedings—he may well give the police or the State the key to finding evidence in respect of another offence.

He need not answer those questions if they incriminate him.

That is where I differ from the hon. Minister completely in regard to the interpretation of this clause. I am not concerned with what the hon. Minister would like to happen in practice. I am concerned with the wording here which will have to be interpreted eventually by the Bench. I believe that that is prejudice which has not yet been dispelled.

I find the hon. the Minister’s explanation rather strange when he says that in so far as an accomplice is concerned, the presentation of evidence in a criminal case is in effect in the control of the court. Surely in all circumstances the presentation of evidence is in the hands of the prosecution.

You have not read Clause 27.

I have. The principle of immunity from prosecution of an accomplice who submits to be sworn and who gives evidence for the State, is such a well-established principle of our law of evidence as it stands to-day that it should not be altered except in very exceptional and very necessary circumstances. Sir, that immunity depends on certain circumstances. To be quite specific about it, I will read from Gardiner and Lansdown, Vol. I. It says the circumstance are—

The hon. Minister’s argument is that the present alteration is not going to alter these circumstances at all, that they are going to prevail.

If that is so, then why make a change? Why change what has been operating and what the Minister is now himself defending as being satisfactory.

Because there is abuse and I told you what the abuse was.

Sir, the section as it stands is undoubtedly there to aid the court in arriving at the truth. The danger as I see it of the present change is that it is designed to get information, and those two things seem to me to be completely different. But as regards the circumstances I quote, the first one is that there should be knowledge of the complicity. In the present section it is being changed to merely an opinion as to whether there is complicity. That is a clear distinction. The other change of course is that at present the witness must submit to giving evidence. Now the hon. Minister says that in practice no accomplice will in fact be compelled to appear as a witness unless he has indicated an intention or desire to do so. If that is so, why put in the provision that somebody shall be compelled to give evidence, irrespective of whether or not he answers questions which incriminate him?

I told you what the practice was and if you want the practice to be put in this Bill, I am prepared to consider it.

I suggest that the hon. Minister should leave the practice and the law as it stands. He is defending the present position and at the same time urging that there should be an alteration. That seems to me to be completely in conflict. But I again stress the point that the provision as it reads to-day is designed to aid the court in arriving at the truth. That is why there is a qualified immunity, a qualified protection. The court must be satisfied that he has given satisfactory evidence. Sir, to compel a witness to give evidence is certainly not the best way to get the truth.

You can’t compel him unless the court says that he must give evidence.

Yes, shall be compelled. Consequently most of these cases are going to produce a situation in which the witness will be treated as a hostile witness, or will be asked to be treated as a hostile witness. That of course is an extreme process. But if these clauses go through in their present form, that will no longer be an extreme process, because it seems to me that inevitably the question of treating a witness as a hostile witness will have to increase to give effect to the law as it will be if these provisions are included. I therefore also join in the appeal to the hon. Minister to leave these provisions alone. They are going to alter situations, they are going to alter what has been a very sound principle in our law of evidence, and I appeal to the hon. Minister to drop the provisions.

I honestly think that the points raised so far in connection with these two clauses are really no more than hairsplitting. To-day the hon. member for Transkeian Territories (Mr. Hughes) raised the question in regard to persons who are present and can be called into the witness-box to give evidence. This is not something new we are evolving. It is already embodied in the law.

I said that it had already happened.

Then surely it is not something new that we are trying to introduce now The hon. member for Houghton (Mrs. Suzman) said she did not like the words “in his opinion”. The existing old clause already provides for it and says “according to his knowledge”. If there is any real difference between the two, I should like to hear what it is. Personally, I think it is merely hair-splitting.

But what I should like to reply to is the point raised by the hon. member for Zululand (Mr. Cadman), viz. that where he feels that a person may now be prejudiced is because he can now be compelled in terms of Clause 29, the new Section 254 (1), to say things which may prejudice him, i.e. the accomplice. But as far as that argument is concerned, this clause is no different from what we already have in the existing Section 254. The opportunity already exists that such a person, an accomplice, who is prepared to give evidence, may be asked questions which may prejudice him in respect of another offence. But in terms of the existing Section 254 that person is not compelled to answer those questions. His legal adviser should help him in that regard and say that he does not have to reply to it.

But he had the discretion.

Precisely, and I want to point out that in this case it is just the same. If the hon. member reads Section 254 (1), he will see that it says in line 43—

He will be compelled.

Yes, but in connection with such offence, and not any other offence. He may refuse to answer questions in regard to anything else. That is the crux of the problem raised by the hon. member for Zululand. In other words, there is no obligation, or just as little obligation now in terms of the proposed clause, on the witness who is an accomplice to answer any questions in respect of other offences he may possibly have committed—there is as little obligation on him now as there was in the past. All he is compelled to do in terms of this clause is to answer questions in regard to the offence which is being dealt with on that occasion, and in respect of that offence he has complete exemption from prosecution in terms of subsection (2). I should like to read it also in the Afrikaans text, from line 41—

That is the offence in regard to which he is giving evidence, and no other offence. Therefore, the allegation of the hon. member for Zululand that the person is now being prejudiced because he is compelled to give evidence and that that evidence compels him to give information in connection with another offence he may have committed is simply not true.

The hon. member for Ceres (Mr. S. L. Muller) has not understood the point. The point made by the hon. member for Zululand (Mr. Cadman) is that, under the amendment as proposed, an accomplice is compelled to be sworn and compelled to give evidence despite the fact that it may incriminate him in respect of such offence. Now the hon. member for Ceres made the point that if he was asked to give evidence which incriminates him in respect of other offences, he could refuse to answer. I accept that. That is correct. But the point which the hon. member for Ceres and the hon. Minister overlook is this, that, in order to obtain the indemnity provided under sub-section (2) he must fully answer questions to the satisfaction of the court.

All lawful questions.

I accept that as well, lawful questions, but a lawful question would be any question relating to the offence which is the subject of the charge. Now in answering such a question it may be essential, it may be impossible to do otherwise than to relate circumstances which might disclose at the same time facts which could constitute another offence.

You have the same position under the existing Act.

Here again I can see that the hon. member for Ceres is correct.

That is the position under the existing law, with this very important difference that, as the law stands at the moment, an accomplice has the right to decide for himself whether he is going to give evidence or not, and in coming to that decision that is one of the questions which he will have to weigh up; he will have to appreciate that, in order to give a full answer to the questions relating to the charge in respect of which he is giving evidence, he will have to give incriminating evidence in respect of other offences.

Can you give me an example where that happened, or how it can happen?

The hon. Minister as a practising attorney knows that that kind of thing may happen time and time again. I have not brought my mind to bear on any specific case where that has happened.

Can you bring me a specific set of circumstances where that can happen?

Without some thought I am unable to do so, but the hon. the Minister must surely know that in the type of charges which are brought before the courts and where accomplice evidence is used it is not far-fetched to suggest that there could well be cases of this sort. I suggest that the hon. Minister is being unreasonable if he suggests that this argument is far-fetched.

Purely academic.

I believe that the hon. Minister is not being at all fair when he says that this is purely academic, particularly in view of the fact that he has admitted that the General Bar Council is now no longer happy about this clause. If that is so they must have reasons. They are practising lawyers. And I suggest that their reasons may well be along the lines which I have now suggested, and I would point out that there has been very little time to bring one’s mind to bear on the possible ramifications of this clause, and I suggest that that is a very good reason why this clause should not be introduced at this stage of the Session. I suggest that it is most unfair of the hon. Minister to suggest that the possibility to which I have drawn his attention, the possibility of prejudice is far-fetched. After all, it was the hon. Minister himself who said that if we on this side of the House were able to show how prejudice could come about, he would be the first to withdraw this provision. I have now surely shown how it can happen.

I would like to deal with another point made by the hon. Minister and that is that he said that, in terms of Clause 29. an accomplice cannot be compelled to give evidence unless the court decides that he is required to give evidence.

Under Clause 27.

Yes, that situation does not apply in regard to Clause 29. There the situation is perfectly clear.

But he cannot be sworn unless Clause 27 comes into operation.

With great respect to the hon. Minister, that is not so because Clause 29 (1) specifically says: “Whenever the prosecutor at any trial or preparatory examination informs the court that any persons produced by him as a witness on behalf of the prosecution has, in his opinion, been an accomplice … such person shall be compelled to be sworn or to make affirmation as a witness and to answer any question…”.

But now read Clause 27.

Clause 27 does not apply to this accomplice clause.

But what are we arguing about, then? That is the reason why we are taking the two clauses together.

The reason why we are discussing them together is that in some respects the clauses are related, but not completely so. One clause deals with recalcitrant witnesses and the other deals with accomplices. They are not completely related. Obviously if they were saying the same thing there would be no need for two clauses. The point is that when it comes to the question of a recalcitrant witness who is not an accomplice, the position is that Clause 27 applies and two things become necessary. First of all the person must be present in the court and required by the court to give evidence. That is only in respect of recalcitrant witnesses who are not accomplices. When we come to accomplices Clause 29 applies. That is perfectly clear. The initial decision is the prosecutor’s. He must decide whether in his opinion the witness which he chooses to call is an accomplice or has been an accomplice, and if he decides he calls that witness, he says that in his opinion that man has been an accomplice, and that man is then obliged, is compelled to take an oath in terms of Clause 29 and he is compelled to answer any question, even though that question may incriminate him in respect of the offence which is the subject of the charge. So it is quite wrong to say that in respect of accomplices also they can be sworn only if required by the court. The other point made by the hon. Minister when referrig to the Alexander trial to justify this clause was that accomplices should not be allowed to make a fool of the court. The hon. the Minister in answer to my question admitted that as the law stands at present, an accomplice has the right to change his mind. He might say one day that he will give evidence for the State, and he has the right to change his mind and refuse to do so right up to the time when he is sworn. [Time limit.]

The hon. member for Zululand (Mr. Cadman) made a very interesting remark with reference to the meaning of Section 255, and he links that up with the new provisions we want to insert there. His argument is that when an accomplice gives evidence, or an accessory, then that evidence, quite correctly, cannot be used in a succeeding prosecution in respect of any other offence. But, he says, it may be that such a witness has provided the key for the police to institute further investigations into other offences. That was his argument. He says now we are compelling him to provide that key. But let us now just analyze the first leg of that argument. Supposing, for example, we do not amend the Act at all, then we still have this situation, this problem, that when such an accomplice gives evidence and he provides the police with a key to another offence, does he think that if such an accomplice were to be prosecuted as the main accused for another offence (and he were to act as the advocate for that accused person), he would not have good grounds for a defence if he could prove that the police would not under any circumstances have got to know about this matter if it had not been for that evidence?

How can you prove that?

We are now discussing the matter academically, and that has gone on all afternoon already, but the facts are that this problem exists in terms of Section 255, irrespective of whether we amend it or not. It is my contention that if he as the advocate, either on appeal or at the trial, raises the defence that this accused person would never have been brought before the court had it not been for the evidence he gave in another case, he would have a very strong case. He can go so far as to ask that all these facts which came to light and became the key to a further prosecution should be regarded as inadmissible. He will have good grounds for that. I can give him the assurance that if he devotes attention to that he will win his appeal, for the very simple reason that Section 255 under no circumstances demands that a man should give evidence against himself. You may perhaps tell me that I am putting too fine a point upon it—the hon. member for Ceres said that we were splitting hairs—but the fact is that in terms of Section 255 one can never use any fact against an accused if he revealed it himself. I can say something further, too. If the hon. member for Zululand is afraid that his client will reveal something which will later incriminate him, then the obvious thing to do is rather to let that evidence be given so that he can give the key to the police in order to raise the defence later that the police would never have charged his client if his client had not given this evidence. Therefore the so-called injustice we are supposed to be doing to the witness in terms of the new clause because we now compel him to provide a key is no injustice at all. On the contrary, we give him the opportunity to get out of the trap without ever having stepped into it. Therefore I cannot appreciate the objections raised by hon. members opposite.

The hon. Minister asked us to give examples of prejudice. This encourages me to think that he is considering whether in fact there is true prejudice sufficient to persuade him to carry out what he said he would do, namely to withdraw the clause or clauses if we could satisfy him on that point. He has dealt with certain other prejudices which have been advanced and he put it to the hon. member for Musgrave (Mr. Hourquebie): Whether he could give a situation where in the course of giving evidence in respect of one offence, he could in fact reveal himself to have committed another offence. Well, the point has been made that he could do it, and he could well do it in this way: Supposing that an accused is charged with murder and an accomplice is giving evidence in connection with this charge of murder. He might very easily have to declare the fact to be that this murder occurred perhaps at a time when a certain body of people were carving up an ox which perhaps had been stolen, a crime under the Stock Theft Act. There they were all busy eating this ox, or perhaps a Friesland cow, and this murder took place perhaps at the scene where this ox was being eaten.

All he can say is that there was an ox. He need not say that it was stolen.

But that is the point, that it could very well appear that they had no right whatsoever to sit on some farmer’s farm carving up an ox.

Carving up an ox is not a crime.

Let us assume for example that it was done by Native people and they were carving up an ox there. I think if the farmer came to hear through this case that there had been this feast on his farm, he would probably then discover where his ox had gone. So I do suggest that that is a very possible situation. We could possibly have a murder committed on the occasion of an unlawful meeting. It would transpire that there was a meeting. I suggest that that example does show a case of prejudice, and that that is to be added to the other cases of prejudice which have been mentioned.

Now the Minister says that the reason why this clause is being brought forward is mainly because there have been abuses of this protection given to accomplices. He said that certain people had undertaken to give evidence, but had changed their minds at the last minute, and he wanted to be able to penalize them. I suggest that he still has a weighty sanction against any such change of mind. Instead of the person getting an indemnity as an accomplice, he now runs the risk of being charged, and I suggest that that is a very grave sanction. We come back to the other aspects of prejudice I mentioned, namely, that an accomplice may perhaps, after he has indicated that he will give evidence, come to hear of the danger he is running to his own life and liberty, and whereas he was perfectly prepared to cooperate with the State he may later realize that he is running an extremely grave risk. It has always been the policy to allow him to withdraw from that situation and make that choice. I suggest that that is a very real prejudice. A long-standing protection is being removed.

Then I come to the final point. The Minister will know that a prosecutor who is embarrassed by a witness who departs from his statements has the right to treat him as a hostile witness. I do not know to what extent those rights would be affected if these changes are introduced. [Interjections.] If the Minister is satisfied that that is so, I will say no more about it. But I do urge that the point of prejudice has been advanced to the Minister and it is not surprising that there are these points of prejudice, because it changes a long-standing rule in our law. It appears that the General Bar Council likewise feels that there will be prejudice here, and that in fact one should not take a sudden decision to include these provisions. Since the Minister has indicated that he is prepared to hear argument on the subject, I suggest that he will feel that even if he is not satisfied that a complete case has been made out, at any rate there will be a doubt in his mind and I ask him to give the existing law the benefit of the doubt.

The Minister has not answered the questions put to him. The question was whether he thinks that the present provisions are helpful to accomplices. He has not indicated in what way they are, although he said they were.

