I move as an amendment—

1. (1)
   1. (a) The execution of any sentence of fine or of imprisonment, whether with or without hard labour, shall not be suspended by the transmission of or the obligation to transmit the record for review unless the person sentenced shall give sufficient bail to pay the fine imposed upon him or to surrender himself in order to undergo such imprisonment (as the case may be) in case the proceedings in the case shall be approved as aforesaid and in case a written notice to pay or to surrender (as the case may be), signed by the clerk of the court, shall be served upon or for such person at some place to be mentioned in the bail bond or recognizance.
   2. (b) The court may refuse to release any person on bail for the purposes of paragraph (a) of this sub-section, in respect of a sentence of a fine or in default of payment imprisonment, if it is satisfied that such person is able to pay the fine; in line 6, after “(1)” to insert “Notwithstanding the provisions of sub-section (1) and and in line 7, after “sentence” to insert “imposed under the provisions of the Suppression of Communism Act, 1950 (Act No. 44 of 1950), the Public Safety Act, 1953 (Act No. 3 of 1953), the Criminal Law Amendment Act, 1953 (Act No. 8 of 1953), the Riotous Assemblies Act, 1956 (Act No. 17 of 1956), or Section 21 of the General Law Amendment Act, 1962 (Act No. 76 of 1962)”.

This amendment is designed to put into effect so far as this question of bail is concerned what I believe is the hon. the Minister’s intention so far as one could judge from his speech at the second reading yesterday. The clause as it stands does away with the right of an accused person to demand, as of right, bail when his case is going on automatic review to a Judge of the Supreme Court from a Magistrate’s Court. The section which is dealt with in this clause, i.e. Section 101, in terms deals only with the question of review, but, of course, by incorporation and read with Section 103 (5) of the Magistrates’ Courts Act, the question of bail, when one’s case is going on appeal, also comes into consideration. So Clause 1, as it stands, reading these two sections of the Act together, has to do with both bail pertaining to a case which is going on review and bail pertaining to a case which is being taken on appeal. It is unnecessary, I think, for me to go into any detail so far as this House is concerned to distinguish between a review and an appeal, save to say that an appeal, as is well known, is where an accused person is dissatisfied with the decision of the court which tried him and wishes to appeal to a higher authority. A review deals with those cases—a great many of them—where, when a man is given a sentence above a certain level, his case is automatically sent to a Judge of the Supreme Court who has to certify that it is in accordance with justice. That is something which happens automatically. As we all know there are, very often due to circumstances beyond the control of the officers concerned, inevitable delays in both reviews and appeals, delays which very often stem from a congestion of matters before the various courts. It is important to remember in this regard that save for sentences of whipping— this sentence is not suspended whilst the man’s case is going on appeal or on review—from the point of view of the man who is subsequently found to be free of any guilt by the higher court, it is of great importance to him that he should not willy-nilly have to serve his sentence before that final decision is given reversing the decision in the court below. It is of great concern to him that he should not be detained in a prison if eventually he is found innocent and set free by the higher court. The principle therefore that a man should be entitled to bail where his case is being reviewed by a higher authority is an important one and it should be narrowed down only in the circumstances with which we are dealing in this Bill. The effect of my amendment is to allow an inroad into that right in those cases which deal with national security, that is to say, in cases where there is a conviction under one or other of the Acts set out in the amendment. But in other cases, in the case, for example, of a simple motor accident, the existing right to get bail as a matter of right when one’s case is going on review or appeal will remain. I believe that this amendment is in accordance with what the hon. the Minister has in mind, that is to say, in these defined special cases. Then, of course, an accused person must go to the magistrate and apply for bail, and the matter is in the magistrate’s discretion. But in all the ordinary run of cases, the 101 cases with which the courts concern themselves every day, they have nothing whatever to do with the security of the state in any way and I give the example of a motor accident, in those cases the existing law will still obtain, that is to say, the individual will have a right to bail and it will not be a privilege which he has to seek from the judicial officer concerned. As I have said, it is an important principle, particularly to the individual who is subsequently found not guilty, and it is wrong that there even might be a wrongful exercise of discretion—I put it no higher than that— in those cases which have nothing whatever to do with the security of the state. I believe that if the hon. the Minister accepts this amendment it will provide for the type of case in which he fears that there might be an abuse if bail is granted, but it will leave the other cases untouched.

The amendment moved by the hon. member for Zululand (Mr. Cadman) narrows this wide power down to a certain extent. I do not agree that this will in any way improve this clause sufficiently to make me vote for it. So even if the hon. the Minister indicates that he intends to accept the amendment I am still going to oppose this clause. There are several reasons for that. I agree with what the hon. member said when he mentioned that the right of bail was a right enjoyed by individuals in all cases going to appeal or review with the exception—I do not know whether he mentioned the exception— of capital charges. In those cases there is obviously no automatic right to bail. As far as I know the Sabotage Act falls under the definition of a capital charge. Therefore, as far as I am concerned, it is quite sufficient protection to the national security if persons who are charged under the Sabotage Act, for murder, and the other exemptions from automatic right to bail, were denied the right of bail.

Only in the case of treason, murder and rape.

Not the Sabotage Act?

No.

Well, I stand corrected there. Nevertheless as far as I am concerned the basic principle still applies and that is that a person is deemed to be innocent until he is proved to be guilty. This is a natural and a normal right. In the United States the America Congress could not introduce any such clause to amend any legislation because it would be considered as unconstitutional and in conflict with the normal rights of individuals. I intend to oppose this clause even if the hon. the Minister indicates that he agrees with the diminution of the clause as proposed by the hon. member for Zululand. I believe this is a fundamental right that a person should exhaust all the remedies that are open to him at law to prove his innocence before he is considered guilty and that he should not suffer detention in the interim until his guilt has been properly proved.

I listened with great interest to the hon. member for Zululand. I must candidly admit that to a certain extent there is substance in his argument. His argument would have been all the way but for one fact which the hon. member lost sight of. The position as I see it—and the hon. member can correct me if I am wrong— is that the difference between his and my standpoint boils down to this that according to his amendment he only wants it to apply to certain crimes and as the clause stands it will apply to all cases. I think that is the difference between the hon. member and myself. Had it not been for a certain anomaly which exists to-day the hon. member’s argument would have been sound all through. As all lawyers know, if and when a man is ordinarily charged in a lower court for any crime over which the lower court has jurisdiction, he has no right to bail. The magistrate can refuse bail. That is a very important point. Bail can be refused in spite of the fact that according to our law a man is deemed to be innocent until such time as he has been found guilty by a competent court. Yet it has always been our law that the magistrate can refuse bail. Naturally if the accused is not satisfied with the magistrate’s decision he can go on appeal. That is our law on the point. I think the hon. member will concede that that is the position.

Can he not apply to a higher court?

Yes. The hon. member for Houghton (Mrs. Suzman) must understand that that right is not being taken away by this clause as it stands. He can still go to a higher court at any time. That right is not taken away whatsoever.

But there is a second point why the hon. member’s argument is unsound and I think here too the hon. member will concede that I am correct. If after a preparatory examination—and preparatory examinations are only held in cases of serious crime—the magistrate commits a man the magistrate still has the discretion to refuse bail. Hon. members who are in practice will know that magistrates very often exercise that discretion. So what do we find? That is the anomaly in our law which this clause puts right, and I think rightly puts right. The anomaly in our law is this that the innocent man or at least the man deemed to be innocent according to our law, if charged in a lower court, has no right to bail. It is a privilege as far as he is concerned. And the man in the case of a preparatory examination where the Attorney-General must still decide whether or not he is going to prosecute him has no right to bail, to him it is a privilege. The anomaly is this, Sir, that the man found guilty by the magistrate and the man found guilty by the regional court whose jurisdiction now goes up to three years has a right to bail whereas the man deemed to be innocent has not. That is a very important point. I think this is a point which the hon. member for Zululand will concede to me.

There are two further arguments I want to adduce apart from this very potent argument, if I may say so, why his amendment should not be accepted. The first is this that I was very perturbed about the fact that too many people went to gaol unnecessarily. Because I was perturbed about that I called a conference last year. I had a full day’s discussion with the heads of the Departments of Prisons, Justice and Police. I impressed upon them to do everything possible to keep people out of gaol as much as possible. Naturally you cannot give instructions because it is a question of judicial discretion and you do not want to interfere with the judicial discretion of the magistrates, but magistrates were asked to consider every case very seriously if and when bail was asked for, to allow as many people as they possibly could out on bail where they were charged before the lower courts and otherwise. It is not a question, therefore, of our wanting to put people in gaol. That is my second argument, Sir. I cannot for one moment visualize that judicial officers will, under those circumstances, abuse their discretion. All we are doing in practice here is to give the judicial officers the discretion in certain cases to refuse bail. As I know our judicial officers and as my hon. friends opposite know them I cannot for one moment concede that they will abuse the discretion allowed them in terms of this Bill.

There is a third and more potent argument. As I have already said hon. members will know that the regional courts have jurisdiction to impose sentences up to three years. Hon. members know—and I can give them lists and lists—that because of the attitude of certain authorities (it is best perhaps not to mention names at this stage) in adjacent territories these people flee across the border where they are harboured and it is very difficult, if not impossible, to get them back. I say there is no earthly reason whatsoever, if an argument is advanced by a State prosecutor that So-and-so is bound to run away, why bail should not be refused. They do run away, Sir, in spite of R6,000 bail. Money is no object. That does not apply to the offences which the hon. member for Zululand has listed but it applies to other offences as well. Once they get across the border it is difficult if not impossible to find them. In view of the anomaly in our law, Sir, which I am sure the hon. member will concede, and in view of the arguments which I have advanced and in view of other arguments which can be advanced, I candidly think that it is best to leave well alone and to leave this clause as it is.

