I move pursuant to Standing Order No. 182 of this House—

I second.

I have already pointed out in connection with my amendment that no opportunity is given to an artist, a writer or a bookseller or any other person charged before this Publications Board to appear before the Board to defend himself. The position is that an accusation can be made against a particular object or publication and that objection is made in secret to the Board. Even worse, it is made anonymously. The writer will never know who has charged him before the Board. He does not know who this mysterious inquisitor is who is trying to wreck what he has tried to create. He has no opportunity whatsoever of appearing before the Board itself. This is an iniquitous procedure. This is the procedure which was adopted in the Spanish Inquisition. In the Spanish Inquisition the prosecutor was allowed to appear and to give evidence, but the defendant was not allowed to appear before the Inquisition. The same thing is happening here. The prosecutor, the snooper, the inquisitor is allowed to present his affidavit to the Board but no opportunity is given whatsoever to the writer, the creative artist, to go along and to defend his work.

It is wrong for the hon. the Minister to say that such an artist or such a writer still has an appeal to the courts. Admittedly he has that right but when he does appeal a stigma attaches to him and to his work, a stigma laid on by the Board previously. If the Minister will consider this Bill carefully he will find out that either due to a draftsman’s fault or possibly due to the Minister’s own intention an appeal cannot be made to the courts in all cases. If a particular offence is being investigated under Clause 8 (1) (b) then indeed it is not possible to appeal to the Publications Board. I do not wish to elaborate on that clause; we shall deal with it later on. That is the case where an offence is being investigated presumably by someone from the Customs Department or by a police officer and in that case there is no possibility of an appeal to this Publications Board.

There is the further danger in this particular clause that no reason need be given whatsoever by the Publications Board for its decision. In other words, an artist or a writer whose work has been rejected by the Board will really never know why it has been rejected; he will have no guidance for the future as to what he may say and what he may not say. I speak subject to correction, but I believe that it can be read in this Act that there is no opportunity for the Board itself to be called as a witness before the Supreme Court, and that there will be no chance for the Board to be subponaed to come and say before the courts of the land why a certain object was deemed to be objectionable within the terms of this Act. That too is wrong. In other words, your writer never knows why he has been subjected to this iniquitous procedure. The Board need only declare something objectionable or undesirable and then the writer is subject to the penalties and subject to the degradation of a decision being taken against him, even should the court afterwards decide otherwise. The hon. the Minister, and I believe the hon. member for Middelland (Mr. van der Merwe) too, raised the question of the large number of booksellers who might be affected by this amendment of mine, and he said that it would open the door for hundreds and hundreds of booksellers coming and placing evidence before the court itself. I wonder whether the hon. the Minister can really accuse the book trade, a dignified trade, of even thinking of doing anything along those lines? If for instance a book is found at the Central News Agency, I am quite sure the C.N.A. would not instruct all its hundreds of booksellers to present their case before the Board. The C.N.A. as a body will probably send one representative representing all the different booksellers. If the hon. member has read the C.N.A.’s memorandum, he will find that they stated in regard to this particular clause—

That is all they ask for, some or other provision to be able to make representations to the Board. And then they added (the second point that I asked for)—

I appeal to the hon. the Minister to accept this amendment, and if he is not particularly satisfied with the wording, I appeal to him to do something along the principle of allowing a person who may be charged of having produced something undesirable to appear before this particular Publications Board. I am sure there is not a single writer, a single artist, a single sculptor in this country who would not support an amendment along these lines.

The Opposition alleges that the complainant receives an opportunity to state his case, but not the accused. That is not so, however. If we look at Clause 8 (1) we find the following in (a) and (b)—

In other words, only at the request of a person can the material be investigated. There is no reference to a trial, no opportunity is given to the complainant to state his case. Therefore the statement is incorrect that the complainant can state his case and that the accused has no right to reply to it. The whole decision is based on an investigation by the Board and not on a trial in the ordinary sense of the word. The reason for this is clear, namely because the intention of the author of the material is not taken into consideration, and further, because this Board consists of experts, particularly in the way it is now being changed so that six out of the nine members of the Board must have a thorough knowledge of art, literature or the administration of justice. It is therefore a question of an investigation being made by a board of experts who will investigate the matter in the light of their own knowledge, and it will not be a court inquiry in the ordinary sense of the word. If this amendment were to be accepted, every decision would be likely to be accompanied by a full hearing, which would make the task of this Board quite impossible. If every book or film was to be subjected to such an inquiry, it would lead to a lengthy and expensive process which would be quite impracticable. In terms of the existing Act, No. 28 of 1931, which deals with film censorship, it has never been the procedure to allow a hearing. That is the existing position. Nor was it ever done in practice in terms of the Customs Act of 1955. Surely it is logical that where hundreds of books are concerned and hundreds of films, it is impossible in practice to allow a long and expensive hearing. It therefore surprises me that the Opposition makes such a suggestion which they themselves know is quite impracticable.

This clause …

The political ducktail!

Order! The hon. member must withdraw that.

I did not know that that was an insult, but I withdraw.

I would prefer that hon. member to call me a ducktail, not a political ducktail.

I would suggest to the hon. member for Omaruru (Mr. Frank) that in raising the objection that he did to the amendment which the hon. member for Orange Grove (Mr. E. G. Malan) has just supported, he completely ignored the implications of Clause 3 (b). He refers to the examination of objects, for instance, a book, by the Customs; that is to say, something tangible, something that is in existence; but I want to deal with a difficulty that will arise under this clause when something which is in the process of being created, something which is as yet intangible, comes within the purview of this Board. I want to give the hon. the Minister the example of a theatrical production which is being prepared, whether it is a legitimate theatrical production or a musical, and about which the Board decides to make inquiries. Now, Sir, these matters are undertaken well in advance of the date of production. For example, any producer or organization that wants to produce a stage show will be engaged on it perhaps a year before the actual opening, certainly three months before the actual opening if it were an amateur production, and nobody knows exactly what that so-called object is going to look like when it is in fact completed for viewing, for public presentation. I doubt whether the hon. the Minister could have had this aspect in mind when he referred to “public entertainment” or “intended public entertainment” which makes the matter much more serious. In other words, if it should become known that a certain person or body is going to produce a certain play, an intended production, then according to this clause, if it has been alleged (the clause does not say by whom) that there is something about this intended production which has the nature contemplated in Clause 12, the Board shall make such inquiries. Sir, you will appreciate the difficulty of even an amateur society in producing anything for the stage, in the position in which it would find itself if the Board in terms of this clause should make inquiries about that production. Because until the Board has completed its inquiries—even when the production is in the embryo stage and has gone no further than the announcement of the title and perhaps the casting of the people concerned, the players, the Board then shall make inquiries—until those inquiries have been completed and until the Board has come to a conclusion, and as it were has cleared that particular production, the whole thing, as the hon. the Minister will appreciate, is completely hamstrung, because no group of persons, particularly amateur societies, can apply its very limited funds to the production of something which may be found, after the Board has made its inquiries, to be in the mind of the Board of such a nature as to result in the prohibition of this so-called public entertainment. And with due respect to the hon. member for Cradock, let me say that I know more about the theatre than he knows about sheep farming.

I do believe that in the consideration of the entire Bill, and especially in the consideration of this clause, the Minister has thought almost exclusively of tangible objects, as they are called in this Bill—a painting, something which exists and can be seen, a book which can be read, but when you come to “live” theatre —and the hon. the Minister will agree that “live” theatre is something that his Department should encourage—then I promise the Minister now that this particular clause will mean an immediate hesitancy, at the very lowest, on the part of every professional and certainly every amateur group of players in this country, whether in English or in Afrikaans, and a complete stoppage and cessation of activities in regard to any particular production until it has been cleared by the Board. The position is that the hon. the Minister must agree that this question of the “live” theatre is not a trivial matter in the artistic life of this country. I submit with deference that it has not been considered at all in the light of what can so easily happen, and will undoubtedly happen, if this clause goes through as printed. The position is very different in a country like Great Britain where you have the Lord Chamberlain. Nothing happens until the play has actually been staged. Then for a reason which he considers good the Lord Chamberlain may decide that it is objectionable, and then certain things happen. In this country we have no such office. When some person lodges a complaint, and in fact lays a charge against somebody connected with a production, “live” theatre is affected by the implications of this type of legislation. Look at the provision here:

Alleged by whom? The Board does not even have to say to those concerned with this problem: So and so has alleged it, here is the evidence, what have you got to say? In other words, any member of the Board who decides that he does not like the title of a production as announced, or if there happens to be a love interest between a White and a so-called non-White, as there is for instance in a commonplace musical like “Rose Marie”, where a mounted policeman falls in love with a squaw, he can say: “I don’t like that sort of thing.” Or think of “South Pacific We know what happened to the film “South Pacific” the last 40 minutes of which was rendered completely unintelligible. We do not want to have that sort of thing being done to “live” theatre.

Or a Moor falls in love with Desdemona.

Yes, of course, that is the classic example. Therefore I believe that it is impossible to apply such a clause to “live” theatre. Those people concerned with the production of what is called public entertainment, which cannot be assessed in advance in any way whatsoever, but which has to be planned well in advance, which has to be advertised well in advance, and which, unfortunately, also has to be capitalized and paid fer well in advance, are placed in an impossible position, a position where they will not know until after the event—in other words, until the balloon goes up and the play goes on—what their position is in regard to this Board. I sincerely hope that unlike other cases, where I have no influence whatsoever on the hon. the Minister, in this case he will give due regard to this plea that I have made on behalf of, I can assure him, every organization interested in public entertainment and the “live” theatre in this country. If he is not prepared to delete this clause, or to amend it suitably, I hope at least he would be good enough to explain to me and the House, and the country, why he cannot accept this suggestion which I have made to him in all earnestness.

The hon. member who has just resumed his seat has now taken us into his confidence and indicated how the difficulties experienced by the theatre fit in with the amendment of the United Party. But the reason why I rise is that the hon. member stated that the theatre is included in the definition of “object ”. The position of the theatre, in terms of Clause 12, i; sui generis, and the only facet of Clause 3 which relates to the functions entrusted to the Board in terms of Clause 12 are under (b) and (d)—

Clause 12, which deals with the control over “live” theatre, is a provision which stands by itself. Clause 3 does empower the Board to perform those functions, but I do not understand how the amendment of the United Party can be ad rem here to assist the theatres. They want a form of trial here. Evidently they want a form of trial which can take place during the rehearsals, or whenever the Board wishes to take steps before the performances have begun. But in the interests of the theatre it is, in any case, quite clear, as the hon. member for Hospital also argued in connection with the British system of the Lord Chamberlain, that a speedy decision should be able to be given, and this procedure where the Board has a free hand to decide is the speediest procedure. But in regard to this point, I just want to make the statement that the whole of the procedure applicable to the theatre ought to be discussed under Clause 12.

In regard to the argument advanced here, I just want to state these three propositions in connection with the principle of audi alteram partem. Here it is a case where the work of art always speaks for the author; therefore the author need not be heard. The author stated his case when he produced his work of art As was correctly stated by the hon. member for Omaruru (Mr. Frank), the law precludes him from coming along to say that he meant something quite different from what he wrote. In other words, his argument and the intention of the author are contained in the work itself. To that extent, therefore, he is heard, because his production is heard.

In the second place, there is the very important principle of appeal. It has been argued that the right of appeal does not exist in all cases, quite correct, but in all cases the people concerned can themselves obtain the right of appeal by going to the board if there is any doubt and asking for a decision from the Board. The only man who will forfeit that right is the one who takes a chance and does not approach the Board in connection with his work. Can it be imagined that any publisher or artist who has his own commercial interests at heart will, in a doubtful case, not allow himself to make use of the provision in terms of which he can first obtain the opinion of the Board, which gives him the right to appeal, rather than first to publish and distribute the work and then to be without a right of appeal in case the Board finds against him? In conclusion, the argument has repeatedly been advanced here that this is a question of practical implementation. Do any of the hon. members opposite seriously contend that the Board will, in respect of every one of these works, have some form of trial, particularly in view of the fact that in respect of more than 90 per cent of them the right of appeal exists?

The hon. member for Kempton Park (Mr. F. S. Steyn) must appreciate that in the case of public entertainments, where the description is so wide in sub-section (b) of Clause 3, namely “any public entertainment or intended public entertainment which is alleged to be” and a finding is then given by the Board, the persons giving that entertainment in terms of Clause 14 rightly have the right to appeal to the courts, but surely if we do not want to load the courts with a tremendous number of cases, it is a fair proposition to suggest that those persons having the right to go to court should be able to make representations to the Board. That would be a much better procedure. They should be able to make direct representations to the Board at the time that it conducts its investigations in respect of that particular entertainment. And that surely is the meaning of the amendment of the hon. member for Orange Grove. Surely it is reasonable to say that if they in any event can go to court and take an interdict in respect of any decision of the Board, that it would be a better procedure to follow that in respect of public entertainments, if the Board intends to have an investigation or has cause to believe, or where it is alleged that an entertainment is of a nature contemplated in Clause 12, the persons in respect of whom the investigation is to be conducted, can have in the first instance the right of making their submissions to the Board. I think it is a reasonable proposition.

But then there is the other aspect of this clause, and I would like to have the opinion of the hon. member for Kempton Park in this matter. To my mind the governing words in this clause, as I see it. are to be found in (a), where the Board “shall examine any publication or object submitted to it under this Act ”. The amendment of the hon. member for Orange Grove will apply in so far as the Board is going to carry out any investigation in respect to any submissions made to the Board. Now one has to ask oneself what submissions can be made to the Board? In terms of Clause 8 (1) fa) and (b) there are only two types of submissions. The first is of a person who lodges a complaint with the Board because he has cause or reason to believe that a particular publication is undesirable, and he can request the Board to give an opinion in that regard; the second matter that can be submitted to the Board is where an official has cause to believe that an offence has been committed. Now surely it stops a long procedure if the person or persons against whom a complaint has been lodged, have the right to appear before the Board and make their submissions. I want to illustrate to the hon. the Minister in a practical manner what can happen. I have here a number of paperbacks, and these are not imported paper-backs. These are paper-backs which are printed in our country, and they are distributed fairly widely and they are distributed by a company which has a virtual monopoly in the field of Afrikaans literature of this type of publication. I have a wide selection here. But I can show the House a few, and in every one of them there is a suggestion of an undesirable character. Now I do not say that they are necessarily undesirable, but I would certainly consider them very, very inferior. I invite the hon. the Minister to have a look at a few of the titles: “Vreemde Hartstog “Moord in die Buckstonstraat “Onheilsboodskap in die Nag”; “Skat van die Toeares”; “Noodroep uit die Woestyn”, Now it is interesting to notice who publishes these publications. From investigations it appears that this company has a virtual monopoly of this type of publication published in the Republic, and this is published by a firm which calls itself “Pronkboeke”, Posbus 972, Johannesburg. I do not say that of necessity they are all undesirable, but in my opinion they are inferior literature distributed amongst the Afrikaans-reading public of our country. Now I put it to the hon. the Minister: If this Bill becomes law I will be entitled in terms of this legislation to lodge a complaint with the Control Board in respect of this type of literature and to ask for an opinion as to whether or not they constitute undesirable literature.

Why not?

But then surely the person who is responsible for the distribution of this type of stuff should be able to come and defend himself. Surely he or they can make a submission to the Board that in their opinion this is not of necessity undesirable, but only a question of catering for a lower mentality. Let me ask the hon. member for Vereeniging whether he will support me in this respect?

I think you are simply making yourself ridiculous.

I can well understand the lack of desire on the part of the hon. member for Vereeniging to support me in this.

May I put a question to you? Suppose somebody reports the Landstem, will your Leader support me in this way?

Certainly, because the

Landstem as a member of the Newspaper Press Union can get an exemption and can publish what it likes, because it subscribes to a moral code. But who is going to determine the moral code in respect of this type of literature, the hon. member for Vereeniging, who is a director of this company, or who? Now he will not deny that he is on the board of this company. It shows the ridiculousness of the proposition. The hon. Minister as a learned gentleman, I am sure, if he had to take this literature home would not show it to his family, because he as a learned gentleman who wishes to see the development of Afrikaans literature on the highest level would not subscribe to literature of this nature. I want to ask the hon. Minister again: Is it his intention to give this Board the right to ban this type of inferior literature, with no right of defence to the persons who publish it? Will the hon. member for Vereeniging have no right at all to come before this Board and say: “Look, I am publishing material suitable for a certain level of mentality, and therefore I do not consider that I am publishing undesirable literature; I am only publishing inferior literature and is inferior literature of necessity undesirable and obscene, or indecent or otherwise objectionable?” You see, Mr. Chairman, the ridiculous situation that you will land in in regard to this type of legislation when we are faced with the realities of the situation. When hon. members there are faced themselves with what may happen in respect of these matters, they take an entirely different approach. I submit to the hon. the Minister that he should reconsider this matter.

This debate is becoming increasingly interesting. The hon. member for Turfiontein (Mr. Durrant) abuses it by further sharpening the axe he has against the hon. member for Vereeniging (Mr. B. Coetzee). But the hon. member accused himself by reading out the titles of the books he had here. He himself said that he wasn’t very sure of the contents and whether they were good or not, but he said that I would certainly not show them to my family, and he suggested that I was a better man than he is who does not even want to handle those books. But he himself gave the decision even before the matter was investigated by the Board. Why is the hon. member so concerned that if the Board finds that it is obnoxious and bans it, the people who wrote it should be given the opportunity to defend themselves? What defence can they set up against a Board which has decided that it is indecent? They can just say it is decent and the Board will say it is indecent. Where does that take us? That is not the solution of the problem. The hon. member and I can argue all day. He can say it is good and I can say it is bad, and where does that get us? But there is a solution in the Bill, namely that one can go to court if one is not satisfied. But one cannot put the subjective judgment of the author against the subjective judgment of the Board. I will in any case have more confidence in an expert board, and that person is not precluded from going further. If I was convinced that the Board was wrong, I would ask it why it made that decision. But what is the hon. member pleading for? And this is the charge of which he is making himself guilty, just like the whole of the United Party. They insist on saying that it will be an old-fashioned board and that the Minister will appoint a number of prudes to it and that they will want to ban everything which is in the least lively, and therefore we will now have a very sad life; I cannot understand whom the United Party think they are helping. Do they want this sort of rubbish on the market? Even though it contains nothing indecent, is it good for the country to read that type of literature? As people with a sense of responsibility, we must surely all welcome these things being kept off the market as far as possible.

Now I want to tell the hon. member for Hospital (Mr. Gorshel) this. The hon. member for Kempton Park (Mr. F. S. Steyn) has already replied to him, but I just want to add that so-called live theatre is dealt with in Clause 12, which has taken over Section 9 of the Censorship Act just with different wording. Section 9 of the Censorship Act contains the same provisions, which have just been modernized a little after 30 years, but in essence there is no difference, and live theatre flourished under the Censorship Act of 1931 and did not die, and in terms of Clause 12 it will be under the same control. I do not think the hon. member need concern himself with that, but in so far as this amendment is concerned, I have really done my best to see whether there is any sense in it and whether it is really necessary, and I can state with a clear conscience that the Government has no sinister motives in regard to this clause as it stands, and that all the fears of the Opposition are unfounded, and I would be violating my conscience if I were to accept this amendment.

The hon. the Minister was good enough to deal very briefly with my point. First of all he said that I had already been answered by the hon. member for Kempton Park, but when I rose earlier to explain what I had in fact said, and could not do so, it was because the hon. member for Kempton Park took my argument, turned it right about face, and then said I had based my whole case on that point! I had gone out of my way to say that an object was not a “live” theatrical production, that you could say a book was an object and a painting was an object, but a theatrical production was not an object. He then said that I, mixed up as I am, assumed that the definition of “object” covered “live” entertainment. That is nonsensical, and I can only say with great respect that he did not read the Bill and knows nothing about it, and that I do not accept it as the answer which I asked from the Minister. What I want to say to the Minister is this. He said I was worrying about nothing. Well, as I know the position, I believe that I am worrying about something which is very important in regard to this aspect of this legislation before the House.

Then you should have started worrying 30 years ago.

In my youth I worried about very few things, but I hope the Minister is starting to worry now about what will happen in the next 30 years. The Minister and the hon. member for Kempton Park drew my attention to Clause 12. I submit that that has nothing to do with my contention. Clause 12 is not, as the Minister said, practically taken over word for word from the 1931 Act; there are very material changes, and in any case it merely lays down the mechanics of the matter about which I am objecting. The principle is contained in Clause 3 (b) and the Minister cannot deny it. I want to give the Minister an example. Among the films that have been banned for exhibition in South Africa in recent years are two which are relevant to this case. The one was called “Inherit the Wind ”. That film was based on a story which was turned into a stage play which I happened to have seen both in New York and in South Africa. The point is that it was produced here, and it has no sex or love theme. It is the story of the Scopes Tennessee trial of the 1920s, in which a schoolteacher by the name of Scopes was placed on trial by the State of Tennessee because he taught the Darwinian theory. That was turned into a play which centred about the forensic duel—in court—between Clarence B. Darrow and William Jennings Bryan. The point is that the reason why the Board of Censors could ban the film is merely because certain legislation existed, but under the existing legislation I say neither the Minister nor the Board of Censors could ban the play, and for that reason the play was seen in South Africa; whereas now, under Clause 3 (b), I say that the treatment which was applied by the Board of Censors to the film can and probably would have been applied to the stage play, and I can only assume that it was banned as a film because someone on the Board had certain fundamentalist views, and did not want it to be seen.