I have given you the explanation.

I must ask the Minister again, if his argument is correct, whether he also thinks that our law in this regard has always been wrong. What bothers me is that when we put to the Minister certain ways in which these clauses can be used, he does not deny that they could be used like that, but he says he will not apply them like that. The only reason he has given us as to why he wants this clause is because in the case of Alexander one or more accomplices, having said that they would give evidence, went back on their word. But surely this must have happened more. Surely in the history of our criminal courts this must have happened dozens of times.

But it is now becoming a practice.

That is one of the hazards. Cannot you do something about that accomplice? Why not charge the accomplice and ask one or the other accused to give evidence? There is nothing to stop them from doing that. If that is the only reason the Minister has for introducing this clause, I think he must not be surprised if we are as suspicious of this clause as we were in the beginning. I suppose one has to ask onself why we have had this law relating to accomplices? Why did the English law have it? Why was this practice in regard to accomplices developed? I venture to suggest that one of the reasons was that the evidence of an accomplice is always suspect and our courts have always been very chary of accepting the evidence of an accomplice. Indeed, we provide in our law that we cannot convict on the evidence of an accomplice, unless there is evidence aliunde.

That is not changed at all.

No, and we provide that the evidence of an accomplice should be corroborated, and that is one of the reasons why we have our law in relation to accomplices, because their evidence is suspect anyway. The Minister spoke about the evidence of a convicted person. The courts have always regarded the evidence of a convicted person as more reliable than that of an accomplice, because the accomplice has something to gain by giving evidence implicating the accused. But how much more suspect will the evidence of an accomplice not be if he is forced to give evidence? Is that not why at the moment we provide that he must be a willing witness before he can give evidence? Even when he is willing we treat his evidence with the greatest caution, but now that you force him to give evidence, can you place any reliance on it at all? Will not the object I am trying to impute to the Minister, the best object I can possibly impute to him, be destroyed by taking away the very essence of why we have this law at all? I ask the Minister to tell us why this law exists as it is? Why, if the Minister is right, have accomplices not always since time immemorial been compelled to give evidence? The Minister has not explained it and he leaves us with no alternative but to vote against this clause and Clause 29.

Something the Minister murmured wearily while the. hon. member for Durban (North) was speaking gave me a new slant on this thing. He mentioned the Alexander case as the main reason for the introduction of this clause. He said that certain persons had offered to give evidence and later had withdrawn their offer. Now, were the people under 90 days’ detention when they offered to give evidence in the Alexander case, and did they withdraw their offer after they were released from detention? Is it just possible that this is the reason why the law is being changed; Is this the reason why this weary little phrase the Minister used may be the clue to the whole situation? He said: “It is becoming a habit”, when he was asked why in the past accomplices did not refuse to give evidence, and why it was not necessary before to compel them to give evidence. Is it becoming a habit because it is only during the last year that we have had the 90 days’ detention and some of the detainees no doubt offered to give evidence in order to get out of the 90 days’ detention, and having been let out they decided they did not want to incriminate other people, let alone themselves? Is this the reason why the law is being changed? Will the Minister just answer this question: Were the people to whom he was referring under 90 days’ detention when they offered to give evidence?

I will reply.

And will the Minister at the same time explain why he says that the words “in the opinion of” would be helpful to the accomplice instead of the old words “in the knowledge of”. The hon. member for Ceres said it made no difference, but the Minister said that this helped the accomplice, so now I am completely in the dark and would like some information.

The hon. member for Houghton asks questions, but while asking them she sows suspicion and then expresses her opinion without having received the information. That is typical of the hon. member. The hon. member asked whether some of the witnesses were detained for 90 days and whether it was then that they offered to give evidence. There were three categories of witnesses who offered to give evidence. Some were not detained at all. They were witnesses in the ordinary course. There were others who were in fact detained for 90 days, some of whom during their detention offered to give evidence, and some of whom offered to do so after their detention. The hon. member’s second question was this. Knowledge is much more limiting than opinion, and certain benefits are derived by the person through the fact that the prosecutor tells the court that here it is dealing with an accomplice. Then the prosecutor can shield behind it, that he in fact had an idea that the man was an accomplice, but that he did not have actual knowledge of it. In other words, if there is a difference, that difference is in favour of the person giving evidence.

Amendements put and agreed to.

Clause 27, as amended, put and the Committee divided:

AYES—66: Badenhorst, F. H.; Bekker, H. T. van G.; Bekker, M. J. H.; Bezuidenhout, G. P. C.; Bootha, L. J. C.; Botha, M. C.; Botha, P. W.; Botha, S. P.; Coertze, L. L; Cruywagen, W. A.; du Plessis, H. R. H.; Fouché, J, J. (Sr.); Froneman, G. F. van L.; Greyling, J. C.; Grobler, M. S. F.; Haak, J. F. W.; Heystek, J.; Hiemstra, E. C. A.; Jonker, A. H.; Jurgens, J. C.; Keyter, H. C. A.; Knobel, G. J.; Kotze,G.P.; Kotzé, S. F.; Labuschagne, J. S.; Loots, J. J.; Luttig, H. G.; Malan, W. C.; Marais, J. A.; Marais, P. S.; Martins, H.E.; Meyer, T.; Mulder, C. P.; Muller, H.; Muller, S. L.; Nel, J. A. F.; Niemand, F. J.; Odell, H. G. O.; Otto, J. C.; Potgieter, J. E.; Rall, J. J.; Sadie, N. C. van R.; Schlebusch, A. L.; Schlebusch, J. A.; Schoonbee, J. F.; Serfontein, J. J.; Smit,H.H.; Stander, A. H.; Steyn, J. H.; Treurnicht, N. F.; van den Heever, D. J. G.; van der Spuy, J. P.; van der Walt, B. J.; van Eeden, F. J.; van Niekerk, M. C.; van Rensburg, M. C. G. J.; van Wyk, G. H.; van Zyl, J. J. B.; Venter, W. L. D. M.; Verwoerd, H. F.; Vorster, B. J.; Vosloo, A.H.; Waring, F. W.; Wentzel, J. J.

Tellers: P. S. van der Merwe and M. J. de la R. Venter.

NOES—43: Barnett, C.; Basson, J. A. L.; Basson, J. D. du P.; Bronkhorst, H. J.; Cadman, R. M.; Connan, J. M.; Cronje,F.J. C.; Dodds, P. R.; Durrant, R. B.; Eaton, N. G.; Emdin, S.; Field, A. N.; Fisher, E. L.; Gorshel, A.; Graaff, de V.; Henwood, B. H.; Hickman, T.; Higgerty, J. W.; Hourquebie, R. G. L.; Lewis, H.; Malan, E. G.; Miller, H.; Mitchell, M. L.; Moolman, J. H.; Moore, P. A.; Oldfield.G.N.; Plewman, R. P.; Radford, A.; Raw, W. V.; Ross, D. G.; Steyn, S. J. M.; Streicher, D. M.; Suzman, H.; Taurog, L.B.;Taylor, C. D.; Thompson, J. O. N.; Timoney, H. M.; Tucker, H.; Warren, C.M.; Waterson, S. F.; Wood, L. F.

Tellers: A. Hopewell and T. G. Hughes.

Clause, as amended, accordingly agreed to.

Clause 29 put and the Committee divided:

AYES—67: Badenhorst, F. H.; Bekker, H. T. van G.; Bekker, M. J. H.; Bezuidenhout, G. P. C.; Bootha, L. J. C.; Botha, M. C.; Botha, P. W.; Botha, S. P.; Coertze, L. L; Cruywagen, W. A.; du Plessis, H. R. H.; Fouché, J. J. (Sr.); Frank, S.; Froneman, G. F. van L.; Greyling, J. C.; Grobler, M. S. F.; Haak, J. F. W.; Heystek, J.; Hiemstra, E. C. A.; Jonker, A. H.; Jurgens, J. C.; Keyter, H. C. A.; Knobel, G. J.; Kotze, G. P.; Kotzé, S. F.; Labuschagne, J. S.; Loots, J. J.; Luttig, H. G.; Malan, W. C.; Marais, J. A.; Marais, P. S.; Martins, H. E.; Meyer, T.; Mulder, C. P.; Muller, H.; Muller, S. L.; Nel, J. A. F.; Niemand, F. J.; Odell, H. G. O.; Otto, J. C.; Potgieter. J. E.; Rall, T. J.; Sadie, N.C. van R.; Schlebusch, A. L.; Schlebusch, J. A.; Schoonbee, J. F.; Serfontein, J. J.; Smit, H. H.; Stander, A. H.; Steyn, J. H.; Treumicht, N. F.; van den Heever, D. J. G.; van der Spuy, J. P.; van der Walt, B. J.; van Eeden, F. J.; van Niekerk, M. C.; van Rensburg, M. C. G. J.; van Wyk, G. H.; van Zyl, J. J. B.; Venter, W. L. D. M.; Verwoerd, H. F.; Vorster, B. J.; Vosloo, A. H.; Waring, F. W.; Wentzel, J. J.

Tellers: P. S. van der Merwe and M. J. de la R. Venter.

NOES—43: Barnett, C.; Basson, J. A. L.; Basson, J. D. du P.; Bronkhorst, H. J.; Cadman, R. M.; Connan, J. M.; Cronje, F. J. C.; Dodds, P. R.; Durrant, R. B.; Eaton, N. G.; Emdin, S.; Field, A. N.; Fisher, E. L.; Gorshel, A.; Graaff, de V.; Hen wood, B. H.; Hickman, T.; Higgerty, J. W.; Hourquebie, R. G. L.; Lewis, H.; Malan, E. G.; Miller, H.; Mitchell, M. L.; Moolman, J. H.; Moore, P. A.; Oldfield, G.N.; Plewman, R. P.; Radford, A.; Raw, W. V.; Ross, D. G.; Steyn, S. J. M.; Streicher, D. M.; Suzman, H.; Taurog, L. B.; Taylor, C. D.; Thompson, J. O. N.; Timoney, H. M.; Tucker, H.; Warren, C.M.; Waterson, S. F.; Wood, L. F.

Tellers: A. Hopewell and T. G. Hughes.

Clause accordingly agreed to.

On Clause 33.

This clause amends Section 3 of the General Law Amendment Act dealing with the lease of any rights to minerals and the fact that leases of such a nature have to be attested by a notary public and that the lease has to be registered against the title deeds of the land. There seems to be a great deal of ambiguity as to the intention underlying this new clause and what the Minister intends this clause to apply to. Does it mean that the Minister is drawing a distinction between a lease of any rights to minerals in land and the ownership to those minerals, and a lease for prospecting and mining; or is it meant that any prospecting on State land as such shall be excluded from the necessity to be attested and registered against the title deeds?

This only refers to the Cape. It has nothing to do with the Transvaal.

That is not stated anywhere in this clause. Can the Minister tell us where it states that it only refers to the Cape and not to the Transvaal? If that is so I would like the hon. the Minister to make this quite clear, because I must say that in the form in which this clause is drafted there is a great deal of confusion, and I think it is necessary that the Minister should give us a satisfactory explanation so that we can know whether there will be a need for attesting and registering mineral rights other than in the Cape.

This provision comes from the Department of Mines, and I give the hon. member the explanation given by that Department.

Section 3 of the General Law Amendment Act, 1956, provides that no lease of any mineral rights on land and no cession of such a lease, if it was obtained after the coming into operation of the aforementioned Act, is valid unless it is notarially executed, and that such a lease or session thereof is not valid as against third parties unless it is registered against the title of the land concerned or the relevant certificate in regard to the mineral rights, as the case may be. It now appears that the expression “lease of any mineral rights” contained in the section concerned must be interpreted to include the lease of base minerals in terms of Act 16 of 1907 (Cape) (which in fact includes the development rights) and all other mining leases issued by the Department of Mines in terms of the applicable mineral laws. Cessions of such contracts were in the past not always notarially executed or registered against the title of the land concerned because land in respect of which such contracts were entered into sometimes literally consisted of thousands of units and registration against the title was simply impossible. Because so much land has been subdivided, the practice has arisen that it was not registered against the deed of transfer because there were too many different deeds of transfer. In addition, there are in the Republic extensive areas comprising unalienated State land in respect of which no title deed exists. It appears to be anomalous and unnecessary to execute notarially cessions of such leases in cases where the original contract of lease was not so executed. Unless provision is made now to exclude these contracts from the provisions of Section 3 of the General Law Amendment Act of 1956, the validity of numerous leases of mineral rights with which the State is concerned will be in doubt and considerable problems may be expected in future in regard to the execution and registration of such contracts in the above-mentioned cases. The envisaged provision contained in this clause will, however, eliminate the problems now being experienced and legalize the procedure hitherto followed in such cases. That is the explanation I have received from the Department of Mines. If this does not satisfy the hon. member, the Deputy Minister of Mines is present and the hon. member can discuss it with him further. He will give the hon. member the necessary explanation.

I wonder whether the hon. the Deputy Minister of Mines can tell us whether he is absolutely satisfied that this will effectively cover the position in the Cape. It is all very well that it is inconvenient, but I gather from what the hon. the Minister of Justice has said, that the position is that this is due to an oversight perhaps on the part of the Department of Mines. However it may be, one would naturally like to see those contracts validated. But is it certain that those contracts can still be registered and the rights properly recorded notwithstanding that they will not be notarially executed.

Such rights may be registered in terms of the Deeds Office Act. There is provision for registering them if a notarial contract is entered into. Therefore there is power to register them. It is only the obligation which is stated here generally which is being done away with.

Would a contract to prospect for minerals require notarial execution?

No.

It does not change the practice?

No, it does not change the practice. It is not necessary in all cases that they should be registered. Certain laws provide that they must be registered. That remains. Certain laws specifically provide that certain rights must be registered. We are only doing away with this general umbrella provision.

Sir, we have a registration system which is second to none in the world. I am quite happy about the validation. I am not querying that position at all. But it does seem to me that this matter requires to be very carefully considered because I think if this brings about rights which are not registered it is going to store up plenty of trouble for the future. I believe the provisions which exist in provinces which have had much more experience than the Cape in this matter, a province like the Transvaal for instance, provisions which provide for registration and require registration for validity against certain third parties, in certain circumstances, are very valuable provisions and that they ought to be in application throughout the country. Even if the hon. the Deputy Minister wants to recall the provision here I hope he will be prepared to give an undertaking that he will go into the position. I think he will agree that it is necessary that the very excellent system of registration we have should be preserved in the interests of both the present and the future.

I agree that we have a very good system of registration. The intention is not in any respect to invalidate what was in force in the provinces before this amendment, which is now being amended again. If it has that effect, an effect which is not the intention at all, we shall certainly go into the matter. But the hon. member may be assured that it is not the intention to change the position in any way.

Clause put and agreed to.

On Clause 35,

I should like to ask the hon. the Minister to give us a little information on the reason why there is largely a re-hash of existing laws coupled with ejectment orders, at State expense, and why lodgers and persons living in that place are coupled to the occupier in that ejectment order. We are not opposing this Clause; it is obviously very much the same as the existing law. But we would like to have a little information on these particular aspects, especially this new sub-section (ii) (b) where a person living with an ejected person is also ejected without the necessity of serving an order on him.