I was interested in the hon. the Minister’s reply. I quite agree as far as his first two points are concerned as to the facts of the situation that there is no automatic right to bail before a trial and that there is no automatic right to bail after a preparatory examination and before the Supreme Court trial takes place. But I do not agree at all that that is an anomaly. Surely there is a very good reason why there should not be an automatic right to bail in those two instances. One of the examples which the courts most frequently experience where application is made for the man’s bail to be refused is where there is a likelihood of his tampering with the witnesses or where there is a likelihood of there being an interference with the ordinary running of that case.

Is the test not whether he will stand his trial or not?

That is one of the tests. But so often the man is refused bail on the application of the public prosecutor because he is able to convince the judicial officer that in either of these circumstances, that is where the man still has to stand his trial, and where evidence still has to be led before a court of law, the course of that trial might be interfered with, and bail should not be granted. In those circumstances it is perfectly understandable and justifiable to say to the accused that in those two instances—and this is how the law stands at the moment—he shall not have a right to bail but that he may apply to the judicial officer for bail.

Or because he may escape.

Or because he may escape before his trial, yes. What is the circumstance we are dealing with here? We are dealing with a circumstance where all the evidence has been led, where the trial has run its course, where there can no longer be an interference with witnesses and where there can no longer be any interference with the administration of justice so far as a conviction in that man’s case is concerned. There is no possibility of that taking place because in both a review and an appeal the whole case has been committed to paper, a decision has been given on paper, and the reviewing Judge or the appeal Judge deals with that matter as it appears on the papers before him. There is no question of leading further evidence, there is no question of witnesses being influenced or being done away with. In those circumstances there is no ground at all for a man not being granted bail because there is the danger which does exist in the cases put by the hon. the Minister, namely, before the man is tried at all and before he is tried in the Supreme Court after a preparatory examination.

Of course there is a possibility of an escape. That possibility has always been there as long as our law has been administered. But from 1917, to my knowledge, despite that possibility, our law has always been that between the conviction and the appeal or between the conviction and the review there shall be an automatic right to bail. The courts can fix the amount of the bail and the conditions under which that bail is granted. In nine cases out of ten the amount of the bail and the conditions under which it is granted are sufficient to ensure that that man is still available even after the appeal has been heard.

We know that we have the Protectorates on our borders and in our midst in South Africa. But these frontiers which we are concerned with in relation to South Africa are hundreds of miles away, in most cases a far greater distance than the frontiers of a little state like Holland, for example, where in nine cases out of ten it is a matter of an hour by road, let alone by air, when you are out of the country. Yet the principle of bail, as far as I know, has not been done away with there.

The other point raised by the hon. the Minister was that he had suggested to the magistrates that as many people as possible should be allowed out on bail. I respect that sentiment because it is one with which I agree but I sound this note of concern that it should not have been necessary for the hon. the Minister to have persuaded the magistrates to allow as many people out on bail as possible.

It was not a question of persuading them.

I accept that. I am sure the hon. the Minister will agree that the proper approach is this that in every case a judicial decision has to be made as to whether a man should be allowed out on bail or not. If on a proper decision of the facts a man should be kept in prison he must be kept inside. If on a proper decision of the facts he must be allowed out he must be allowed out. There is no question of having a bias one way or the other.

Finally, the Minister’s last point was this question of these people fleeing across the border. I think the Minister will agree that that is a matter which should cause us concern only in those cases, generally speaking, where the man has been convicted of doing acts which endanger the safety of the state or national security. If he does flee over the border he can still in the nature of things carry on his activities across the border. That is why we have made provision in our amendment for that type of person not to have bail as of right. But if a man has had a motor accident and breaks his conditions of bail but has been required to deposit a substantial sum of money in accordance with the case which, of course, he forfeits if he breaks his bail, the fact that he flees is really of no concern to anybody at all as far as the security of the state is concerned and that is principally what we are dealing with here.

To sum up, Sir, I do not believe that there is any anomaly at all in the case of bail before trial, either before trial at the magistrate’s court or before the Supreme Court. I do not believe that there is a danger of prisoners absconding any more now than there has been over the past 40 years. I would ask the hon. the Minister in those circumstances to reconsider the situation and to make a genuine attempt, as I am sure he will, to accept this amendment.

Two statements have been made by the hon. member for Zululand (Mr. Cadman) in connection with this matter which are not correct. I want to mention one of the arguments used by the hon. the Leader of the Opposition when he said that the right to obtain bail formed part of our common law. It does not form part of our common law at all: it is part of our statute law. It was introduced in 1917. From 1917 to 1955 this particular section was applied by the courts in the manner now provided for in this clause. It was only in 1955 in the case of Rex v. Mafika that Mr. Justice Clayden ruled that an accused person did have this right and that the court had a discretion. Before that time it had always been applied in the courts as though the magistrate had a discretion. But in 1955 Mr. Justice Clayden ruled that if a person was convicted he was entitled to bail. The hon. member’s statement that this has always been our law is therefore untrue.

Sisulu made use of this ruling of Mr. Justice Clayden in order to be granted bail. The other statement to which I take particular exception is the statement of the hon. member that there is no reason why a person should not be allowed bail. Let me put it in this way: If a person is innocent before his trial then he has every reason for wanting to stand his trial because he wants to prove his innocence. In that case, however, there is every reason why he should be granted bail because he wants to prove his innocence. But once a man has been convicted and he knows that he will have to be punished there is actually more reason for his wanting to be granted bail because that will give him an opportunity to escape. The hon. member did not explain the inconsistencies of his argument in this regard.

The third argument which the hon. member did not sufficiently elucidate was his argument that this clause seemed to indicate that there was some sort of state of emergency prevailing. He must remember that these provisions are not intended merely to cover a state of emergency. They still remain part of the General Law Amendment Act. He ought not to consider this matter simply from that point of view of a state of emergency. This Bill also seeks to amend our general law. The hon. member will remember that the regional courts were only instituted in 1955, after that judgment of Mr. Justice Clayden. The jurisdiction of the regional courts is not limited to sentences of up to three years because certain cases are referred to them and in those cases the penalty imposed may be far more severe than three years. So the regional courts are in fact no longer what we call “inferior courts”. They fall between the magistrate’s court and the supreme court. It is most necessary for the law to be amended in the way proposed in respect of the cases which are tried in our regional courts.

I should like to join issue with the hon. member for Heilbron (Mr. Froneman) on this point that we are introducing an amendment to the general law. I think it is accepted between us that the need for this Act is to deal with a special situation and that special powers are needed to deal with that special situation. There should therefore be no attempt, I suggest, to introduce alterations which deal with the law generally. It is for that reason that the amendment moved by the hon. member for Zululand (Mr. Cadman) leaves the right with the magistrates to refuse bail in those cases which could be said to affect the country’s security but at the same time protects the right to bail of the individual in all other cases as he has had it hitherto under our law. I do suggest and urge upon the hon. the Minister …

What is your reply to the regional court argument advanced by me?

So far as the regional court argument is concerned the same answer exists. You must divide it into two classes of cases: One class where you can say that the security of the country is threatened, where the clause of the hon. the Minister’s is in order; and the other class of cases, such as theft and perhaps robbery or some form of immorality where the sentence may be as high as three years, where there is no question of the country’s security being involved, and where, I suggest, there is no reason why the existing rule should not apply. I think it can be said that apart from the security cases, there have not been many cases where people have taken advantage of this right to bail to escape. One must bear that in mind.

I said I could give you lists and lists of cases where people had absconded.

There may be people who have been convicted of, what one might call, ordinary crimes who may in the past have absconded but I do not believe that that position has become any worse. Doubtless there have always been people who have been prepared to forfeit their bail and who have escaped. The hon. the Minister has not attempted to make a serious case out on that basis. I suggest that the amendment moved by the hon. member for Zululand meets the position of the security of the State while preserving the right to bail in other cases.

I do think that the hon. the Minister and the whole House should be astute in a measure of this kind to go as far as they can to preserve those rights which have hitherto been enjoyed. It is only where any encroachment is justified by the need for security in a difficult situation that one should in any way depart from that approach. I hope therefore that in a matter of this kind which, as I say, is not connected with security, which is the great point we are dealing with, the hon. the Minister will see fit to accept the amendment.

I want to ask hon. members to consider this matter mainly on its merits and to a lesser extent from a purely legal point of view. As I see it, the anomaly lies in the fact that the magistrate has a discretion when someone is accused and before he is tried, but that the magistrate has no discretion once a person has already been convicted and he appeals or asks for his case to be reviewed. This is in fact the anomaly and not the first point that I mentioned. I want to tell hon. members who spoke before me that we must realize that there are three important points to be considered before bail is granted. One is, amongst other things, the possibility that the accused will escape. That possibility is in itself sufficient reason to make a magistrate decide, before the accused person is tried, not to grant bail to that person on those grounds. If this by itself, before the trial, is sufficient to motivate the magistrate, why should it not be sufficient motivation for the magistrate after the person has already been convicted by him? I think that when we consider this fact it is sufficient to convince us that its weakness actually lies in the fact that the magistrate does not have that discretion after the accused has been found guilty, and as the hon. member for Heilbron (Mr. Froneman) has indicated, it was applied in this way up to 1955. It was only changed in 1955 when a Judge gave a particular judgment in that regard. I also want to put this question to hon. members: If a person committed a serious offence, perhaps not an offence against the security of the State, but a serious offence, in which case the magistrate, after having found such a person guilty, would not want to grant bail to that person if he had that discretion because he would feel that such person might escape and in that way avoid the imprisonment that he so richly deserves, why would hon. members want to give such an accused person who had already been found guilty an opportunity of avoiding the imprisonment he deserves? That is in effect what they are asking for. They are asking that a particular principle should be applied in a case where it is an offence against the State; they are not satisfied that that same principle should be applied in connection with other serious offences which may perhaps not be committed against the security of the State but where it is just as necessary and in the interests of our society that such a person should serve his imprisonment for the offence of which he has been convicted. To sum up therefore I feel that the anomaly or shortcoming in this regard actually lies in the fact that in the past the magistrate did not have that discretion after having found an accused person guilty. If he had it prior to convicting such a person and if he could have it prior to convicting that person simply and solely on the grounds of the possibility of escape, then he ought also to have that discretion after such person has been convicted if he thinks that such a person may possibly escape.