I want to give another example, of a play called “A Taste of Honey In 1962 the film of that play was banned by the Board of Censors, but last year and the year before many cities and towns in South Africa saw the stage production of that play.

What has that to do with this clause?

1 cannot help the density that exists between the ears of certain hon. members. What it has to do with the clause is this: that under the existing legislation, regardless of what the Minister may say, that play was not and could not have been banned, but in terms of Clause 3 (b) of this Bill it can be banned. That is the point, for the benefit of the hon. member for Middelland, who is so keen on banning the bikini males from Graaff’s Pool. Under this clause the Board can, and probably will, ban such a play. Now I am not concerned whether the particular play is good, bad or indifferent. Surely that criterion has to be established by the approval or the disapproval of the public. What I am concerned about is that an apparently innocuous theme like “Inherit the Wind” should be banned as a film.

*Dr. COERTZE; The hon. member has now used the clause to tell us that he was in New York. In what other big cities was he?

I can only throw myself on your mercy, Sir, and say I will not answer that stupid question. I am not concerned with the merits of the play, or any other play, but I am concerned with this approach of the Minister and his supporters to live theatre where up to now—and I say it to the credit of South Africa—freedom of thought and expression has existed. There has been no censorship—only if someone laid a charge and the police took action could a play be closed down, and I cannot remember one such incident in Johannesburg for 39 years. But now we have a completely new position arising out of Clause 3 (b), and that is that like the film and the picture and the book, the live theatre now comes under the guillotine, and I think we should try to save a little face in South Africa. I have a close impression of the idea which this Bill has already created in those countries which are friendly towards us and where, in spite of the hon. member for Fort Beaufort, there is no “similar” legislation. But if you pass this clause as it stands and remove that existing freedom for no reason whatever—because not even the Minister can say that there was a play in recent years which should have been banned—and control everything in the country, I believe that he will have done more harm than he is prepared to admit to-day. So I come back to my original question to the Minister. Instead of brushing it aside with the so-called answer the hon. member for Kempton Park gave me, I ask him for a direct, cogent and intelligible answer to the question I have raised, and not to give me the brush-off. That I can get outside this House.

The hon. member for Turffontein (Mr. Durrant) persists in making a miserable attempt to prove that I was connected with undesirable literature.

That is not so.

Years ago I sold all the interests I had in it. In regard to these particular books he mentioned here, I sold my interests in that two years ago, but I should very much have liked still to have a share in it. It so happens that I am well acquainted with those books. They are nothing else but light literature. The main author is Frans Venter under the pseudonym of Meiring Fouchd, and the other is Ela Spence, a well-known authoress, and the other one is R. Hendricks, also a well-known author of light reading matter. He can gladly take those books to the Board. He asks what right they will have to defend it before the Board. If the Board decides that it is undesirable literature, the owners, of those books have a very good remedy.

But why cannot they go to the Board?

Nobody can defend a film before the Board. Hon. members might just as well ask that if the Board looks at a film, the owners or distributors of it should be able to make representations to the Board to say that that film is not undesirable. What nonsense! If the Board finds that it is undesirable and the author or the publisher or the distributor feels aggrieved, he can go to court, and there they can bring all the evidence possible to prove that they have a sound case. But he is just jealous because years ago I refused to make him a director of my company.

That is not true.

That is why he now makes this fuss. In connection with these books he referred to, the sole distributing rights belong to the Central News Agency, but just guess who prints them? The Salvation Army, which would surely not publish anything indecent. Attempts are now being made here to prove that in my time I was connected with the yellow Press. Well, I did publish yellow periodicals, but they were printed by another yellow periodical, the yellowest newspaper in the country to-day. The yellowest newspaper in the country to-day is the Landstem. In other words, the publishers are the greatest distributors of yellow literature—not that I have any objection to it—and who are the owners of it? Harry Oppenheimer, the Cape Times and Sir de Villiers Graaff.

You are wrong.

But let me tell the hon. the Leader of the Opposition that if he wants to sell his shares to me I will pay him a good price. But the hon. member should take care. As long as he holds those shares, the hon. member for Bezuidenhout (Mr. J. D. du P. Basson) will not say, “He is the biggest purveyor of yellow literature”, but if I hold those shares he will say so.

I do not know why the hon. member for Vereeniging (Mr. B. Coetzee) immediately reacts to any allegation that he was connected with publications like Fyn Goud, and immediately reacts in a most offensive manner, and what the hon. member says in regard to my having applied for a directorship in his company is completely untrue, but if I had accepted even an offer it would have given at least an appearance of respectability to the company with which the hon. member was associated. But this hon. member sat on the Select Committee. He alleges that he knows the Bill, but he says that in the case of a film there is no right of appeal and if the film is banned the owners of the film cannot appear before the Board to object. But the hon. member does not know his Bill. Surely he must know that in regard to films there is pre-publication censorship and surely he knows the provisions of Clause 11, and that films are in a completely different category from publications.

You are so stupid that it is no good arguing with you.

Why the hon. member has to bring in the name of writers I do not know. There are many more authors here. I do not want to list them. I do not know whether they are writing under pseudonyms. For all I know, the hon. member himself may be one of these authors. But I am sure of one thing in regard to this wide selection of publications with which the hon. member is associated, namely that the owners of Pronkboeke are Goeie Hoop Uitgewers, of which the hon. member for Vereeniging is still a director, as far as I know.

They are not the owners.

I think the hon. member protested too much. On the occasions he has risen to make personal attacks on me, I never mentioned his name. The point I tried to make is that I did not say that these were necessarily undesirable books. What I did say was that I could find them of an inferior type and that if this Bill becomes law I could go to the Board and ask for an investigation to be carried out and the Board would then sit in judgment on these publications. Is it not fair then that the hon. member for Vereeniging should have the right to appear before the Board and defend his publishing of inferior reading matter, or literature of an undesirable nature? Or does the hon. member want the Board first to sit in judgment on his company because any Mother Grundy reports him every time because he publishes yellow literature? Then if the hon. member wanted to remain in business, he would on every occasion have to go to court. Is that a reasonable proposition? But, you see, Sir, what we have come back again to. In fact, this is censorship by intimidation, because no publisher will now be prepared to take the chance of publishing the works of even the hon. member for Vereeniging without the fear that he may have to face an investigation and a court case in defence of what he has published. Where we have direct censorship in respect of imported matter, we have pre-publication censorship by intimidation in terms of this clause. Unless the Minister accepts the amendment of the hon. member for Orange Grove and gives people a chance to defend themselves before this Board, the Government will stand charged with this intimidation of all the publishers, writers and creative artists in our country.

The hon. member for Hospital (Mr. Gorshel) expressly said that the provisions of Clause 12 did not exist before. Section 9 of the 1931 Act provides that the Minister can by written notice direct that the film or entertainment may not take place, precisely what Clause 12 says. For that reason I do not want to take this point further. If a man gets up and professes to be knowledgeable and then says that for more than 30 years no censorship will apply to the theatre, then one cannot argue about it. Then one can only come to the conclusion that not only does the hon. member know something about the theatre, but also about the circus, where he must surely have been a clown.

Question put: That paragraph (d), proposed to be omitted, stand part of the clause.

Upon which the Committee divided:

Ayes—81: Badenhorst, F. H.; Bekker, G. F. H.; Bekker, H. T. van G.; Bekker, M. J. H.; Bezuidenhout, G. P. C.; Bootha, L. J. C.; Botha, H. J.; Botha, P. W.; Botha, S. P.; Cloete, J. H.; Coertze, L. I.; Coetzee, B.: Coetzee, P. J.; Cruywagen, W. A.; de Villiers, J. D.; de Wet, C.; du Plessis, H. R. H.; Fouch6, 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.; Jonker, A. H.; Jurgens, J. C.; Keyter, H. C. A.; Kotze, G. P.; Kotz6, S. F.; Labuschagne. J. S.: le Roux, P. M. K.; Luttig, H. G.; Malan, W. C.; Marais, J. A.; Marais, P. S.; Maree, G. de K.; Maree. W. A.; Meyer, T.; Mulder, C. P.; Muller, S. L.; Niemand, F. J.; Otto, J. C.; Pelser, P. C.; Potgieter, J. E.; Rall, J. J.; Rall, J. W.; Schlebusch, A. L.; Schoeman, J. C. B.; Serfontein, J. J.; Smit, H. H.; Stander, A. H.; Steyn, F. S.; Steyn, J. H.; Treurnicht, N. F.; Uys, D. C. H.; van den Berg, M. J.; van den Heever, D. J. G.; van der Merwe, P. S.; van der Spuy, J. P.; van der Walt, B. J.; van Eeden, F. J.; van Niekerk, G. L. H.; van Niekerk, M. C.; van Nierop, P. J.; van Rensburg, M. C. G. J.; van Staden, J. W.; van Wyk, G. H.; van Zyl, J. J. B.; Venter, M. J. de la R.; Venter, W. L. D. M.; Verwoerd, H. F.; Viljoen, M.; Visse, J. H.; Vorster, B. J.; Vosloo, A. H.; Waring, F. W.; Webster, A.; Wentzel, J. J.

Tellers: W. H. Faurie and J. J. Fouché.

Noes—43: Basson, J. D. du P.; Bloomberg, A.; Bronkhorst, H. J.; Connan, J. M.; Cronje, F. J. C.; de Kock, H. C.; Dodds, P. R.; Durrant, R. B.; Eaton, N. G.; Emdin, S.; Gay, L. C.; Gorshel, A.; Graaff, de V.; Hickman, T.; Higgerty, J. W.; Holland, M. W.; Hopewell, A.; Hughes, T. G.; Lewis, H.; Malan, É. G.; Miller, H.; Mitchell, D. E.; Mitchell, M. L.; Moolman, J. H.; Moore, P. A.; Old-field, G. N.: Plewman, R. P.; Ross, D. G.; Russell, J. H.; Steenkamp, L. S.; Steyn, S. J. M.; Streicher, D. M.; Thompson, J. O. N.; Timoney, H. M.; Tucker, H.; van der Byl, P.; van Niekerk, S. M.; Warren, C. M.; Waterson, S. F.; Weiss, U. M.; Wood, L. F.

Tellers: C. Barnett and H. Suzman.

Question accordingly affirmed and the amendment proposed by Mrs. Suzman dropped.

Amendment proposed by Mr. E. G. Malan put and the Committee divided:

Ayes—43: Barnett, C.; Basson, J. D. du P.; Bloomberg, A.; Bronkhorst, H. J.; Connan, J. M.; Cronje, F. J. C.; de Kock, H. C.; Dodds, P. R.; Durrant, R. B.; Emdin, S., Gay, L. C.; Gorshel, A.; Graaff, de V.; Hickman, T.; Higgerty, J. W.; Holland, M. W.; Hughes, T. G.; Lewis, H.; Malan, E. G.; Miller, H.; Mitchell, D. E.; Mitchell, M. L.; Moolman, J. H.; Moore, P. A.; Odell, H. G. O.; Plewman, R. P.; Ross, D. G.; Russell, J. H.; Steenkamp, L. S.; Steyn, S. J. M.; Streicher, D. M.; Suzman, H.; Tiompson, J. O. N.; Timoney, H. M.; Tucker, H.; van der Byl, P.; van Niekerk, S. M.; Warren, C. M.; Waterson, S. F.; Weiss, U. M.; Wood, L. F.

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

Noes—77: Badenhorst, F. H.; Bekker, G. F. H.; Bekker, H. T. van G.; Bekker, M. J. H.; Bezuidenhout, G. P. C.; Bootha, L. J. C.; Botha, H. J.; Botha, P. W.; Botha, S. P.; Cloete, J. H.; Coertze, L. L; Coetzee, B.; Coetzee, P. J.; Cruywagen, W. A.; de Villiers, J. D.; de Wet, C.; du Plessis, H. R. H.; Frank, S.; Froneman, G. F. van L.; Greyling, J. C.; Grobler, M. S. F.; Haak, J. F. W.; Hertzog, A.; Heystek, J.; Jonker, A. H.; Jurgens, J. C.; Kotze, G. P.; Kotzé, S. F.; le Roux, P. M. K.; Luttig, H. G.; Malan, W. C.; Marais, J. A.; Marais, P. S.; Maree, G. de K.; Maree, W. A.; Meyer, T.; Mulder, C. P.; Muller, S. L.; Niemand, F. J.; Otto, J. C.; Pelser, P. C.; Potgieter, J. E.; Rall, J. J.; Rall, J. W.; Schlebusch, A. L.; Schoeman, J. C. B.; Serfontein, J. J.; Smit, H. H.; Stander, A. H.; Steyn, F. S.; Steyn, J. H.; Treurnicht, N. F.; Uys, D. C. H.; van den Berg, M. J.; van den Heever, D. J. G.; van der Merwe, P. S.; van der Spuy, J. P.; van der Walt, B. J.; van Eeden, F. J.; van Niekerk, G. L. H.; van Niekerk, M. C.; van Nierop, P. J.: van Rensburg, M. C. G. J.; van Staden, J. W.; van Wyk, G. H.; van Zyl, J. J. B.; Venter, M. J. de la R.; Venter, W. L. D. M.; Verwoerd, H. F.; Viljoen, M.; Visse, J. H.; Vorster, B. J.; Vosloo, A. H.; Waring, F. W.; Webster, A.

Tellers: W. H. Faurie and J. J. Fouché.

Amendment accordingly negatived.

Clause, as printed, put and the Committee divided:

Ayes—77: Badenhorst, F. H.; Bekker, G. F. H.; Bekker, H. T. van G.; Bekker, M. J. H.; Bezuidenhout, G. P. C.; Bootha, L. J. C.; Botha, H. J.; Botha, P. W.; Botha, S. P.; Cloete, J. H.; Coertze, L. I.; Coetzee, B.; Coetzee, P. J.; Cruywagen, W. A.; de Villiers; I. D.; de Wet, C.; du Plessis, H. R. H.; Frank, S.; Froneman, G. F. van L.; Greyling, J. C.; Grobler, M. S. F.; Haak, J. F. W.; Hertzog, A.; Heystek, J.; Jonker, A. H.; Jurgens, J. C.; Kotze, G. P.; Kotzé, S. F.; le Roux, P. M. K.; Luttig, H. G.; Malan, W. C.; Marais, J. A.; Marais, P. S.; Maree, G. de K.; Maree, W. A.; Meyer, T.; Mulder, C. P.; Muller, S. L.; Niemand, F. J.; Otto, J. C.; Pelser, P. C.; Potgieter, J. E.; Rall, J. J.; Rall, J. W.; Schlebusch, A. L.; Schoeman, J. C. B.; Serfontein, J. J.; Smit, H. H.; Stander, A. H.; Steyn, F. S.; Steyn, J. H.; Treurnicht, N. F.; van den Berg, M. J.; van den Heever, D. J. G.; van der Merwe, P. S.; van der Spuy, J. P.; van der Walt, B. J.; van der Wath, J. G. H.; van Eeden, F. J.; van Niekerk, G. L. H.; van Niekerk, M. C.; van Nierop, P. J.; van Rensburg, M. C. G. J.; van Staden, J. W.; van Wyk, G. H.; van Zyl, J. J. B.; Venter, M. J. de la R.; Venter, W. L. D. M.; Verwoerd, H.F.; Viljoen, M.; Visse, J. H.; Vorster, B. J.; Vosloo, A. H.; Waring, F. W.; Webster. A.

Tellers: W. H. Faurie and J. J. Fouché.

Noes—43:Barnett, C.; Basson, J. D. du P.; Bloomberg, A.; Bronkhorst, H. J.; Connan, J. M.; Cronje, F. J. C.; de Kock, H. C.; Dodds, P. R.; Durrant, R. B.; Emdin, S.; Gay, L. C.; Gorshel, A.; Graaff, de V.; Hickman, T.; Higgerty, J. W.; Holland, M. W.; Hughes, T. G.; Lewis, H.; Malan, E. G.; Miller, H.; Mitchell, D. E.; Mitchell, M. L.; Moolman, J. H.; Moore, P. A.; Odell, H. G. O.; Plewman, R. P.; Ross, D. G.; Russell, J. H.; Steenkamp, L. S.; Steyn, S. J. M.; Streicher, D. M.; Suzman, H.; Thompson, J. O. N.; Timoney, H. M.; Tucker, H.; van der Byl, P.; van Niekerk, S. M.; Warren, C. M.; Waterson, S. F.; Weiss, U, M.; Wood, L. F.

Tellers: N. G. Eaton and A. Hopewell. Clause, as printed, according agreed to.

On Clause 4,

I want to move the amendment standing in ray name on the Order Paper—

I do not want to delay the work of the Committee long in moving this amendment. Ail the arguments that were advanced about the necessity, if a Board is to be set up, of at least having some experts on the Board, apply equally, I think, to the Committees to which the Board intends to assign some of its work. It is important, as has been contended, to have experts on the Board itself but I think it is equally important that the committees which the Board is going to choose to do some of its work, whilst retaining the chairman of the Board, should also have on them persons who have a spécial knowledge of art, language and literature, education or the administration of justice.

I believe it is of the utmost importance that the members of these panels who are to be appointed by the Board, should it be appointed, should at least be of a certain calibre. It has appeared from a question put in this House that occasionally people are appointed who are ex-headmasters. Sometimes ex-headmasters even become Ministers of Education, I believe, but that is not necessarily a qualification which would in ail instances qualify a person for a particular panel. The next point that I want to raise in connection with these panels or sub-committees which have to be appointed, is what would happen in the case of material in a foreign or a Native language coming before the Board? We were not told whether any member of the Board would have a knowledge of a foreign language like Russian or of a Bantu language and we should like to know from the Minister what is going to happen should some interested person submit Bantu records to the Board, for example.

They would be submitted to a panel of readers.

But would those readers be proficient in, say, the Bantu languages?

They could be appointed.

The important thing, though, is that the members of these sub-committees should have a knowledge of literature, arts and science or a knowledge of the administration of justice. I agree with the argument put forward by the hon. member for Houghton (Mrs. Suzman), but I feel that one can go even further than that. Not only should the members of the sub-committees have a knowledge of art, language and literature but also the chairman. As you know, Sir, originally there were to be three members with this special qualification; there are now to be six according to the alteration made by the Minister in Clause 2, so he will have sufficient members available on the Board to act as chairman of these sub-committees and who should then have a special knowledge of art, language and literature. In other words, I should like to see not only that the ordinary members of the sub-committees should have a special knowledge of art, language and literature, but also the chairman, and to give effect to that I wish to move the following amendment—

1 want to support this amendment, and I want to draw the attention of the hon. the Minister to the fact that what I believe to be the damage that will be done under Clause 3 (b) can to some extent, as far as the “live” theatre is concerned, be alleviated or eliminated by taking another course in regard to some of the provisions of Clause 4, because in appointing this panel which. in terms of the clause, the Minister can do quite hap-hazardly, he has the opportunity of appointing people who in some sense will be qualified not only to sit in judgment, but also to assist the Minister and the proposed Board in carrying out its duties. I have given the analogy of the way in which, for example, the Performing Arts Council of the Transvaal has been set up, and I believe the same way has been adopted or will, I hope, be adopted in setting up the Cape Council. In that case the existing known organizations interested in the four plastic arts were ail asked by a convener, being a member of the Performing Arts Council of the Transvaal under the chairmanship of the Administrator, to put forward a certain number of names from their own organization, and ail the names so submitted to the Administrator then constituted the panel—that is the point in this case—from which the Administrator then chose one of the so-called management committees for each of the performing arts. The Minister knows as well as I. or better than I, because that procedure originated with the decision of the Cabinet to make certain subsidies available, that this can be done very readily, and therefore, since there are co-ordinating bodies throughout the country representing ail aspects of “live” theatre, I think, including the commercial or professional theatre, what could be more reasonable from the point of view of the Minister, if he wants a panel which knows something about it and will obviously not sit in judgment on their own work, than to say, as in the case of the establishment of the Performing Arts Council of the Transvaal (with the Minister’s approval), that the panel to some extern will consist of people drawn from those organizations which have been asked to nominate a certain number. whether one or two or five names, and then put together; and then the Minister says “this is the total panel, and I have chosen A to Z or A to C for their knowledge of ‘live ’ theatre”. As the Minister probably knows, there is the South African Association of Theatre Managements representing the commercial theatre; there is the Federation of Amateur Theatrical Societies of Southern Africa; there is an association to represent the lyric theatre; there are several, which I know of from my own involvement in them, representing the field of opera production—and so on and so forth. There are several organizations interested in Afrikaans theatre—for example the Johannesburgse Afrikaanse Amateur Toneelspelers, of which I happen to be a member. There is in fact for every facet of what, for want of a better description, I have called the “live” theatre, an existing organization or a number of organizations or a co-ordinating nation-wide organization. Sir, I ask the hon. the Minister to consider the proposals which I have put here because frankly I see no difficulty about it, and I do not believe that the Minister wants to labour or burden this Board with people who have no knowledge and no practical experience and, for that matter, no interest in these matters. I wonder whether, unlike the case of Clause 3 (b) where the Minister still owes me an answer, for which I know I cannot ask now, he will be good enough to give me an answer to these representations.