I raised this in the second reading. I do not know whether the hon. the Minister wishes to reply before I raise this matter again. If he has any information I shall sit down.

In respect of Clause 35, hon. members know that Section 42 (2) of the Group Areas Act of 1957 provides that a court which convicts anybody in connection with the occupation of land or premises contrary to the provisions of the Act, must order the convicted person to vacate the relevant land or premises on or before a specified date. Anybody who ignores such an order is guilty of an offence and punishable by a maximum fine of R100 or imprisonment for a maximum period of six months, as well as a further fine of R20 for every day that he delays in complying with the order. It has appeared in practice that certain groups, as part of the passive resistance against the provisions of the Act, ignore such orders and that their families remain in occupation of the land or premises while the convicted person is serving his sentence, in spite of the fact that alternative accommodation is always provided for the people concerned. The hon. member knows what the principle is of providing alternative accommodation. All that is being done here now is to remedy that position and to have the premises vacated. That is all that is being done in terms of this provision.

I thank the hon. the Minister for the information, but I am afraid that he has not dealt with the point I raised last night.

The point the hon. member raised last night is not relevant because the other persons who are in occupation receive their right of occupation through the person who appeared in court. If his occupation was lawful, then their occupation is also lawful.

You have not forgotten your law!

That is why they made me Minister of Justice.

We wondered why.

If his occupation is illegal, it follows that any person who occupies the premises through him is also there illegally.

What I am trying to do is to protect an innocent sub-tenant. I realize he has to go. I realize …

But there is the principle of alternative accommodation. So he cannot suffer any hardship.

In civil practice I have found cases where sub-tenants have paid their rentals to the landlord, who is in fact the tenant of the premises. But the landlord himself has not paid his rental. Because the landlord has not paid his rental an order for ejectment is served upon him. I have had, not one, but hundreds and hundreds of cases.

That applies in the ordinary civil cases as well.

That is right. I realize that the sub-tenant must go. All I want to do is to protect sub-tenants who have not had proper notice that they have to go.

I shall bring that to the notice of my colleague.

I want to move this amendment—but I shall not move it if the Minister says he will go into the matter—that Clause 35 (ii) (b) be deleted and the following be substituted—

I am prepared to make it 14 days so that the tenants will have 14 days in which to get out once the landlord is convicted. If they do not they will then be guilty of a crime.

My information is that that is done administratively because there is the principle of alternative accommodation.

I had a long discussion with the officials before I drafted my amendment. I am satisfied if the hon. Minister tells me it is done administratively and that this is the practice. I accept that, Sir, but we are passing a law; we are passing a law not for to-day but for time and there are different administrators and there are different officials. If the Minister would try to give these people some protection …

They cannot suffer any hardship because alternative accommodation must be provided.

The Minister must realize what he is saying. I am not trying to catch the Minister. Is the Minister telling me that alternative accommodation is given to all subtenants or only to the main tenant. If that is the position then I am quite happy to leave it to the administrators of the Act. But I think alternative accommodation is only provided for the main tenant and not for the subtenants. There may be six or seven or more of them.

Alternative accommodation is provided for everybody— sub-tenants and principals.

Then I have nothing further to say.

Clause put and agreed to.

On Clause 38,

I understand that the hon. Minister has been approached by the Minister of Bantu Administration for this amendment. I understand that it is to stop a measure of dislocation in the Transkei.

In the Bantu areas, so I am told. Not only in the Transkei.

I must object at this stage to this amendment. I want to tell the hon. Minister that while it applies to the Bantu areas, we don’t mind them pinching from each other, but we are placed in this position that I think the Stock Theft Select Committee did a very good job and it closed all these gaps; incidentally I feel that the hon. Minister of Bantu Administration has now been approached to try and relax something that they have had for very many years I want to assure the hon. Minister that the Natives in the Native areas to-day and those in the European areas are now even able to get beyond the stringent conditions we laid down in the Select Committee. What is going on now? I think any relaxation is going to cause further dislocation and further aggravations between Europeans and Natives, particularly in the border areas of the Transkei and the Ciskei. I think the hon. Minister has taken this clause rather lightly. It appears to me that this is going to encourage stock theft rather than to discourage it.

As I have said, this is not a provision which emanates from my Department. My Department has no reason to believe that it will encourage stock theft. But let me tell the hon. member that stock theft is my baby, and if this amendment which I am now moving at the request of the Department of Bantu Administration has the result that it gives rise to stock theft, I will immediately withdraw it next year. The moment I am assured that that is the effect, I shall immediately devote attention to it. The Department of Bantu Administration says that will not be the case, and my officials cannot see it at the moment, but the moment we discover that that is in fact the case, we shall immediately withdraw it, because we are the people who will be held responsible.

Clause put and agreed to.

On Clause 45,

I move as an amendment—

The purpose of this is to try and give some form of protection to those people who had been classified before the 1962 amendment. If you remember, Sir, the 1962 amendment amended the original description of “a White person” contained in the 1950 Act and it brought in a new aspect which dealt with the admission of a person having been of Coloured descent. That admission could have been made in many ways, but at the time of the 1962 amendment the hon. Minister of the Interior who introduced it gave this House the asuurance that no reclassification would take place as a result of the 1962 amendment. Now according to my reading of the amendment which is before us in this Clause 45, a re-classification will be possible, and I believe it is wrong, very wrong indeed to make that re-classification possible in the light of the Minister’s undertaking in 1962, without giving some measure of protection or assurance to those people who could be reclassified under this amendment that that in fact will not happen to them. I think the hon. Minister will be pleased to accept this amendment in view of the assurance given to us in 1962. Here the 1962 amendment makes it retrospective to the passing of the Population Registration Act in 1950, and if the intention is, as the hon. Minister of the Interior assured us in this House, not to re-classify people, and if that assurance was sincere, and I have no reason to believe that it was not, then my amendment makes it doubly sure and it will act as a form of re-assurance to all of those people who could be re-classified under this clause as it stands now. It will give these people that assurance and the right to retain their existing classification as a right, and that sword will not be hanging over their heads again. I would like the hon. Minister to realize that some of the people who will be affected, have been re-classified before, but when they eventually were classified as White, they were classified on the basis of acceptance by the public, by general acceptance as White people in their community. Now the 1962 amendment, which is now to be made retrospective to 1950, does away with that and applies certain other tests too, one of which is an admission, and I believe that it will bring in quite a large group of people for re-classification. I am glad the hon. Minister of the Interior is here and I am quite sure that he will be prepared to accept my amendment.

Mr. Chairman, with your leave I would like to move the amendment standing in the name of the hon. member for Simonstown (Mr. Gay)—

As I read Clause 45 (1) in this amending Bill, it seems to me that anyone classified under the original definition shall be deemed to have been classified under the new definition. It looks as simple as that. On the surface it would appear to meet the very objections which we raised in this House in 1962 that parents and children and in some cases even husbands and wives could be classified in terms of two different formulae, and it also seems to meet the question of no general reclassification, provided the Minister will accept our amendment, he hon. Minister of Justice in moving the second reading of this General Law Amendment Bill, made the point that at the present time there are two sorts of Whites, and that that is now made possible by the imposition of the 1962 definition over that in the original Act of 1950. But I would like some information from the hon. Minister on another point. Clause 45 (2) seems to make it clear that anyone classified under the old definition, i.e. appearance or acceptance, who appeals against classification will have that appeal considered in terms of the 1962 amendment of the Act, that is in terms of Section 1, which concerns the definition of a White person and that appeal would be considered in terms of a definition under which he was not originally classified. Section 12, of course, is involved which gives the Minister the power to appoint a member of the Public Service to investigate the case.

Clause 45 (2) is, I think, going very seriously to affect hundreds of families in which there is some degree of colour in one branch of the family or another. I am thinking now in terms of families where, say, two brothers and a sister had been classified as White, and are over the line and there are perhaps two brothers somewhere who have married and who are still in the Coloured community. Because Clause 45 (2) as I understand it, still gives the Minister power retrospectively to investigate—through his officer so appointed— any questions of descent in any case of appeal against a classification made between 1950 and 1962, that is to say unless the hon. Minister is willing to accept the amendment which I have just moved and which stands in the name of the hon. member for Simonstown. That amendment, of course, particularly applies to cases where people have already made application or lodged an appeal against their classification and in which the department, for reasons of its own, has taken a long time to handle those cases—sometimes that period amounts to anything up to a year, sometimes 18 months.

It seems to me also that in cases where one member of a family, or perhaps more, prior to 1962, under the old definition, succeeded in achieving a White card on the ground either of appearance or of acceptance, that when other members of the family, who have been classified “Coloured” prior to 1962, discover this and immediately “try for White”, where they might have succeeded previously, now of course they will be subjected in terms of Clause 45 (2) to the whole machinery of a new definition which involves a voluntary admission in terms of a census form and involves of course proof of the correctness of any statement contained in such census form, and the possibility of an official investigation. Now the hon. member for Umlazi (Mr. Lewis) made the point that the hon. Minister in 1962 had said that there would be no general re-classification. I have the Hansard with me, Mr. Chairman, and it seems to me that it is worth just quoting a few of the sentences that the Minister used in that debate. He said—

The Minister was there referring to information supplied on a census form—

In other words the hon. Minister admitted that the information in these census forms could very well be incorrect. And then he went on to say that he would not have a general re-classification. He said—

And then the hon. Minister went on to say—

Well, Sir, what percentage, as the hon. Leader of the Opposition asked in the second-reading debate, what percentage of Coloured blood must anyone have to be considered Coloured or White, and what is the yardstick of the officer investigating the position under Section 12 in any appeal case to be?

What we want to know is on what basis do you, I or anyone else admit to being a Coloured person? How much Coloured blood do you have to have before it is necessary to admit it? On what basis do you admit such a thing? We want to know what the yardstick is, because Clause 45 (2), with respect, involves the whole procedure under Section 12 of the original Act. I submit that these are unanswerable questions and that the hon. Minister will have some difficulty in replying to them.

Business suspended at 6.45 p.m. and resumed at 8.5 p.m.

Evening Sitting

Sir, I rise at once because I think the position ought to be clarified. The hon. member for Boland (Mr. Barnett) made the point in connection with this clause that he would like to have clarity and certainty—and that also links up with what hon. members have said so far with regard to the two amendments. I want to say to the hon. member for Boland that this amendment provides that race classifications made before 1962 will be deemed to have been made under the amended Act. In other words, all race classifications made before 1962 will be deemed to have been made under this amended clause of 1962. Third parties will still have the right to object within 30 days after the classification came to their notice. It is precisely the same. Furthermore, the Secretary for the Interior will still have the right in terms of Section 5 (3) to revise the classification, using the new definition as his criterion, where there has been an erroneous classification. That is my reply to the question of the hon. member for Boland. But I want to go further and point out that if this amendment which has now been moved by the hon. member for Umlazi (Mr. Lewis), and which to a large extent also covers the amendment moved by the hon. member for Wynberg (Mrs. Taylor) on behalf of the hon. member for Simonstown (Mr. Gay), were accepted it would mean that we would have two types of Whites on the register. Firstly we would have those Whites who were classified under the definition of 1962 on the basis of acceptance by the community and on the basis of appearance and—note well—not on the basis of descent. Then there would be those who were classified before 1962 in terms of the old definition. The old definition had certain defects. We debated this matter here in 1962, and I can give you the assurance that persons were classified as Whites in terms of the old definition but that many Whites refused to accept them as Whites. They were classified as Whites but they were not accepted as such. As you know, there is a difference between accepting a person as White and regarding or treating him as a White person. There is the danger on the one hand of accepting a person as White and then not treating him in exactly the same way as other Whites. This amendment of the hon. member for Umlazi, if accepted, would have the following consequences, which in my opinion would be most cruel.

The first consequence of this proposed amendment would be that it would be impossible to rectify mistakes made in the past. It would not be possible to rectify even a bona fide mistake. The second difficulty would be that people would not be able to object to a classification. If, for example, a person has been classified as a Coloured nobody would be able to object to the classification. You would have a harsh law under which people would be forced to accept individuals in a certain class or racial group without having the right to object to their classification, and I think that could give rise to a very dangerous state of affairs. We have always adopted the attitude that the community is the best judge to determine a person’s race. People cannot be classified in terms of an Act only. The best judge to decide to which class or race a person belongs is the community itself. The community itself will say, “This person belongs to our community, we are prepared to accept him as a member of our community.”

Are social laws better than an Act of Parliament?

The hon. member knows that that is not so. The hon. member knows that if this amendment were accepted you would only silence the voice of the community; the community would then not be able to express its opinion and say, “According to the 1962 definition this person’s appearance is undoubtedly that of a White person and we must accept him as such; we will not treat him as a White person but we accept him holus bolus.”

The position does not remain uncertain, as hon. members have alleged here, because in terms of Section 11 (1) a third party can only object to a classification within 30 days after having become aware of it, or within a further period of 11 months which the Minister may allow. You cannot object if that person is able to prove, for example, that he has been classified as a White person for years, ever since the Act came into operation, and that he has been accepted by the White community. In those circumstances you cannot start a witch-hunt and say, “I do not like this person’s face and I do not think he ought to be classified as a White person.” You simply cannot do so. The hon. member for Wynberg is aware of the fact that there are many people who cannot get past Section 11 because they were accepted as members of a certain community for years and were classified as members of that community. They cannot now come along and plead that they did not know what the position was; those people accepted them. That is the main principle of this Act. Once people have received their identity cards, then they can object to their classification immediately. The amendment now proposed, introduces this definition with retrospective effect as from the commencement of the register, but it also ensures that there will be no general revision of White classifications. It is clear from sub-section (2) that there will be no “rehash.” Sub-section (2) of the proposed section is perfectly clear. A third party will still be competent to object within the aforementioned period and the Secretary will still be competent to rectify mistakes. That is the principle which was accepted by this Parliament in 1962. I want to repeat that no witch-hunt will be set afoot. I said the same thing in 1962 and I ask hon. members on the other side whether they can mention a single case over the past two years where the classification has been amended as the result of a witch-hunt. They will not be able to mention a single case. Classifications have only been amended where these two conditions have been complied with. Mistakes may creep in where, for example, the father who registered the birth of a child made a mistake. I can mention examples of mistakes that we came across in classifications. Many people whose names were recorded in the 1951 census were reclassified by the Department itself because the father had made a mistake in registering the birth of a child. The father may be a White South African married to a European, a Portuguese or a Greek—this was before the passing of the Population Registration Act— and in numerous cases when they registered the birth of children they gave the race of the child as “mixed”. As time went on these people realized that this was wrong; they objected and they were reclassified, but they were naturally classified as “Coloured” at the time; and this was immediately rectified. We had hundreds of cases of that kind. Then there are other cases where mistakes were made by the clerks. After all, one has to do with the human factor. Mistakes can be made with the registration of births or marriages, and mistakes might easily have been made also by enumerators during the 1951 census. We have come across cases where people have stated under oath that they told the enumerator that they were White, but because they did not look White to the enumerator he simply wrote “non-White” on the card. However, those mistakes can be rectified. If the amendment of the hon. member for Umlazi were accepted, however, those mistakes could not be rectified, and the result would be that those people would be forced for the rest of their lives to live amongst a group to whom they are not acceptable and where they cannot therefore achieve their aspirations. Is that what hon. members want? I am sure that that is not their intention. Let them analyse that definition once again and they will then come to the conclusion that it is not in the interests of the people whom they hope to protect.