The hon. the Minister is trying to draw a distinction which is really not valid, and he sees an anomaly in judicial proceedings which in fact is not there at all. I do not believe that either in law or so far as judicial proceedings are concerned, this question of bail is looked upon as a distinction between a right and a privilege. What in law the courts are concerned with is merely the exercise of a judicial act, and the judicial act is this: As to whether a person who is before the courts should be allowed a measure of liberty or not. Now the courts always respect the right of the liberty of the subject, and where he appears before the court and where he is convicted, that right is recognized until he has exhausted all the means available to him to establish whether or not his liberty should be curtailed by virtue of an offence. I am strengthened in that view by the definition which is given to the word “privilege”. In the Oxford Dictionary one of the definitions of the word privilege is “a right, advantage, or immunity granted to or enjoyed by a person or class of persons beyond the common advantages of others”. Therefore I say that this question of bail is entirely a judicial act in which the court respects the right of the individual to liberty on the one hand and the authority of the State on the other hand. The only distinction that the law then makes is that in the one case there should be automatic consideration of bail, in which the right of the court, or the privilege of the court if you like, is then confined to assessing what the amount shall be, having regard to all the circumstances of the case. The next one is where there is no automatic consideration of bail and where the right or the privilege of the court then is twofold: Whether to concede that bail should be allowed at all, and secondly, to fix the amount of the bail. I think therefore that the hon. the Minister is trying to draw a distinction in words which is not valid and he sees an anomaly in law which in fact does not exist. Because it is nothing else than the respect of the liberty of the subject which the court as a judicial act takes into consideration.

The fact, of course, is that the old provision in the law has worked very well until changed circumstances were brought about. Those changed circumstances of course are due to statutory offences or security measure, whatever you wish to call them, which in law at any rate are of a political nature. Now the hon. the Minister has offered to give us a list of some 30 people who had absconded after breaking their bail conditions. I should be glad if he did give that list if he would at the same time indicate the nature of the offences, because my impression is—he would know, but I do not know—that they are all related to offences of the nature that I have described. For that the hon. member for Zululand (Mr. Cadman) has made ample provision in his amendment. He concedes that in the circumstances which the hon. Minister has set forth in this legislation there might be a case to deal with them differently. But why at the same time make a difference in regard to a measure which the courts have always acted upon very judiciously and which has worked extremely well?

Do you concede that this clause was the law before the case in 1955?

I am dealing with the law as it stands to-day and which the hon. Minister is now amending, and I say that the law as it stood worked very well.

Parliament did not alter it. That was the first time that a decision was made.

That was a question of interpretation of the law.

Yes, but when you were a magistrate, you interpreted it differently.

I do not concede that at all. I interpreted the law as I found it, just as the hon. Minister has had to do when he was practising as an officer of the court. You see. Sir, I do not think it is sufficient to bring about a change of this nature merely because of changed circumstances brought about, as I say, by specific statutory offences. I would appeal to the hon. the Minister therefore to accept the amendment.

Throughout this debate that we have had here emphasis has time and again been placed upon the fact that discretion should be given to the courts, to the magistrates and to the Judges. All that the hon. the Minister is doing here is to give the magistrate a discretion. This discretion is being given to a magistrate who has to decide on far more important matters than merely a question of bail. But now hon. members say that in connection with bail no discretion should be given. As the hon. the Minister has indicated this is a position that existed for 40 years, from 1917 to 1955, and all that he is doing now is to revert to the position as it was prior to 1955. But that is not all. As I understand this clause, if the magistrate refuses bail, there is always the right of appeal to the Supreme Court. A person can then always appeal to the Supreme Court stating that the magistrate was wrong in refusing to grant bail. That way is open to him. I cannot understand the arguments of hon. members. They have always advocated this discretion in the past but where that discretion is now being given they are objecting to its being given to a magistrate.

I should like quickly to answer a couple of points raised by the hon. member for Port Elizabeth (North) (Mr. J. A. F. Nel). The first one is that any complainant would have the right of appeal. We all know that in matters of this kind where the magistrate has a discretion to refuse bail and he refuses it, no appeal court will virtually upset that decision.

Why not?

Because it is practically impossible that in such case the discretion was wrongly exercised. Then the hon. member says that we have always asked for discretion to be left to the courts. That is so where it is an appropriate case, but where the subject has a right and now you are reducing that right to a possible right only and a privilege, it is clearly not something of the same kind. But the main point I just would like to answer quickly is that made by the hon. member for Ceres (Mr. Muller). He says that before an accused has been tried and convicted, the magistrate has the right to refuse bail. As the hon. member for Zululand pointed out the reason for that is that he might not stand his trial. But once he has been convicted and has stood his trial, then different considerations apply. And the point is that if you have been convicted and sentenced to a certain period of imprisonment, and you then appeal or your case goes on review, the whole value of your appeal or review is eliminated, is nugatory if all that time you are sitting in gaol and the result of the appeal or review is known long afterwards.

Can he not use the appeal in order to escape?

The reply to that is that in security cases we are prepared to meet the Government.

But take other cases.

I say that traditionally that right of bail has been recognized and I do not think that any case has been made out that it has been seriously misused, and we say that in a matter of this kind where you are dealing with special measures of security we should not tamper with other matters which have nothing to do with security at all.

I am afraid that there are important arguments that hon. members of the Opposition are overlooking. They have voted for the principle of this legislation. One principle of this legislation is amongst other things to combat sabotage. The General Law Amendment Act of last year made provision in cases dealing with acts of sabotage that—

then the procedure in the magistrate’s court would be followed. I submit that even in these cases it may perhaps be argued that where previously a case was heard by a superior court, the magistrate’s court rules have now to be applied and bail has to be granted in such case. I think that this completely nullifies the case of hon. members opposite. If their argument that they want to combat sabotage in principle is a true one, I think that they ought at least to leave it to the discretion of the magistrate not to allow bail to be granted in this case.

The discussion that is taking place with regard to this particular clause and the amendment to it is not taking place in a sense only to amend the Magistrates’ Courts Act, because as the last speaker has just pointed out, there is a certain principle contained in this particular Bill to which the hon. the Leader of the Opposition yesterday referred and that was the acceptance of the recommendations of the report of the Snyman Commission. Therefore we cannot take this whole discussion and isolate it only as a discussion on an amendment to some anomaly which the Minister refers to in the Magistrates’ Courts Act. It may well be that the Minister has held a conference and has discovered not only this but other anomalies in the Act. But the purpose of this clause is a very clear one and that is to cover some difficulty which arose recently when a person who was released on bail under a charge relating to one of the offences dealing with the security of the State, estreated his bail, crossed the border and left the country. If that is the objective, then the amendment which has been proposed by the hon. member for Zululand puts this clause into its proper perspective. And that, Sir, is the objective of the discussion. If the hon. Minister wishes in this Bill to secure the State with regard to certain suspects, then his reference in all the clauses should be specifically directed to these various statutes which deal with the security of the State. We cannot, in my view, be satisfied that all the Minister is trying to do here is merely to cure an anomaly. The amendment that has been moved is to assist the Minister in achieving that very objective, viz. that in this type of cases it will be necessary to apply to the magistrate for bail. He should not interfere at this stage with what has been a provision of the Magistrates’ Courts Act for a considerable number of years, and that despite the fact, as some of the Government speakers have said, that this is an anomaly and it should not differ from the case where, as the Minister says, an innocent person who is charged may still be refused bail. In that case if there has been this anomaly over a number of years, why has the Minister not found it necessary at any other time to cure this particular anomaly? There have been other amendments to the Magistrates’ Courts Act, and why must he choose this particular Bill to deal with that anomaly? We believe that there is a situation existing where the law has to be amended, where a new law has to be placed on the Statute Book in order to bring about the security of the State. We should deal specifically with that and we should not confuse the issues as we have an unfortunate tendency of doing. That has been an unfortunate tendency in respect of all the General Law Amendment Bills over many years namely, to bring in other matters which could well be dealt with without the attendant provisions that may be regarded as necessary by the Government in certain other circumstances. We believe that this amendment is a fair one. It meets the so-called principle, namely, in respect of the security of the State.

Why “a socalled” principle?