I want to tell hon. members that I think they are now really going to limit the functions of this Board. This panel of people who have to be appointed is now absolutely limited to people with certain qualifications. I see the matter quite differently from the way in which hon. members see it. I have in mind a large number of people who will be willing to serve on these panels to do reading or to make investigations at a certain remuneration. These panels must include ail possible experts in every possible sphere, and both these amendments limit the choice of the Board to a certain extent if specifie qualifications are to be laid down. I want to give a few examples. Then the amendment moved by the hon. member for Houghton (Mrs. Suzman) will create the likelihood of a physicist dealing with atomic power being appointed as a member of the panel. I think that if in this Bill we were to provide what the qualifications of these people should be, we would be going to a very dangerous extreme opposite, whilst we surely accept that when something has to be investigated the committees will be appointed, as is provided in the Bill, to investigate and to report on the publication or object or film submitted to it. I want to give an example. I think that when we deal with biblical films we will certainly need the knowledge of theologians. When it appears to the Board that a certain group of the population may take umbrage, as e.g. the Jewish community, I should like to have members of that community on the committee to ascertain whether or not it is abnoxious to their community. I can mention many other examples. Where there is such a wide field and one wants to limit that field, as both these amendments will do, it can only be to the detriment of this matter, where one really needs experts. I am sorry to say that if we want to limit the expert advice it will only be a regressive step. We do not want to retrogress. Let us get the best people for the committee, which will consist of the chairman and at least two other members.

I said the same thing in regard to the Education Council some time ago. It is not possible to have experts in every sphere on this control board of nine members. But when investigating specialized work, one can always call in the assistance of an expert and preserve the continuity by having one of the members of the board as chairman. I really cannot see what objection the Opposition can have to this. It can be only to the advantage of this legislation to make the field from which one can choose as wide as possible. Hon. members should not seek sinister motives in it, as was done by the hon. member for Orange Grove. Let us argue on the merits of the case. Do not corne along with examples now. Perhaps I erred first by giving an example. But if we now accept that there should "be a board of control, why do hon. members opposite persist in wanting an assurance from me that only experts will be able to judge the matter? The Minister can always be criticized. What sense is there in appointing a man who is not really an expert? Why should we appoint an inadequate person to such a board? Surely that would be ridiculous. Supposing the board says it is not quite certain whether a certain type of art should be prohibited, then it will immediately call on the assistance of greater experts, people who have more expert knowledge than they have. But if there is this restriction, those experts may be excluded. For that reason I think it should be as broad as it is here. That gives the greatest measure of protection to art and science, etc.

Mr. GORSHEL; I should like to take up a few minutes of the Minister’s time to eliminate what may be a misunderstanding. I am not, as he knows, amending this clause in the way I asked for it to be changed; I have not moved an amendment. If the Minister would give us some sort of assurance that in constituting the panel, he would have regard to the point which I have made, I will not pursue the matter any further. I am not imputing any sinister motives to this Minister. He said the hon. member for Orange Grove did so. I did not hear him do so, and I am not doing so. But, Sir, for example, this Minister may be elevated to a higher position. Is that possible? I do not think this is an opportune time for me to sketch the future of the hon. Minister. The point I want to make is this: The Minister may not be the incumbent of that portfolio next year. Somebody else may take over. I made the point a few days ago that a former Prime Minister of the Union appointed his housekeeper to a certain board simply because she was his housekeeper. She had no other qualifications. Another incumbent may well have the same temperament.

And the same housekeeper.

Yes, may be the same housekeeper, which would be worse. It might be his wife or his grandmother. Sir, as you know, there is a worse example in history— that of Caligula, who appointed his horse a senator—and I am not saying this because the hon. the Minister happens to be a member of the Senate! That is not the analogy.

I am not appointed; I am elected.

Thank you, Sir; but I say there is no analogy between him and Caligula. Sir, in ail seriousness, the position under this particular clause is that, whether this hon. Minister has honourable intentions or not, some person with the authority vested in him by this particular clause can appoint anybody to this particular panel. Why should we take that risk? I repeat that I know the Minister wants freedom of action to the maximum extent. I can understand why, and I understand that that freedom may be used constructively, but if at the same time he will give the assurance that in constituting this particular panel he will have regard to the existing experts who are active in a particular field, the position will be very different from a blank refusal by saying: “I stand on this clause.” That is what I am asking the Minister to do.

I think the hon. the Minister is being a little illogical now. What we are asking for here is that the chairman of these sub-committees, who must be one of the members of the board, must be one of those with a particular knowledge of art, language and literature and the administration of justice. The hon. the Minister accepts that principle in appointing the chairman of the board. He provides in his own Bill that the chairman must have a particular knowledge of art, language and literature and the administration of justice. In appointing the vice-chairman he also provides that he must have a particular knowledge of art, language and literature and the administration of justice. Why cannot he insert the same provision in respect of the appointment of a committee of the board? Why should the chairman of that committee not also have that particular knowledge? What is illogical about it? I accept the Minister’s statement that cases concerning atomic power, for example, may well come before the board. The chairman of the board will be a person with a special knowledge of art, language and literature and the administration of justice. The Minister is not going to appoint an atom expert to the board simply because he expects that at some time or other a matter connected with atomic power may come before the board.

Surely it goes without saying that you cannot appoint as chairman of such highly specialized committees a person with qualifications inferior to those of the experts.

It may happen that the Minister appoints as chairman of the board itself a person with qualifications inferior to those of an atom expert, for example. What can happen in the case of the board itself can also happen in the case of these committees.

I just want to refer briefly to the two important bodies which raised this matter before the Select Committee and also with the Minister, I think. The first is the S.A. P.E.N. Club, who stated in their memorandum—

The Minister tells us that he is going to appoint people with these particular qualifications, but there is no guarantee in this Bill that that will be done in fact.

The other important body which also brought their views to the notice of the hon. the Minister is the film industry. In the first memorandum drawn up by the film industry in 1960, they objected to the provisions that only two members would serve on these sub-committees. The present Bill makes provision for three members. But I think the film industry will have practically the same objections to three as they had to two. There are still too few members for such important work as film censorship. I think it is important that the views of the film industry should be taken into account, and that sub-committees consisting of more than three members should be appointed for the censoring of films.

According to this clause these special committee will consist of one board member and two other persons, nominated from a panel of people which will from time to time be designated by the Minister. I want to ask the hon. the Minister whether he thinks it is necessary that he should designate the panel? Does the Minister not think, for example, that he ought to have sufficient confidence in the board which he him-self appoints after ail, to approach people themselves, people whom they regard as experts, to examine a specifie matter? Why does the Minister feel that he should draw up the panel from time to time? Why should he be saddled with that task?

As far as the amendment is concerned: We do not want to be restrictive in the least. We feel precisely that the term “art, language, literature and education and the administration of justice” covers about the whole field. Perhaps the word “science” should have been added. But there is no desire to be unnecessarily restrictive here.

What is the use of trying to cover a whole field if you want to limit the names.

There is always a feeling—we shall discuss that further under Clause 5—that political elements may slip in. [Interjections], Yes, we shall discuss that point fully at a later stage, but that is one of the grounds of our objection. It is based on our experience of this Government. And that is why we should limit it in this respect.

The hon. member wants to know why it should be the Minister who draws up the panel. This is entirely an administrative matter, Mr. Chairman. In order to get a panel of persons one has to make certain offers to them. We say, “If you read for us we will pay you so much per hundred pages; are you interested?” This is an administrative matter, which has to be handled by the Minister’s Department. The Department gets in touch with authorities on Communism and asks them to express their opinions on literature dealing with Communism. This is administrative work of such a nature that one can hardly place this burden on a board which has to institute investigations. Administratively, in the nature of things, it will work this way that this panel of names will be submitted to the Board. From time to time it will be supplemented with other names. If a person’s work is unsatisfactory his name will probably be removed from the panel. Such a person may get us into difficulties by giving us a certain opinion on which we would then act, only to find later on that the hon. member for Bezuidenhout attacks us in this House. The panel will be supplemented continually and the names of certain persons removed. This is an administrative matter. The hon. member need not be concerned that the Minister is going to work himself to death in connection with this panel. Surely the Minister cannot possibly know ail the people in this country who would be good people to appoint to this panel. The panel will be at the disposal of the Board and the Board will say, “These are good people to appoint.”

What about the panel for which I asked? Is the Minister not prepared to comment on it?

I give positive answers in this House, Mr. Chairman; it is not necessary for me to comment on what every members says. The hon. member can take my positive reply and construct from it the answer which he expects to his questions.

In that case, Sir, I want to say immediately that in view of the fact that the Minister has invited me to put my own construction on his reply, I will do so. The construction which I place on it is that the Minister is certainly not prepared to establish a panel on the fines which I suggested to him. If he says to me that I must draw my own inference from his answer, then I say to him: I draw my own inference as to his reasons for refusing a reasonable request.

Amendments proposed by Mr. E. G. Malan and Mrs Suzman put and negatived.

Clause, as printed, put and the Committee divided:

Ayes—76: Badenhorst, F. H.; Bekker, G. F. H.; Bekker, M. J. H.; Bezuidenhout, G. P. C.; Bootha, L. J. C.; Botha, H. J.; Botha, P. W.; Botha, S. P.; Cloete, J. H.; Coertze, L. I.; Coetzee, B; Coetzee, P. J.; Cruywagen, W. A.; de Villiers, J. D.; de Wet, C.; du Plessis, H. R. H.; Frank, S.; Froneman, G. F. van L.; Greyling, J. C.; Grobler, M. S. F.; Haak, J. F. W.; Hertzog, A.; Heystek, J.; Jonker, A. H.; Jurgens, J. C.; Kotze, G. P.; Kotzé, S. F.; le Roux, P. M. K.; Luttig, H. G.; Malan, W. C.; Marais, J. A.; Marais, P. S.; Maree, G. de K.; Maree, W. A.; Meyer, T.; Mulder, C. P.; Muller, S. L.; Nel, J. A. F.; Niemand, F. J.; Otto, J. C.; Pelser, P. C.; Potgieter, J. E.; Rall, J. J.; Rall, J. W.; Schlebusch, A. L.; Schoeman, J. C. B.; Serfontein, J. J.; Smit, H. H.; Stander, A. H.; Steyn, F. S.; Steyn, J. H.; Treurnicht, N. F.; Uys, D. C. H.; van den Berg, M. J.; van den Heever, D. J. G.; van der Spuy, J. P.; van der Walt, B. J.; van der Wath, J. G. H.; van Eeden, F. J.; van Niekerk, G. L. H.; van Niekerk, M. C.; van Nierop, P. J.; van Rensburg, M. C. G. J.; van Staden, J. W.; van Wyk, G. H.; van Zyl, J. J. B.; Venter, M. J. de la R.; Viljoen, M.; Visse, J. H.; Vorster, B. J.; Vosloo, A. H.; Waring, F. W.; Webster, A.; Wentzel, J. J.

Tellers: W. H. Faurie and J. J. Fouché.

Noes—42: Barnett, C.; Basson, J. D. du P.; Bronkhorst, H. J.; Connan, J. M.; Cronje, F. J. C.; de Kock, H. C.; Dodds, P. R.; Durrant, R. B.; Emdin, S.; Gay, L. C.; Gorshell, A.; Graaff, de V.; Hickman, T.; Higgerty, J. W.; Holland, M. W.; Hourquebie, R. G. L.; Hughes, T. G.; Lewis, H.; Malan, E. G.; Miller, H.; Mitchell, D. E.; Mitchell, M. L.; Moolman, J. H.; Moore, P. A.; Odell, H. G. O.; Plewman, R. P.; Ross, D. G.; Russell, J. H.; Steenkamp, L. S.; Steyn, S. J. M.; Streicher, D. M.; Suzman, H.; Thompson, J. O. N.; Timoney, H. M.; van der Byl, P.; van Niekerk, S. M.; Warren, C. M.; Waterson, S. F.; Weiss, U. M.; Wood, L. F.

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

Clause as printed, accordingly agreed to.

On Clause 5,

Sir, I move—

I have no objection.

Agreed to.

On Clause 6,

As we on this side of the House indicated during the second-reading debate, Sir, this is a wholly unsatisfactory clause and we shall vote against it. It was justified by the hon. member for Port Elizabeth (North) (Mr. J. A. F. Nel) on the score that it had been cribbed from the judgment of an English Judge as far back as 1868. I am glad that the hon. member seeks guidance from the English law but the point that he has missed is that in Great Britain the whole matter has been left to the courts whereas here we have legislation to bind the court and to tell it exactly how to set about its job. That is the point which he has missed. This clause is concerned with the onus of proof in criminal cases. Over the years we have built up a set of rules and principles, based primarily on Roman Dutch law, which need no statutory assistance at ail. The three cardinal principles of legal procedure are these: Firstly, our courts start with the presumption of innocence. It places on the prosecution the duty to prove its case to the court by establishing the existence or non-existence of facts upon which the charge is based. The second important principle is that the court is concerned with the truth or the falsity of the allegation. What the court may think or what it may like to think is quite irrelevant. It is the truth or falsity of evidence placed before it that is ail important. The third fundamental principle, Sir, is that the intention of the accused is generally a relevant factor and the court is obliged to determine the extent of its relevancy according to the nature of the offence with which the accused is charged. That is generally known as the principle known as mens rea. There are certain types of charges in which the court will determine the extent of the weight to be attached to it. But in ail cases the principle is that the court is obliged to determine what the extent of the relevancy of mens rea is according to the nature of the charge before the court. In ail three of these respects the clause offends against the principles which I have mentioned. The court starts with a deeming provision and the inference is therefore one of guilt; secondly, as I have indicated during the second reading, it also makes the opinion of the court decisive instead of the finding of the court on the truth or falsity of the facts which are put before it. Sir, that is fundamental to our System of justice in criminal matters that the court has to bear in mind the truth or falsity of facts, and there should be no reason at ail why in a charge of this nature there should be a departure from that very Sound principle. Our judicial System of examining witnesses by examination in chief and by cross-examination and re-examination is ail designed to ensure that the truth can be tested and that the court can come to a finding as to its validity.

Thirdly, this clause denies to the court this obligation to determine the extent of the intention of the accused by excluding the intention entirely. I say therefore that the clause offends particularly against those three cardinal principles of our law of evidence and it is wholly unsatisfactory and really has no place in legislation of this kind and there is no necessity for it.

The hon. member who has just sat down amazes me, and I ask myself whether he was deliberately pretending not to understand this clause when he made his speech. In the first place, the hon. member’s attitude was that this clause would only apply to criminal procedure, whereas it will apply in the main to civil procedures, that is to say, the appeal from the quasi-judicial decision of the Control Board. That is its main function. That was the hon. member’s first mistake. A second mistake which the hon. member must undoubtedly have made deliberately was to suggest that we were again meddling here with the onus of proof and that we were not laying down a norm. If I may deal now with the hon. member’s delusions, he came along with the argument that our approach to the law was that in the first place certain actual allegations must be made and proved in connection with certain actions. In the second place, the truth or untruth of such allegations must be tested and then lastly, he says that, “intention” is of importance. Well, the factual allegations which have to be tested here by a court are not the norm that is laid down here; the factual allegations, the truth or untruth of which have to be tested by the court, are whether such words were written, whether such an image was made; by whom it was made, or by whom the words were published, but then the court has to apply a norm, the norm being whether the facts which have now been found to be proved are such that they prove that a certain thing is or is not improper. Surely some guidance must be given to the court in the Act; surely the lawgiver must tell the court what is regarded as indecent or as offensive or harmful to public morals. That norm is being laid down here, and that is the only way in which this matter can be tackled. The hon. member’s whole argument really has no bearing on the problem facing us. The problem facing this House in connection with this clause is this: Is the norm which is being laid down here flexible enough or too inflexible for the purpose of the control which the court eventually has to exercise? And if the norm has to be discussed, then I think the authority which has been quoted here and to which the hon. member for Port Elizabeth (South) (Mr. Plewman) will also subscribe, is a good norm, a norm which has evolved from court procedure itself and which appeals to the reasonableness of any person.

There is one point that I should like to bring to the notice of the hon. the Minister, and that is the doubtfulness in line 23 of the Afrikaans text which talks about “doel” (purpose) whereas the English text in line 21 talks about “intention ”. Well, whether the English text ought to read “the purpose” or whether the Afrikaans text should read “die bedoeling”, is a matter which the Minister himself will have to decide. Personally I prefer the word “doel” in Afrikaans, and “intention” in the English text should be altered to read “purpose ”. I shall be glad if consideration can be given to that small discrepancy.

It is indeed surprising that nowhere in this Bill where reference is made to the declaring of a publication or an object as undesirable, is there any mention that regard should be paid to the intention of the person who produces that particular object and that nowhere is it mentioned that the literary or artistic merits of that particular publication or object should be considered, and it is nowhere mentioned that the publication must be considered as a whole. In fact subsection (2) of Clause 6 specifically attempts to exclude any consideration of merits of that particular nature, because it reads as follows—

No regard will have to be paid by the Board to the intention of the person who either publishes or writes or who sells a particular book or particular object.

Before going into the reasons why there should be something along these lines in this Bill I should first of all like to move the amendment standing in my name—

1. a) the court shall have due regard to—
   1. (i) the intention of the person by whom that matter was printed, published, manufactured, made, produced, distributed, displayed, exhibited, sold or offered or kept for sale;
   2. (ii) the publication or object considered as a whole;
   3. (iii) the literary, artistic, scientific or other merits, if any, of the matter;
2. b) expert evidence in court as to the literary, artistic, scientific or other merits of such matter shall be admissible.

It is indeed important that a provision of this nature should appear in the Bill, that there should be guidance to the Board as to what matter it should take into consideration in considering a particular object. It is quite unheard of that no regard should be paid to the artistic or the literary merits of an object placed before the Board; it is quite unheard of that it should not be considered as a whole; it is quite unheard of that no expert evidence will be allowed to be led before the Board itself.

Mr. Chairman, the hon. Minister mentioned the British Acts in this connection. Sir, the British Act itself actually reads as follows. I have here a copy of the Obscene Publications Act of 1959 and it says this—

Another section of the British Obscene Publications Act reads—

In other words, the British Act itself clearly gives an opportunity to a person who might be considering whether an object is obscene, to consider it is a whole and to look very closely into the actual merits of a particular publication. You must realize, Sir, that there are booksellers in this country who import thousands of books every year, and there might be two or three undesirable books amongst those books, but how are they to know? They are not capable of reading thousands of these books every year. Indeed every year more than 20,000 titles in the English language are published in Great Britian; 1,000 a year are published in South Africa. At one time no less than 300,000 titles are in print in the English language—at one time! How is a publisher to know which of those particular books might not contain one or two or three or four so-called undesirable matters on which the Board can, under the Bill as it stands, throw that particular book out. Because we must remember that the Board is specifically told in this Bill to pay no regard to the intention of the person by whom a particular matter was printed, published or kept for sale. It is going to place the book trade in an impossible position if a book can be thrown out on account of one minor point, or one or two sentences in that particular book. There are so many examples that one can mention. You can take works of Shakespeare in which there might be one or two obnoxious-sounding passages. Under this Bill indeed the intention of Shakespeare in writing a particular play must not be taken into account by the Board when it investigates the contents of a particular play. A dictionary will contain a few obscene words, but the intention of that dictionary is not to publish obscenities. The intention is of course to further learning, to further knowledge of the language. But the Board is told: You dare not take cognizance of the intentions of the compiler of that dictionary. Mr. Chairman, I say it is indeed an unheard of thing to have a provision of that nature on our Statute Book. I believe there were few issues in this particular Bill on which the hon. Minister received more memoranda than on this particular one. I do not wish to quote the words of all the literary societies, the art societies, or scientific societies, nor do I want to refer to all the memoranda submitted by the book trade, by the book associations, Afrikaans as well as English. They are too numerous to mention here.. But the feeling is unanimous that you cannot and you dare not judge a work of art on its own. There are paintings, Sir, of which a certain part may appear to be undesirable, paintings of Modigliani, or one of the Augustus John’s nudes, but are we going to throw these paintings out of our art galleries on account of the fact that a single small part of that particular painting might be undesirable? And indeed this Bill empowers the Board to do just that. It opens a wide field for the snooper, for the dirty-minded person to come along and to protest against what are really works of art, simply because that particular person does not like one small part of a work of art or of a book, and then that work of art or book can be thrown out.