I have also been asked—this matter was also mentioned by the Leader of the Opposition— what percentage of non-White blood a person must have in his veins to be regarded as a non-White in terms of the admission that he makes, if he makes that admission himself. No such percentage is laid down in the Act, and it is a question of interpretation by the courts from time to time on the basis of our common law. In this connection I refer again to the case of Rex v. Gill, from which I also quoted during the third reading debate in 1962. I hope it is clear now that in introducing this amendment with retrospective effect our only purpose is to obviate the sort of situation where there will be different grades or classes of people classified and registered as Whites. We accepted the principle in 1962 that the two principles governing classification would be appearance and acceptance. As far as the hon. members for Simonstown and Wynberg are concerned, there is no provision in the Act which gives anybody the authority to apply for classification. The Act only imposes a duty on officials, on the boards and the courts to classify people. As far as the remaining part of the amendment of the hon. member for Simonstown is concerned, I dealt with that in my first explanation.

I think that the hon. the Ministet has not got the full purport of my amendment and I think it might be well at this stage to tell him exactly what I have in mind. The effect or my amendment will give the same effect to this Act as the undertaking given by the Minister in 1962. He will remember that his undertaking was that the only cases which would be re-investigated would be the cases of Bantu. That is the under-undertaking he gave to the Leader of the Opposition. Would you like the reference? It is in Hansard, Col. 4445, Vol. 3 of 1962. The Minister then gave the undertaking to the Leader of the Opposition that the only people whose cases would be re-investigated would be those of Bantu extraction. As I see the position at the moment, making this 1962 provision retrospective will have the effect of bringing a group of people who have been classified as Whites, and who might have been under investigation before, back into the field of battle; in other words, it will make them liable to a further reclassification and that is what we want to stop. We want to try to give these people some feeling of security, and to do that I move this amendment, and the purpose of this amendment is to do exactly what the previous Minister of the Interior said was his policy, and that was always to give the person who was being investigated the benefit of the doubt. This amendment does exactly that, because where a person has been investigated under the 1950 definition and has been determined as White … [Interjections.] Where they have been determined under the 1950 definition, they then felt settled and have built themselves a life as Whites. But without this amendment they can be re-investigated. The Minister can say as often as he likes that he will not do it, but that does not help these people. That threat is with them all the time. What I am doing in my amendment is to say that those people who have been happily classified and who are satisfied and who have built up their lives under that classification cannot be re-classified except with their consent. In other words, I am giving them the benefit of the doubt, as was the policy of the Department. My intention is to give them that benefit which they have always had, and to entrench it as a right. But those people who were wrongly classified and are dissatisfied with their classification I have given, by the words “with his consent”, the right to have their cases reinvestigated. That is exactly what I intend by this amendment, and I believe, from what the hon. the Minister has just said, that that is exactly what he wants to do. But his main argument was based on the fact that if we do not do this we will create two classes of White people, the 1950 Whites and the 1962 Whites. But if the Minister is prepared to accept that all the people who were classified between 1950 and the 1962 amendment are in fact White and can stay White—and he says in his reply that that is what he really wanted to do—then my amendment will ensure that that in fact is the case; and I am quite sure that re-investigation to the benefit of these people can still be done.

But I want to remind the hon. the Minister of one thing, the main thing which made me move this amendment, and that is that if a person has admitted at any stage that he is of Coloured descent then, under the amendment in Clause 45, without my amendment, that person’s case can be re-investigated if a census form or birth certificate or marriage certificate reflecting mixed parentage or anything of that nature crops up at any time and this person is questioned and says: Yes, my parents were mixed; or he says: I was registered at birth as a Coloured person because the only school available was a Coloured school. Then that person has admitted that he is of Coloured descent, and therefore in terms of Clause 45 he can be re-classified. The hon. member for Wynberg made the point: Where do they become Coloured, and where do they stop being Coloured? How much Coloured blood do they have to have? Are you going to start all this investigation under the Population Register all over again ? Let us call a halt. Those people have been classified. Let us leave them in peace. Do not let us start investigating their cases or threatening them that their cases can be re-investigated, because that is what the amendment in Clause 45 does. I am going to ask the Minister, if he is sincere in regard to what he says about his intentions, and I believe he is, to let us give these people a sense of security and the right to remain classified as they have already been classified by the Department. I am quite sure that the argument of clerical errors and the like does not hold water, because I do not believe that the Minister’s Department is so lax in dealing with humans and in classifying them for the rest of their lives, that they would make clerical errors in the classification of these people. If they do, I think the way to put that right is to have more efficiency in the Department, and not to move an amendment such as this.

The hon. the Minister has perhaps provided the best argument for the acceptance of the amendment of the hon. member for Umlazi that we have heard this afternoon. This amendment deals with two parts of the Population Register. The first part was in 1950 when the Act was passed, and it provided for a certain test whereby persons would be classified as White or Coloured. In 1962 an amendment was brought in which made it more difficult for people to be White, and we opposed that amendment in 1962 because of the very reason the Minister has just given to the House. What did the Minister say? He said the best test was society; society must decide. I remember very well the Leader of the Opposition saying that very thing to the hon. the Minister and telling him that that was the reason why we opposed the amendment in 1962, because society should decide in these cases, because there are so many cases, as the late Mr. Justice Fagan said, where there is a line between the Whites and the Coloureds which the Creator has blurred. No legislator is going to make a dividing line where the Creator has blurred it. The Minister this evening said that society must decide; that is the best test. We quite agree, but what does this clause do? It is obvious that it is subject to various interpretations, but let us look at it in this way.

In 1950 the Act said that you will be classified according to what society decided, “aanvaar of behandel”, and that is what it was, and that is what is should be, and then n 1962 we changed it and made it more difficult for someone to be White because we provided that if a man admitted that he was Coloured by descent he could no longer be a White man. I do not want to go into all the examples of how you can admit that you are a Coloured person by descent. You can, of course, admit that you are accepted by the community as a White man, and you might let slip the thought that your grandparents were accepted as Coloureds. Then you have admitted that you are a Coloured person so descent. So it is more restrictive, and the amendment of the hon. member for Umlazi is merely to give effect to what the Minister himself has said this evening, and if he means what he says then surely he can accept this amendment. All it says is that those persons who are already classified and who were classified by 1962 should not be reclassified except with their consent. Now the Minister argues that if the amendment is accepted it will stop any reclassification. Of course the Minister cannot be correct. The Minister also said that the amendment was not in the interests of the persons we wanted to protect, but that is not so. The amendment specifically provides that there should be no reclassification except with the consent of the person concerned. I want to ask the Minister who knows best what is in the interest of the person to be classified, the Minister or the person to be classified? And if the person consents to be reclassified, surely that is the answer to the Minister. The person concerned surely knows. If he wants to be reclassified as a Coloured person, then that is up to him, and there will be one in 10,000 cases, but we must make provision for it. But most of the cases will be affected by the 1962 amendment, and the Minister is to provide now that anything done under the original Act must be done as if the 1962 amendment had been passed. The Minister must concede that the 1962 Act was restrictive and that it can only adversely affect people who are already classified as White. All I say to the Minister is that if, regardless of what the technical descriptions are and what the legal interpretations are—and it is clear from what the Minister said that there are two interpretations by his own legal men— he should accept the amendment of the hon. member because it will give legal effect to what the Minister’s intention is. It cannot do any harm. That is all we ask. It cannot do anyone any harm and it will give security to the persons concerned. It will give certainty to all the persons who have been classified as White between 1950 and 1962.

I confess to being very puzzled indeed by the hon. the Minister’s reply. He started off by saying that if he accepted our amendment these two classes of Whites would remain in S.A. Of course, one cannot help asking the question whose fault that is, that the Act is proving to be unworkable? It is not our fault that there are two definitions of Whites. We are not responsible for the original legislation But the Minister went on to say that our amendment would force the community to accept people they did not want, and he also went on to say that no law could successfully classify persons. He said there could be no certainty. I think that is a very interesting admission by the Minister, because in a sense this is his legislation, although he was not the Minister in charge of it when it was passed. We agree that no law can classify a person. The Minister said that only the community could do that. What I find most puzzling, although we agree with him that this should be left to the community, is that almost in the same breath he says that ultimately, when it comes to deciding what percentage of Coloured blood a person had or does not have, that must be left to the courts. So it must be left to the community and it must also be left to the courts not to the law. We, of course, believe that these things should be left to society to decide as it has done in the past with the minimum of harm to and interference with anyone.

But I want to come back to the amendment. The hon. the Minister said that our amendment would make for rigidity. May I in this context emphasize what the hon. member for Durban (North) and the hon. member for Umlazi said this evening, i.e. that if the hon. the Minister is not looking for any certainty in this regard, there are hundreds of people in South Africa who are. After the reply from the hon. the Minister this evening, I cannot help feeling that my original supposition is perfectly correct in so far as Clause 45 (2) is concerned. Because what is going to happen, and the Minister has admitted it, is that anybody who was classified under the old definition between 1950 and 1962 and who now tries to appeal against that classification, will be subject to the new definition of a White person of 1962 and the amendments to Section 12 of the Act of 1962. The present proposed amendment to the Bill gives the Minister the power to investigate retrospectively questions of a person’s background and, if necessary, his descent. When the hon. the Minister says that he is not looking for certainty and that no law can produce it and then goes on to say that the courts must decide these things, may I remind him that the courts already have come to certain fairly definite decisions in this matter? In this connection I should like to read to the Minister a short quotation from the judgment of Mr. De Vos Hugo given in the East Griqualand Supreme Court in April, 1962. This is what the learned Judge had to say on that occasion—

So, if the Minister is not looking for certainty, the courts quite clearly are. The Minister knows the basis of this judgment, i.e. that in order to prove that someone is a White person he has to establish beyond all doubt that he has severed all contacts with the Coloured community and has been established in a European community for many years. The Minister knows, and his Department will know, that they have quoted this judgment frequently in the last few years in justification of a classification with regard to acceptance.

The reply of the hon. the Minister being what it was, I want to point out to him that although one of the objects of his amendment is to assist him administratively, it is also going to cause much more damage than the Minister perhaps realizes, or if he does realize it, he must accept that this is one of the inevitable consequences of this unfortunate law. You see, Sir, many of these cases, as we know, result in split families— two or three brothers or sisters in the same family with some on one side and the rest on the other side of the line, some within the White and some within the Coloured community. I interpret this proposed amendment as another way of refusing these appeals from people who wish to be linked with their White relations. Why? Because in terms of Clause 45 (2) they will now be subject to Section 12 of the Act of 1962 which means that the onus is on them to prove that information on a census form is or is not correct and they are also subject to investigation by an officer appointed by the hon. the Minister. Over and above that there is the De Vos Hugo judgment which says that they must prove that they have broken all ties with the Coloured community. In effect this means that the Minister is grasping the nettle at last and has decided that where there are split families something must be done to clarify the situation. As I interpret this amendment it is going to enable the Minister to do this and to come to a decision with regard to those families that are split up between various sections. It means, in effect, that they will now be forced to repudiate each other. That is inevitable. The De Vos Hugo judgment makes that quite clear. And as this particular judgment has never been superceded, I take it it still remains a valid interpretation of the original statute in so far as the question of acceptance is concerned.

The proposed amendment also means that where there is a wife who has been classified as White and a husband who has been classified as Coloured, or vice versa, any appeal by one party to be reclassified as White so as to be able to line up with the other, will be nullified in terms of the amendment because they will be subject, as I said to Section 12 of the Act of 1962 and the new definition under Section 1 of that Act. Here I want to quote Mr. De Vos Hugo again to prove what can happen where a wife is classified as White and a husband as Coloured—

So, even if the White person concerned is the husband or the wife that person can be forced into the Coloured camp. That is what it appears to mean. In other words this amendment gives the Minister the power to force all these people over the line into the Coloured community. I cannot see any other interpretation to it.

I want to give the hon. member who has just sat down the assurance, with regard to the passages which she quoted from the judgment by Mr. De Vos Hugo, that we agree 100 per cent with that judgment. As a matter of fact we still act in terms of that judgment; it is one of the beacons by which we are guided in making classifications. As far as that aspect is concerned therefore the hon. member need not be concerned. That is the basis on which we act at the present time.

I am sorry that the hon. member for Umlazi only mentioned the column in which my speech is recorded and that he did not read it out. An entirely erroneous impression has been created here. What happened is that the Leader of the Opposition put the following question to me—

To that I replied as follows—

As far as the classification of Whites is concerned therefore, the question of descent will never be inquired into and may never be inquired into in the absence of an admission by the person concerned then he is by descent not a White person. The objection that there will now be a re-classification is eliminated by Clause 45 (2), which says that people who were classified as White before the date on which this measure comes into operation will be deemed to have been classified in terms of the new definition of 1962. That is the assurance which is contained in sub-clause (2) of Clause 45. If we do not accept this provision as it now reads we run the risk of having to re-classify all these people again in terms of the 1962 definition. The whole situation, to my mind, is so perfectly clear that I cannot understand why the Opposition want to press their amendment. Because everything that was said here by the hon. member for Durban (North) and the hon. member for Umlazi is already laid down in this amendment. All classifications that were made before the date on which this Bill comes into operation will be deemed to be correct, provided no objections are raised by the people themselves. A third party can only object within 30 days after the classification came to his notice. He cannot come along years afterwards and then object. You are not likely to have objections from people who have been aware of certain classifications ever since 1950 or even since 1960? In practice that will simply not happen. All the guarantees for which hon. members have asked are already provided for here. Once the period of 30 days has elapsed, then only we can re-open the matter if it appears to be a bona fide case, and such cases may occur.

There is nothing more that I can say about this Bill. Its terms are so perfectly clear that I must ask hon. members not to take the matter any further. I do not hold it against them that they strenuously oppose the definition of 1962, but I repeat that that definition is on our Statute Book to-day; we are not changing it; all we are now doing is to bring this thing into line, and Clause 45 (2) contains the guarantee that there will be no general re-classification. If it had not been there, we would have had to re-classify everybody.

Despite the explanation of the hon. the Minister, I want to say that there is still a great deal of confusion about this amendment. As I see the position in the light the Minister’s explanation, the proposed amendments to the definition clause simply mean that everything that was done in terms of the 1950 definition is deemed now to have been done in terms of the new definition of 1962, with two exceptions. If a genuine mistake has been made, presumably one of those clerical errors the Minister has referred to …

Within 30 days.

Yes, within 30 days of the fact becoming known that a mistake has been made. Is that correct?

Yes.