Because we have narrowed the principle in so far as this Bill is concerned. The hon. the Leader of the Opposition has indicated that in so far as the principle of accepting the Report of the Snyman Commission is concerned and the incorporation of those recommendations in the Bill, this side of the House supports the Bill, but he has drawn the attention of the House to certain clauses which we regard as objectionable, and this is one of them. That is why I have to deal with it as a “so-called” principle, because I am referring to the suggestion of the hon. member for Heilbron that we have accepted the principle of the Bill. We have in the narrower sense, as has been indicated very clearly to the House yesterday. I think it is very bad legislation. When the Government wishes to take steps to protect the security of the State, or in respect of any other circumstances; when it wishes to take certain steps to provide legislation, it should not introduce extraneous matters and then say: Well, we have had a conference, there is an anomaly in this particular statute and as I am now putting a General Law Amendment Bill before the House. I am inserting an amendment to that particular section. There is a purpose in the amendment of the law in order to enable the Minister to cover a certain situation. This side of the House is prepared in terms of the amendment to accept that, provided we look at the matter realistically and not cloak it with an atmosphere which is completely unreal in the present circumstances.

You will allow, me, Sir, to sum up the arguments that I have heard. The position boils down to this, and we must accept that as a fact in spite of what the hon. member for Port Elizabeth (South) (Mr. Plewman) has said, that the law always was understood to be and was accepted to be, from 1917 to 1955, that a magistrate had a discretion under those circumstances to refuse bail, and I make bold to say that during all the years that the hon. member for Port Elizabeth (South) has practised he in fact exercised that discretion, and so did all judicial officers.

There is nothing wrong with that.

But if there was nothing wrong with that then surely there is nothing wrong with that now. But what happened in 1955? Let us look at it from this angle: In 1955 a discretion which judicial officers always had and which they never abused—I do not know of any single instance of abuse, and I am sure the hon. member as a magistrate does not know of any instance where that discretion was abused.

Not abused. They were wrong decisions.

But Parliament certainly understood it from 1917 to 1955 to mean that. Parliament which made the 1917 Act understood it to mean that judicial officers had a discretion. Then came the decision in the Transvaal Supreme Court by Mr. Justice Clayden which took that discretion away, a discretion which magistrates exercised for the best part of 40 years.

Why do you say that Parliament understood it that way?

Because Parliament made the 1917 law.

But Parliament did not interpret it.

It was interpreted by the judicial officers to mean that they had a discretion and in actual fact they exercised that discretion.

But that was not the interpretation of the Supreme Court?

Exactly, it was interpreted by the lower courts all over the country to mean that they had a discretion. All practitioners were aware of it, and it must be taken that Parliament was aware of the fact that judicial officers of the lower court interpreted it in such a way that they had a discretion, and Parliament never interfered from 1917 to 1955. Then came Mr. Justice Clayden’s decision and that decision took away the discretion which they had had up to that date. Hon. members now say that that is quite all right, that there is nothing wrong with that. I disagree.

If a Minister of Justice had come to Parliament in 1955 and said: “Look here, I am not satisfied with this discretion judicial officers of the lower courts have had up to now, and I am going to take it away,” my word, we would have had two all-night sittings in Parliament.

Why did the Minister not come to Parliament after that judgment?

That is another point which I am going to deal with, but I am pleased that the hon. member concedes that if the Minister had done what Mr. Justice Clayden had done in 1955 …

I did not concede that.

Well, then I do not know Parliament, and I do not know the Opposition. I am sure that if a Minister had done that, there would have been an outcry because he was taking away a traditional discretion from judicial officers.

Giving an accused the right …

No. All I am doing here is to give the judicial officer his discretion back. But the hon. member rightly has asked me why we did not do something after 1955. I cannot answer for my predecessors, but I know that this matter has disturbed judicial officers, because they naturally saw it and I would agree with them fully, in this light that they had this discretion throughout the years and they felt sore, and they had every reason to feel sore because this discretion to which they attached great weight had been taken away from them. Candidly, as we know our judicial officers—they have their faults—they felt sore because this discretion was taken away. We entrust them with far greater powers, as the hon. member for Port Elizabeth (North) (Mr. J. A. F. Nel) said, and why should they not have discretion in this matter? But this matter has been considered by the Department before and it has been brought to a head by the Sisulu case.

A political one.

Incidentally.

We agree with you in principle.

As far as I can remember Sisulu was not charged under one of these Acts. As far as I remember he was charged with inciting.

No.

I do not want to argue the point, but it is quite possible that one can be charged—and that is the argument I wanted to advance. I attached great weight to the argument of the hon. member for Heilbron (Mr. Froneman), the regional court argument. That is a very important argument. Because it happens that—and you find that in the Snyman Report too—that witnesses are intimidated, that witnesses are assaulted.

Witnesses cannot be got at when there is merely an appeal or a review.

Quite right. A man is charged for a so-called political offence. The witnesses in his case are assaulted. Those people who have assaulted witnesses are charged in a regional court, charged with assault with intent, and they get three years. That is not covered by the hon. member’s amendment. It is not under one of those Acts, but it is closely connected with those offences which the hon. member does cover, very serious offences. The moment there is an appeal, they have the right of bail.

But there is no review from a regional court?

No, but an appeal.

This has been a very interesting argument and I have listened with great interest to that argument, but if I must decide whether to accept the hon. member’s amendment or not, I am very sorry that under existing circumstances and for the reasons advanced from this side of the House, and having discussed this very fully with the Department, I cannot accept the amendment. Hon. members know I have no hesitation in saying that—that I am open to argument and that I do accept amendments, but under the circumstances I regret that I cannot accept the hon. member’s amendment.

Amendments put and negatived.

Clause, as printed, put and a division called.

As fewer than 15 members (viz. Mrs. Suzman) voted against the clause, as printed, the Deputy-Chairman declared it agreed to.

On Clause 2,

This clause is consequential on Clause I and the same objections I had against Clause I apply here also, and therefore I object to this clause.

Clause put and a division called.

As fewer than 15 members (viz. Mrs. Suzman) voted against the clause, the Deputy-Chairman declared it agreed to.

On Clause 3,

The same objection does not apply here. I have another objection to this clause. My objection is that this is another instance of the Government’s habit of rushing into legislation every time the courts uphold the rights of the individual against the State. As far as I know, there are at present two appeals pending on this very point, and that is the court’s interpretation of “place” in terms of the General Laws Amendment Act of 1962. I think it is most improper for this Government to introduce amendments while those appeals are pending. [Interjections.]

Order!

I think it is most improper for the Government to introduce amending legislation on a point which is in fact the subject of appeal at present, and therefore I object to this clause, too.

Clause put and the Committee divided:

AYES—83: 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. M. C.; Botha, S. P.; Coetzee, B.; Coetzee, P. J.; Cruywagen, W. A.; de Villiers, J. D.; de Wet, C.; Diederichs, N.; Dönges, T. E.; du Plessis, H. R. H.; Faurie, W. H.; Fouché, J. J. (Sr.); Fouché, J. J. (Jr.); Frank. S.; Froneman, G. F. van L.; Greyling, J. C.; Grobler, M. S. F.; Haak, J. F. W.; Hertzog, A.; Heystek, J.; Hiemstra, E. C. A.; Jonker, A. H.; Jurgens, J. C.; Keyter, H. C. A.; Knobel, G. J.; Kotze, G. P.; Kotzé, S. F.; le Roux, P. M. K.; Loots. J. J.; Luttig, H. G.; Malan, A. I.; Malan, W. C.; Marais, J. A.; Maree, W. A.; Martins, H. E.; Meyer, T.; Mostert, D. J. J.; Mulder, C. P.: Nel, J. A. F.; Niemand, F. J.; Otto, J. C.; Potgieter, J. E.; Rall, J. J.; Rall, J. W.; Sadie, N. C. van R.; Sauer, P. O.; Schlebusch, A. L.; Schlebusch, J. A.; Schoeman, B. J.; 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, G. P.; van den Berg, M. J.; van der Spuy, J. P.; van der Walt. B. J.; van Niekerk, G. L. H.; van Rensburg. M. C. G. J.; van Staden, J. W.; van Wyk. G. H.; van Wyk, H. J.; van Zyl, J. J. B.; Venter, M. J. de la R.; Venter, W. L. D. M.; Viljoen, M.: Visse, J. H.: von Moltke. J. von S.; Vosloo, A. H.; Webster, A.; Wentzel, J. J.

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

NOES—40: Basson, J. A. L.; Basson, J. D. du P.; Bloomberg, A.; Cadman, R. M.; Eaton, N. G.; Emdin, S.; Field, A. N.; Fisher, E. L.; Gay, L. C.; Gorshel, A.; Graaff, de V.; Hickman, T.; Higgerty, J. W.; Hourquebie, R. G. L.; Hughes, T. G.; Lewis, H.; Malan, E. G.; Miller, H.; Mitchell, D. E.; Mitchell, M. L.; Moolman, J. H.; Odell, H. G. O.; Oldfield, G. N.; Plewman, R. P.; Radford, A.; Raw, W. V.; Ross, D. G.; Russell, J. H.; Steenkamp, L. S.; Streicher, D. M.; Suzman, H.; Taurog, L. B.; Thompson, J. O. N.; Timoney, H. M.; van Niekerk, S. M.; Warren, C. M.; Waterson, S. F.; Wood, L. F.

Tellers: H. J. Bronkhorst and A. Hopewell.

Clause accordingly agreed to.