I think I should read from one memorandum, that submitted by the South African Association of Arts—die Suid-Afrikaanse

Kunsvereniging. Again it was drafted by Mr. Justice Marais and approved by the National President of the S.A. Association of Arts, Senator D. H. van Zijl. Section 5 of this memorandum reads as follows—

The aesthetic value of a publication must be taken into account It must be taken as a whole. As one of the writers pointed out in an interview in Dagbreek there are certain parts of James Joyce’s “Ulysses” which if considered on their own would certainly subject that book to banning in this country. It has not yet been banned, and I hope it will not be banned, for taken as a whole “Ulysses” is one of the greatest works in the English language. Yet, under the provisions of this Bill a snooper can come to the Board, and if that Board consists of a crowd of blue-nosed harpies, they can throw out a particular book and prevent it from being sold in South Africa. [Time limit.]

When a layman enters into the realms of this particular discussion, one has to be a little bit careful, but I am entering on this occasion because I want to draw to the attention of the hon. the Minister a very famous judgment that was given on a matter of this nature, in respect of obscenity, indecency and matters considered otherwise morally objectionable. And may I say that it is the general conception of the ordinary layman under the principle of the rule of law that if you appear before our courts, you are tried on the facts and not on the opinions of the Judges that sit there. The case must be proven against you. It would appear to me that by the wording of this clause, particularly Section (1) (a) and (b), we are likely to get different opinions in respect of any matters or persons who may be tried before our courts for offences against Clause 5, the clause that we still have to deal with. Because it is quite clear that if a court is expressing its opinion in regard to any publication, let us say, that has a tendency to deprave or to corrupt the minds of persons, or is offensive to public morals, then clearly the courts or the Judges may differ from court to court in these matters. I do not think one can say that there would be a uniformity of outlook in respect to those who sit on the benches in our courts, uniformity of outlook as to what may be moral or what may possibly deprave or what may possibly corrupt somebody. Because being human beings and with different backgrounds their opinions are naturally going to differ from area to area. That is why I am going to vote against this clause …

A terrible thing!

The hon. member for Mossel Bay (Dr. van Nierop) knows nothing whatsoever about what we are talking. He is living in a cloud and has not the vaguest idea what we are dealing with here.

I only know one thing and …

I am well aware of the fact that the hon. member only knows one thing. We know what sort of reading matter the hon. member enjoys. It is probably what the hon. the Minister is seeking to protect him from. I believe that if you are going to try a man for the publication of something which is obscene and indecent and immoral, then he must be tried in the courts on the basis of facts, and he cannot be tried just merely on what in the opinion of who is trying him is immoral or obscene. In my view this clause offends against the principles of the rule of law, on which the hon. member for Vereeniging (Mr. B. Coetzee) had such a lot to say. Because why should I be tried or should the hon. member for Vereeniging be tried as a publisher of books for what is possibly likely to deprave the public mind, because in the opinion of some Judges, he is doing so, and he is not tried on the basis of the facts? In support of my contention I want to quote what is a very famous judgment. The hon. member for Kempton Park who is an out-standing and great lawyer, probably knows about this judgment, but I want to quote it because I think it is so applicable to what we are asked to support in this Bill. Mr. Chairman, in the United Kingdom in 1954, there was a case in the Central Criminal Court of Regina v. a very famous firm of publishers Martin Secker & Warburg Ltd., who published a book which was known under the name “The Philanderer”. This book was formerly published in the United States under the title “The Tightrope”, Prosecution was instituted against this firm because the prosecution alleged that it was an obscene libel at common law. This case appeared before Mr. Justice Stable and a jury, and at the conclusion of the trial the Judge gave his summing-up, and I want to quote certain of the findings. In his summing-up, the Judge said this to the jury—

He continued—

and any charge under this Bill, Sir, is a criminal charge—

Then he went on to say this—

And obviously, Mr. Speaker, any charge under Clause 5, any prosecution, will be a charge that the book or the publication or the object has a tendency to corrupt and deprave. The Judge continued

Therefore any publication from which a charge may develop, may if placed in the hands of a group of young persons, have a tendency, but would that in itself institute a fact and make a criminal offence? He concluded his summing-up by saying this—

[Time limit.]

In reply to what the hon. member for Turffontein has just said I want to emphasize one thing and that is that I have sufficient confidence in the judgment of our courts to know that when the courts have to give judgment, that judgment will be based on facts before the court; they will not give a judgment which they have grasped out of thin air. They will base their decision on the facts before them and that decision will be the courts judgment. Our courts are quite competent to do that.

The hon. member for Orange Grove (Mr. E. G. Malan) and certain other hon. members had a great deal to say about the intention of the writer not being taken into account, as is stated here. Both he and other people-read something into this provision which, to my mind, does not appear there at all. The hon. member for Orange Grove said that when Shakespeare sat down to write a drama, his intention was to write a drama. Surely every child knows that. That is not what is meant here. We have the position to-day that it is often the tendency in certain cheap books to describe a criminal act in the most ghastly detail and to give a realistic presentation of the most serious indecent acts and then the writer ultimately has the person shot and says: “This proves that crime does not pay.” It is then stated that that was the intention of the book. We maintain that that intention should not be taken into account. He cannot go to the count and say that his intention was to prove that crime does not pay. I will give you another example, Sir, here in our own country where a magazine, superficially regarded, wanted to sing a song of praise to the Board of Censors for the wonderful work they were doing. They say: “Look how well the Board of Censors are doing their work; they have cut certain portions from a film for example.” The periodical then publishes those portions which have been cut from the film and which may not be shown on the screen in order to show how good the censor was doing his work. In such case the board will have sufficient judgment not to be misled by such “tricks ”. The hon. member for Orange Grove and others say that the standard of art will not be considered at all. The board will not judge whether it is art or not. I ask you, Sir, why in heaven’s name then did we appoint a board which consisted of experts in the field of arts and literature and other fields. The very composition of the board is a guarantee that the literary standard of the work which has to be judged will be taken into account. Their big complaint is that the work which has to be judged must be read as a whole and that it must not be judged on certain parts only. I think I should give hon. members a few examples as to how a properly qualified critic sets about judging a book. You read the book as a whole in order to determine what the author is really trying to do and after that you decide whether there are certain sections which, regarded by themselves, are indecent or pornographic. You ask yourself: Is that section which appears to be such when taken by itself, an integral part of the work; is this section really necessary to give a true picture of that character or that situation, or is it a section which was simply dragged in for the sake of sensation or pornography? Then you can decide and every editor of a periodical in every country in the world does that every day. He receives stories and he deletes portions which he thinks are not really necessary. All publishers do it. They send the work to a reader and that reader says certain portions should be deleted. I know that somebody reproached me for having said that I had done that to Leipold’s works and that we had done it to Hettie Smit. I can refer to Shakespeare as the best example of this. I wonder how many hon. members of this committee have ever read the works of Shakespeare as he wrote them? They were simply not published in that form. For generations up to to-day we have only known the expurgated editions of Shakespeare from which large portions have been deleted as originally written by Shakespeare so as to conform to the taste of the then devotees of the theatre. The expurgated editions were the editions which have made Shakespeare famous as a great writer and not the little bits of obscenities which he added. It was precisely by deleting those that he has emerged in his true glory. That is what we do every day and still do to-day. When Shakespeare is prescribed for our schools it is the expurgated edition. The obscene parts are safely deleted because they are not of real importance to the work itself.

Nor does it depend on the subject with which the author deals, but on how he deals with it. I want to give an example. Alexandre Kuprin, the Russian author wrote a book and that book contributed just as much to the closing down of brothels in Czarist Russia as Uncle Tom’s Cabin contributed to the abolition of slavery. That book deals with the lives of the girls in a brothel but the subject is dealt with in such a way that there is nothing offensive about it and it had that tremendous effect on the conscience of Russia. Emile Zola, who wrote during the naturalistic period, during the period when it was not only fashionable to call a spade a spade but “a b shovel”, wrote a book about the life of a prostitute, “Nana” and there is nothing offensive in that book. He deals with the matter on a plain where obscenity, just for the sake of sensation and for the sake of shocking people, is absent. Take, for example, Gustave Flaubert’s “Madame Bovary ”. There he describes the life of an adulterous woman. It took him seven years to write that book, and there is nothing indecent or offensive in it. It is not the subject which is at issue, but the way in which that subject is treated. Thus you can take something beautiful, like the love between a man and a woman, a subject which is treated in such a way by certain writers that it is a good story but then obscenities are added which are not necessary or which do not form an integral part of the work. Those are the things which we must look for and I imagine that those are the things the board will look for. If an author has any doubts he takes his manuscript to the board and says: Please help me here. And if the board says to him: You are still a young author; delete this and your work will be better. He will say when he gets older and wiser that the board had put him on the right road.

Mr. Chairman, I have an amendment to this clause and it has two parts to it. I will deal with the second part first because the last speaker dealt with the question of intent. The second part of the amendment, which is to omit sub-section (2), deals with it and it is consequential on an amendment which I shall move when Clause 5 comes up.

I think the hon. member should move the two amendments at the same time.

I will move them together, but I will talk to the second half of the amendment first—

1. (a) when taken as a whole, it has the tendency to deprive or corrupt the minds of persons who are likely to be exposed to the effect or influence thereof; and
2. (b) it comprises any book, magazine or like work which is of a kind likely to fall into the hands of children and young persons, and which consists wholly or mainly of stories told in pictures with or without the addition of written matter, being stories portraying the commission of crimes, acts of violence or cruelty, or incidents of a repulsive or horrible nature, in such a way that the work as a whole would tend to corrupt a child or young person into whose hands it might fall.

I think the eloquent speech just made by the hon. member bears out my whole point, that it is the intention of the writer that counts and nothing else. He mentioned the subjects written about by the Russian author and Flaubert, and all that is indicative of what I have been saying, that the intention of the author is to present subjects which might perhaps be offensive to certain people but are presented in such a way that they do not offend, and with the intention of perhaps bringing about a social change, like “Uncle Tom’s Cabin ”. There are the works of Dickens, which deal with many offensive subjects in order to introduce social changes in England. So one can mention one item after the other, and indeed I think it is noteworthy that the British Act, the Offensive Publications Act of 1959, specifically includes this question of intent. In other words, it has to be proved that it was the intention of the author in writing such a book, or of the publisher, the printer or the distributor, to subvert public morals before a prosecution can succeed. So there is a very good reason indeed for omitting sub-section (2) of Clause 6.

I also have a comprehensive amendment of the first part of Clause 6, and I want to explain it. It is my intention to try to limit the whole definition here which the court has to take into consideration in deeming a matter to be contrary to public morals, indecent or obscene. Again I have used the British Act as my model and I have taken almost verbatim the definition given there. In other words, it is a much more lucid definition, and I include the same phrase which is included in the British Act and which is included in the amendment moved by the hon. member for Orange Grove, and that is that it should be a question of the book taken as a whole. It is extremely important that a book should not be judged simply on the purple passages in it, but as a whole. The Minister says of course that is so, but I want to mention the case of Ireland. The hon. member was very voluble about Ireland yesterday and chastised me for classifying Ireland amongst the backward countries when I said that no progressive country has a Board of Control these days. The hon. member is always trying to tell us that all other countries have similar legislation, and that is not so. I have taken the trouble to check up on the legislation in other countries. He says many other countries have similar legislation. They have legislation against obscene publications. Nowhere is there anything like the definition in Clause 6 which the court has to take into consideration in deciding whether a matter is objectionable, obscene or harmful to public morals. It is far more limited in all those countries which have such legislation, except in Ireland, where he said there was a board and where I said they were less progessive—and that is a fact, because the young Irish writers have left Ireland and have gone elsewhere to write simply because of this situation, because they were worried about this pre-publication censorship. In Ireland the whole scope of literature and reading has been reduced to an extremely elementary level as a result of it. The hon. member says that no one will simply read a book and take out a few objectionable phrases or purple passages and then deem the book to be undesirable, but that is exactly what happened in Ireland with this board, although in Ireland, when the Bill was under discussion in the House, the Minister in introducing the debate actually said—

But despite that—and here we have nothing mentioned by the Minister or the Bill to say that the book should be read as a whole— what happens in Ireland? This comes front a book quoted by the Cronje Commission, so it is very authoritative. The name of the book is “Obscenity and the Law It says—

One of the members of the board subsequently resigned, and this is what he said, in a letter to the Irish Times—

Well, I think that is a natural tendency. Someone will read through it as fast as possible and decide it is objectionable. He will mark the purple passages which he finds objectionable and send them to the board demanding that the book be investigated and it is quite likely when you think of the tremendous volume of work the board will have to perform, investigating every book in English or Afrikaans which might be sent to it, that the nine members of the board will simply read these marked passages and find it difficult to read the whole book afterwards. Therefore I think it is very important (a) that the intention be in fact included in the Bill, or in other words that sub-section (2) of this clause be omitted, and (b) that the book be read as a whole before it can be condemned, and (c) that the whole definition to which the court has to refer has to be narrowed down considerably so that it only refers to obscenity per se, to offences to the public morals and words of that nature, and not any of the many things like divorce, marital infidelity, etc, It is ridiculous, and it will only reduce our reading to the nursery level. It is quite absurd to think that all these factors have to be taken into consideration. There is practically a quarter of a page covering the various things which should not be included in books, or if they are, can be deemed to be immoral. I am inserting in my amendment a special little sub-paragraph protecting children because I know that will be the next argument used, and again I have gone to the British practice, the specifie Act which covers young persons, and if the Minister looks at the amendment he will see that it includes a rather wider definition in order to deal with the specific case of young persons.

The hon. member for Houghton (Mrs. Suzman) has apparently summed up the attitude of the entire Opposition. The difficulty which hon. members opposite have is that they think that the courts will be restrained by this Clause but that is not the position. If hon. members were to read the clause correctly, they will realize that that is not the case because it is for the courts to decide whether anything is handled in an indecent way in regard to the matters referred to in the clause. It is not the act itself but any subject can be dealt with in an indecent way. That is why these things are mentioned; it is for the court to decide; whether a subject has been dealt with in an indecent manner. It must rouse a feeling of revulsion if an author or an artist suggests anything improper by his Work. Surely it is easy for any reasonable person to get that feeling. The hon; member for Turffontein said that the courts will now have to lay down the yardstick and that we will have conflicting judgments. I am more inclined to take note of the opinion of a judge than of the opinion of the hon. member that there will be conflicting judgments. I have already said what Judge Marais said that the magistrates’ courts will first have to deal with the matter and that to begin with it could be expected that there would be a number of divergent findings, but the reading public will be surprised to see how quickly the magistrates from Messina to Simonstown will evolve a uniform set of rules and penalties. I will rather abide by those.

The diffleulty is that lawyers differ on that.

The hon. member made the point and said that his second difficulty was that the courts would give such divergent judgments that the people would not know where they stood. I say I am more inclined to accept the opinion of a judge such as that of Judge Marais. I do not think that is the great difficulty. A yardstick will soon be established. You will perhaps not have absolute uniformity but gradually public opinion will assist in establishing a yardstick.

It changes from decade to decade.

Of course, but we cannot remain where we are; Heaven preserve us from remaining where we are! The hon. members for Orange Grove and Houghton had a great deal to say about this small section. In his effort to attain his objective the writer or artist concerned may drag in issues which in his opinion are not undesirable but which can be the most extreme obscenity imaginable. Do hon. members want to tell me that the board which must judge a work, will delete a few sentences which fit in admirably, sentences which were added with no ulterior motive of being obscene? I had the privilege of seeing the play “Die Hemelbed ”. The same subject can be treated in a much more suggestive and obscene way so that it becomes offensive. But the subject is treated so beautifully that you actually see a married couple in the marriage bed the first night, and there is nothing offensive about it. That is a typical example of how the same subject can be treated so that the one way is offensive and the other way is a revelation of art; it depends on what the intention is. And if they want to delete portions because they create such a bad impression, you cannot contend that because the rest is good the book should be passed. I think the hon. member for Orange Grove should realize that not only in this century but in the next century man will differ from man, from place to place and from time to time over this question of what is really art. I think that the appreciation of art has lately become so degenerated that if you do not want to be out of fashion and be regarded as old-fashioned, you have to admire everything that is produced as wonderfully artistic. If you feel at all sceptical about some of the artistic works, you are regarded as being old-fashioned. If there are members of the public who admire the present expressions of the art of painting I wish them everything of the best, but as far as I am concerned I do not want the artist to tell me what he wanted to convey; I want to see for myself what he had conveyed. That is how I feel about it and if we must argue about it we can do so for days, but let us leave these matters to the courts. It does not mean to say that the judges are so competent that they can judge, but they call for evidence; they call prominent artists from different schools of thought and they get an opinion. How long has this court case about a painting been going on? It is perhaps just as well because views are expressed from all sides. But the question will not be settled either in this House or outside. Members may jump up here and say that the Minister will suppress all art because he has removed the naked figures from the Population Registration Building and that he will appoint a number of prudish old women who will destroy art in this country. What nonsense! I do not want to go into it, but if hon. members are very curious to know why those figures were removed I can give them a very good explanation. Under Clause 14 (2) the court has the right to investigate anything and to consider it, which means that the court may call any evidence. Do not let us raise all these bogeys, because there is absolutely no reason for doing so.

Can the board also be summonsed to give evidence?

Yes. There are absolutely no problems connected with the whole matter. I am not a lawyer. I have allowed myself to be guided. Other lawyers may have a different view from that of my advisers but I am quite convinced that I am right; my common sense tells me that. Hon. members must understand what the function of the courts is under this legislation. No appreciation has been expressed by the opposite side for the fact that since 1931 there has been a political figure, a Minister, to whom the final appeal lay and whose judgment could indeed have been influenced by political considerations but that the Minister has now disappeared from the scene completely, except in the case of films, something which the film companies wanted themselves, and that in future it will be the highest court in the land that will decide.

But the powers laid down in the law are greater than those which the courts have to interpret.

No, that is not the case. The courts only have to decide whether anything is obscene when presented in a certain form. The court does not consult a dictionary to find out what the meaning is of a word and then finds the person guilty on that.

It appears to me as a layman that we confuse the issue by adding words to explain words. Instead of leaving the decision to the courts, we explain to the courts what their function is and we tell them the meanings of words, whilst the courts can do that themselves. The other difficulty I see is, that in South Africa we have our own culture in Afrikaans, and it is a rich culture, but in English we all of us share a world cultiire which is not confined to South Africa. Therefore we have to supply a different standard in the minds of certain people. In Clause 6 (I) (c) we give all these words to explain that a matter shall be deemed to be harmful to public morals “if in the opinion of the court it deals in an improper manner…” and then there is set out a long list of items. Let us take one or two of them. The hon. member for Fort Beaufort (Dr. Jonker) has spoken about Shakespeare and the expurgated edition. Well, I have an edition that is an expurgated edition. The Globe edition may not be but I will take one that is in circulation to-day and test it out against this clause: “if it deals in an improper manner with … fighting, brawling, drunkenness, prostitution …” Well, I will mention a scene in which the four come on together. That is in the second part of Henry IV where Falstaff and Bardolph and Pistol come and meet their prostitute Doll Tearsheet in Mistress Quickly’s Inn; there you have the whole thing explained and you cannot tell me it is judged in a special and proper manner.

That was not improper. That is the point.

Perhaps it was not improper in Shakespeare’s time but it would be to-day. But we have had a play recently produced in South Africa that I saw in London, a play by the Irish playwright, Brendon Behan, in which a scene was laid in an Irish brothel in Dublin. I found it most boring, not disgusting, but just boring. But it is being produced in South Africa. Surely it is quite unnecessary to give all this explanation as to what the judges must bear in mind. It is not necessary for us as law-makers to instruct the court as to the meaning of words and how they are to carry out the functions of the court. That is where I think we are going wrong. We are trying to make it more and more difficult. And when we come to sub-section (2) I think we are grossly at fault. We say that in determining whether any matter is indecent, no regard shall be had to the intention of the person. It is essential to have regard to the person’s intention. I think here again we are instructing the court in interpreting the law and not leaving them to carry out their interpretation of the law in the manner to which they are accustomed. In dealing with this measure the court is not to pay any attention to the intention of the man. That is where I think we are going wrong. We are labouring with words and telling the court how to carry out its functions.

We have here to-day one of the oddest perplexities I have ever seen in this House, and I would like to draw your attention to it, Sir. If we are to accept the definition of the hon. member for Turffontein (Mr. Durrant), we would be narrowing the whole position. We would just be compelling the courts to answer the question as to whether something is indecent or not on the grounds of its literary worth, of its scientific worth, because it is a well-known rule in the interpretation of laws that when there are specific words followed by general words like “or other merits”, as he suggests, these words mean no more than the words which preceded them. In other words, you will get a whole number of documents or objects which are indecent and which will then go free to spoil the public morals. I want to accept that his object is the same as ours, namely to prevent our morals being spoilt. But he will simply not manage it by using these words.