The second exception is when a third party lodges a complaint, again within a certain time, against a classification. Under these circumstances only, can there be a re-classification not in terms of the definition of 1950 but of the new definition. The Minister nods his head to say that this is correct. It sounds all very simple and I dare say that if we go into the matter a little more closely, we shall find that there have not been many appeals or objections on the part of third parties …

Not one.

That at least means that there are not vindictive people in this country who go rushing off to the Population Registrar to inform him that their neighbour has been incorrectly classified. One can only hope that this situation will persist.

What worries me about this whole thing is how complicated our definitions of race have become in this country …

Order! The hon. member cannot discuss that now.

I know, Sir, that I cannot discuss the original definition but may I just point out to you that Section 1 of the original Act is in fact being amended by this clause. I want to say to the Minister that if he is thinking of making any changes at all, it should be in the direction of reverting to the old definition rather than sticking to the new one and trying to adjust all past situations to the new definition. The point I wish to make is that the change made in 1962 was for the extraordinary reason that there were one or two exceptional cases which came to the Minister’s mind and of which he disapproved. The vast majority of people in this country are not affected by the marginal classification because people generally know to which racial group they belong. I, of course, disagree with this whole idea of racial grouping and the Minister knows that. In any event, the majority of people are not affected. Marginal people, however, are and these constitute only about one or two per cent of the population. Nevertheless, it was only because of two cases at the time that the hon. the Minister found it necessary to change the entire definition of the Population Registration Act.

Order! The hon. member cannot discuss that now.

I think I have made my point, the real point being that if any changes are now being introduced then, instead of increasing the complications of race classification and making us even more chameleon-like than we are at present, the Minister should simplify his definitions.

I want to put a request to the hon. the Minister in the light of the explanation he has given us. Sub-section (2) of Clause 45 is, I think, liable to be interpreted in two ways. One interpretation is that of the hon. the Minister. When I first looked at this sub-section, I thought it meant that all those people prior to the amendment of 1962, would be assumed to have been classified under the definition of 1962. But the lawyers do not agree with me and I am not a lawyer. The lawyers place the other interpretation on it. I think if the Minister can refer this particular sub-section to the law advisers before the Bill goes to the Other Place we might be able to sort this out in order to see what it actually means. At the moment this is subject to a double interpretation. We actually have the experience of that happening.

I am quite prepared to do that as long as we agree to leave the matter in the hands of the legal people.

Will the hon. the Minister refer this matter to the legal advisers before the Bill goes to the Other Place ?

Yes.

May I ask the hon. the Minister while he is prepared to go further into the matter to remember that the “quality of mercy is not strained.”

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

AYES—39: Basson, J. A. L.; Basson, J. D. du P.; Bronkhorst, H. J.; Cadman, R. M.; Connan, J. M.; Dodds, P. R.; Durrant, R. B.; Eaton, N. G.; Emdin, S.; Field, A. N.; Gorshel, A.; Graaff, de V.; Hickman, T.; Higgerty, J. W.; Hourquebie, R. G. L.; Lewis, H.; Malan, E. G.; Miller, H.; Mitchell, M. L.; Moolman, J. H.; Moore, P. A.; Oldfield, G. N.; Plewman, R. P.; Radford, A.; Raw, W. V.; Ross, D. G.; Steyn, S. J. M.; Streicher, D. M.; Suzman, H.; Taurog, L. B.; Taylor, C. D.; Thompson, J. O. N.; Timoney, H. M.; Tucker, H.; Warren, C. M.; Waterson, S. F.; Wood, L. F.

Tellers: A. Hopewell and T. G. Hughes.

NOES—63: Bekker, H. T. van G.; Bekker, M. J. H.; Bezuidenhout, G. P. C.; Bootha, L. J. C.; Botha, M. C.; Botha, S. P.; Cruywagen, W. A.; Fouché, J. J. (Sr.); Frank, S.; Froneman, G. F. van L.; Greyling, J. C.; Grobler, M. S. F.; Haak, J. F. W.; Hertzog, A.; Heystek, J.; Hiemstra, E. C. A.; Keyter, H. C. A.; Knobel, G. J.; Kotze, G. P.; Kotzé, S. F.; Labuschagne, J. S.; Loots, J. J.; Luttig, H. G.; Malan, W. C.; Marais, J. A.; Marais, P. S.; Maree, G. de K.; Martins, H. E.; Meyer, T.; Mulder, C. P.; Muller, H.; Muller, S. L.; Nel, J. A. F.; Niemand, F.J.; Otto, J. C.; Potgieter, J. E.; Rall, J. J.; Rall, J. W.; Sadie, N. C. van R.; Schlebusch, A. L.; Schlebusch, J. A.; Serfontein, J. J.; Smit, H. H.; Stander, A. H.; Steyn, J. H.; Treurnicht, N. F.; van den Berg, M. J.; van den Heever, D.J. G.; van der Spuy, J. P.; van der Walt, B. J.; van Eeden, F. J.; van Niekerk, M.C.; van Rensburg, M. C. G. J.; van Wyk, G. H.; van Zyl, J. J. B.; Venter, W. L. D. M.;Viljoen, M.; Vorster, B. J.; Vosloo, A. H.; Waring, F. W.; Wentzel, J. J.

Tellers: P. S. van der Merwe and M. J. de la R. Venter.

Amendment accordingly negatived.

Remaining amendment put and negatived.

Clause, as printed, put and the Committee divided:

AYES—63: Bekker, H. T. van G.; Bekker, M. J. H.; Bezuidenhout, G. P. C.; Bootha, L. J. C.; Botha, M. C.; Botha, S. P.; Cruywagen, W. A.; Fouché, J. J. (Sr.); Frank, S.; Froneman, G. F. van L.; Greyling, J. C.; Grobler, M. S. F.; Haak, J. F. W.; Hertzog, A.; Heystek, J.; Hiemstra, E. C. A.; Keyter, H. C. A.; Knobel, G. J.; Kotze, G. P.; Kotzé, S. F.; Labuschagne, J. S.; Loots, J. J.; Luttig, H. G.; Malan, W. C.; Marais, J. A.; Marais, P. S.; Maree, G. de K.; Martins, H. E.; Meyer, T.; Mulder, C. P.; Muller, H.; Muller, S. L.; Nel, J. A. F.; Niemand, F. J.; Otto, J. C.; Potgieter, J. E.; Rall, J. J.; Rall, J. W.; Sadie, N. C. van R.; Schlebusch, A. L.; Schlebusch, J. A.; Serfontein, J. J.; Smit, H. H.; Stander, A. H.; Steyn, J. H.; Treurnicht, N. F.; van den Berg, M. J.; van den Heever, D. J. G.; van der Spuy, J. P.; van der Walt, B. J.; van Eeden, F. J.; Van Niekerk, M. C.; van Rensburg, M. C. G. J.; Van Wyk, G. H.; van Zyl, J. J. B.; Venter, W. L. D. M.; Viljoen, M.; Vorster, B. J.; Vosloo, A. H.; Waring, F. W.; Wentzel, J. J.

Tellers: P. S. van der Merwe, M. J. de la R. Venter.

NOES—40: Basson, J. A. L.; Basson, J. D. du P.; Bronkhorst, H. J.; Cadman, R. M.; Connan, J. M.; Dodds, P. R.; Durrant, R. B.; Eaton, N. G.; Emdin, S.; Field, A. N.; Fisher, E. L.; Gorshel, A.; Graaff, de V.; Hickman, T.; Higgerty, J. W.; Hourquebie, R. G. L.; Lewis, H.; Malan, E.G.; Miller, H.; Mitchell, M. L.; Moolman, J. H.; Moore, P. A.; Oldfield, G.N.; Plewman, R. P.; Radford, A.; Raw, W. V.; Ross, D. G.; Steyn, S. J. M.; Streicher, D. M.; Suzman, H.; Taurog, L. B.; Taylor, C. D.; Thompson, J. O. N.; Timoney, H. M.; Tucker, H.; Warren, C. M.; Waterson, S. F.; Wood, L. F.

Tellers: A. Hopewell and T. G. Hughes.

Clause, as printed, accordingly agreed to.

On Clause 46,

This clause indirectly effects the 90-day provision. Sir, with the leave of the Committee I should like to make a statement with regard to an injustice that I unwittingly did ex-Chief Justice Centlivres. Hon. members will recall that while my Vote was under discussion I made certain references to Mr. Hamilton Russell and to ex-Chief Justice Centlivres in connection with the booklet “Tyranny”. I referred to ex-Chief Justice Centlivres because this booklet gave me the impression, as it must have given everybody else, that it had been published by Mr. Russell and Mr. Centlivres. When one looks at the back cover of this booklet, one can only come to one conclusion and that is that Mr. Centlivres had a hand in drawing up and publishing this booklet. Hon. members will also recall that I exposed the untruths which are propagated in that booklet. To my regret, however, I used certain words with reference to Mr. Centlivres which were not justified. In this connection I should like to quote from a letter which I have since received from him. He writes as follows—

He is referring here to my allegation that he had a hand in the publication of this book. He goes on to say—

I gladly offer my apology to Mr. Centlivres. He is not co-responsible for these lies and false statements. I thought differently originally because it was suggested by Mr. Russell that Mr. Centlivres was also implicated.

I am glad that the hon. the Minister has done the honourable thing in regard to the ex-Chief Justice Mr. Centlivres. I had hoped that the hon. the Minister would have been a little more informative than he has been about this clause.

I have done my job.

I thought the job of the Minister in this Committee Stage was to explain what this Bill was about. One thing the hon. the Minister has not explained to us in relation to this clause is why he wants the provisions of this clause.

I explained that in the Second Reading.

No, you did not. We are still in the dark as to why the hon. Minister wants these provisions. The provisions of this clause are to the effect that no person who has made a statement to the police is entitled to a copy of it if he has made that statement while hs was detained under the 90-day clause.

The other aspect of this clause is that it is made retrospective. Perhaps the hon. Minister will tell us why ? Before we get to that stage will the Minister also tell us why he wants this provision in. You see, Sir, two sorts of statements can be made. Ninety-day detainees will either become accused persons or they will become witnesses in court proceedings. The object of the 90-day clause is to detain persons because you suspect they are guilty of some offence or because you think have information relating to some offence. So the statements they make when they are incarcerated under the 90-day clause are either statements of persons who may be witnesses or persons who may be in the dock. Surely it is in the interest of justice that a witness in a court case should be able to see what he has said about a particular event. Surely it is normal when you give evidence in court that you must refresh your memory from any previous statement you might have made. The hon. the Minister has practised in our courts. I have asked him before, and I ask him again: Is not the first thing he says to a witness or to his client who might be the accused: Did you make a statement to the police? And if he did he wants that statement. Apart from the fact that that statement helps him as the representative of that person it is surely in the interests of justice that a man should be able to refresh his memory from a statement he made previously? I wonder whether the hon. Minister has ever been a witness; I wonder whether he has ever witnessed an accident, for example, and whether he has ever had to make a statement to the police as a result of that accident and I wonder whether he has ever had to give evidence on that case many months later? He would have found that extremely useful because it was made at the time it was made.

These persons are to give evidence on oath, Sir. The hon. the Minister is aware of what the courts have said about 90-day detainees’ evidence, from the regional court there in Cape Town to the Judge President of the Transvaal in the Rivonia Trial. All of them have said what difficulty they have with evidence by persons who have been under 90-day detention. Now the Minister is going to make it even more difficult for them. Because these persons are not only going to be unreliable in relation to statements they are entitled to have but he is going to take those statements away from them when they will probably be even more unreliable. The hon. Minister opens himself to the criticism that those statements might be made available to that person if he is a State witness but not if he is a defence witness. I don’t say that is going to happen but he opens himself to that criticism. I don’t mind the hon. the Minister opening himself to that criticism but he opens our process of law to that criticism. And I don’t think that is fair to that process of law.

I want to take the matter further. What about the position of the accused person, the person who is in the dock for one of these offences? He is being kept for 90 days or more, or less, because he is suspected of having committed an offence. Then he is tried and he makes a statement. Even more so, Sir, the dictates of normal, natural justice demand that that person should know what he said. As this clause reads at the moment the only people who will have access to that statement are the police and the prosecutor. How does the hon. Minister justify that ? I understand how he justifies it as Minister of Police but how does he justify it as Minister of Justice. I do not think the hon. the Minister is being fair to the courts; I don’t think he is being fair to our system of justice. I think he owes this Committee an explanation as to exactly why he wants this in the Bill. We have not had that reason yet and I hope the Minister will give it to us now.

The hon. member is viewing this matter from the theoretical angle only. In the nature of things he does not have the information at his disposal that I have. I do not blame him. But anybody who listened to the hon. member must have gained the impression that we have been perpetrating the greatest injustice over the past 12 months because this provision has now been in operation for 12 months. That is not the position. I can tell the hon. member that this provision has been tested and thrashed out in the courts. People who were detained gave evidence and others who were detained were charged. As far as my information goes—I speak subject to correction, but this is the information at my disposal—such a statement has only been asked for in one case, and we refused, for security reasons, to give it. My information is that it is now going to be asked for on a large scale; and it is going to be asked for on a large scale for the simple reason that it has become of cardinal importance to the subversive elements to try to determine at all costs what we know and what we do not know.

The hon. member does me an injustice when he says that I did not explain this provision. I explained it in my second-reading speech. I want to go further now and tell the hon. member that he need not argue with me in this regard; I accept the position just as he accepts it under normal circumstances, and I said so in my second-reading speech. But, after all, there is a great deal at stake here; the safety of the State is at stake. It is of cardinal importance to ensure that the information which the police have at their disposal in this connection does not fall into the wrong hands. I repeat that as far as my knowledge goes, such a statement has only been asked for on one occasion, but I have information which shows conclusively that such statements are going to be asked for on a large scale. When my Vote was under discussion I said to the hon. member for Pinelands (Mr. Thompson) that there were certain things which could become clear to him if he would only go and look at the court cases which were still pending. Have hon. members seen the report which appears on the front page of this evening’s newspaper? Sir, this is the beginning of the things that I predicted here. The hon. member for Durban (North) knows that this is not simply talk on my part. I am a very reasonable person and I gladly listen to arguments advanced here and where it is possible to make a concession I do so, but as far as this matter is concerned I cannot and I am not prepared to make any concession. I would be failing in my duty if I did. I want to say to the hon. member therefore that he is welcome to the argument that he advanced here; I cannot quarrel with his argument as far as the theoretical aspect is concerned, but in practice, if he asks me to make a concession here, then I am not prepared to do so and I simply cannot do so in view of what is at stake, even if he chooses to level the reproach against me that in refusing to make this concession I am violating a number of legal princples. I do not believe that I am violating legal princples because in point of fact I am doing nobody an injustice and, as I have told the hon. member, that is proved by what has happened in practice. In the interests of South Africa I must refuse to make a concession in this connection. Sir, we could argue this matter at length; I do not want to be discourteous to hon. members but I can take this matter no further except to say that as far as this clause is concerned it will have to remain unchanged.