On Clause 4,

This is the clause which in effect gives to the Minister the power of internment in respect of people who have been in prison. The power of internment contained in this clause is far more severe than any power of internment we have ever seen in this country even during wartime. I say that because during the last war there was at least a certainty as to when the order would lapse, when the war ended. In that sense there was a definite period. But there is no definite period contained in this clause. I must say that the attitude of the hon. the Minister, when he moved the second reading and spoke of this clause and other clauses, was reassuring in the sense that even the Minister felt that he had himself many qualms about introducing a Bill containing powers so wide and so drastic as these. These powers are in fact greater in many respects than those a court of law would have, inasmuch as a court would not be able to keep a man in prison throughout his living life. Mr. Justice Snyman found that there was an urgent and difficult situation which had to be met, and the Minister has indicated that he wants these powers to deal with that situation. But we must presume that this situation will not be with us for ever—at least we hope not. In those circumstances such a clause as this should not form part of our permanent law. I do not think anyone would disagree with that, that such a clause should never be part of our permanent law, or of any country that calls itself a democracy. I think if it were a permanent part of our statute law, it would do South Africa great harm and therefore I wish to move the amendment standing in my name on the Order Paper, subject to this further amendment to it, that for “1 June”

I would like to substitute “30 June”, so that it will then read—

1. (a)ter Subject to the provisions of paragraph (a)quat the provisions of paragraph (a)bis shall lapse on 30 June 1964.
2. (a)quat The operation of the provisions of paragraph (a)bis may from time to time by resolution of the Senate and the House of Assembly be extended for a period not exceeding 12 months at a time.

We find a similar provision in the so-called 12-day detention Act which was passed in 1961 and one relevant clause of which we are being asked to-day to extend for a further year. I move that amendment in the hope that the hon. the Minister will accept it, and I do so in the sense that if the Minister does accept it he will be doing South Africa a great service so far as our overseas critics are concerned. We have all seen what was published in the London Times. We got a very bad Press especially because this was apparently to become a permanent part of the laws of our country. I hope that the Minister will accept this amendment.

I want to move an amendment which does not appear on the Order Paper but which reads as follows—

We are aware of the fact that certain occasions may arise when the Government requires more powers than it would normally require. Let me say at once that we who have tried to make a study of the ways in which Communism infiltrates into countries and the methods it uses, are fully aware of the fact that powers over and above the normal powers have to be taken by the authorities but at the same time, as the hon. the Minister himself said, any member of this House and any person living in a civilized country where law and order prevail is loath—and I think that this holds good for the hon. the Minister himself—to give these powers to one person, no matter what Minister it may be. The hon. the Minister also said that he did not like this clause at all himself but had of necessity to assume these powers. I think that the hon. the Minister will agree that this type of legislation is viewed with suspicion throughout the whole world. At the same time I want to say that we on this side of the House appreciate the difficult position in which South Africa finds herself and we want to help. I hope that the hon. the Minister will see his way clear to accept this amendment because all it does is this: It simply states that the Minister should act on advice although he need not even follow that advice. He can always send that person to gaol against that advice but there will then be some measure of control and a notice will at least have been issued. Parliament will then be able to take note of these facts. The Minister will then act on the advice of that committee consisting of one of his own Judges, one of his senior magistrates and one of his senior police officers. Once the committee has advised him and notwithstanding that advice he still feels compelled to send a person to gaol without trial—although I do not think that this will ever happen, his hands will at least be reasonably clean so that he can tell the world: I did the best I could under the circumstances; I did not take that step because of my personal hatred for or to revenge myself against that person but I took it in consultation with my senior officials. It was only then that I decided to take that step because the safety of the State is of far greater importance than the convenience of the individual. I think that the hon. the Minister should consider this matter seriously and if he has any objections he should discuss the way in which those objections can be overcome with his officials. This will be to the advantage not only of South Africa but also of the hon. the Minister. If he has reasons for not being able to accept the amendment I would like to hear them. I realize that it may be inconvenient for him to refer the matter to a committee, but South Africa’s good name is worth that little extra effort. I believe that the hon. the Minister will give serious consideration to my suggestion and if perhaps he wants to discuss the matter with his officials—unfortunately I did not have the time to give notice of this amendment—I hope that the hon. the Minister will move of his own accord that the consideration of this clause stand over until the other clauses have been disposed of so that the hon. the Minister can have the opportunity of discussing this matter with his officials. I repeat that where we on this side are now giving the Minister these powers, although not happily—it is no pleasure for us to give him these powers, just as little as it is a pleasure for the hon. the Minister to assume them—so that he can continue to keep South Africa safe, so that he can continue to deal with those evildoers some of whom come from overseas and others of whom are in the country, to restrict their activities, he must do so in such a way that South Africa’s good name will not suffer unnecessary harm or his good name as Minister will not be blackened in any way. I make this appeal in all earnestness and as one who is nothing but well disposed towards the hon. the Minister in his efforts to maintain law and order. Before I sit down let me just say that I believe that where a person has served his sentence there must be good reasons before the hon. the Minister makes use of this power. I know that he will not make use of it unnecessarily but I think that it is dangerous to leave it at the discretion of one Minister only.

I think it is really unimportant whether the powers granted to the hon. the Minister are granted with love or without it. This is the most important clause in the whole Bill. It goes against normal democratic practice in the Western world. It allows the hon. the Minister to continue to hold in prison by way of preventive detention, or by any other name one wishes to give to it, any person. In Ghana it is called preventive detention, and the same kind of clause is now being introduced into our legislation. It allows the Minister to detain people indefinitely, people who have already served a sentence of imprisonment for the crime they have committed. To my mind, whether the amendment moved by the hon. member for Durban (North) is accepted or not, is not the important issue because I do not believe that the hon. the Minister should have such powers for one day, let alone one year. Hon. members have forgotten two very important issues when they think that this makes such a difference. The first is that these powers of review by Parliament year after year have come to mean precisely nothing. To put them in now is simply a façade and it will not make the slightest difference, because if the Minister wishes to continue with these powers beyond a year he will come back to Parliament and the entire Government side will vote with him in the way he wishes it to vote. [Interjection.] The hon. member here is surely inferring that if the Minister accepts this amendment of his it will make this clause all right. I do not agree that it does make this clause all right. I do not believe that it helps in the slightest, because experience has shown that. There have certainly been two instances that I can quote, in my time in Parliament, where this limited power has been given and Parliament had to review such extensions of time. The one is the detention without bail Act and the other, of course, is the Unlawful Organizations Act. If I remember correctly, that also stipulated a time period, and all the hon. the Minister had to do was to come to this House and to extend it again for another year; he has already done it twice.

And it is being made permanent in this measure.

As the hon. the Minister says it is being made permanent this year.

This is going to be made permanent too, irrespective of whether this right of review is granted or not because this is the old slippery slide away from democratic practices. Once you give way on principle, then as far as I am concerned the battle is lost and it is no good putting a time period to this and say that it must be brought back to Parliament for review and reconsideration, because the fact of the matter is that if the Minister wants to keep this going, he will keep it going. As far as I am concerned, the principle of this thing should be opposed and not the length of time for which this thing is going to be introduced. If there is an emergency, then declare an emergency and then the hon. the Minister can take the necessary powers which are recognized by every country as necessary in times of emergency. A country may have to declare martial law or may have to declare a state of emergency. Where is the emergency in this country that necessitates legislation like this? What is happening? Are people running around the streets of South Africa armed with guns, crouching behind trees, worried about their lives? Life outside in Adderley Street, and in Eloff Street and in Church Street, Pretoria, and everywhere else in South Africa is proceeding right at this minute in a normal fashion at a time when emergency regulations are virtually being imposed on the country. The hon. the Minister of Finance sits there smiling benignly and well he might, because he is doing his best to persuade the entire world that South Africa is at peace, that South Africa is in a fine economic state and that investors should pour money into this country to exploit our wonderful resources.

That is only because your friends do not get their way.

If “my friends” do not get their way and if the Government is able to prevent what the hon. member for Vereeniging mistakenly calls my friends from getting their way, then there is all the more reason why there is no need for these new powers. The Minister has managed to control everything under his vast, extensive powers already. That is the other point which the Opposition has forgotten when it thinks that this question of review in a year’s time is going to make the slightest difference. Has the Opposition forgotten the powers that the Minister took in 1962 to ban and to place people under house arrest? If he has the slightest doubt about people and wishes to restrict them, he already has enormous powers which I for one object to most strongly. He already has those powers and the Opposition knows that he has those powers to house-arrest people, to restrict people, to guard them day and night if he so wishes. There is not the slightest justification, in a country which is not at war, in a country which is not in a state of emergency, in a country which has the impertinence to profess to be a democratic country, for giving the Minister any such powers. I say that whether the Opposition is prepared to give the Minister those powers for one day or one year, as far as I am concerned this is an appalling clause and it should be opposed tooth and nail by anybody who has one jot of democratic blood in his veins. I move—

That in effect, if accepted, would mean the omission of the whole clause bar one subsection.

I was surprised—and I want to say agreeably surprised—to hear the hon. member for Houghton (Mrs. Suzman) describe South Africa as a most peaceful country. I agree with her. While she was speaking I happened to recall that a lady by the name of Mrs. Suzman, if I am not mistaken, appeared in a film called “Sabotage in South Africa”, and the impression that that particular lady created was just the reverse. Be that as it may, there is a difference of principle between the hon. member for Houghton and myself and I am afraid we cannot agree on any of the principles which she advocates as far as this Bill is concerned. I do not want to be discourteous to the hon. member but because there is this …

Basic.

Yes, the hon. member is right; she has now given me a second chance. I say that because there is this basic difference of principle between the hon. member and myself I will not reply to her arguments as far as all the clauses are concerned. If I do not, I will only be treating the hon. member as most husbands treat their wives and that is to listen to them and then not do what they are told to do.