But let us go into the matter more deeply. The question is not whether someone who wrote an indecent book has committed an offence in terms of this clause; the question is whether that book should be banned or not. Let us illustrate it by taking a simple incident from history. The hon. member for Kensington (Mr. Moore) has just referred to the wonderfully broad English culture to which he belongs. Let me take an English example.

All of us.

Very well, let us say to which we all belong. Take the case of The Queen v. Hicklin. Hicklin was a very fiery protestant and the incident took place in 1868. In those days it was customary to act very sharply against the Catholic Church. In the Coronation oath there is even a part where the Catholic faith is abdured; they talk about the abduration section of the oath. Well, this Mr. Hicklin issued pamphlets in which he condemned the practice of confessing in the Catholic Church, and more particularly a subdivision of this practice of confessing, namely the questions put by the priest in the confessional in regard to adultery, in regard to prostitution, in regard to seduction, and in regard to all kinds of sexual malpractices which the Catholic Church frowns upon. He made no profit out of it; he had this material printed and sold it at cost price to anyone who wanted it, because he was of the opinion that the Catholic Church was one of the worst institutions in the British Isles. His object was to promote Protestantism, and then he had to appear in court. And what did Lord Cockbum say?

It is pronounced “Coburn ”.

No, it is C-o-c-k-bum. Perhaps it is pronounced “Coburn ”. I am not an Englishman. I am proud of the mistakes I make once in a while when I mispronounce words in English. What does Lord Cockbum say? He says—

This Mr. Hicklin has a very praiseworthy object, namely to combat the malpractices of Catholicism, and that was ordinary behaviour in England, but nevertheless he was convicted of a charge of having sold pornographic material, and quite rightly so. Now the hon. member for Turffontein (Mr. Durrant) will tell me that this happened almost a century ago, but the same kind of case occurred in 1954. I refer to the case where Lord Goddard gave a decision. I hope that is the right pronunciation. I may just say that the first case to which I referred is that of The Queen v. Hicklin (3), Queen’s Bench, page 37, and the volume in the Parliamentary Library is the English Reports (Annotated), at page 1990. The other case in which Lord Goddard gave judgment is that of Rex v. Reuter (1954 1 All English Reports, page 742). It is the same Julius Reuter who later became Count Reuter. Lord Goddard said that the law to-day was precisely what it was in 1868. He says—

i.e. whether it is detrimental to public morals—

Did Lord Goddard need Clause 6 to assist him?

A person cannot tell the court: “I had a laudable object; I wanted to make money out of this film or from this pornographic material, and send the money to an orphanage.” Those are all laudable objects, but that does not derogate from the fact that he published something which was pornographic. We have nothing to do with the man himself; what we are concerned with is three other sections in terms of which offences are created. The hon. members want to apply mens rea to the offence as being a case analogous to a quasi mens rea in the publication of pornographic objects, but it has nothing to do with it. Section 5 (6) …

Section 6 (4).

No, Section 5 (6) creates an offence. The offence is created in the preceding section and the question will arise as to whether this object will undermine morals or not, and then the question will arise whether this person, when he published this object, had an excuse. Supposing an importer ordered something. He is quite unaware of the contents thereof. If he were aware of that, he would never have ordered it. He pleads that fact in mitigation of sentence. Or it may be that he ordered a title and that that title was not sent to him. There was a mistake made in the delivery. That title now enters the country. He has not yet looked at it, and before he can do so it comes into the possession of the censors. Now the question may arise as to whether that is detrimental to good morals. The Censor Board says that it is and he is charged with having distributed the book. He can then prove that he ordered a different title and that the wrong one was delivered to him; he can prove that the delivery was not even made to his office, that the book went direct to his distributor. Then the question of mens rea becomes relevant; it is then a defence. But the hon. members, and particularly the hon. member for Orange Grove (Mr. E. G. Malan) thinks that we on this side of the House are still living in the Middle Ages when they did not ask what a man’s intention was but simply punished him in accordance with the consequences of his act. Those days are past. I can assure the hon. member that we are not suffering from that disease he thinks we are suffering from. But, Sir, do you know what is wrong with the hon. member for Orange Grove? He must always blame us for something because he has to convince himself every day that he left a terribly bad lot of people when he took his seat on that side of the House. I come back to this argument that we are supposed to ignore the mens rea. I want to draw your attention to Section 9. [Time limit.]

The hon. member who has just sat down has given quite a long dissertation on judgments in the English courts dating back to 1868 but the only pertinent question is this: Did those courts need the provisions of Clause 6 to administer justice, and that pertinent question he has avoided and simply not answered. That is the subject of the debate at present—the necessity of the provision of Clause 6. The hon. member for Kempton Park (Mr. F. S. Steyn) has criticized me apparently for saying that the clause essentially affects the onus of proof in criminal cases; he said it had a wider implication; that it also covered civil cases. Well, if anything he makes my case better than I made it myself because why then introduce legislation affecting the onus of proof in civil cases; why give a direction to the courts as to how to handle the position.

Where is the onus?

That is precisely what the hon. member indicated.

May I put a question to the hon. member? I want to ask the hon. member whether a norm is not laid down in this clause. Why does the hon. member insist on saying that an onus is being introduced here. A definition of what is wrong is given here. A norm is laid down.

I say it affects the onus of proof.

In what respect.

The hon. member in his original speech rather indicated that I was wrong in confining it only to the criminal law; he said it went further. Sir, the hon. the Minister goes on relying on what he appears to regard as a great concession instead of as a right, the right of appeal to the court, and he quotes a report by Mr. Justice Marais who said that at the outset there would be a great variety of opinion and a multiplicity of judgments of a different nature. But he finds comfort in the fact that ultimately the law will be settled by the Supreme Court. I asked the simple question: At whose cost? At whose cost is this law to be settled?

The more vague you leave this the longer it will take to settle.

Precisely. That is why we want to eliminate the unnecessary. This Bill is full of words; it has a multiplicity of words in it, and all that we have tried to do on this side of the House is to eliminate words and to come down to simplicity.

You want to eliminate the whole clause.

Yes, because the whole clause serves no purpose really. All that the hon. the Minister has to do is to listen to the judgments quoted by the hon. member for Standerton. Those judgments have met with great praise on the other side. None of them required any Clause 6 to assist the courts in arriving at judgments which were apparently right. As I say, the hon. the Minister makes much of this right of appeal to the court. But firstly I would like him to explain how anyone can carry on a book trade business or a publication business or business as an author if at all times he remains uncertain as to what the law is and has to go to the courts to find out what the law is. You cannot conduct a business by running to courts; that is quite impossible. As far as the courts themselves are concerned I have not the slightest doubt myself that the courts will be greatly assisted in the administration of the law if Clause 6 is rejected, and therefore I say that this is a clause which is quite unnecessary. It can be left both to the common law and to the common sense of the Courts.

In the first place I want to try to remove the legitimate confusion which exists in respect of Clause 6 (2) by moving that in line 21, page 8, the word “intention” be replaced by the word “purpose” as it appears in Afrikaans where the word “doel” is used. I think the true intention of the clause, or at any rate the intention of the Select Committee in this respect, was that it should not be possible to advance the purpose for which a work of art is created as an excuse for any pornographic defect that it may contain. To give the most elementary example, the writer should not be able to say, “My purpose was that only university students should see this work and it must not be held against me therefore that the general public is able to get hold of it ”. I move—

Then I want to come back to the whole clause and try once and for all to get clarity on it in the minds of hon. members opposite too. Under this measure cases may come before the court in three ways: The first is the appeal under Section 14 against the decision of the Board, and then there are the two clauses where criminal sanctions are provided for. These are the cases which may come before the court. Here we have a provision which prescribes how the court has to deal with a case under this measure when it reaches the court. Only two instructions are given to the court. The courts are instructed what interpretation to place on “improper or indecent and offensive and harmful to public morals”, An instruction is given to the courts as to the norm to be applied, and they are given this further instruction that in coming to their decision as to whether it is offensive they must not take into account the purpose for which a work was created. That is the only restriction that is placed on the absolutely unlimited discretion of the court. We have to look at Section 14—and I am very grateful that the hon. member for Durban (North) (Mr. M. L. Mitchell) is here at the moment. In Section 14, the important appeal clause, it is provided that the Division of the Supreme Court to which appeal is made shall inquire into and consider the matter and may confirm the decision of the Board. In other words, the court has an absolute right to determine its own procedure and an absolutely unlimited right to consider the matter, and this unlimited right of the court to consider and decide the matter is only limited by two provisions in the Bill, namely the norm and the provision that they may not take into account the purpose. The conclusion that I want to draw in the first place is that the hon. member for Houghton (Mrs. Suzman) and all the newspapers are absolutely wrong in saying that the court may only consider a portion of a document or a portion of a work of art in coming to a conclusion. Section 5 (2) which talks about a portion, deals with a decision of the Board which may be taken on appeal to the court. The court has an absolute right in its own discretion to consider a portion, but also to consider the thing as a whole. In terms of the existing court judgments we have no doubt that the court will consider the things as a whole.

May I ask a question? Is it not true too that the court will not be able to question the findings of the Board as far as the distributor is concerned, but only as to whether the article has been distributed— in other words, not query the intrinsic decision of undesirability?

Not in a case where there is a prosecution for distribution, but where there is a case before the court in which the question as to whether something is desirable or undesirable has to be investigated, the court is entitled, without the slightest doubt, to consider the whole of the publication, and the hon. member for Durban (North) will realize that if he considers this matter. Section 5 (2) does not bind the court at all. The only provisions which limit the court’s unlimited discretion are contained in Section 6.

The idea has also been expressed here that the court cannot take into account the surrounding circumstances or anything of that kind. The court may take into account everything, not only the whole of the work, but all the circumstances except the object. The object cannot be advanced as a specific defence. The suggestion therefore which has been made here that Joyce’s “Ulysses” might possibly be found to be improper by the court because of the last few passages, because only the last few passages are considered, is one which does not hold water. The court is entitled to consider the whole of it and will, in terms of our experience, consider the whole of it. But I think we shall get a little more clarity if the hon. the Minister will perhaps express his opinion in connection with my amendment at an early stage.

Here I want to make a fairly serious charge against the hon. the Minister. He quoted to us from an article by Mr. Justice J. F. Marais in the journal, Standpunte. I have before me the reprint of that article in Standpunte as it appeared in the Burger. The hon. the Minister quoted a certain portion of this article to justify this particular Clause 6 and to suggest that after a certain time it will be a very easy matter for the courts to say what is indecent or not, or to place an interpretation on that term.

No.

Will the hon. the Minister tell us what he did say?

I was really replying to the hon. member for Turffontein (Mr. Durrant) who alleged that the judgments ol the courts would be so conflicting that we would have no idea where we stood. I then quoted a small extract to show how quickly the courts do arrive at a norm.

If that is the hon. Minister’s explanation then he is making the case practically just as bad, because the hon. the Minister advanced that as an excuse for this particular provision in Clause 6. He stated that the confusion caused by the definition in Clause 6 would easily be removed by the courts. Mr. Justice Marais’ whole article, however, is in fact based on a rejection of this type of definition. The heading of this article is: “Test the old system first.” Do not come along with this new law; test the old system under which we do not have these definitions. Test the old system where the only words used are “profane, indecent or obscene” and leave it to the courts then to say what those words mean. In that connection Mr. Justice Marais stated that there would be no difficulty in establishing what is obscene or what is not obscene. He stated that when three or four words only are used, which is what we on this side want, the various courts would soon come to a decision in regard to which there would be unanimity from Cape Town to Messina. The hon. Minister now comes along and quotes those words in defence of the host of definitions appearing in Clause 6. Let me read it out to the hon. Minister again. In this article Mr. Justice Marais says—

And incidentally, if the lawyers want to quarrel with one another, I think the opinion of Mr. Justice Marais is worth as much as the opinion of the hon. member for Kempton Park, who says that the court will have to take into account the whole article and not only a portion of it. Let me quote what Mr. Justice Marais says what he wants, and I quote again from the same article from which the Minister quoted—

That was all he asked for—a consolidating Act.

And he says that if the old system is put to the test, we will find that in due course the decisions of the courts will agree. What right has the Minister to come along with this particular quotation from Standpunte in support of his own attitude? I have here a further passage from the S.A. Arts Society’s memorandum which was drawn up by Mr. Justice Marais. It was written in connection with the 1960 Bill; I repeat that time and again. I say that these words of Mr. Justice Marais’ also relate to this particular clause. He says—

Reference is then made to one case which is probably not unknown to the Minister. Mr. Justice Marais refers to it here—

And there are many social reformers in this country—

I cannot understand how the hon. the Minister can still come along with the proposition that the courts cannot be entirely free in coming to their decisions. They would have been entirely free if he had only omitted those few words in Clause 5. I refer to Clause 5 because if we omit Clause 6 and change Clause 5, reference will be made only to things which are obscene and indecent and the definition of those words will then be left entirely to the courts. What the hon. the Minister is doing to Clause 6 really is to place a curb on the courts. He tells the courts what they are to regard as “indecent, obscene and harmful to public morals”. It is set out here word for word. He says here that the courts will have to take notice of it; they will have to listen to it because that is the law they have to apply. The article says—

Of course the courts are bound by this provision in the Bill. How can the Minister say that that is not so?

The hon. member for Fort Beaufort (Dr. Jonker) has just told us how he reads a work that is submitted to him to see whether there is anything obscene in it. He says that he reads the whole of it. Again my reply is that when we look at Clause 5, where reference is made to a portion that may be obscene, we find that the whole of that book can be banned. In the future, therefore, the hon. member for Fort Beaufort will no longer be able to judge any work of art as he has done hitherto. What astonishes me is the fact that the hon. member for Fort Beaufort actually defends the emasculated Shakespeare that was distributed in the past. It was such a scandal, Mr. Chairman, that the name of the man who was responsible for it, Bowdler, became a word in the English language—the word “bowdlerise”. Sir, the fact that a well-known Afrikaans writer like the hon. member for Fort Beaufort tries to defend the mutilation of Shakespeare is something I cannot understand.

If we do away with this carping, petty, long series of definitions in this particular case, we shall be left with the existing legislation which is more than adequate. [Time limit].

The hon. the Minister apparently relies on the hon. member for Standerton (Dr. Coertze) and the hon. member for Kempton Park (Mr. F. S. Steyn) to bring some clarity to this matter, because if there was one thing they had in common, it was the fact that they said that they were going to eliminate the confusion. I say it is now a case of confusion worse confounded. The hon. member for Kempton Park came up with what seemed to be an inspiration. He says to the Minister: “I will tell you how we can get out of this whole difficulty which the Opposition has raised in regard to Clause 6. Let us amend line 21 by substituting the word ‘purpose’ for the word ‘intention’.”

It is “doel” in the Afrikaans text; it is a bad translation. Intention and “doel” are two different things.

I am not prepared to argue with a translator of Shakespeare about the meaning of “doel”, but I am prepared to argue with him about the distinction, if any, between “purpose” and “intention” in this context. How can we bring this home to hon. members opposite? Let me put it this way: A rugby forward who has his shorts tom off does not get into trouble, because it was not his “intention” to appear in a certain way. But according to this Bill the man who commits the act of indecent exposure has the “intention” to do so. Do you see the difference?

He is not before the court.

Of course he is not before the court. I am sorry, Sir, I really cannot spend any more time arguing about the difference between “purpose” and “intention”, because to any ordinary individual they will mean exactly the same in the context in which they are used here. It does not in any way change the “intention” of this clause.

As my hon. friend, the member for Port Elizabeth (South) (Mr. Plewman) said, the Minister makes a virtue out of the fact that appeal to the courts is allowed—as if it were not a right! But the worst thing about the whole position is that he talks about something in the future. He does not say categorically in this legislation what we ask him to do; he says if there is any difficulty people can always go to the courts as though it will be a simple matter for them to do so. It may be a simple matter for the Minister, but it is not a simple matter for all those who are likely to be affected by this Bill. The Minister refuses to consider our representations about the significance of “intention”, but says categorically that the courts shall have no regard to the intention of the offender.

Because it is irrelevant.

Is it irrelevant? I am glad the hon. member said that. I believe the hon. member for Standerton (Dr. Coertze) is an expert on constitutional law, but he has a weakness for “walking into it” every time. I shall show him why. Earlier this afternoon the hon. member for Fort Beaufort, who is now seeking pastures new, cited certain very famous authors. He referred, for example, to Emile Zola and Flaubert. He also referred to the Cronje Commission. Immediately after that the hon. member for Houghton (Mrs. Suzman) quoted from a book which was cited by the same Cronje Commission: It must therefore be assumed to be an authoritative book. In fact, I believe that this book, “Obscenity and the Law”, is authoritative at least in the United Kingdom. This book says—

So much for Zola!

So what!

Who said that? I give that hon. member full marks for a brilliant interjection. I will tell him “what”. The authority of the Cronje Commission is apparently based partly on this book.

Zola was not before the court.

The publisher was. Surely that hon. member, who is an expert on law, should know that according to this Bill the publisher is as guilty as the author! What is the use of telling me that Zola was not before the court? Zola was not before the court, but his publisher was. This book is apparently also the authority of the hon. member for Fort Beaufort every time he goes “marching through Georgia”. He insists on telling us what happens in Georgia. I have been itching to tell him what really happens in Georgia, because he has refrained from telling this House I want to tell him that they deal with the State of Georgia in this same book.

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

I am dealing with the clause, Sir. The question is whether “intention” is important or not. And according to this book a statute was passed in 1953 in the State of Georgia—

Even in the State of Georgia a book is cleared if it passes this test, a book which they will not pass in this modern Republic of South Africa which is a sovereign State, while the State of Georgia is only a small component of the United States. But here, we have to come up with legislation which, according to the hon. member for Standerton, is based on something which was decided in, I think, 1868. Then the hon. member went on to say that we were not entering the Middle Ages. I would like to say to him: Would you like to bet on that? I say we are entering the Middle Ages. We are entering the era of “the Controlled Man” which has been ushered in by the Minister who sits over there. We will be right back in the Middle Ages pretty soon, with this sort of legislation.

On this question of “intention”, I have here a book in which that “famous” four-letter word on which the subject matter of the case of Regina vs. Penguin rests, is used on one page four times in succession—nothing intervening; and on the next page it is used three times in succession—nothing intervening. [Interjections]. Oh, no I am not giving you the name of this book; I am not advertising it. I do not even know whether this book has been banned in South Africa or not. [Time limit.]

There is one point raised by hon. members on the other side with which I should like to deal and that is the point very ingeniously raised by the hon. member for Kempton Park (Mr. F. S. Steyn), which was so ingenuously thrown up by the hon. member for Standerton (Dr. Coertze). I am referring to the question of mens rea …

That was raised by the hon. member for Port Elizabeth (South) (Mr. Plewman).

Their argument was that mens rea was not raised because the word that should have been used was not “intention”, because the equivalent of “doel” in the Afrikaans text is “purpose ”. I really do not think that this carries the matter any further. If you are charged with murder by having hit someone over the head with a hammer with the intention of killing him, I do not think it will avail you very much to say that you hit him on the head with the purpose of killing him. You will still be guilty of murder, Sir, because the words have precisely the same meaning when used in that context.

Let us make no mistake as to what is at issue here. What is at issue is what decision a court is to come to in any legal proceeding. Let us remember, Sir, that legal proceedings here would refer to any offence which might be committed under this Act. The offences under Clause 5 would include such things as are contained in Clause 6. What it amounts to is this that the court, in determining whether someone is guilty or not guilty of publishing or printing or disseminating matter which is indecent or obscene, offensive or harmful to public morals, may not have any regard to the intention—or to the purpose, call it what you like—of the person who is doing that sort of thing. There is nothing unusual about crimes being created which avoid altogether the mens rea, the mental element, the intention. To give an example: When you park your car within the yellow lines or when you park too near to a corner in a built-up area, it is an offence. It will not avail you to say that your are a doctor and that you had to stop there because you had to attend to a patient who was dying. You have committed an offence and the mens rea simply does not come into it. But if you are charged in such a case and you appear at court you can tell the court under what circumstances you parked there; that you had a patient who was dying or for any other reason. But, Sir, what is the position here? Look at the penalties laid down in Clause 15. Those are penalties in regard to which the court has no discretion whatsoever. It is in this regard that the question of intention becomes very important indeed because in this case the court has to impose certain minimum sentences.