Mr. Chairman, we of the United Party have gone far over the years in giving powers to different Ministers of Justice in order to maintain the safety of the State and law and order. In regard to this clause the Minister has tonight in fact said to us: “In theory you are right; I agree with what you say; I don’t like it myself but you do not know what I know. I cannot tell you what I know and I am going to insist on passing this clause.” Sir, the Minister cannot blame us if we vote against this clause.

We have given our support to him in the past where we have found it necessary to do so in order to maintain law and order and the safety of the State but, without more detail, we cannot support this clause.

Clause put and the Committee divided:

AYES—63: Bekker, H. T. van G.; Bekker, M. J. H.; Bezuidenhout, G. P. C.; Bootha, L. J. C.; Botha, M. C.; Botha, S. P.; Cruywagen, W. A.; Fouché, J. J. (Sr.); Frank, S.; Froneman, G. F. van L.; Greyling, J. C.; Grobler, M. S. F.; Haak, J. F. W.; Hertzog, A.; Heystek, J.; Hiemstra, E. C. A.; Keyter, H. C. A.; Knobel, G. J.; Kotze, G. P.; Kotzé, S. F.; Labuschagne, J. S.; Loots, J. J.; Luttig, H.G.; Malan, W. C.; Marais, J. A.; Marais, P. S.; Maree, G. de K.; Martins, H. E.; Meyer, T.; Mulder, C. P.; Muller, H.; Muller, S. L.; Nel, J. A. F.; Niemand, F. J.; Otto, J. C.; Potgieter, J. E.; Rall, J. J.; Rall, J. W.; Sadie, N. C. van R.; Schlebusch, A.L.; Schlebusch, J. A.; Serfontein, J. J.; Smit, H. H.; Stander, A. H.; Steyn, J. H.; Treurnicht, N. F.; van den Berg, M. J.; van den Heever, D. J. G.; van der Spuy, J. P.; van der Walt, B. J.; van Eeden, F. J.; van Niekerk, M. C.; van Rensberg, M. C. G. J.; van Wyk, G. H.; van Zyl, J. J. B.; Venter, W. L. D. M.; Viljoen, M.; Vorster, B. J.; Vosloo, A. H.; Waring, F.W.; Wentzel, J. J.

Tellers: P. S. van der Merwe and M. J. de. la R. Venter.

NOES—39: Basson, J. A. L.; Basson, J. D. du P.; Bronkhorst, H. J.; Cadman, R. M.; Connan, J. M.; Dodds, P. R.; Durrant, R. B.; Eaton, N. G.; Emdin, S.; Field, A. N.; Fisher, E. L.; Gorshel, A.; Graaff, de V.; Hickman, T.; Higgerty, J. W.; Hourquebie, R. G. L.; Lewis, H.; Malan, E. G.; Miller, H.; Mitchell, M. L.; Moolman, J. H.; Moore, P. A.; Oldfield, G. N.; Plewman, R. P.; Radford, A.; Raw, W. V.; Ross, D. G.; Steyn, S. J. M.; Streicher, D. M.; Taurog, L. B.; Taylor, C. D.; Thompson, J. O. N.; Timoney, H. M.; Tucker, H.; Warren, C. M.; Waterson, S. F.; Wood, L. F.

Tellers: A. Hopewell and T. G. Hughes.

Clause accordingly agreed to.

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

I move—

Mr. Speaker, it was recently indicated in the White Paper on Defence that with a view to making South Africa as far as is practically possible independent of foreign sources of supply, good progress has been made in regard to the local manufacture of munitions.

For some considerable time already there have been, within the framework of the Department of Defence, two organizations, to wit, the Defence Ordnance Production Office and the Defence Ordnance Workshop, which devote their attention to this matter full-time. Both these organizations are, however, subject to all the laws, rules and regulations normally applicable to the Public Service, and which must also be obeyed by them.

In order effectively and speedily to give effect to the Government’s instructions, it was found by the relevant bodies that it was not possible to operate according to Public Service methods, and as the result the Committee under the chairmanship of the Chairman of the Public Service Commission was appointed to investigate the whole matter and to submit recommendations to the Government. The following is a summary of the main recommendations of this Committee—

1. (1) That the Defence Ordnance Workshop be placed outside the scope of the authority of the Public Service;
2. (2) that a Board of Control be appointed as a body corporate;
3. (3) that the existing assets of the Defence Ordnance Workshop be transferred to the Board of Control, and that it be provided with operating capital by the State;
4. (4) that the final product of the factory be sold to the Department of Defence at cost price; and
5. (5) that the Defence Ordnance Production Office should also fall under the authority of the Board of Control.

At this stage it is perhaps advisable for me to point out that it is the function of the munitions production organizations to manufacture or to cause to be manufactured equipment, weapons and ammunition as required by the South African Permanent Force in the Republic at the desired tempo and on the most favourable terms, all circumstances being taken into consideration.

The investigation instituted by the Committee to which I have referred has brought to light that the present procedure of recruiting, appointment and the dismissal of staff has a very hampering effect on the successful working of the munitions production authorities.

The Defence Ordnance Workshop is in fact a factory which is supposed to function like a private undertaking and is subject to the same laws in order fully to succeed in its task. In order to do this, the personnel should be able to be recruited, appointed and dismissed by the controlling body at short notice, and on such conditions as may please the employers, without referring these matters to the Public Service Commission, as is the case at present. So also, promotions and the fixing of salaries should be able to be done on merit and should not depend on the steps taken in respect of similar personnel in the Public Service. Decisions should be taken by one body without having to consult various Departments before effect can be given to a request.

Bearing the foregoing in mind, one of the recommendations of the Committee is that the Defence Ordnance Workshop should be placed outside the jurisdiction of the Public Service authority. This Workshop and the Defence Ordnance Production Office will then, if this Bill is passed, be placed under the authority of a Munitions Production Board. All the aforegoing considerations also apply to the ammunition section of the S.A. Mint, and therefore it has been decided to place that section also under the control of this Board.

Mr. Speaker, the contents of this Bill are self-explanatory, but I should just like to explain a few of the clauses in more detail. Clause 2 provides that the State President will establish this Board as from a certain date by proclamation. The reason for this is that after the passing of this Bill quite a number of administrative steps will still have to be taken before the Board can act as an autonomous body. So, for example, the members of the Board, referred to in Clause 3, must first be appointed.

Clause 4 (1) sets out the functions of the proposed Board, which are in fact the functions of the present Defence Ordnance Production Office. Sub-section (2) merely mentions with whom the Board may co-operate in its work in the country as well as overseas. Overseas cooperation, as hon. members will note from paragraph (c), will only be able to take place with the approval of the Minister.

Clause 13 deals with the personnel of the Board and in terms of sub-section (3) (a) every official or employee automatically becomes an officer or employee of the Board on the date on which the State President appoints this Board by proclamation, unless within 30 days after the appointment of the Board they give written notice that they prefer to remain members of the Public Service.

Paragraph (b) of the aforementioned subsection (3) grants the Board the opportunity, also within 30 days, to inform the Head of the Department concerned that the Board does not wish to employ a particular officer or employee.

Clause 14 provides for pensions for employees of the Board and all officers and employees who at the establishment of the Board will automatically be in the employ of the Board and who have not yet exercised their choice as to whether or not they want to remain in the employ of the Board, will remain members of their existing pension funds until such time as they become members of the fund referred to in sub-section (1).

Mr. Speaker, in conclusion I wish to mention that since this Bill was printed certain defects came to light which I intend remedying in the Committee Stage.

In connection with Clause 1 (iii), I had intended to insert the word “verwante” after the word “bepaalde” in line 16 in order to make it clear that the intention is not to manufacture, or cause to be manufactured, anything which is not related to our defence requirements. If, however, such an amendment was made it would not be possible for the Ammunition Section of the S.A. Mint to continue certain of its present activities under the new set-up.

Here I have in mind something like the minting of kupronickel disks for coins which can only be undertaken in that section. The minting section of the Mint is not equipped for that. It would therefore be wrong to restrict work of this nature by legislation.

If certain hon. members feel that the definition of “munitions” in Clause 1 is too wide, I want to give the unequivocal assurance that it is not the intention at all by means of this measure to deviate from the Government’s declared policy not to encroach on the sphere of the private sector. We envisage nothing more than a continuation of the present policy in respect of the local manufacture of munitions, except that in future it will not stand under the authority of the Public Service.

I trust that this assurance will satisfy hon. members, but if not, I shall be prepared to accept an amendment that the words “in consultation with the Minister of Economic Affairs” be inserted after the word “Minister” in the relevant clause.

Amendments which I will move later are, firstly, in respect of Clause 3 (2) which, as it reads now, allows a member to occupy his post for an indefinite period. The intention is that a member’s tenure of office should at the most be five years, but he will be able to be reappointed again. Further, members who are appointed in the place of other members who have resigned or have died will be appointed to serve only for the unexpired portion of the term of office of their predecessors. Thirdly, in order to put the matter beyond all doubt, I shall also move that the words “any other State Department” be replaced by the words “the Ammunition Section of the South African Mint exclusively” in Clause 5.

The Opposition will give its support to this measure but in doing so it wishes to lodge the strongest protest against the fact that this measure, a measure of tremendous importance to the country and a measure with very wide implications, should have been submitted at this stage of the Session without any opportunity to give to it the study and attention which it deserves. It is typical of the incompetence of the Government that it should have to wait till this stage of the Session to produce a Bill of this magnitude and importance. And when I say “magnitude and importance” … [Interjections]. I think it is time for those hon. members who say “what is the matter with us” to ask what is the matter with themselves and their Government. Here we are establishing a body of the nature of Iscor and Foskor and Sasol and the other public utility companies of South Africa, the semi-Government organizations, bodies which have grown to tremendous strength. This body is immediately going to start dealing with tens of millions of rand, and is a body which will eventually perhaps handle hundreds of millions of rand. We are asked, with notice of only a week or so, to establish a body which is going to have a very big influence on the economic development of South Africa. The Department has been voted some R230,000,000 this year. A large proportion of that is being put in the private sector of the economy in the form of private contracts. Now this body is to be established. And the Minister blandly tells the House to-night that this is a simple little Bill which is going to deal with the making of munitions. Of course it is nothing of the sort. I do not know whether the Minister expects us to close our eyes to the real content of the Bill and accept at its face value the statement that this is a simple little Bill to take over the manufacture of munitions. It does not do anything of the sort. It does if you take “munitions” in its real meaning and not that which this Government gives to it. Of course, we are used to this Government making words mean what they want them to mean. Words don’t mean what a dictionary make them mean; words mean what the Government want them to mean. According to this Bill “munitions means any vessel, vehicle, aircraft, bomb, ammunition, weapon or any material, raw material, component or article of whatever nature capable of being used in the manufacture thereof or for Defence Force purposes or other purposes determined by the Minister.”.

What is the dictionary meaning?

If my hon. friend can produce a dictionary which says “munitions” means anything the Minister wants it to mean I will buy him a farm in the middle of Eloff Street or Adderley Street.

He would not know what to do with it.

He would not know how to read the dictionary anyway; unless it had pictures in it. Sir, this Bill defines “munitions” as anything the Minister wants them to be. Then it goes on to provide that “the board shall have powers to manufacture and supply any munitions required by the State; with the approval of the Minister, to supply munitions to any other person; in consultation with the Tender Board to enter into agreements with persons within or outside the Republic for the manufacture or supply of munitions or anything, except patent rights, required in connection with the manufacture of munitions, etc.” These powers appear from (a) to (h). I think this Minister should have come to this House and said openly that this was in fact the creation, not of a Munitions Board to take over the making of munitions, but in fact a replacement of the old War Supplies Board. It is not only going to deal with munitions; it is going to deal with munitions and equipment. The correct name for this board should have been the Munitions and Equipment Board because it is a board which, in terms of this Bill, is entitled to manufacture anything it wants to manufacture which the Minister determines is a munition. It can enter into any agreements, it can enter into contracts, it can stock-pile, it can purchase from overseas anything from a vessel and aircraft down to component part or an article. This House is asked to give the Minister these powers. We agree with the principle. What we disagree with is the manner in which this House is being asked to deal with this measure. We have pleaded for a long time for Defence not to be regarded simply as another Department of State. We have pointed out that in Defence to-day you are dealing with highly technical issues, you require highly skilled technicians, people who are experts in electronics, in science, in the various sciences which are essential for the army, and equally so in the making of munitions. The Minister said brightly when he spoke: Of course things are going well, but they could go better. Of course they are not going well, Mr. Speaker. The Minister knows they are not going well in his manufacture of munitions. He would not come with a measure of this significance and importance unless he was dissatisfied with the present situation in the manufacture of munitions in South Africa.

Have you received your invitation to go and see what they are doing?

I know what the Minister is doing, but I also know that the oath of secrecy which he makes people take is not always quite as water-tight as it should be. I am not prepared across the floor of the House to tell the Minister what I know about what is going on in the manufacture of munitions in South Africa, but I am prepared to tell him privately or in the Committee for which we have pleaded in this House so long. But the Minister knows what is going on and I know what is going on and that is why he has got to come with a totally new approach to the manufacture of munitions.

There is nothing that I know of that I need be ashamed of.

I want to ask the hon. Minister what percentage of engineering work in his present munitions production is done by army personnel and how much under private contract by private engineering firms. To what extent is he utterly dependent on private engineering firms for the maintenance of the ammunitionmaking equipment of that section of the army?

But that is our policy. We give it to private enterprise as far as is possible.

In the highly secret munitions manufacture? Do you use private enterprise?

Yes.

Why then do you not give the work out to private enterprise? Why introduce this Bill which is going to turn the manufacture of munitions into a public utility company? I do not want to react too much to the Minister. Otherwise we can start talking about some of the equipment he is using and its efficiency and its maintenance and a few other things in connection therewith. The Minister is not satisfied, otherwise he would not come with a Bill of this magnitude. We have warned him that in the highly technical and scientific field which makes up the running and the equipment of a modern army, you cannot have that army and its supplies hamstrung by red-tape and public service commission regulations. We had two debates on it this Session. We pleaded for the army to be released from the red-tape of the Public Service Commission and the regulations which bind it. The Minister pooh-poohed it. Now at five-to-twelve in the Session he himself recognizes in one field that we were right. In due course we hope that he will recognize that in other fields we have also been right in appealing for the technical aspects of a modern army to be freed from the red-tape of the Public Service.