I want now to deal with my hon. friend the hon. member for Sea Point (Mr. J. A. L. Basson) and his amendment. I am well aware of the fact that the hon. member is in earnest as far as this matter is concerned. I am also fully aware of the fact that the hon. member is being honest in regard to his amendment and this whole matter. I regret, however, that I cannot accept his amendment for various reasons which I want to give the hon. member. I do not want to suggest for one moment that there is nothing in the argument of the hon. member. On the contrary, at first glance I am inclined to think that there may perhaps be a great deal in his argument which is worth while considering. As the hon. member knows, I was only given notice of his amendment at a very late stage. It was therefore not possible for me to discuss the amendment and its consequences with the law advisers. Therefore I do not know how it can be applied. When I was still a little inexperienced I accepted amendments as a Deputy Minister in the past which landed me in hot water with the law advisers. I accepted those amendments out of the goodness of my heart. Therefore viewed from that angle alone it will not be possible for me to accept the amendment. But I do not want to make this my excuse. There are other aspects of the matter. The hon. member’s amendment mentions a Judge who must be called in in connection with this matter. He does not specify in his amendment whether this has to be from division to division. There are no regulations which provide how these meetings shall take place. These are all shortcomings that I have noticed simply in passing. This is a matter that one has to consider carefully.

But there is another aspect and I think that the hon. member will agree with me in this regard. I would be very afraid of one thing, were I to accept his amendment. No matter what we here in South Africa have to say about these matters and no matter how the hon. member and I understand these things, the world sees them as political matters and as political matters only. Our Bench, particularly our Supreme Court, has a very high reputation, a reputation not only for the thorough work that it does but for its impartiality and, what is very important, its independence in so far as the Government of the day is concerned. The whole world accepts the fact—and that is how it should be—that our Bench does not take instructions from the Government and that, when it deems fit, it does not hesitate to give its honest opinion in its judgments, even though its opinion may differ from that of the Government of the day. This has always been the position and this is as it must always stay, and we are very proud of it. We are proud not only of the whole Bench as such but of our Judges as individuals. I am very afraid, particularly since I have not been able to consider this amendment thoroughly, that it may very easily be said when one makes use of a Judge for this purpose, that he is only a “stooge” of the Government and that he does what the Government tells him to do. But apart from this point, in practice one cannot summarily bring a Judge into a Bill until one has consulted the Bench. The Judges may have very serious doubts about the whole matter and may object very strongly to being involved in this connection. And so. even though one wants to consider adopting an amendment of this nature, one cannot possibly do so until one has consulted the Bench. One must at least give the Judges the opportunity of putting their point of view in this connection. I am sure the hon. member appreciates my difficulty and the problems in that regard. But there is another aspect of the matter. From the nature of the case a great deal of time is lost if one has first of all to make use of this machinery. Just before a person is released information may be forthcoming which is of such a nature that one has to try to detain that person, but if one has first of all to make use of this machinery, that person will simply escape. I am aware of the fact that the hon. member holds certain views in regard to this matter and I do not want to summarily reject those views. I want to give the hon. member the assurance that I will remember and consider the principle that he has mentioned here because I feel that there is something in what the hon. member has said. But for the present it will not be possible for me to accept the hon. member’s amendment.

As far as the amendment of the hon. member for Durban (North) (Mr. M. L. Mitchell) is concerned I have listened to his argument and I must concede at once that I think the hon. member is right, but before I deal further with his arguments, the hon. member in passing referred to criticism in the London Times. Naturally the London Times forgot all about its own 1922 Act to which I made reference yesterday, but that is just by the way. Sir, I think the Committee will be interested in this cable which the hon. the Prime Minister received this morning. It was addressed to “Hendric Furwrd, Cape Town”. It comes from Latvia. It was re-directed from Pretoria and it arrived here this morning.

Did the Postmaster detain it?

This cable was sent by the journalists of the Soviet Latvian Republic, and it says—

And I hereby set them all free as far as the Press gallery is concerned. It goes on to say—

I want to make it perfectly clear that the newspapers will appear to-morrow and that all journalists will be at their posts to-night and to-morrow. Be that as it may, as I have said there is substance in the hon. member’s argument. I think he is correct in saying that it is not the intention—and I said so yesterday—to keep these people in prison for ever but only for such time as it is necessary to detain them. I think the hon. member has helped me by moving this amendment; I thank him and I accept the amendment.

I am very glad that the Minister has accepted the amendment by my hon. friend, the member for Durban (North) (Mr. M. L. Mitchell). I feel that in accepting that amendment the Minister is progressing along the right road.

Always.

Not in the sense always of the turn of phrase used by the hon. member for Houghton (Mrs. Suzman), but he is progressing. I should like to come to the amendment moved by the hon. member for Sea Point (Mr. J. A. L. Basson). As I understood the Minister, he has not rejected that amendment outright. He has given it some thought and as I understood him he would like to give it further thought. I trust that I am correct in saying that he intimated that he would give further consideration to that amendment and possibly accept it or introduce an amendment along those lines. I hope I am correctly interpreting the hon. the Minister’s mind when I say that he has not shut his mind entirely against the amendment moved by the hon. member for Sea Point but that there is a possibility that an amendment along those lines might still be introduced when this legislation comes before the Other Place.

No, I am afraid I cannot promise that at all. It is something to be considered as far as the future is concerned but I cannot bind myself as far as the Other Place is concerned.

Well, the Minister will consider the question of introducing an amendment in the future along the lines of the amendment moved by the hon. member for Sea Point.

I will seriously consider it.

I would like to urge upon the hon. the Minister that he should move a little faster in this regard and that he should consider moving an amendment of that kind in that form in the Other Place. One of the Minister’s difficulties in accepting the amendment was his disinclination to have Judges of the Supreme Court associated with making a decision which might be of a political nature. Sir, one can understand that difficulty and it is something that no one would wish to see, but I wonder if the Minister has considered appointing a retired Judge as one of the members of the proposed board. A retired Judge would not be subject to that disqualification or difficulty and yet in the public mind he would have the stature and the independence of mind to give people confidence that any order which the Minister might make in terms of this section would be made after the matter had been considered by, if you like, an independent judicial mind. I am not casting any aspersions on the Minister in making these suggestions, but he knows as well as I do that when there is a difficult decision to be made, however much careful thought one might give to that decision, one very often arrives at a decision which one is sure is right until the matter is considered by someone quite unconnected with the affairs that one is dealing with, and it does happen that when that takes place one realizes that that decision should be reversed. It is to provide a safeguard of that kind that the hon. member has moved his amendment. I think it is a most desirable safeguard if this power is to be exercised by the Minister. Apart from that, the hon. the Minister said only yesterday that he realized that this was a stringent measure which is not usually resorted to in peacetime. That feeling is shared not only by members on this side of the House but by many people outside of this House. If it were known that any decision that the Minister might make under these powers, should they become law, had also received the attention of other persons, particularly by a panel made up as the hon. member has suggested, then quite a lot of the present disquiet would be dissipated, because people would feel that not only was the decision made subject to other guidance but that if there was disagreement between the Minister and people independent of the Minister, that disagreement would be made known in this House. There would be that outlet, that safety valve, and I believe it would not only make the Minister’s task easier in the sense that there would be less responsibility on his shoulders for the exercise of a stringent power such as this, but it would make the community outside this House less afraid of the exercise of this power because it would not be exercised by one man alone. For those reasons I hope that however soon this legislation might come before the Other Place, the Minister will go out of his way to consider moving in the Other Place an amendment along the lines of the amendment moved by the hon. member for Sea Point, and I most urgently commend him to take that course of action.

While I was listening to the arguments of the hon. member who has just sat down, my thoughts went back to a period many years ago. I want to tell the hon. member that no matter how strong his argument may sound, there is also another point of view. I can discuss this other point of view because I have had experience of it. When a Government assumes powers of this nature, my attitude has always been that it has to accept personal responsibility for the powers that it assumes; that it dare not offload that responsibility on to the shoulders of anyone else. That responsibility must rest more specifically upon the shoulders of the Minister advising the Government to assume those powers. I know that it is a responsibility but since I am seeking these powers I and I alone must accept the responsibility for those powers because I am the head of this Department. Not only do I have to be responsible for them to hon. members opposite and to hon. members on this side, but what is very important, I must be responsible for them to my own conscience, and I have to live with it! I have told the hon. member that there is another side to the question. A previous Minister also assumed powers of this nature some years ago. He appointed people to exercise those powers on his behalf. I do not want to say anything about those people. They are no longer with us and one does not speak ill of the dead, but I cannot speak well of them. The principle that I want to emphasize is that the Minister—he is only human—from time to time shirked his responsibility by saying: “It was not I who took those steps but those people.” If one addressed the Minister and asked him: “Why did you do that?” or “Why did you intern that man?” he simply replied: No, it was not I; it was Sir So-and-so or Col. So-and-so; they were the people who made that decision.” My view is that we dare not let this happen. The Government of the day and the Minister entrusted with these powers have to accept personal responsibility for them. The argument of the hon. member that one has to appoint someone to be, as it were, a judge of review in connection with the matter does appear to be a plausible one. I know that too; it did happen in those days. The hon. member may take my word for it that about six weeks after a person arrived at the internment camp at that time, he received a formal little document telling him why he was there. That document simply served to tell him what he already knew, namely, that he was there. Nevertheless, he was told in the document that he could appeal to the person whom the hon. member had in mind and his appeal had to be in sextuplicate. The hon. member may take my word for it that everyone appealed consistently and no one ever heard anything more of that appeal until precisely 12 months later. Exactly 12 months later one received a formal document telling one that one’s appeal had been considered and rejected.

That shows how thoroughly those appeals were considered.