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

Let me deal with the question so far as it relates to intention no* with the question of penalties. It says that the court shall not have any regard to the intention of the person so publishing. Now, Sir, that becomes terribly important. I see him here and I am sure the hon. Minister of Justice will agree. It is all very well to say that the intention shall not be a relevant factor as far as conviction is concerned, but when, upon conviction a compulsory sentence must be imposed, I think the matter becomes of paramount importance. Let me take the example which I have already given. If you park your car on the corner mens rea does not come into it. But the court is at least able to say: “You say you had no intention of breaking the law by parking there, and although I am not entitled to take it into account in finding you guilty, I find you guilty but in the circumstances you are cautioned and discharged.” But what happens here? If the opposite intention was in the mind of the publisher or the disseminator than to produce something which was harmful to public morals, if he in fact thought it was a counter measure to something which was already on the market, then he has to be found guilty because of this clause, and he has to be fined an extraordinary sum of money for the first offence and if it is his second offence he is fined R 1,000. That is the minimum. I hope the hon. the Minister will indicate that it was not his intention that this sort of thing should follow from it. But I think the Minister will agree that it does follow from it. If you may not take intention into account then you should not have compulsory sentences upon conviction. This is cardinal to every criminal offence, this question of mens rea,

That has got nothing to do with it.

It is all right for the hon. member to say this has got nothing to do with it.

[Inaudible.]

The hon. member for Kempton Park should have a look at this clause. It begins by saying—

Legal proceedings under this Act would include, of course, legal proceedings which arise from a prosecution under this Act for an offence under this Act.

May I ask the hon. member a question? Has he noticed that the exclusion of the mens rea as he says, is in determining whether any matter is indecent or obscene. It is limited to that question only.

Of course it is limited to that question only. But then you can be charged under Clause 5. If you look at Clause 5 (6) it says—

Then it says that you may not publish, manufacture, produce undesirable publications and a publication shall be deemed to be undesirable if it is indecent, obscene, offensive or harmful to public morals. Here it says what will happen in those legal proceedings where this question is to be raised. You cannot avoid a question like that. It is most germane to a criminal prosecution because the thing that you are going to be prosecuted for is disseminating or producing or printing an undesirable publication, and an undesirable publication is deemed to be if it or any part of it is indecent or obscene or is offensive or harmful to public morals. [Time Limit.]

I was pointing out that if this clause is omitted from the Bill, the effect will be that there will be a very simple definition of what is obscene and what is indecent. That is precisely our purpose. We want to have a simple definition what those words mean. We have very simple definitions in our existing laws. As you know, Mr. Chairman, the existing laws are really provincial ordinances. We have no objection to the consolidation of those ordinances; it would be a good thing. But as things stand to-day, we have those particular ordinances of the four provinces. I have a few of them here. All that is stated in the Criminal Law Amendment Act No. 38 of 1909 of the Transvaal is that “it is an offence to exhibit or publish any indecent book, paper, pamphlet, photograph, card, picture or other representation.” Only the word “indecent” is used there. It is left to the courts to decide what that word means. We do not find this hotchpotch, this host of definitions that we have in Clause 6. What is the position in the Cape Province? In the Cape we have the Obscene Publications Act, No. 31 of 1892. Only two definitions are given there; the Act talks about “indecent or obscene publications.” It has been left to the Courts over the past 60-70 years to interpret these particular words, and where have the courts erred in their interpretation? In the Free State there is the Police’s Offences Act, No. 31 of 1902. In that measure the words “profane, indecent or obscene” are used. Anything that is profane or indecent or obscene may not be published or offered for sale. There again the Act itself contains three simple words only; it does not contain this overloaded, inflated clause that we have before us. In Natal the position is the same. There they have Ordinance No. 14 of 1916, No. 19 of 1924 and No. 21 of 1942. In terms of those ordinances the local authority is given the right to prohibit the sale of the exhibition of publications “which are regarded as indecent, offensive, unseemly or objectionable.”

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

Evening Sitting

I was attempting to persuade my hon. learned colleagues on the other side of the House—not one of them is here now—that in fact this clause does relate to the occasion on which persons are charged under the Act. In other words, the provisions of this clause relate to the decision which the magistrate or the Judge will have to make when someone is charged with having committed an offence under the Act. Now, Sir, may I just indicate to the hon. the Minister how this comes about. In the first place this Clause 6 relates to the determination whether a matter is indeed obscene or offensive or harmful to public morals within the meaning of sub-section (1). Sub-section (1) deals with the question of what the court has to do, what determines the court’s decision in any legal proceedings, and the words that are used here are the identical words that are used in Clause 5 of this Bill which provides for an offence. It says “any person who contravenes any provision of this section shall be guilty of an offence”. Any person who prints, publishes, manufactures, makes or produces any undesirable publication or object will be guilty of an offence.” A publication or object is deemed in terms of that section to be undesirable if it is indecent, obscene, offensive or harmful to public morals. Now, Mr. Chairman, I think this is the first occasion, at least the first occasion I know of, in our law where it is provided that a court shall convict of an offence without any mens rea at all, without the convicted person having any intention to commit the offence—this is the first occasion I am aware of that such an offence is visited with a compulsory penalty. In other words, Sir, this is the first time so far as I am aware, in our law where an offence is created without any intention being necessary on the part of the accused and where a court is obliged to impose a minimum sentence. And the minimum sentences which are provided for in this Bill are very severe.

You are now referring to Clause 20.

I wish the hon. member for Fort Beaufort would read the Bill. I am talking about the penalties provided in Clause 15. And, Sir, what results from a conviction in this connection is very important. The hon. member for Fort Beaufort should appreciate that you cannot discuss what a court is going to decide in vacuo. It must be related to Clause 15. This matter can be aired again when we come to Clause 15, but it seems to me that the gravamen of thus matter is contained in this Clause 6, because if intention is not to be a criterion if a completely new type of offence is to be created here and a compulsory sentence to be provided, then we are providing here something which is quite new in the annals of our legal history, and I hope that one of the hon. gentlemen from that side of the House who expressed the view that this did not affect the matter of mens rea at all for the reason that this really was purpose, will apply his mind to it again and I hope the hon. the Minister will realize what we are doing here.

One thing has become quite clear up to now during the debate on this particular clause and that is that neither the Minister nor the Government has an adequate reply to our fair, reasonable request, the simple request that when judging a particular object or particular publication, due regard should be paid to the intention of the creator of that object, and secondly, that the book or object should be considered as a whole, and thirdly, that expert evidence should be allowed, and fourthly, that artistic merits should be considered. If it had only been a request from this side of the House, Mr. Chairman, from the official Opposition in Parliament, one could understand, with the political background of the hon. the Minister and that side of the House, that they might tend to ignore it, but the request that we have made comes from most important outside instances. As the hon. the Minister has chosen to ignore the official Opposition in its request, I intend to point out to him who some of these very important groups are who asked that something should indeed be done about considering the intrinsic merits of a book or a painting before the Board or a court decides to ban it. I have already indicated to him the opinions of Mr. Justice Marais on this particular issue, a prominent man, a Judge of the Supreme Court, chairman of the South African Association of Arts. I have here a copy of a plea directed to the hon. Minister by the South African Pen Club, in the following terms—

It is not an ordinary member of Parliament, not a back-bencher like myself, but a very important organization, a branch of a world organization, asking the hon. the Minister please to consider the intrinsic artistic merits too. They continue to say—

I do not accept the arguments of the hon. member for Fort Beaufort (Dr. Jonker), as I indicated earlier, on this particular point. Then the memo of the Pen Club ends—

In other words, if he were to discard one part of his work instead of having it published as a whole, in toto. I might say in passing that a similar request was made by the South African Society of Journalists. They too are experts, and asked in particular that a publication as a whole should be considered, that its literary or artistic merits should be taken into consideration and that expert advice should be admissible. The “Suid-Afrikaanse Biblioteekvereniging” submitted a memorandum in Afrikaans, and the final sentence of their memorandum is almost a plea, not just a request—

Mag ek aan die agb. lid ’n vraag stel, nl. of hy nou vanaand iets gese het wat hy nog nie vanmiddag gese het nie?

Ek het ook nog nie die standpunt gestel …

Order, order!

The hon. member must continue his speech in the language in which he started.

On a point of order, hon. members are very quick to point out that the hon. member must continue in the language in which he started. Could they also observe the rule in regard to interruptions and interjections?

Hon. members will recollect that in my amendment I asked that the intention of the person who sells a particular book or object should be considered. Now one of the biggest distributing agencies in South Africa is of course the Central News Agency, and in a very well thought out memorandum they presented the following case to the hon. Minister—

Does the hon. Minister realize the burden he is placing on an organization such as the C.N.A. which may be found guilty of offering for sale a book that might contain something which is undesirable, simply because it did not have the opportunity of reading all of the

20,0 books annually published in the English language? The C.N.A. goes on to say this—

Is it not ordinary justice and fairness that a person should not be held guilty of something of which he had no knowledge, of which it was impossible actually to find out the particulars by going through the vast number of books printed in English? So I am correct in saying that there is such a demand that something should be done to protect the artist, the writer and the sculptor that indeed the hon. Minister would be stubborn of mind if he were to refuse to accede to these fair requests: It is no good him saying: “Oh well, I have to embody all these points in this clause, but in actual practice they will not be applied strictly, and after all the courts will be just and fair, and the Board will be intelligent and just”. May I quote to him the words of Yates, the famous English poet, and writer: “No government is entitled to forge an instrument of tyranny and say that it will never be used.” I believe that under this clause we have such a particular instrument, and I ask the hon. the Minister to withdraw the clause and to accept my amendment.

Question put: That the words “that matter shall be deemed to be” in lines 66 and 67, proposed to be omitted, stand part of the Clause, Upon which the Committee divided:

Ayes.—67: Badenhorst, F. H.; Bezuidenhout, G. P. C.; Bootha, L. J. C.; Botha, M. C.; Botha, P. W.; Botha, S. P.; Cloete, J. H.; Coertze, L. I.; Coetzee, B.; Coetzee, P. J.; Cruywagen, W. A.: De Villiers, J. D.; De Wet, C.: Du Plessis, H. R. H.; Frank, S.; Froneman, G. F. van L.; Greyling, J. C.; Grobler, M. S. F.; Haak, J. F. W.; Hertzog, A.; Heystek, J.; Jonker, A. H.; Kotze, G. P.; Kotzd, S. F.; Loots, J. J.; Luttig, H. G.; Malan, W. C.; Marais, J. A.; Marais, P. S.; Maree, G. de K.; Meyer, T.; Mostert, D. J. J.; Muller, S. L.; Niemand, F. J.; Otto, J. C.; Pelser, P. C.; Potgieter, J. E.; Rall, J. J.; Rall, J. W.; Schlebusch, A. L.; Schlebusch, J. A.; Schoemau, J. C. B.; Serfontein, J. J.; Smit, H. H.; Stander, A. H.; Steyn, F. S.; Treurnicht, N. F.; Van den Berg, M. J.; Van den Heever, D. J. G.; Van der Merwe, P. S.; Van der Spuy, J. P.; Van der Walt, B. J.; Van Eeden, F. J.; Van Niekerk, G. L. H.; Van Niekerk, M. C.; Van Nierop, P. J.; Van Rensburg, M. C. G. J.; Van Wyk, G. H.; Van Zyl, J. J. B.; Venter, M. J. de la R.; Venter, W. L. D. M.; Visse, J. H.; Visloo, A. H.; Webster, A.; Wentzel, J. J.

Tellers: W. H. Faurie and J. J. Fouché.

Noes.—40: Barnett, C.; Basson, J. A. L.; Bowker, T. B.; Cronje, F. J. C.; De Kock, H. C.; Dodds, P. R.; Durrant, R. B.; Emdin, S.; Fisher, E. L.; Gay, L. C.; Gorshel, A.; Graaff, de V.; Hickman, T.; Higgerty, J. W.; Hourquebie, R. G. L.; Hughes, I G..; Le Roux, G. S. P.; Lewis, H.; Malan, E. G.; Miller, H.; Mitchell, D. E.; Mitchell, M. L.; Moore, P. A.; Oldfield, G. N.; Plewman, R. P.; Radford, A.; Ross, D. G.: Steenkamp, L. S.; Streicher, D. M.; Suzman, H.; Thompson, J. O. N.; Timoney, H. M.; Van der Byl, P.; Van Niekerk, S. M.; Warren, C. M.; Waterson, S. F.; Weiss, U. M.; Wood. L. F.

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

Question affirmed and the amendment proposed by Mr. E. G. Malan dropped. First amendment proposed by Mrs. Suzman put and the Committee divided:

Ayes.—40: Barnett, C.; Basson, J. A. L.; Basson, J. D. du P.; Bowker, T. B.; Cronje, F. J. C.; De Kock, H. C.; Dodds, P. R.; Durrant, R. B.; Emdin, S.; Fisher, E. L.; Gay, L. C.; Gorshel, A.; Graaff, de V.; Hickman, T.; Higgerty, J. W.; Hopewell, A.; Hughes, T. G.; Le Roux, G. S. P.: Lewis, H.; Malan, E. G.; Miller, H.: Mitchell, D. E.; Mitchell, M. L.; Moore, P. A.; Oldfield, G. N.; Plewman, R. P.; Radford, A.; Ross, D. G.; Steenkamp, L. S.; Streicher, D. M.; Thompson, J. O. N.; Timoney, H. M.; Van der Byl, P.; Van Niekerk, S. M.; Warren, C. M.; Waterson, S. F.; Weiss, U. M.; Wood, L. F.

Tellers: N. G. Eaton and H. Suzman.

Noes, —66: Badenhorst, F. H.; Bezuidenhout, G. P. C.; Bootha, L. J. C.; Botha, M. C.-, Botha, P. W.; Botha, S. P.; Cteete, J. H.; Coertze, L. I.; Coetzee, B.; Coetzee, P. J.; Cruywagen, W. A.; De Villfers, J. D.; De Wet, C.; Du Plessis, H. R. H.; Frank, S.; Froneman, G. F. van L.; Grey-iing, J. C.; Grobler, M. S. F.; Haak, J. F. W.; Hertzog, A.; Heystek, J.; Jonker, A. H.; Kotze, G. P.; Kotzd, S. F.; Loots, J. J.; Luttig, H. G.; Malan, W. C.; Marais, J. A.; Marais, P. S.; Maree, G. de K.; Meyer, T.; Mostert, D. J. J.; Muller, S. L.; Niemand, F. J.; Pelser, P. C.; Potgieter, J. E.; Rall, J. J.; Rall, J. W.; Schlebusch, A. L.; Schlebusch, J. A.; Schoeman, J. C. B.; Serfontein, J. J.; Smit, H. H.; Stander, A. H.; Steyn, F. S.; Treurnicht, N. F.; Van den Berg, M. J.; Van den Heever, D. J. G.; Van der Merwe, P. S.; Van der Spuy, J. P.; Van der Walt, B. J.; Van Eeden, F. J.; Van Niekerk, G. L. H.; Van Niekerk, M. C.; Van Nierop, P J.; Van Rensburg, M. C. G. J.; Van Wyk, G. H.; Van Zyl, J. J. B.; Venter, M. J. de la R.; Venter, W. L. D. M.; Visse, J. H.; Vosloo, A. H.; Webster, A.; Wentzel, J. J.

Tellers: W. H. Faurie and J. J. Fouché.

Amendment accordingly negatived.

Remaining amendment proposed by Mrs. Suzman dropped.

Amendment proposed by Mr. F. S. Steyn put and agreed to.

Clause, as amended, put and Committee divided:

Ayes.—66. Badenhorst, F. H.; Bekker, G. F. H.; Bezuidenhout, G. P. C.; Bootha, L. J. C.; Botha, M. C.; Botha, P. W.; Botha, S. P.; Cloete, J. H.; Coetzee, B.; Coetzee, P. J.; Cruywagen, W. A.; De Villiers, J. D.; De Wet, C.; Du Plessis, H. R. H.; Frank, S.; Froneman, G. F. van L.; Greyling, J. C.; Grobler, M. S. F.; Haak, J. F. W.; Hertzog, A.; Heystek, J.; Jonker, A. H.; Jurgens, J. C.; Kotze, G. P.; Kotzd, S. F.; Loots, J. J.; Luttig, H. G.; Malan, W. C.; Marais, J. A.; Marais, P. S.; Maree, G. de K.; Meyer, T.; Mostert, D. J. J.; Muller, S. L.; Niemand, F. J.; Otto, J. C.; Pelser, P. C.; Potgieter, J. E.; Rall, J. J.; Rall, J. W.; Schlebusch, A. L.: Schlebusch, J. A.; Schoeman, J. C. B.; Serfontein, J. J.; Smit, H. H.; Stander, A. H.; Steyn, F. S.; Treurnicht, N. F.; Van der Berg, M. J.; Van den Heever, D. J. G.; Van der Merwe, P. S.; Van der Spuy, J. P.; Van der Walt, B. J.; Van Eeden, F. J.; Van Niekerk, G. L. H.; Van Niekerk, M. C.; Van Nierop, P. J.; Van Rensburg, M. C. G. J.; Van Wyk, G. H.: Van Zyl, J. J. B.; Venter, M. J. de la R.; Venter, W. L. D. M.; Visse, J. H.; Vosloo, A. H.

Tellers: W. H. Faurie and J. J. Fouchd.

Noes.—41: Barnett, C.; Basson, J. A. L.; Basson, J. D. du P.; Bowker, T. B.; Cronje, F. J. C.; De Kock, H. C.; Dodds, P. R.; Durrant, R. B.; Emdin, S.; Fisher, E. L.; Gay, L. C.; Gorshel, A.; Graaff, de V.; Hickman, T.; Higgerty, J. W.; Hourquebie, R. G. L.; Hughes, T. G.; Le Roux, G. S. P.; Lewis, H.; Malan, E. G.; Miller, H.; Mitchell, D. E.; Mitchell, M. L.; Moore, P. A.; Oldfield, G. N.; Plewman, R. P.; Radford, A.; Ross, D. G.; Steenkamp, L. S.; Streicher, D. M.; Suzman, H.; Tiompson, J. O. N.; Timoney, H. M.; Van der Byl, P.; Van Niekerk, S. M.; Warren, C. M.; Waterson, S. F.; Weiss, U. M.; Wood, L. F.

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

Clause, as amended, accordingly agreed to.

On Clause 8,

This is probably the most obnoxious clause in the whole Bill. It seeks to give powers to the Control Board for a wide range of activities. I want to say that no single piece of evidence taken in the Select Committee justifies in any way the inclusion of the powers which this clause seeks to give to the Control Board. I therefore want to move the amendment standing in my name—

This will leave only sub-section (b). Now what are these objectionable provisions? First of all the Board is given power to maintain certain standards of morality and to protect the public morals in regard to publications and it is given the power to act on the complaint of any snooper or anyone who feels aggrieved. He can lodge a complaint to the Board and the Board is compelled to investigate and it has no discretion about it. Then in sub-sections (c) and (d) the Board is given the power to declare at any time whether the complaint of any person can relate only to a specified publication or publisher, or to a particular class of publication or any particular subject. In other words, anything that is published or imported will be entirely on a permit basis and the reading matter circulating in the country will be subject to a permit issued by this Board. That is contained in sub-section (2). Further, no reading matter can be imported if in the opinion of the Board a particular publisher or publication or series of publications does not meet with the approval of the Board. I submit that we cannot accept a clause which seeks to grant such wide powers to the Board of Control.

There is another undesirable aspect about this clause. It sets itself above the courts, because if we examine the provisions of sub-section (6) it says that no prosecution shall be instituted under this Act in respect of any publication if the Board has in terms of para, (a) of sub-section (I) stated that such publication or object is in its opinion not undesirable, or it has caused a permit to be issued for such importation. In other words, once this Board has ruled that a particular publication is desirable, that is final and no prosecution can be instituted. Where is the rule of law now? Where is the appeal to the court? Because there may be others who have strong views about the matter and would like to test the opinion of the Board in regard to any approval it may have given in respect of any publication or type of publisher. [Interjections.] This is not a board nominated from outside; it is appointed by this Minister, who is the only person who will judge whether these persons are fit to sit on the Board. There is no question of having impartial persons, because the Minister has rejected all such amendments. Why should this Board be the only arbiter? We are prepared to allow the courts to take a decision, so why should we give the Board such a wide discretion without giving the courts any power in this case?

Who would want to go on appeal in a case like that?

There may be cases. If you disagree with the Board when it bans publications, you may disagree with it if it permits a publication also. It sets the Board above the courts.

There is another objectionable aspect. This clause introduces the principle of pre-publication censorship. If we are going to reach the stage that nothing will be permitted and that we will have a board of supermen, of experts, appointed by the Minister who will predetermine whether the work of any particular author or publisher may be imported, is that fair? Is that not pre-publication censorship? [Interjections.] I repeat that no single piece of evidence was at any time submitted to the Select Committee to justify such powers. In fact, we have a back-door entrance in the powers that this clause seeks to grant for the provisions contained in the objectionable measure over which there was such a public outcry in regard to the Bill of 1960, because I see little difference between the powers granted to the Board in this clause and those granted in the original Bill in regard to which there was even an outcry from the Government benches and the Press supporting the Government, and the Minister withdrew that Bill in the interest of the freedom of the Press. I say this is an objectionable clause. It is the most offensive clause in the whole Bill when you think in terms of freedom of thought and of expression. We have left sub-section (b) and I think I should say why. Sub-section (b) states that the Board shall have power at the request of any person—and these are the governing words—investigating any offence under this Act or the Customs Act of 1955, to examine any publication or object. That we have left for this reason, that there is little difference between the position which existed in practice and this provision, because when the customs officials came across undesirable literature turd wanted a second opinion they could go to the existing Censor Board for an opinion. I think it is right that if we are going to have any Board at all it should have the right to express an opinion and to investigate any possible offences which may be reported to it by the existing authorities and under the existing legislation. [Time limit.]