Not long ago, Mr. Speaker, the Minister himself issued a White Paper. It comprised just five pages, and one-and-a-quarter of those five pages were devoted to telling this House and South Africa how munition manufacture had increased (two paragraphs) and then a further eight or nine paragraphs, running to more than a page, dealing with the control over the purchase of equipment and munitions, etc. This is what happens. Except for bread-and-butter items purchased by the State Tender Board, you are dealing with aircraft, weapons, vehicles, etc. That is “munitions” in terms of this Bill. Now you have firstly an experienced evaluation team; secondly, a report is submitted to the chief of staff for comments; thirdly, the matter is taken to the Cabinet, the highest power in the land; fourthly, a draft contract is drawn up and is considered by the military authorities; after that the military authorities having been satisfied, it goes to the Secretary for Defence; after he is satisfied, it has to go to the Treasury, thereafter to the State buyer and thereafter to the State Attorney. All these eight different steps taken to purchase an item of major equipment. And now, just with a wave of his hand, the Minister calmly says: “We are going to have a little munitions board which will produce munitions”, and he gives it the power to purchase at his request any munitions, that is to say any ship, vehicle, aircraft, anything he wants. Here we have eight safeguards in the purchase of anything, but to-day we are asked to create a board which can purchase all these things with no safeguard whatsoever except audit, and consultation with the State Tender Board. What I am trying to point out, and what I think the hon. Minister is starting to appreciate is that this is not such a simple little Bill which we are passing casually in the progress of a quiet evening in this House. The responsibility which this Board has is a tremendous one, and the Minister has given us no indication in his introductory speech as to what controls there would be, to ensure for instance that we don’t have the beautiful situation you got with the purchase of Boeing aircraft where a little company acting as agent for those aircraft is going to make R500,000 in commission alone on the sale of R20,000,000 worth of aircraft to the Government. And how do we know what controls there are, that somebody is not going to set up a quiet little agency to sell Hercules on behalf of the Lockheed Co., or some other thing which the Government want and make another R500,000 commission out of that sale ? The Minister in asking these powers should tell us what the safeguards are. What are the controls he is going to exercise to ensure that we don’t have another Boeing commission scandal such as we have seen the Government making possible through the purchase of aircraft through a local agent instead of direct from the manufacturers in a case like that.

This Bill entitles the Government to enter into direct competition with provate enterprise. The Minister did not mention it, but he has received representations from us and I am glad he has indicated that he will accept some of the proposals we wish to make. So I will say at this stage that in Committee we are going to move an amendment limiting the “all other things” under the definition of “munitions” to “other purposes determined by the Minister in consultation with the Minister of Economic Affairs”. Thus the Minister of Economic Affairs, responsible for private enterprise in South Africa will be able to act as a brake on the Department of Defence to prevent this Board coming into competition with private manufacturing industry.

I will accept that.

Secondly, we will move in Clause 4 that this board may only manufacture after permission granted by the Minister in consultation with the Minister of Economic Affairs. So there we will at least have some control and we are grateful for the Minister’s acceptance of the amendment. But we want more than merely that control. Tihs body will handle anything up to R100,000,000 a year. It is going to produce a report which the Minister is entitled to keep secret. He is entitled to suppress that report if he regards it as in the Public interest. We believe that this, if nothing else has done so, proves beyond argument our case that there should be a parliamentary committee to deal with Defence Accounts. I therefore ask the hon. Minister now to agree with us that when this Board reports and when its accounts are audited by the Auditor-General, the Auditor-General’s report should be submitted to a special Select Committee of this House which will deal specifically and only with the defence expenditure. Otherwise Parliament is going to have no effective control of the R 100,000,000 which this body is going to control, money voted as a revenue sum, money spent by the Department of Defence, money spent by other departments such as the Police and Prisons and money earned by the sale of ammunition. This is going to be a body of major importance and the Public Accounts Committee, I believe, cannot—it simply has not got the physical time to give the attention to this sort of expenditure which is essential. I hope that the hon. Minister will agree that when this Board is established that Parliament will have proper control of the expenditure of that board by having a Select Committee to examine the report of the Auditor-General in regard to the expenditure and the accounts of this particular organization.

But that is the normal procedure.

Of course it is not the normal procedure, the normal procedure is that it will be part of the duty of the Public Accounts Committee. The hon. member ought to know that that committee cannot physically handle another body of this importance dealing with issues which are highly specialized and which require highly specialized attention.

So to sum up: We accept the necessity of withdrawing munition manufacture from the red-tape of the Public Service Commission and a State Department. We support that principle. But we demand two things: (1) Proper protection of the interests of private enterprise and (2) proper parliamentary control. We expect of the Minister, in addition to that, proper ministerial control, and within that control a board qualified, with the ability and qualifications to handle the tremendous responsibilities which will rest upon it, and in handling those responsibilities, to give to South Africa the mechanism for munitions and military equipment manufacture and purchase which will enable us to streamline and to improve the present system. In principle we give our support to this measure.

I do not know why the hon. member gets so hot under the collar because of the fact that this Bill is dealt with so late in the Session. He himself admits that there is nothing to which they object in principle. In addition, the Bill is not a complicated one which requires much study. It deals with a matter of principle. Is one in favour of the munitions production which at the moment is being done by the Defence Ordinance Workshop and the S.A. Mint being taken out of the Public Service machinery and transferred to the Munitions Production Board? That is the principle, and if the Opposition accepts that principle I cannot see why they object to the Bill being introduced at this late stage. I can only say that it has come to my knowledge that the Department has been dealing with this Bill for a long time and that it was a complex Bill for them to draft. It is the first time that a body is being taken out of the Public Service, whereas formerly bodies were always transferred to the Public Service. Therefore we are here on quite new terrain in respect of legal draughtsmanship. But things develop fast and while we agree that there should be less red tape in regard to the production of munitions, I think it is wrong of hon. members to adopt such an attitude to-night.

I also do not know why hon. members are becoming upset about the question as to whether the Board will now manufacture too many things. They know that the Nationalist Government is bound to private initiative. It has been proved over and over that we stand by private initiative. It is only when private initiative does not enter the field that the Government enters it to manufacture in this way.

I also want to say something about the plea of the hon. member in favour of the Select Committee. I do not know why hon. members persist in this request for the appointment of a Select Committee. Surely such a committee can only devote attention to irregularities indicated by the Controller and Auditor-General in his report. In other words, the Committee can do no more than to devote attention to those irregularities which have in fact been pointed out in his report by the Controller and Auditor-General. Such a Select Committee of this House cannot discuss matters of policy. Therefore I do not know what more hon. members want to achieve than can be achieved by the Public Accounts Committee. In other words, what hon. members want to achieve by means of such a Select Committee I just cannot understand. But now I want to say further that if they obtain certain information in such a Select Committee which may be of use to them, and that information is not published in the evidence or in the report of that Select Committee, then those hon. members will be bound to preserve the confidential nature of that information. Therefore the members of the Select Committee bind themselves not to be able to use that evidence in this House if they want to criticize the Government.

We are not trying to play politics; we want efficiency.

I repeat that in fact they can obtain no information except what the Controller and Auditor-General makes available to such a Select Committee in his report. I just cannot understand what they hope to achieve by having a separate Select Committee. On the contrary, I think they are ust selling their rights for a mess of potage. They will be curtailing their right to criticize the Government if there is such a Select Committee.

Then why are you afraid of it?

I should like to say something about the Bill itself. As the hon. member has indicated, Clause 4 is worded fairly widely and I should like to know from the Minister what the real intention is. Is it just to take over the Defence Ordnance Workshop and the S.A. Mint, or is it also to use the Board which will be appointed to make all the purchases, to call for tenders, to enter into contracts and to inspect the goods delivered, etc. ? I think it would be a good thing if we knew what actually the intention is in regard to the Munitions Production Board.

Like the hon. member, I also want to point out that in the last war we had a similar organization in the form of the Director for War Requirements with a sub-division falling under the Director of Technical Services, and that body was of course organized on much wider lines than is proposed in this Bill. But I want to point out that we are dealing here with the germ of an organization which may be used in war-time and which may then be expanded to plan on broader lines. I therefore want to plead with the Minister that the Board which is now to be established will be used as the kernel around which further planning will take place, so that if any aggression takes place or South Africa should find herself in the position of having to defend herself, the machinery will be ready to be put into action immediately, wider machinery such as we had during the last war. I feel that here we have a golden opportunity to do that planning.

I am glad that as far as munitions production is concerned, there is now an opportunity to get away from the red tape of the Public Service and to tackle that production on a business basis. I am glad that hon. members opposite support this Bill in principle.

I would like to reply to one point made by the hon. member for Pretoria (West) (Mr. Van der Walt) and that is the objection he raises to the proposal of this side of the House to have a Special Select Committee to go into the matter of Defence expenditure once this Bill becomes law. The hon. member says that there is no necessity for such a Select Committee because the normal Public Accounts Committee goes into the reports of the Auditor-General and as it is provided in Clause 11 that the accounts of this Board should be audited by the Auditor-General in the normal course of events, the reports of the Auditor-General will come before the Public Accounts Committee. I want to direct the hon. member’s attention to Clause 12 which specifically provides and gives the hon. the Minister the powers to exclude from the reports of the Board which the Board in terms of Clause 12 is compelled to table in this House, such portions of the report that he receives which he thinks it may not be in the public interest to publish.

That has nothing to do with accounts.

The hon, member should read the Bill. The point I want to put to the hon. member for Pretoria (West) is this: The Board is obviously going to embark on expenditure in the manufacture of various types of ammunition, classes of small arms, may be in regard to the calibre of certain types of cannon and what have you. But the Board spends the money, and how are we to know, who have to look after the taxpayers’ interests whether in that regard the Board is spending the money adequately and properly. They may be spending money on a cannon of a certain calibre which may be in our opinion un-economic or useless for its purpose, or may be manufactured or purchased against the advice that is given by the Defence authorities. How are we to know? Who is to be the Judge? Surely we must seek to protect the taxpayers’ interests. Such a committee would serve a useful purpose. We are aware of our responsibilities in regard to these matters, and if that is so, surely Parliament can be trusted at least in that measure to ensure that we have the most efficient production and acquisition of arms for our Forces as is possible. And surely members of this House who have been entrusted with responsibilities in other important select committees can be trusted with such a responsibility as far as the accounts of such a board are concerned. Let me say as well for the information of the hon. member for Pretoria (West) that in other democratic countries such committees do exist where there are similar systems of government to the one which we have, and I think the hon. Minister is well aware of that.

I would like to make one or two observations about the Bill. What surprises me is that the hon. the Minister in introducing the measure made no reference at all to the functions of the Defence Resources Board.

What has that to do with this ?

That is what I am going to tell him about. The Minister has only made reference to the Defence Production Office, and has created the atmosphere in his introductory speech that this Board is now going to assume broadly the functions of the present Production Office. The hon. Minister well knows that he has a Defence Resources Board, I think under the chairmanship of Dr. Frans de Villiers, upon which the Commandant-General sits, on which the Secretary for Defence sits, on which Dr. van Eck sits, Dr. Meyer sits, all holding most important positions as far as our industrial and Defence responsibilities are concerned, the ministers predecessor was to provide industry with detailed specifications and drawings for our defence requirements, and that the production Board advised the Minister in some important respects. It is clear to me by reading the functions of this Board in Clause 4 that there is certainly going to be a clash of interests. What the Minister should clarify to my mind is where exactly will the distinction be drawn between the Defence Resources Board and this Munitions Board that is being established in this Bill. There are at present two channels: The important function of the Defence Resources Board where it acts in an advisory capacity to the Minister in some of the most important aspects of defence one would have thought that with a munitions board of this nature, the line of demarcation would be clearly laid down. Let us say that the Defence Production Board was a parallel organization and its functions were not considered apart from those of the Defence Resources Board, then I think it behoves the Minister in his reply to state exactly where the functions of this most important body fall in respect of the functions that are envisaged as far as this important munitions board is concerned. I think it is a very pertinent point and one that certainly needs clarification, particularly as far as the industrialists of our country are concerned who would be largely concerned with the functions of this Defence Resources Board.

Regarding the wide definition of “munitions” to which the hon. member for Durban Point has already made reference, this definition is so wide as to cover any aspect of acquisition of the needs of the Defence Forces, whether it be a pair of boots, a pair of socks, or a pullover to keep a soldier warm, or the tie that he may be supplied with when he walks out, or whether it is a gun, a bullet or whatever it may be. What disturbs me is this. I have accepted the Minister’s assurance in the latter part of his speech that he does not intend to infringe on those aspects of private enterprise he mentioned, and I understand that he is prepared to accept an amendment in that regard in the committee stage. But when you look at the White Paper, where the Minister talks about the manufacture of munitions, he makes the statement that the expenditure for 1964-5 under the heading of “local manufacture of munitions” totals something like R33,000,000 as compared to an actual expenditure of R315,000 in 1960-1, and when you read that in context with the very next paragraph, then I think the impression is left here that this expenditure mentioned in the White Paper was entirely confined to what we normally think of in terms of “munitions”, that is a gun, a bullet, or weapons of some nature or other. I mention this because I would like to have some greater clarity. This White Paper that was tabled is an important document. It has given us some sort of picture. But I would like clarity from the hon. Minister in view of the very wide definition of “munitions” contained in this Bill. This figure of R33,000,000. Is that merely expenditure in respect of the operation of the Ordnance Workshops, or the actual manufacture of weapons? I think it is an issue on which we do need some clarity.

Then I want to turn to that section of the Bill dealing with the functions of the Board. In 1952, the then Minister set up the original Defence Production Office, and I took the trouble to look up the actual functions of the Production Office as they were defined at that time, and it is quite clear, Sir, that the original Production Office functions were very much more confined to the acquisition of weapons than to the very wide possibilities and wide functions that are given in Clause 4 of this Bill to the Defence Production Board. For example, one of the important functions of the Defence Production Office as we knew it, and was stated by the Minister’s predecessor in this House was to this effect: To form the nucleus of a procurement organization for defence requirements—“procurement”. I am at a loss to understand the Minister’s introductory statements, because if you read the functions of this Board in one sense, it means that the Board can only acquire and supply what the Defence authorities ask it to supply. It has in other words no powers of procurement. It cannot of its own accord advise or buy for the Defence Department.

That is right.

If that is right, then the wording of these functions in terms of subsection (c) is certainly not clear in that regard, because it says here—

It refers here also to the “supply of munitions”. Now this is a very important point in respect of which I think the Minister should give us complete clarity. Who are going to be the evaluating persons on the Munitions Board as to the actual defence needs of munitions as far as the Department of Defence is concerned What is going to be the determining factor? Is it going to be this Board or the Minister’s military authorities, or a special committee of the Minister, or the Secretariat, or who ? It is certainly not clear here. The impression exists certainly in the public mind, I think, that this Bill as it stands at the moment creates a Board which will not only manufacture what it is asked to manufacture by the Defence authorities, but that it will also have the power to procure outside for its own account, and sell back, possibly at cost, to the Department of Defence. I think it behoves the Minister to give us complete clarity on this point. Is it merely going to be a board established for the purpose of purchasing for manufacture of munitions as may be requested by a department of state? Is the present procurement policy through the Secretariat going to continue in existence, or will this Board be the procuring body for what the Secretariat or the Defence authorities may ask it to procure for them? I mention this because we will be required from time to time to vote money for the operation of this Board, and this House, I think, is entitled to know what it is voting for manufacture and what it is voting for supplies for the Defence Department. They are two completely different issues, and unless we get clarity on this matter, I am afraid there will be very little opportunity on future Defence Votes to make a proper assessment of what are in fact defence requirements as far as voting funds is concerned.

Another issue arises. The White Paper speaks clearly in terms of the various clauses dealing with the procedure for the purchase of munitions. It is stated here that it is the practice to appoint an experienced evaluation team which considers all available equipment of the type required. In other words, nothing is purchased, no arms, no type of ammunition, cannons, rockets, aeroplanes, or whatever it may be, unless these have been properly evaluated, I take it by a team from the Defence authorities. Now, Mr. Speaker, who is going to do these evaluations in future?