Strangely enough, as far as I know not one single apoeal was upheld over all those years and that little document remained the same throughout that time. Do hon. members know why this was so? It was because there was no personal responsibility. The one simply offloaded the responsibility on to the other. I know that there were good reasons for it but I just want to paint the other side of the picture—that there was a great deal to be said against it. When one asks for powers of this nature one must not seek to avoid the personal responsibility imposed. I do not want to avoid the personal responsibility that I must bear in this connection. In asking for these powers I must bear that burden and if the Government asks for them it must bear that burden too. One must consider these matters very carefully indeed before one decides to summarily offoad that responsibility. That does not mean to say that I will not be prepared to consider further representations from the hon. member for Sea Point in that connection and then to make my decision in the light of those representations. But we must not expect things to run as smoothly as the hon. member may perhaps think they will run.

I should like to say firstly that I am very pleased that the hon. the Minister has indicated that he is prepared to give further consideration to the amendment moved by the hon. member for Sea Point (Mr. J. A. L. Basson). Despite the difficulties to which the Minister has drawn our attention I believe that this is a worthwhile amendment and one which should be introduced, if not in the exact form in which it has been moved, then in a closely similar form.

I should like to deal briefly with one or two of the points raised by the hon. the Minister with a view to discussing with him the difficulties and the objections which he has drawn attention to. First of all I should like to deal with the Minister’s last point namely, that he believes that in a case of this sort where a Government, through a Minister, takes such drastic powers the Minister and the Minister alone should remain personally responsible for the consequences of his action. I agree entirely with that sentiment. I do not think however that this amendment in any way removes the responsibility from the Minister. On the contrary, the responsibility is still solely the Minister’s. The sole object of this amendment is to provide a safeguard, not for the Minister, not to assist him in coming to a decision, but a safeguard for the person against whom the Minister has acted in this way. The safeguard is this: If these three people do not agree with the Minister they will then report the matter and that report will have to be tabled in the House, so that there will be an opportunity of discussing the situation in a case where the board has disagreed with the Minister’s findings. I should like to make the point very clearly that the responsibility all along remains solely with the Minister.

The other point which the Minister raised was the question of the time taken if he has to submit decisions to the board for their consent before he can act. I readily concede that in some cases this may prove a serious difficulty for the Minister. If, as I have suggested, the whole purpose of the amendment is to provide a safeguard for the individual, not to assist the Minister in coming to a decision, it seems to me that the amendment could be introduced in the form that the Minister can act and thereafter hand the matter to the board for their consideration and decision, so that if they disagree they can put in this report which will be tabled. The individual will then have the safeguard in the same way that he would have if the amendment was accepted in precisely the form in which it has been moved. Alternatively, the amendment could be accepted in the form in which it has been moved with the proviso that should the Minister consider there is not sufficient time to consult the board before acting, he can act and thereafter submit the matter to the board for their decision. I do not believe that the question of the time factor is a real problem.

The third point which the Minister raised was the question of the appointment of a Judge and the fact that he might be accused of being a Government stooge. I can see that in a situation such as this, a situation which has political implications, there is that danger. I believe however that that danger has been met by the suggestion made by the hon. member for Zululand (Mr. Cadman). I would suggest to the hon. the Minister that there are really no difficulties in accepting the amendment moved by the hon. member for Sea Point, perhaps in the slightly amended form which I have suggested. I would urge the hon. Minister at some stage, and as soon as possible, to accept this amendmend.

I am pleased that the hon. the Minister has reacted favourably to my suggestion. I would be the last person to try to force this on the hon. the Minister and to say that he should not have the opportunity of giving full consideration to all the consequences of this amendment. It was for this reason that I stated at the start of my speech that the hon. the Minister could move that this clause stand over until the other clauses had been disposed of. But I do not think the hon. the Minister was quite right in saying that this committee that I am now proposing could be used to relieve the hon. the Minister of responsibility. That is not so.

I was merely raising a different argument.

Yes, I realize that. Actually my suggestion gives the hon. the Minister more responsibility and makes more demands of him. The final decision rests with the Minister. That committee is merely advisory. It can make no decisions.

Then what will be the use of it?

Its use will beånd I am not casting any reflection upon the hon. the Minister—that the Minister will not be able to come to Parliament with permanent legislation in terms of which he will be able, for whatever reason at all, to have a person imprisoned practically for life. I take it that there will not be many of these cases. From the nature of things there will not be hundreds of them. There will only be a few of these evildoers. In any case the hon. the Minister will not of his own volition imprison a person for life without a trial. I believe that in any case the Minister will be advised by his Department and by the police.

By the police and three magistrates.

There we have it; the police and three magistrates. It is a good thing for the world to know that this is the practice at present. That is why I say that the hon. the Minister can have no objection. If this is the practice he ought to have no objection to writing this provision into the Bill and letting the world know that we in this country have a Minister of Justice who is not a dictator; that our Minister of Justice has to deal with a difficult position here but nevertheless maintains the usual “rule of law” as far as possible. If a retired Judge and a senior police officer and a retired magistrate say that a person cannot be detained any longer, the Minister will have to have courage to say that he is going to detain that man notwithstanding that advice. So if the Minister is seeking an opportunity to act forcefully, he will have plenty of opportunity to do so. Not that I think that such a position will ever arise because I think that those magistrates and senior police officers will be reasonable people; I also think that the Minister will act reasonably in such cases. I believe that he will act reasonably and will have to act reasonably because he is Minister of Justice. I think that the Minister will act wisely in order to show the world that we are doing our best under these difficult circumstances but that the world must accept the fact that we have evildoers in this country who have to be dealt with in a certain way which may perhaps not be quite as conventional as the way of the rest of the world.

Mr. Chairman, I hope you will permit me to repeat what I told the hon. member for Sea Point by way of interjection, perhaps more for record purposes than for anything else. I just want to say that it speaks volumes that the case of a person who is being restricted will be dealt with through the usual channels. That is to say, in practice it will not be considered by one police officer but by various police officers; that it will eventually reach the Commissioner of Police, and we are very grateful for this not only as far as the present incumbent of the post is concerned but in regard to those who we have had and whom we may have in the future. They are honourable people in whom we all have confidence. From there it goes to the Department of Justice, and, as I said, to three magistrates. It goes to the Under-Secretary, to the Deputy-Secretary and to the Secretary. These are all people who in their time were senior magistrates. Each of them considers the case. That is why in practice we can be assured that such person will be treated fairly. The initiative is not taken by the Minister because he may perhaps have developed a grievance against someone or other. That simply does not happen in practice. We have now considered the pros and cons of this matter but it is, or will simpiy not be, possible at this stage or by the time I find myself in the Other Place—meaning the Senate—to give a decision in this regard. But I want to invite the hon. member to give further consideration to this matter himself and to take the liberty of making representations to me in this regard so that we can discuss the matter. But I think that for the present we must leave the matter at that.

The Minister and I certainly have fundamental differences of opinion. What he has just said has been quite startling to my mind. The fact that the hon. the Minister thinks that because in the case of a man who has already served a sentence in gaol, a sentence to which he was committed by a proper court, will be kept in gaol for as long as the Minister desires—it may be for ever although it cannot be for ever because nobody lives for ever, not even the Minister—he now tells us that it is not really only he who is going to make the decision, although he has made it quite clear that he takes full responsibility for it.

They ultimately lay it before me.

Of course. I am the last person to take the responsibility off the Minister’s shoulders. He has broad shoulders and he enjoys carrying responsibilities and I will be the last person to deprive him of that pleasure. What he does tell us is that he is in fact not the only person who will have weighed up this case; it has been to a senior police officer, to the Commissioner of Police, to the Undersecretary for Justice and to the Secretary for Justice—all admirable characters I admit. But not one of these people, not all of them sitting together, not the Minister himself sitting with all of these people, as far as I am concerned, constitute an adequate substitute for a court of law where ordinary judicial proceedings are followed and where the ordinary rule of law is followed; a court of law where a man has to be charged with a crime, found guilty and convicted before he can be sent to gaol. None of this applies. A man can simply be kept in gaol after he has served his sentence for the crime which he has committed. My contention is that that man is entitled to go free after he has served his sentence and until he has committed another crime he is entitled to remain free. That is normal procedure everywhere in the world.

I want to ask the hon. the Minister a question but I shall wait until he returns to his seat. I know he does not agree with what I say but I am sure he will answer my question.

Yes. I am still on question terms with the hon. member …

That is something! I am glad that I am not completely incommunicado the way other people will be with the hon. the Minister. While we are still on the question of putting the question I want to take advantage of this privilege. I want to ask the Minister how anybody is going to know whom he has in fact kept under preventive detention. As far as I know there is nothing in this law which makes it obligatory for the Minister to Table any names, to publish those names or to make the world at large know that he is keeping anybody from Sobukwe down to any other person who has served a prison sentence for any political crime under these various acts in preventive detention. How are we to know, how is the world to know, how are in fact the relatives of such a person to know? I was glad to hear from his second-reading speech that certain privileges, like visitors and so on, will be allowed. But that is not the same as an official publication of such names. Even in a state of emergency names are available to members of this House and to the Press. They are not printed as such, but documents are available at the Minister’s Department which can be scrutinized and those names can be published. It is no good saying that word will get around because the newspapers will publish the names because we know that in terms of the Prisons Act the Press cannot do that unless they have official authority to do so. I want the Minister to tell this House how he is going to let us know officially who the people are that he is holding in preventive detention after those people’s prison sentence has expired.

It gives me great pleasure to answer the hon. member’s question. The Act makes it obligatory upon me to lay the names on the Table of the House.

Will that section apply in this case?