I should like to support the amendment of the hon. member for Turffontein. It is necessary, in considering this clause, to refer to Clause 5 (1) (c), because Clause 8 (I) (c) makes reference to the subject of paperbacks. I can think of nothing worse in any regulation than to say that a book should be banned or should come under some special regulations merely because it has a paperback. We have always been taught that you cannot judge a sausage by its skin, but here you have people judging a book by its cover or by the price marked on it. We have some of the finest books published as paperbacks. When the Select Committee considered this proposal, they first suggested 25 cents and said to the customs official: Do you think 25 cents would be suitable? He said yes, anything under 25 cents would be a good thing. Then they asked him whether he thought 50 cents would be better and he said yes, because of course It would mean less work for him. If they had suggested R1 I think he would have accepted that also. But the price has no bearing on the quality of a book. Now we are asked to place this literature, and almost 99 per cent of it will be in the English language, in a separate category. We are now asked to say that although we are going to have this control of publications. for these books which are imported there will be special control. They will be put off the list unless they can prove that they should be put on it. Not only is the book to be specified, but certain publishers are practically to be banned. Clause 8 (1) (c) says that subject to the provisions of sub-section (2) the Board can approve of the importation by any person within a specified period of any publication or object referred to in paragraph (a) of sub-section (I) if published by a specified publisher. So a specified publisher can have preference. Where is your free competition? Why should one publisher have preference over another? When books come in there are customs duties, but here we make a distinction between one publisher overseas and another. We say that the one publisher should be placed on a black list because he has published books in the past that we found undesirable. In other words, we say that a type of publisher overseas prints a certain kind of literature and he will be put on a black list. Where is the free competition? Where Is the freedom of speech and of publication? We use a word in this Bill which is very unfortunate, “outrageous ”. Well, if ever there was an outrageous suggestion, it is the one contained in this clause.

I want to commence by referring to the attitude adopted by the Opposition in the Select Committee in regard to Clause 8. It just shows that the hon. member for Turffontein is a very useless member on a Select Committee, because here he is not defending the standpoint he adopted there. The hon. member was a member of that Select Committee and only one amendment was moved in regard to Clause 8, namely in 8 (I) (d) to delete the words “or will probably be undesirable”. But now the hon. member moves an amendment to delete the whole clause except (b). I want to repeat that the whole country should to its great surprise take note as to how the Opposition, which always insists on having Select Committees, wastes the time and the money of the country. These Committees sit for days and sufficient time is allowed for discussion, but the hon. member comes here and makes a great fuss in public, but when they should really do their work on the Select Committee they agree that this is a good clause. That is the demonstration we have had ever since we started this committee stage. In fact it is no longer a discussion on the various clauses, but just nonsensical talk. I mentioned it in the first place because one has almost become allergic to getting up to reply to this type of foolishness, because it has no substance. But it is necessary to say it. The hon. member has now agreed that there should be a control board; he agreed from the beginning, together with his party, that there should be control and that there should be an appeal to the courts, but when they come to Clause 8 where the marginal note reads, “The powers of the Board to examine publications and objects”, only this minor little matter will remain over if his amendment is accepted: “The Board shall have power at the request of any person investigating any offence under this Act or the Customs Act to examine any publication or object and to state whether that publication or object is in the opinion of the Board undesirable or not ”. But all the other principles, with the exception of the last few words of (b) (ii), “or likely to be undesirable”, are now being abandoned by the hon. member after his “fruitful” co-operation on the Select Committee. All he wants now is that the Board should be given the power to express an opinion in regard to the publication only at the request of the person who investigates an offence. That is all that remains over, a plucked fowl without tail feathers, which means nothing.

What is the use of the tail feathers?

The tail feathers are necessary to give it a better balance than the hon. member has. The wind quickly blows over a fowl without tail feathers. But in the second place, this amendment offends against the principle of control which was accepted in the second reading, and that principle was never the great objection. But here we have the principle of control, and in terms of this clause we now clothe those people with the power to investigate. If the hon. member wants to leave standing only that small portion, surely he knows that the Board will be powerless. He did not thoroughly consider the consequences.

What about the other functions under (3) and (4)?

No, the hon. member knows very well that I am correct.

In the third place, the hon. member is trying to get away from the bogy he raised, pre-censorship. I call it a bogy because it does not exist in fact. They try to scare up the bogy of pre-censorship, which in any case does not exist in terms of this whole Bill. I want to challenge the Opposition not only to talk about pre-censorship, but let them prove chapter and verse that it is provided for in this Bill. I hope the hon. member for Turffontein can do so.

Why do I say that there is no such thing as pre-censorship? The hon. member for Turffontein must prove to me that the discretion of the persons concerned is taken away. The person concerned who wants to have his work reviewed by this Board and wants an opinion from them does so of his own free will, and after having received that opinion he need not take any notice of it. Show me where he is compelled to do so? Let me give an example. I write a book like one of those the hon. member exhibited here this afternoon, and I can take the book to the Board and ask them to go through it. The Board does so and says it is a bad bit of work; it is pornography and they advise me not to publish it. But then I still have the right to have it published. Only when a complaint is lodged, when a complainant who has read the book says that it is obscene, only then can a charge be laid and only then can the Attorney-General decide to prosecute. Now I want to know where this pre-censorship is? Instead of reading those books, the hon. member should rather study a dictionary to see what “pre-censorship” means. The whole meaning which has been given to pre-censorship is that nobody may publish anything before it has first been approved by the censors. But he is at liberty to do so. If he is afraid that it may perhaps be a borderline case and that he may land in trouble, he can submit it to the Board of his own free will. [Interjections.] The powers granted in (c) and (d) are absolutely essential, because I now want to inform this Committee, particularly after what was said by the hon. member for Kensington, that I would never abandon Clause 5 (1) (c).

I am sorry to hear that.

I am glad to hear that the hon. member is sorry, because that will prove to the country that we are here absolutely standing on two points of principle in regard to which we differ like day and night from each other. The principle is that according to our customs officials 90 per cent of undesirable literature enters this country in the form of these soft-cover books costing less than SO cents.

The 50 cent morality!

No, the principle underlying it is to keep undesirable literature out of the country, and if the United Party does not support that principle then they want undesirable literature to enter the country. [Interjections.] And then the Board still does not act arbitrarily; right and justice will be done to that person. The dealers in soft-cover books need not fear if they import good books like the Penguin publications, and there are many such good books. They are subject to a general prohibition, but the importer who knows that the contents of that soft-cover, even though it costs far less than SO cents, is of such a nature that it does not contain anything obnoxious, need only send a copy of it to the Board, and they may issue a permit for him to import it. I say that for the sake of this principle (c) and (d) cannot be deleted; they are essential to give effect to Clause 5 (1) (c). [Interjections.] I cannot put it any more clearly than this without repeating myself.

The hon. member for Houghton moved an amendment which has almost the same effect. As the result of experience gained over the years, the present Censor Board and the customs officials are well acquainted with those offenders who undermine the morals of the nation. Many publishers already have a bad name, and authors also. That is why this prohibition has been placed on it. Let me now tell hon. members that if we are to accede to this, we would be making a complete farce of this control, and we will not do that. Without the rights and freedoms of a single person being affected, the assurance is now being given that any good literature, whatever the price may be, will be able to enter the country, but on the other hand there is also the assurance that these measures will keep out everything that is bad and obscene.

Mr. Chairman, I want to move the amendment standing in my name—

I also have another amendment, but I cannot move that. I just want to explain why I am against the clause as a whole and later I will talk to the amendments. I find this a very objectionable clause altogether. I think I have made my position clear. I do not like having to live under a system of prohibitions, inquisitions and exemptions, all of which are contained in this clause. The word “inquisition” is not mentioned, but the words “examination” and “prohibition” and “exemption”, etc. are mentioned. I do not want any extension of existing powers. I am consistent in this respect, because I objected to the setting up of the board right from the beginning, but I do not think it necessary to repeat my argument. Again I am assuming that this clause is not going to be negatived, so I wish to discuss certain of the detailed amendments I have moved. I just want to say something about (d), because this part of my amendment is fairly similar to the one moved by the hon. member for Turffontein. My reason for moving it is that I also object strongly to the system of exemptions and permits. I understand what the Minister has been saying, namely that the majority of undesirable books entering the country consists of the cheap literature and he says that the customs officials know for certain of the objectionable publishers and authors, but surely the existing customs legislation enables them to seize those books, so why have the over-all ban in Clause 5 (c) and then give exemptions? All of these apply to paperbacks, but we approve of books like the “Pelican” publications and various others. The Minister himself has admitted that there are many desirable paperbacks. Universities in fact often prescribe textbooks for the reading of students and I have a new list here compiled by the “Penguin” people, which contain some of the most desirable reading available, and the Minister is going to give it exemption. He is probably going to exempt all the “Pelicans” and “Penguins”, but that is not good enough. I do not want to have the Minister’s exemptions and permits; I want it exactly the other way around. I want there to be free importation, except for those books which the customs officials can seize under the existing legislation.

You are at least honest!

Yes, I am honest. I do not know about the “least” but I am honest.

Does the hon. the Minister thereby mean that we are dishonest?

No, I did not say that you were dishonest!

The point, as I said, is that I want it the other way round. I do not want the Minister’s largesse in assuring certain reputable firms publishing paperbacks which are imported into this country, that they may continue to do so. I say that existing legislation permits the Minister to do all he wants to do, namely to keep obscene literature out of the country. The fact that in terms of present legislation there is no appeal against that which has been banned by the Customs—that is what needs adjusting, if anything. There should be an appeal. Obviously an appeal against the banning of a publication falling within the definition of an obscene publication, would be disallowed any way by the courts.

There is an appeal in this case.

That may be so, but the scope of prohibitions is so wide that, as far as I am concerned, that is no good. I do not like to have to go on appeal in cases where there should in the first place never have been a prohibition. It is as simple as that. And I want to say that as far as the Customs Act is concerned, if anything is to be changed, it should be that, because there are on the banned list of books at present hundreds of books for the banning of which I cannot see any reason whatsoever—except that the hon. the Minister does not like foreign cultures. He does not like other people’s ideas on Africa, but this has nothing to do with obscenity … [Interjections.] But I am using words which the hon. the Minister himself used. He talked about “foreign attitudes ”. The hon. the Minister used those very words himself. But I say that if our own sense of value is intrinsically good, we should not be frightened of these “foreign cultures” and “foreign attitudes ’’. We should learn a lot from them and our own culture can thereby be broadened in many respects—and it can do with broadening in a great many respects. That is the way in which cultures and civilizations develop, namely by an interchange of ideas between different countries, different nations and different cultures.

Therefore I do not like Clause 8 because it …

Do you support Clause 8 (I) (d) providing that there must be a specific exclusion of a book or a class of books?

No, I do not support it. In fact, it is in one of my amendments. To me it is ridiculous to allow something only by permit. Therefore, I should like to see this whole clause scrapped.

Do you include paragraph (d)?

Yes, I am also talking of that.

Order! The hon. member for Kempton Park can speak just now if he wants to!

If the hon. member would only look at my amendment … but he walks out now and therefore I conclude by simply saying that I will vote against this whole clause and vote for my own amendment.

I understand the Minister to say that 90 per cent of the cheap, bad pornographic books are coming in in the cheap editions. I do not want to put words in his mouth which he did not use, but I understand him to say that.

Yes, those imported.

Well, that may be so, and I am not going to argue about it. But let me also say this that all good books which have been written—95 per cent of them —also appear in a cheap edition. The only chance the poor man has to read these good books is to get them in the cheap edition. So that, although 90 per cent of the dirt might come in in cheap editions, it is also a fact that 95 per cent of die good books are also issued in cheap editions. Therefore the Minister is taking away from the poor man his only chance to read good material, because he cannot afford to buy these books in the expensive editions. [Interjections.] What I am trying to point out is that you get people, take America for instance, who had no chance of a real education but who rise to the highest posts and executive positions in the country. Why is that? Many of them started as newspaper sellers in the streets. From the few pence they accumulated in that way, they bought books to educate themselves. Now, if these people did not have available to them cheap books, they would not have been able to educate themselves. In doing this, therefore, the Minister is taking away, indirectly, from the poor person the chance of educating himself because the only way he could do that was to buy books in a cheap edition.

I am sorry to have to bring this—I think it has been called a plucked fowl which has nothing but tail feathers left —once again under the nose of the Minister. I know he finds it offensive—and naturally so, because he set out to achieve a particular purpose but this Opposition is frustrating him in that. With respect, I should like to say that he should take it with a little better grace.

The point I want to make is this: The Minister cannot deny that in this clause—all of it—he seeks in one form or another to place a prohibition on some person or persons, whether a specified or unspecified publisher, etc. It is, in other words, a prohibitive clause. At this point I should like to draw the Minister’s attention once again to a book which he, perhaps, has not yet read despite, the fact that I tried to persuade him to do so last week. The book is entitled “The Freedom to Read” and contains the conclusions of a commission which was appointed by a very estimable body in a very important country with which we have friendly relations. This body is the National Book Committee of the United States, using funds provided by the Fund of the Republic. This investigation was conducted by Professor of philosophy Richard McKeon of the University of Chicago; Robert

K. Merton, professor of sociology at Columbia University, and Walter Gellhorn, professor of law at the Columbia Law School.

The extraordinary thing is that it would appear that these gentlemen had this Bill before them when they wrote this book! After having read this Bill, any one reading this book would think that these gentlemen had also in fact read the Bill before having written their book, or otherwise they must have been psychic—because they anticipated both this Bill and the attitude of the Minister. It does seem to be a far-fetched statement to make, but let me take one or two excerpts from the book which is relevant to this clause. I maintain that there is a certain despotic intention in this whole Bill and more particularly in this clause.

Call it the foundation for a police State!

That is a lie!

On a point of order, Mr. Chairman. The hon. member for Ventersdorp said that the hon. member for Hospital was telling a lie. Is that permissible?

Did the hon. member use those words?

The hon. member for Hospital said that there were despotic intentions underlying this Bill. I said that that was a lie.

Order! The hon. member may proceed.

On a point of order. Mr. Chairman. The hon. member for Hospital made a statement which the hon. member for Ventersdorp said was a lie. Should he not withdraw it?

The hon. member for Ventersdorp should withdraw that allegation.

I do so, Mr. Chairman.

You are not telling a lie, but you do not speak the truth! [Interjections.]

Order, order!

On a point of order, Mr. Chairman. Is it in order to say that a member is not speaking the truth?

Order! The hon. member for Hospital may proceed.

The following extracts from this book I was referring to, are, I think relevant to the matter we are discussing—

If this is not a preventive clause, Sir, from top to bottom, then I do not know the meaning of “preventive”, but then I do not know the meaning of any word in comparison with the hon. member for Kempton Park, who is out somewhere sulking, because he moves an amendment asking for the substitution for the word “intent” of the word “purpose” and is happy about it. A master stroke! But allow me, Mr. Chairman to complete this quotation

That has nothing to do with the Bill!

I will not take that hon. member’s word for that.

Order! The hon. member should not react to all these interjections.

Thank you, Sir. Now, to complete this quotation—

This is exactly what we have been trying to point out to the Minister for hours on end, but apparently to no avail. If, therefore, I cannot persuade the Minister, then at least certain things should be taken up in the record of this debate, so that no one can say after the event that we did not try to draw to the attention of the Minister all the implications of this measure.

I should now like to deal with Clause 8 (I) (a) which has quite rightly been called the “snooper clause ”. In this connection a gentleman by the name of Coleridge said something at the end of the 18th century which seems to be applicable now to the snooper, to the informer, namely—

The hon. member for Ventersdorp should listen to this because he might well be identified by this description …

You see, Sir, what inference one must draw from the attitude of some of these members? They sit there for days on end and remain completely silent on the subject; they have no contribution to make; no arguments to advance except by interjection, inane or otherwise.

Silence is sometimes the greatest argument to beat!

Yes; but you have to be in the majority party, with a two-to-one majority obviously, for your silence to be very useful. I want to suggest to the Minister that he may ignore, as he probably will, all file representations which we have made to him. Let the people of South Africa not, however, be under the impression that he has persuaded us that this is a good clause—because he has not done so. Nor will he persuade most of the thinking people of this country that this is a good clause—because he can achieve exactly what he wants to achieve without this prohibition.

I am led by the Select Committee and I am therefore on good grounds.

The Minister will not hold the Select Committee under my nose, because I was not a member of it, and even had I been, I do not think I would have regarded myself as being bound by its recommendations. The Minister himself has changed his mind before to-day.

I should like to give one example of the effect of this clause, e.g. the prohibition on trading with a particular publisher. I can imagine such a firm, which has sent a certain book into the country which has been prohibited by the board. The next step which can be taken under this legislation, and one which the Minister said can rightly be taken, is to prohibit any of the hooks issued by that particular firm from coming into the country. I have that book in which the four-letter word appears so often, here with me. It so happens that this book was originally published by an American firm by the name of Simon and Chuster Inc. For any author to be on the publishing list of that firm, is the same as for an Englishman to be in the Debrett. It is one of the most reputable publishing houses in the world. But the Minister is saying that if this firm had published a book which has been banned by this board, then none of the books of that firm may come into the country any longer. Can you imagine the type of horse trading which will go on there whenever there is a threat from the board that it might banish a certain book? What steps will be taken, what pressure will be applied in order to ensure that the doors will not be closed—possibly for all time, or for as long as this Government is in power, which is of course a lesser time!— against every work published by one of the most reputable publishers in the world? That is the sort of thing which I have called preventive or prohibitive legislation, and which is unnecessary. [Time limit.]

I want to move the amendment of which I have given notice, and which appears on the Order Paper. Without detracting from the objections which this side of the House have against Clause 8, I wish to move that the following sub-clause be inserted to follow sub-clause (I)—

1. 2) When the board has decided that any book or other written matter is undesirable for reasons of a political nature, it shall transmit a copy of such book or written matter to the Library of Parliament within seven days after notification in the Gazette that such book or written matter has been so declared undesirable in terms of this Act.

As the position is at the moment there is no way in which members of Parliament can check whether there was any justification for the banning of a specific book. I have purposely limited the amendment to books of a political nature. Actually I should have liked the amendment to have covered all works which are banned by the board but I do not think it is necessary for our purposes that the Parliamentary library should stock all the yellow literature which is banned.

There is a ruling given by the Speaker that if a book is banned and it is already on the shelves of the Parliamentary library, it can remain there but that it should then only be available to members of Parliament. It cannot be taken out of the library but it is available for insight to members inside the library.

I want hon. members to read my amendment in conjunction with this ruling by the Speaker. Most of the works which are banned, however, are not works which, prior to banning, have found their way into the library and which are therefore, available. That is why members cannot, only on the basis of the few banned books which have come into the library in that way, properly determine whether a decision to ban a book was justified or not. I shall, therefore, be surprised if the hon. the Minister does not consider this amendment sympathetically. For years the hon. the Minister and his Government have been the champions of the sovereignty of Parliament as they put it. I think Parliament is entitled to supervise the banning of books, particularly books of a political nature. I must say that if the hon. the Minister does not see his way clear to accept this amendment so that books which are banned for political reasons are sent to the Parliamentary library for insight by members, I shall have no option but to conclude that he does want us to see what political censorship is being applied.

The Minister has challenged me to indicate where in this clause the principle of pre-publication censorship enters. The Minister has made great play of the point that any writer or author, if he has any doubt about what he has created, can go to the board first in terms of clause 8 (I) (a) and, if I understood the Minister correctly, can then get approval from the board before he submits the material to a publisher. Conversely, I take it, if a publisher has any doubt about what any particular author has written and feels that he might be prosecuted, he may take the manuscript to the board and ask the board to express its views about it. I think that is the submission which the Minister has made.

[Inaudible.]

You see, Sir, whenever the hon. the Minister finds himself hedged in with difficulties, then he tries to run away from the issue. The Minister makes these broad statements but when you pin him down and get him into difficulties, then he runs away. Look at sub-section (5). We know, Sir, that there is a natural disinterestedness on the part of the Minister in these broad statements he made because now he sits and talks to his colleagues and ignores the reaction to what he has asked for himself. Now, what does subsection (5) say? It says quite clearly—

So, if we follow the Minister’s argument, we get here the ridiculous position that if an author—let us take the one referred to by the hon. member for Vereniging, viz. Mr. Frans Venter—is in doubt about the material he wishes to publish, he goes along to the board and asks it for its views in terms of sub-section (1) (a). Let us assume that the board gives the manuscript its stamp of approval, the moment it does that, it has, in terms of subsection (5) to publish a notice in the Gazette that it has approved of an article written by Frans Venter about which he was in doubt.