In the same way as they are done now.

This board cannot manufacture in a vacuum. In any event, it is not clearly stated in the functions of this board. It has been clearly stated by the Minister that this board will deal not only with repairs to stores but also with the specifications and drawings for defence requirements. In other words, this board is going to be the evaluating team, in a sense, before the goods are supplied. This is another aspect of the duties of the board in respect of which we require clarity.

Now, I want to turn to another very important aspect of the matter, i.e. clause 4 (1) (b) of the Bill, reading as follows—

In terms of another sub-section the board can send teams overseas and can consider raw material resources and other issues overseas in connection with the board’s manufacturing requirements. I mention this matter, Mr. Speaker, because we have discussed these matters in the past, and as the Minister knows, we are still subject to certain international agreements. One of these agreements concerns the supply of military equipment for our own needs. The Minister looks a bit surprised. But I want to remind the Minister that these agreements have been tabled in the House. To my knowledge these agreements have not been cancelled. It seems to me that the hon. the Minister is now becoming aware of what I am hinting at. I have a copy here of notes that were exchanged between our Government and the United States Government in regard to the procurement of military equipment. I am not going to read it all, but should like to refer to one or two extracts. The military equipment described here can be brought within the wide definition of “munitions” of this Bill. Now, we have certain privileges in that regard, privileges in regard to the procurement of military equipment from the United States of America which will enable us to play our part in the overall picture of Western defence. In that regard we are entitled to certain benefits in so far as the procurement of this equipment is concerned What I think is relevant about this agreement, Sir, is that it has more pertinence now when we are considering a Bill of this nature. There is an important clause in this agreement, relating to certain undertakings we had to give and certain conditions we had to comply with in order to have the benefit of these procurement programmes offered by another friendly Government. In Clause (2) of this agreement it is provided that assistance will ge given to us in regard to this procurement, which will be done I take it through this Board, provided we do not do certain things. One of the things we must not do is that the South African Government will not undertake any act of aggression against any other State. I mention this, Mr. Speaker, because our procurement policy according to which we are equipping our armed forces will be the prime concern of a production board of this nature, a policy which is based on certain defence reappraisals and appreciations, as the Minister well knows. We are not the only country in Africa which has an agreement of this nature with the United States. But it surprises me that there are countries who are parties to this agreement whilst having made definite statements of aggression against South Africa. I do not know whether the hon. the Minister is giving this matter his consideration but I certainly hope that when he replies he will indicate to us whether we are still going to avail ourselves of the facilities under these agreements.

With these few observations I have made I have attempted to indicate some of the problems arising from an important measure of this nature. Accordingly I must subscribe to the point of view expressed by the hon. member for Durban (Point) that we take the strongest exception to being given such a short time for considering an important measure of this nature. We object to such an important measure being introduced at such a late stage of the session. In any event, I hope the hon. the Minister will be able to offer some clarity in regard to some of the points I have raised.

We have indicated to the Minister that we support the second reading of this bill but there are certain other matters that have not been dealt with by the Minister or any of the speakers in respect of which I should like a reply from the Minister. As the Minister also knows, a wide range of products was made under the heading “ammunitions” during the last war. It was necessary then, as it has been necessary since, to have a very strict control over defence expenditure, having regard to the fact that many items of defence expenditure are not bought in the ordinary market and that it is very difficult to compare prices, costs and values. I have in mind, Mr. Speaker, one of the first items that was manufactured early in the last war, i.e. Bellman Hangers. At the beginning of the ’ war the contractors indicated that they would supply Bellman Hangars at £5,000 each. Shortly afterwards however they indicated that the price would be £3,700. Then, the investigating officer investigated the costs, with the result that £275,000 was refunded to the Central Government. The price was later established at £2,977.15.0 instead of £3,700. I spent over six years during and after the war on this investigation work, Mr. Speaker. I could keep this House occupied with stories that took place then till midnight, but I know, Mr. Speaker, that you would not allow me to do that. There are many items in respect of which we are not allowed to talk on account of the official Secret’s Act. I can recollect one incident during the war of a particular type of equipment which was being assembled before America came into the war. This equipment was made in a factory and I do not now wish to mention the type of equipment, because I do not wish to identify the people concerned, some of whom are still living, some of whom are in business and some of whom are still prosperous. In this particular case we closed the factory. The people concerned were making a particular item of defence equipment. The Minister in fact said that these contracts had to be given to private enterprise. In the case I am referring to the price was determined and a cost investigation was held subsequently. It was established by this cost investigation that the final price made allowance for a reasonable margin. But on further investigation it was found, Mr. Speaker, that one of the directors of this company had formed another company and that he had obtained the agency from America for the majority of the parts of this equipment. This man was getting credited to him in America no less than 15 per cent. The articles arrived here at landed cost, and this cost was established on the strength of available documents. What was not established by these documents was that a 15 per cent commission was paid to the agent concerned, the agent being a director of the company, and that this commission was credited to him in the United States of America. When this state of affairs was subsequently established that director did not last very long in that position. One or two of the officials went up to the Western Desert to get cooled down up there. Eventually the major portion of that factory was taken over, and carried on with defence work. We have a very sound knowledge of the effect on costs when production is increased.

This matter, Mr. Speaker has been dealt with before and I should like to draw the attention of the Minister to some of the factors that require consideration. I therefore wish to draw the Minister’s attention to the Report of the Select Committee on Public Accounts for 1945. This Committee reported as follows—

Frequently, Mr. Speaker, an engineering or private company, on being given an order by the Defence Department will find that it is in a position to manufacture at a certain cost. But, with the improvement of manufacturing techniques in that industry, coupled with the large quantity of the article to be manufactured, they can introduce a system of mass production and therefore substantially reduce the costs. To give you an example just in passing, Mr. Speaker, we cut the price of land mines by over 15 per cent within a year of starting the manufacture thereof in this country. The extent to which the price of army boots were cut is also very well known in this country. At the beginning of the war these boots were priced at 28/9d. per pair but by the end of the war this price was cut down to 17/9d. or 18/9d. per pair. And even then, although some of the contractors complained, they were only too anxious to have the contracts continued when it was suggested at the time that the contracts be placed elsewhere. I therefore think it is essential that the Minister should let us know whether there is going to be any measure of financial control with regard to profit margins. The Minister will know from his own investigations into practices overseas that there have been more scandals connected with governments all over the world over defence procurements than with anything else. This state of affairs is largely due to the fact Mr. Speaker, that so few people, governments, and government departments when placing orders for munitions appreciate the significance of mass production, and the effect of mass production on costs. I sincerely hope that the Minister will take this into account. This is indeed a very essential part of his control. For this reason Mr. Speaker, I am very concerned that this Bill has come to us so late in the session. This Bill should have come to us earlier in the session and I think it should have gone to a Select Committee, because then we would have had the opportunity of analyzing it in detail and bringing factors of this nature to the notice of the Minister, through the Committee’s Report. In so doing, we would have had the opportunity to call before this Committee many leading industrialists who had practical experience during the last war. These people could have been summonsed or invited to appear before this Committee and they would certainly have been in a position to give valuable information in regard to the method in which control could be implemented i.e. the control of costs and profit margins. There are several methods of controlling prices and in this connection I should like to draw the Minister’s attention to the second report of the Cost-plus Commission. As the Minister well knows the Cost-price Commission published several reports comprising three reports and a final special report. Only one of these reports contained a minority report namely that by the late Mr. Werth which was published in the special report. In all the other reports, the conclusions arrived at by the Committee were unanimous. In the second report the Committee refers to the three bases of awarding contracts namely on a cost plus fixed profit, a maximum price contract and a fixed price fixed fee basis. I do not propose to go into any detail in regard to this matter at this stage except to point out that there is a wealth of experience both in this country, the United States, Great Britain and the countries of the Western World in the matter of the control of the costs of procuring requirements, whether made under government supervision in government factories or outside. It is true Mr. Speaker that many instances they may be made by government departments, but there will be frequent cases where some of the essential parts will have to be made outside. When these parts are manufactured by private enterprise the Minister will frequently find that the costs are considered reasonable during the initial stages. As further orders are placed however and as the volume increases, the tendency will be for costs to reduce. I cannot urge too seriously the importance of efficient cost control, and a regular examination of profit margins because otherwise the Minister is in danger of acquiring materials at increasing costs, at profit margins which might at some future stage be challenged. I think it is essential that there should be adequate controls. I realize that there must be a certain degree of secrecy in respect of this matter. However, I can assure the Minister that if he will examine the reports of the various committees which were appointed during the last war, if he will examine what is being done in the United States of America to-day in respect of all their defence procurement contracts, as well as their control over ordnance and private factories, he will find that there is ample evidence to support my plea for adequate financial control over costs and profit margins in the interests of the country and of efficiency. I am certain that unless we have efficiency in the method of acquiring defence requirements, this could run riot. The Minister needs only to read what has taken place in other parts of the world to find ample confirmation for what I have said. I hope that he will assure us that not only will there be adequate inquiry and adequate control over costs and profit margins and that there will be the other financial supervision which we demand, but that it will be known to the country and it will be known to industry and commerce, who are anxious to get these contracts, that they should realize at the same time when they are asked to make something for South Africa, the sky is not the limit. They are entitled to a reasonable price but they are not entitled to unreasonable profits. I hope the Minister will bear these factors in mind when he gives further consideration to this legislation and to the control which is absolutely necessary if we are to have a sound munitions industry.

The hon. member for Pinetown (Mr. Hopewell) of course touched on a very important aspect of the manufacture of munitions. We know very well that in regard to these big purchases of munitions, ammunition and war requirements there may be quite a lot of chicanery. Too high prices may be paid. We continually have the trouble that we have this “escalator” clause when we have to purchase material overseas. Even in those cases we must accept certain increases during the period of manufacture. However, we continuously devote attention to these matters. One account which we received last week from the Government of a friendly nation overseas had to be reduced by £300,000 after we had proved that the increase in prices was not as great as had been alleged. We therefore continuously have careful regard to this matter. In regard to the manufacture which will be undertaken by this Munitions Production Board, those products have to be supplied to the Government at cost. Of course we will watch them, because what will they do with the profits? The profits come to us. I want to give the hon. member for Pinetown the assurance that we are continuously busy with this matter. I will not allege that we cannot be cheated here and there, but I have already mentioned this example of what happened only this week in regard to a Government account.

The hon. member for Point (Mr. Raw) and Turffontein (Mr. Durrant) objected to the fact that this Bill was introduced at such a late stage. I will not quarrel with them. It is late. There are various reasons for it. The one reason is that it is not easy for any Department to expand portion of its activities. We have been busy since last year considering this matter. Unfortunately I became ill, something over which I had no control whatever. I was out of action for longer than two months and of course that caused delay. When I returned, I again devoted my attention to the matter. There was, however, still much delay and that made it late. I therefore want to apologize to the House for the fact that this legislation has been placed before it at this late hour. In view of the fact, however, that this legislation is so necessary, I nevertheless lay it before the House at this late stage.

That is very reasonable.

The hon. member for Point said that he agreed with the principle. He says he has already intimated to the House and to me that the Department of Defence should not be regarded as another State Department. Special arrangements should be made in so far as matters of defence are concerned. I concede that. We also want that to be done. However, I would like to say this. It is not so easy to make arrangements in connection with defence other than those which apply to other State Departments. When one department is given certain privileges, pressure is exerted from every other department to be given the same privileges. If we establish a precedent as far as one department is concerned, then all the departments will want the same privileges. I concede that defence production should be placed in another category. That is why this legislation is being introduced. As far as parliamentary control over this expenditure is concerned, hon. members have been trying for a couple of years already to have a Defence Board.

It was subsequently changed to a Parliamentary Select Committee. The hon. member for Pretoria (West) (Mr. Van der Walt) replied reasonably fully on this point. I now also want to reply to it. All these years up to now the Controller and Auditor-General has been the watchdog over State expenditure. It has never been possible to suggest a better system than this control by means of the Auditor-General and the Select Committee on Public Accounts. In this case that control will also be applied in the same manner as it is applied to any other Department. It has always been effective control. Why should it now no longer be effective?

It was said that I provide in Clause 12 that the board should submit a report to me. That is correct. The board must submit a report to me in regard to all its activities. Supposing, however, that the board should report to me that it made 40,000 of a certain type of bomb, I shall not reveal that information. It will be kept secret, and must be kept secret. There are certain defence matters which cannot be made public.

That is why we want a committee. Then we can talk in secret.

We have the Select Committee on Public Accounts, but a Select Committee of the type desired by the Opposition will not even be able to tell Parliament what is going on. The few members of the Select Committee will know what the position is, and nobody else. How can Parliament and the country become wiser as the result? They will be no wiser.

*An HON. MEMBER: What is the practice in other countries?

I do not know. I referred in this House the other day to conversations which were in progress in Britain in respect of consultation between the Government and the Opposition in connection with defence matters. That sort of thing has not yet worked in a single instance. The man who kept on with it longest when he was in Opposition was Mr. Churchill. He attended three meetings and then said: “No”.

That was in respect of policy matters.

The hon. member for Pretoria (West) asked me what the actual function of the board would be. I really think that the function of the board is set out very clearly in the relevant clause. The hon. member asked whether the board could eventually form the kernel of a greater organization in time of war. It cannot be otherwise. It must form the kernel. In that regard I agree with the hon. member.

Then the hon. member for Turffontein asked me what the difference was between the functions of this Board and those of the Defence Resources Board. The function of the latter is to advise the Minister in connection with all matters affecting the industrial potential of the Republic of S.A. For this purpose the board must investigate and make surveys of the suitable resources of the Republic which can be made available for the manufacture of munitions and supplies and the possibility of converting existing machines for the production of the supplies we need, or to increase the production of such equipment and supplies. The Munitions Production Board which we are now going to establish will take over the existing functions of the Defence Ordnance Production Office, and also of the Workshop. This board is only taking over functions which have always been carried out by my Department. But why does it make the other board superfluous because we are taking over these functions? The other board has a specific function. That is why, as the hon. member himself has said, there are eminent people on that board. I want to mention something to the hon. member. What has this board not already done for us in respect of the encouragement of certain industries? If this Resources Board has encouraged the electronics industry, then this Munitions Production Board will now be able to place the orders of the State with that industry. I want to mention something else. A few years ago we needed certain radio apparatus. We did not know whether it was available in the Union, as it was at that time. We sent a team of experts overseas. They were there for a few weeks and then came to report to me in Cape Town that they could not obtain in Europe the apparatus we needed. The next morning my officials reported to me that the equipment we were looking for in Europe was actually being manufactured in Cape Town. I then became discouraged. It then became quite clear to me that we required people who were au fait with matters in regard to the potentialities in the Republic, and that is why a board like this is absolutely essential.

Mr. Speaker, I think I have more or less replied to all the points raised. I have perhaps not done so in so much detail as hon. members would have liked, but there is in any case still the Committee Stage.