It amounts to this, and I have said it before in this debate and also in my second-reading speech, that you are going to have pre-publication censorship in terms of this sub-section, as far as internal publications are concerned, by way of intimidation. No publisher is going to run the risk of publishing any works of a creative nature or of a political nature or with controversial views, if he thinks there might be a complaint or a charge against him necessitating him to appear before the board, and eventually perhaps before the courts. That, Mr. Chairman, is pre-publication censorship by intimidation. What is more, we have the admission from the hon. the Minister that the trend, the tendency and desire is to see that authors and publishers first take their manuscripts to this board in order to get its stamp of approval.

I also should like to challenge a statement of the Minister in regard to the volume of undesirable literature. I understood him to say that 90 per cent of paperbacks are undesirable.

No; what I said was that 90 per cent of undesirable matter came in paperbacks.

That I do not dispute. It was also Mr. Hattingh’s evidence in the Select Committee. But what does this 90 per cent include? It includes pornographic postcards, undesirable cheap types of comics, rubbish landed at the docks. The fact is that 90 per cent of all published material in the country to-day appears in paperback form. Let us see what Mr. Hattingh’s evidence was in regard to the percentage of undesirable literature in paperbacks. He quoted some figures and gave us the total value of what was imported. I then put the following question to him—

To this he answered—

Later on, when questioned about what the Minister seeks to introduce in this clause inter alia to give the Board the power to institute a permit system for importation, he said in reply to the following question (No. 135)—

Thereupon the following question was put to him—

To which he replied “Yes”. That is precisely what we have here in paragraphs (c) and (d), namely a form of pre-censorship before any of the 90 per cent of the reading matter imported can be allowed to come in.

That has been said many times already.

But it cannot be said too often. But what is more: This clause is going to make criminals of a large section of the public. According to Mr. Hattingh’s evidence, an equal quantity of imported literature comes into the country though the post—by airmail, by surface mail, etc. Thousands of bags of mail come in in that way. These, he admitted in evidence, could not be checked. How many thousands of copies of different publications come by air mail and surface mail into South Africa eve 17 week subscribed to by people in the Republic? Every one of those persons who import such publications will be a law-breaker in terms of this clause because he has obtained that publication through the post without first getting a permit from the board… [Time limit],

In lending support to the very comprehensive amendment moved by the hon. member for Turffontein, I should like to bring the discussions back to Clause 8 (1) (a). I feel that the pre-censorship implications of this clause are only half of its implications. The hon. the Minister will remember that when, during the second-reading debate, he referred to the safeguards in the Bill protecting the owners of publications or objects not distributed or exhibited, or sold, he did not directly refer to my criticism of Clause 8 (1) (a) providing that, at the request of any person and on the presentation of the required fee, the Board may investigate and shall have power to examine any object, and state whether publications are, in the opinion of the Board, desirable or not.

It seems to me that, apart from the objections raised by my colleagues, this Clause 8 (I) (a) will serve no useful purpose whatsoever. On the contrary, it is going to bog down the board’s work. It will encourage busybodies and people with malicious intent to bring vexatious problems to the board. Every type of object or publication can be referred to them. Now, it is provided that the board may investigate all these requests. Even, therefore, when it is rejected in the end, it has, nevertheless to be investigated first. If members of the board have a say, I am sure that this provision will be rejected by them. Surely, if any responsible citizen feels that an object requires investigation, can he not approach the board thereanent without this provision? The difference in such cases would be that the board would not be tied down to a certain procedure. Evidence has been given before the Select Committee last year that it will be an impossible task to do what is being required. Surely, the Minister himself feels that this clause is not a clause which is going to appeal to democratically minded people. I would like to quote from my own notes, Sir, what the Minister said in his second-reading reply when he said that the Opposition had said that they were ashamed to continue with this legislation because it created a lack of confidence. The Minister said that we were giving the impression that we had no confidence in the morals of our people. Now, Mr. Chairman, I said that. I said to the hon. the Minister that this side of the House could not share his lack of confidence in the moral integrity of the Afrikaans-and English-speaking people of South Africa. Surely, public morals cannot be held up by legislation of this sort. In lending my support to this amendment moved by the hon. member for Turffontein I would ask the hon. the Minister seriously to consider withdrawing this Clause I (a) and well as very seriously considering the amendment moved by the hon. member for Turffontein.

The lady has asked me so nicely that I cannot do otherwise than to reply to her immediately. She made one mistake and I do not think she will blame me for pointing it out. The idea that any person, against payment of the prescribed fee, can have this work done particularly makes this clause such an important one. It is society, the members of the public, who determine whether something is desirable or not. If we go to the cinema to-night the majority of us will de-aide as to that picture. Some will say it was a good film, and others that it was bad-The same applies to literature. Where the hon. member made such a stirring plea in regard to Clause 8 (1) (a) it means that she does not want to give that right to the public. That is really what the hon. member for Houghton wants, that there should be no board; that the court should decide, and the public, I suppose, can go and complain to the courts. I do not know how she wants them to complain. There must in any case be a complainant before there can be ...prosecution. I think that if the hon. member; for Johannesburg (North) (Mrs. Weiss) reconsiders the matter—because it appears to me that she can think soberly —she will come to, the conclusion that one cannot deprive the public of the right to judge.

While I am on my feet I just want to tell the hon. member for Bezuidenhout (Mr. J. D. du P. Basson) that he is obsessed with the idea that there will be political censorship. He talks about political books. In Clauses 5,6, 10 and 12 the norms are laid down by which anything is judged. I want to ask the hon. member where he gets the idea of political censorship from? Where does he read, in any of the norms given, that there will be any political censorship, as he calls it? There is no reference to politics. The hon. member is so suspicious. Which political books have been banned, about which the hon. member is so concerned?

Look at the Government Gazette.

Yes, I know the list. But the hon. member wants to create the impression that we are dealing here with political censorship.

May I put a question? Apart from political censorship, are no political books being banned at the moment?

What is the hon. member’s definition of politics?

May I put a question? Has “Passive Resistance in South Africa” by Professor Leo Kuper not been banned?

Sir, we cannot discuss individual books now. I can just say this. I have read “Passive Resistance in South Africa” and it is not a book which I would like to see on anybody’s bookshelf. If we had all liked the same books we would all have liked the same women also. Let us agree to differ. I am now referring the hon. member for Bezuidenhout to those clauses. I am not dealing now with his suspicions, or with what has happened and is likely still to happen. He must look at the norms, the yardsticks laid down by which the board must judge, and he must tell me which of those yardsticks refers to politics, and at the same time he must tell me how broad his definition of politics is.

The hon. member also asked that if a publication is prohibited it should at least be kept in the library of Parliament. In Clause 5, which we have not dealt with yet, permission is granted to import that publication. The existing legislation contains such a provision and as the result various libraries are in possession of prohibited publications for purposes of research, and not to satisfy the curiosity of people. There is provision in the law for exemptions if a real need for it exists. I myself have granted such exemptions. Even though the book is banned, permission is granted to university libraries, etc. to have it. We allow them to be kept in those places where they will be of most use. Why now select the parliamentary library? Why did the hon. member not mention the State library? It is just to satisfy the hon. member’s curiosity to see how many of these books are there. It is not that he is so studious that he particularly wants to; study that type of book. I say that there are: arrangements whereby such books can enter the country. Libraries and individuals can at present obtain such books, and also under the present Bill. That is the point the hon. member made and I just want to say that this amendment will take us further away from the truth than we would have been.

I do not think the Minister is right in his deductions. The hon. member for Bezuidenhout (Mr. J. D. du P. Basson) has moved in his amendment that hon. Members of Parliament should be allowed to see what the board is banning and so keep an eye on it; so that we can see what they are banning, whether it is party political material or whether it is material on Communism or something like that. Surely, Sir, the hon. gentlemen who are tough enough to get into this House will not be corrupted by reading those books. They may even have four-lettered words in them as my hon. friend from Hospital (Mr. Gorshel) has said. Four-letter words play a very important part in America’s politics, “golf” for instance with Eisenhower spending so much time on the links. I believe, however, that the principle four-letter word is now spelt with three in the best circles.

What I want to emphasize is that the hon. member for Bezuidenhout has said that he wants to keep an eye on the board to see what type of political material they are banning—not pornographic but political material —and stopping from coming into the country. Surely to goodness it is a good thing for Members of Parliament to see what is being banned in the first instance, and in the second instance to see what sort of political literature is being written in the world which is likely to affect us sooner or later. Surely if those books are available in public libraries, as the hon. the Minister has said, we are defeating the whole object of the board which is to keep those books from public knowledge. If you can get those books in public libraries then anybody can read them. What is the object of this Bill at all then? [Interjections.] I do not know whether I am wrong. I understood the hon. file Minister to say that banned books could be obtained from the libraries.

For research purposes.

The point has been specifically raised by the hon. member for Bezuidenhout that the books should be available in our library for hon. Members of Parliament to see. I cannot see any objection to that.

The point which the hon. member for Bezuidenhout made has really no substance at all. After all, who is the man who decides which books we should have in the parliamentary library? The person who decides is the librarian. He acts under a committee on which both sides of this House are represented. If the librarian wants to keep a banned book in the parliamentary library all he has to do is to ask the Minister whether he can have that book! The Minister has already given this permission to other libraries so why should he refuse this to the librarian of the parliamentary library? The hon. member for Bezuidenhout asks that the librarian of Parliament should be under an obligation to accept every banned political book for his library whether he wants that book or not. The librarian may decide that the book is of such an inferior nature that he does not even want it in the library. Why does the hon. member for Bezuidenhout not accept the explanation of the hon. the Minister? Surely the hon. member for Bezuidenhout is not so stupid? If the librarian neglects his duty and does not keep certain books which the hon. member for Bezuidenhout considers ought to be in the library, there is a means of redress open to the hon. member for Bezuidenhout. He then has to approach the members of his party who are members of the Select Committee on the Library of Parliament and say to them: “This librarian is neglecting his duty shamefully. There is a banned book which I think should be available to us and it is not in the library. Why does the librarian not ensure that that book is available? I honestly believe that file librarian has a far better idea than the hon. member for Bezuidenhout—or than I or any other member—as to what he should have in the line of books in order to meet the needs of this Parliament. If the hon. member for Bezuidenhout is not satisfied with the books, he knows what to do. The hard fact of the matter is that any banned political book may be kept in this library if the librarian decides that it should be available there. [Interjections, ] You know, Mr. Chairman, that hon. member imagines that when he says that something cannot be done, it must be the truth.

I asked him.

He merely has to ask the hon. the Minister for permission and the hon. the Minister will grant exemption as provided for in Clause 5. I wonder whether he did ask the librarian; I am not at all sure that he did ask him.

On a point of order …

Is the hon. member insinuating that the hon. member for Bezuidenhout is lying?

I accept that he asked him, but I think that the hon. member misinterpreted the librarian's reply. I think the Minister’s reply ought to satisfy him completely.

The hon. member for Green Point (Maj. Van der Byl) who became so extremely annoyed over nothing, stated that no paperbacks of any description may now be imported. What are the facts of file matter? The evidence of Mr. Hattingh before the Select Committee was that 95 per cent of the undesirable material which was intercepted comprised these paperbacks, and that 50 per cent of all the undesirable material consisted of paperbacks.

What percentage?

Ninety-five per cent of the undesirable literature consists of paperbacks. Will the hon. member get that into his thick head?

Order!

Good heavens, Mr. Chairman, this is really, too much! I am not talking about the percentage of undesirable material; I say that Mr. Hattingh said that 95 per cent of the undesirable material entering the country consisted of paperbacks. He added that in the 1956 list of banned books there were 4,000 titles and that of those 4,000 titles, only 40 to 60 were not paperbacks; that is to say, nearly 99 per cent of those books were paperbacks. But those books are not going to be kept out of the country. That does not mean that good paperbacks will be kept out of the country. What hon. members apparently do not realize is that this undesirable material is simply dumped in this country at one and two cents a copy. The purpose of this clause and of Clause 5 (c) is to keep that material out of the country and the good paperbacks —the vast majority of them are good—can then enter the country with the consent of the board. In the first place the publishers will now make a better job of selecting their books because they will not want to go to the expense of obtaining the necessary consent. Secondly, the board will give its consent so that the good paperbacks can still enter the country as in the past.

I do not know whether I should admire or be amazed at the hon. Minister’s innocence about what is political material, in particular what is political censorship. But I must say that he stumbled very badly over the first bit of evidence which was placed before him this evening when he replied to an interjection by the hon. member for Houghton. Under this clause the hon. the Minister chose to read another lecture to this side of the House on what I would call Select Committee etiquette. I do not wish to follow his example except to say to the Minister that those who live in glass houses should not throw stones. Sub-paragraph (b) of the clause with which we are now dealing has been completely altered. It has no resemblance at all to what it was when it emerged from the Select Committee. I concede to the hon. the Minister the right to do so but should he alone have that right? Have we on this side of the House not an equal right to have second thoughts? The previous clause (Clause 7) has also been altered but we did not raise the matter, we left it as it is. May I point out to the hon. the Minister, however, that the marginal note still reads as it did originally and the marginal note to Clause 7 is completely wrong in relation to the clause as he sought to alter it and bring it to this House?

I support the amendment moved by the hon. member for Turffontein (Mr. Durrant) because the clause as it stands is quite impracticable. Sub-paragraph (d) in particular is quite impracticable. There is going to be a notice in the Gazette as to what is prohibited from importation. After a period, no matter what the period may be, it may be five or ten years, who will know what had appeared in the Gazette? The Select Committee itself had. great difficulty in finding out precisely what had been banned under existing laws. We were finally told that it was not possible to tell us what had been banned and the committee ended its work without having that information. One of the reasons may have been that there were no publications in the Gazette. But it is going to be quite impracticable for importers after a relatively short period, perhaps after a year, to know what is set out in the Gazette under the provisions of this clause. The other impracticable provision is subparagraph (c). According to that sub-paragraph the board will carry out an investigation and issue a permit. But more than one importer is going to try to import the same book and there will be repeated applications for permits—I hope not repeated examinations; though the law permits it. Because when the second application comes in the board might well say “We had better read it again” and revise its opinion. Purely on practical grounds the clause as it stands has serious disadvantages and I think should be rejected.

I am sorry the hon. the Minister did not reply to the points I made. I asked the Minister a particular question whether it was his intention to gazette every draft manuscript or publication which is submitted to the board for an opinion in terms of this clause. Is it the Minister’s intention to gazette either the board’s disapproval or approval of something which has never been published? I would like the Minister to say whether he considers it wise that matters which are submitted to a mere opinion should be gazetted? I would like the Minister please to deal with that matter.

I want to turn for a moment to the hon. member for Vereeniging (Mr. B. Coetzee). I do not know why the hon. member for Vereeniging must always become abusive. The hon. member tried to create an entirely wrong impression about our paperbacks. He emphatically said that 90 per cent of the undesirable literature was paperback material. That is a correct statement of fact in terms of the evidence given to the Select Committee but it gives an entirely erroneous impression of the situation. Because, Sir, 90 per cent of all importations of literature to the Republic is paperback, or books or publications with a soft cover. Obviously, Sir, the undesirable literature is not going to be the hard covered books it is going to be the soft covered books, because that is the majority of material which comes in, so what does that percentage reveal? What is important is what percentage of the total importation is undesirable?

Very small.

I am very glad the hon. member for Vereeniging admits that. If it is so insignificant, if it is so very small, then the damage which it does is insignificant considering the mass of the population of the country. Because it is so very small on the admission of the hon. member for Vereeniging, must we now go to the extent of having to ask for a permit to import anything into this country? Because nothing can enter the country without a permit from the Board of Control. That is our objection, Sir.

There is another matter which is very pertinent to this discussion and upon which I hope the hon. the Minister will reply. The Minister is very fond of quoting the evidence of Mr. Hattingh. Mr. Hattingh’s evidence on the entire importation of reading material through the post is very vital as iar as this clause is concerned. Because according to the evidence of Mr. Hattingh an equal bulk of reading matter comes into the country through the post as the bulk which comes in by way of other importation. There is not a single person in South Africa who subscribes to an overseas publication who will not now know whether he is breaking the law or not, because every person who subscribes to an overseas publication will now become an importer of a publication. [Interjections.] Not even the hon. member for Cradock (Mr. G. F. H. Bekker) can dispute that fact. The hon. member for Cradock probably subscribes to some journal dealing with sheep. Does he realize that if he continues to subscribe to that journal he will be breaking the law when this Bill becomes law if he does so without getting a permit from the board? I think that in order to give the public of South Africa some enlightenment of the position in which they will be placed in future it is very necessary for the Minister to make a statement in regard to this matter. The plain fact of the matter is that there are representatives of series of books who are not direct importers themselves, but they are collecting the subscriptions of those people who have subscribed to those books. I say to the hon. the Minister that he should give an indication of what the position will be. I can give one example of a publication which comes into the country and which is not directly imported. A large number come into the country by way of subscription through the post. I refer to the Daily Mirror. I think the hon. member for Vanderbijlpark (Dr. de Wet) thinks that the Daily Mirror, from a political point of view, is a most objectionable publication. But thousands of people subscribe to the Daily Mirror and they receive their copies through the mail bag every week.

What has that got to do with this clause?

It has got everything to do with this clause. That is what the hon. member for Vanderbijlpark does not understand. In view of the serious penalties laid down in this Bill I think it is very necessary for the Minister to make a statement as to what the position of the private citizen will be, the citizen who subscribes to overseas journals and who receives his copies directly through the post.

There is one other point, Sir, I do not know why the hon. the Minister wages this war against the booksellers, because he said just now that there were many distributors who had a bad name. I want to ask the Minister whether that was the reason why he refused to meet the booksellers' association when they asked him for a personal interview to discuss the memorandum which they had submitted to him.

It has nothing to do with local publications.

As I understood the Minister he said just now that many distributors had a bad name.

I was talking about the coming in of overseas material.

Were you speaking about publishers or distributors?

Both.

The hon. the Minister says he was speaking about both. Does the hon. the Minister realize that the distributor in the Republic will also be the publisher, in terms of this Bill, of any material whether it be local material or imported material I think therefore that the Minister should clarify the position. He only read certain correspondence during the second reading; he did not read the full correspondence. He did not read the telegrams that were sent and the replies to those telegrams. I do not want to have to read them across the floor of the House this evening. But because the Minister has implied that many distributors have a bad name he has cast a suspicion over every man who is concerned with the bookselling business in the country. I think in all fairness to the distributors of this country the Minister should clarify that statement of his. Because the impression has gone out, rightly or wrongly, that they have a bad name. That impression has been created by his statement and by the correspondence which he read out. And I hope the Minister will now admit that he did not quote the full correspondence. I hope the Minister will get up and read the full correspondence otherwise I think I will have to do so at a later stage and I ask the Minister to do so now because he has created an entirely wrong impression. [Interjections.] The hon. the Minister has intimidated the booksellers and he has again intimidated them across the floor of this House by inferring that the majority of booksellers and publishers had a bad name. The Minister said that to-night and I hope he will clarify the position in that regard.

It is completely wrong to contend that the book distributors and the booksellers do not know which books have been banned or that it is difficult for them to find that out. A consolidated list appears in Government Notice No. 1510 of 31 July 1956. It gives a full list of banned books up to that date. From that date up to the date on which the Select Committee sat, a list was drawn up containing the titles of 4,118 individual publications and 198 serial publications which were banned. You will see therefore, Sir, that under the existing legislation serial publications are banned. Hon. members are greatly opposed to the idea that the board should be empowered to ban serial publications. Serial publications can already be banned under existing legislation and hon. members have never objected to it. There is a complete list of everything that has already been banned. The hon. member for Turffontein (Mr. Durrant) objects to what the hon. the Minister said—that 90 per cent of undesirable literature enters this country in paperback form. The hon. member for Turffontein says that it makes no difference because the 90 per cent included stories, serials, photographs, comics and so forth. But that is not true. Mr. Hattingh said in his evidence: “I would say that at least 90 per cent of undesirable literature is made up of paperback fiction”—not comics, not “rubbish”, but paperback fiction. The hon. member for Turffontein now seeks to evade the issue by asking what percentage this forms of the total imports. It is a small percentage but after reading paragraph 41 of the report he tries to suggest that imported books to the value of R4,500,000 are all paperbacks. That is not true either. That figure covers all the books imported into the country. I will tell you how it is made up. Of that sum of R4,500,000, an amount of R2,500,000—slightly more than half—is in respect of imported documents such as books, paperbacks, hardcover books and sheet-music which is imported by the shipload, and R2,000,000 is the estimated value of imported newspapers and periodicals. All these items together give us a total of R4,500,000.