Yes. If I do not do that I am of course guilty of an offence. Apart from that the hon. member is entitled, as all hon. members are, to Table a question as to whom and how many are being detained.

The matter is not as simple as that. I have had experience of how questions are replied to. The other day I tabled a question in connection with Proclamation 400 which applies to the Transkei at the moment. The reply I got from the Minister in charge of that particular Department, the Minister of Bantu Administration, was that it was not in the public’s interest to disclose that information.

I do not want to discuss the hon. member’s fears. All I can tell her is that it is obligatory upon me to lay the names on the Table.

At the beginning of the Session?

Within a fortnight after the start of the Session and a fortnight after I have detained him if the House is in session.

Question put: That all the words from the commencement of paragraph (a) to the end of the proposed paragraph (a)bis, proposed to be omitted, stand part of the clause.

Upon which the Comittee divided:

AYES—85: 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, 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.; Diederichs, N.; Dönges, T. E.; du Plessis, H. R. H.; Faurie, W. H.; Fouché, J. J. (Sr.); Fouché, J. J. (Jr.); Frank, S.; Greyling, J. C.; Grobler, M. S. F.; Haak, J. F. W.; Hertzog, A.; Heystek, J.; Hiemstra, E. C. A.; Jonker, A. H.; Jurgens, J. C.; Keyter, H. C. A.; Knobel, G. J.; Kotze, G. P.; Kotzé, S. F.; Labuschagne, J. S.; le Roux, P. M. K.; Loots, J. J.; Louw, E. H.; Luttig, H. G.; Malan, W. C.; Marais, J. A.; Maree, W. A.; Martins, H. E.; Meyer, T.; Mostert, D. J. J.; Mulder, C. P.; Muller, S. L.; Niemand, F. J.; Otto, J. C.; Pelser, P. C.; Potgieter, J. E.; Rall, J. J.; Rall, J. W.; Sadie, N. C. van R.; Sauer, P. O.; Schlebusch, A. L.; Schlebusch, J. A.; Schoonbee, J. F.; Serfontein, J. J.; Smit, H. H.; Stander, A. H.; Steyn, F. S.; Steyn, J. H.; Treurnicht, N. F.; van den Berg, G. P.; van den Berg, M. J.; van der Walt, B. J.; van Niekerk, G. L. H.; van Rensburg, M. C. G. J.; van Staden, J. W.; van Wyk, G. H.; van Wyk, H. J.; van Zyl, J. J. B.; Venter, M. J. de la R.; Venter, W. L. D. M.; Viljoen, M.; Visse, J. H.; von Moltke, J. von S.; Vorster, B. J.; Vosloo, A. H.; Waring, F. W.; Wentzel, J. J.

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

NOES—46: Barnett, C.; Basson, J. A. L.; Basson, J. D. du P.; Bloomberg, A.; Bronkhorst, H. J.; Cadman, R. M.; Connan, J. M.; Dodds, P. R.; Durrant, R. B.; Eaton, N. G.; Emdin, S.; Field, A. N.; Fisher, E. L.; Gay, L. C.; Gorshel, A.; Graaff, de V.; Henwood, B. H.; Hickman, T.; Higgerty, J. W.; Hourquebie, R. G. L.; Lewis, H.; Malan, E. G.; Miller, H.; Mitchell, D. E.; Mitchell, M. L.; Moolman, J. H.; Moore, P. A.; Odell, H. G. O.; Oldfield, G. N.; Plewman, R. P.; Radford, A.; Raw, W. V.; Ross, D. G.; Russell, J. H.; Steenkamp, L. S.; Streicher, D. M.; Suzman, H.; Taurog, L. B.; Thompson, J. O. N.; Timoney, H. M.; van Niekerk, S. M.; Warren, C. M.; Waterson, S. F.; Wood, L. F.

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

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

Amendment proposed by Mr. J. A. L. Basson put and the Committee divided:

AYES—46: Barnett, C.; Basson, J. A. L.; Basson, J. D. du P.; Bloomberg, A.; Cadman, R. M.; Connan, J. M.; Dodds, P. R.; Durrant, R. B.; Eaton, N. G.; Emdin, S.; Field, A. N.; Fisher, E. L.; Gay, L. C.; Gorshel, A.; Graaff, de V.; Henwood, B. H.; Hickman, T.; Higgerty, J. W.; Hourquebie, R. G. L.; 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.; Oldfield, G. N.; Plewman, R. P.; Radford. A.; Raw, W. V.; Ross, D. G.; Russell. J. H.; Steenkamp, L. S.; Streicher, D. M.; Suzman, H.; Taurog, L. B.; Thompson, J. O. N.; Timoney, H. M.; van Niekerk, S. M.; Warren, C. M.; Waterson, S. F.; Wood, L. F.

Tellers: H. J. Bronkhorst and A. Hopewell.

NOES—86: 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, 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.; Diederichs, N.; Dönges, T.n E.; du Plessis, H. R. H.; Faurie, W. H.; Fouché, J. J. (Sr.); Fouché, J. J. (Jr.); Frank, S.; Greyling, J. C.; Grobler, M. S. F.; Haak, J. F. W.; Hertzog, A.; Heystek. J.; Hiemstra, E. C. A.; Jonker, A. H.; Jurgens, J. C.; Keyter, H. C. A.; Knobel, G. J.; Kotze, G. P.; Kotzé. S. F.; Labuschagne. J. S.; le Roux, P. M. K.; Loots, J. J.; Louw, E. H.; Luttig, H. G.; Malan, W. C.; Marais, J. A.; Maree. W. A.; Martins, H. E.; Meyer, T.; Mostert, D. J. J.; Mulder, C. P.; Muller, S. L.; Niemand, F. J.; Otto, J. C.; Pelser. P. C.; Potgieter, J. E.; Rall, J. J.; Rall, J. W.; Sadie, N. C. van R.; Sauer, P. O.; Schlebusch, A. L.; Schlebusch, J. A.; Schoeman, B. J.; 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, G. P.; van den Berg,.; van der Walt, B. J.; van Niekerk, G. L. H.; van Rensburg, M. C. G. J.; van Staden, J. W.; van Wyk, G. H.; van Wyk, H. J.; van Zyl, J. J. B.; Venter, M. J. de la R.; Venter, W. L. D. M.; Viljoen, M.; Visse, J. H.; von Moltke, J. von S.; Vorster, B. J.; Vosloo, A. H.; Waring, F. W.; Wentzel, J. J.

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

Amendment accordingly negatived.

Amendment proposed by Mr. M. L. Mitchell put and agreed to.

Clause, as amended, put and the Committee divided:

AYES—86: 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, 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.; Diederichs, N.; Dönges, T. E.; du Plessis, H. R. H.; Faurie, W. H.: Fouché, J. J. (Sr.); Fouché, J. J. (Jr.); Frank, S.; Greyling, J. C.; Grobler, M. S. F.; Haak, J. F. W.; Hertzog, A.; Heystek, J.; Hiemstra, E. C. A.; Jonker, A. H.; Jurgens, J. C.; Keyter H. A. A.; Knobel, G. J.; Kotze, G. P.; Kotzé, S. F.; Labuschagne, J. S.; le Roux, P. M. K.; Loots, J. J.; Louw, É. H.; Luttig, H. G.; Malan, W. C.; Marais, J. A.; Maree, W. A.; Martins, H. E.; Meyer, T.; Mostert, D. J. J.; Mulder, C. P.; Muller, S. L.; Niemand, F. J.; Otto, J. C.; Pelser, P. C.; Potgieter, J. E.; Rall, J. J.; Rall, J. W.; Sadie, N. C. van R.; Sauer, P. O.; Schlebusch, A. L.; Schlebusch, J. A.; Schoeman, B. J.; 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, G. P.; van den Berg, M. J.; van der Spuy, J. P.; van der Walt, B. J.; van Niekerk, G. L. H.; van Rensburg, M. C. G. J.; van Staden, J. W.; van Wyk, G. H.; van Wyk, H. J.; van Zyl, J. J. B.; Venter, M. J. de la R.; Venter, W. L. D. M.; Viljoen, M.; Visse, J. H.; Vorster, B. J.; Vosloo, A. H.; Waring, F. W.; Wentzel, J. J.

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

NOES—46: Barnett, C.; Basson, J. A. L.; Basson, J. D. du P.; Bloomberg, A.; Bronkhorst, H. J.; Cadman, R. M.; Connan, J. M.; Dodds, P. R.; Durrant, R. B.; Eaton, N. G.; Emdin, S.; Field, A. N.; Fisher, E. L.; Gay, L. C.; Gorshel. A.; Graaff, de V.; Henwood, B. H.; Hickman, T.; Higgerty, J. W.; Hourquebie, R. G. L.; Lewis, H.; Malan, E. G.; Miller, H.; Mitchell, D. E.; Mitchell, M. L.; Moolman, J. H.; Moore, P. A.; Odell, H. G. O.; Oldfield, G. N.; Plewman, R. P.; Radford, A.; Raw, W. V.; Ross, D. G.; Russell, J. H.; Steenkamp, L. S.; Streicher, D. M.; Suzman, H.; Taurog, L. B.; Thompson, J. O. N.; Timoney, H. M.; van Niekerk, S. M.; Warren, C. M.; Waterson, S. F.; Wood, L. F.

Tellers: A. Hopewell and T. G. Hughes. Clause, as amended, accordingly agreed to. On Clause 5,

I move as an amendment—

The object of this amendment is to do away with the minimum sentence of five years’ imprisonment. I wish to make it clear at the outset that I concede that the crimes dealt with in this clause are very serious ones and that persons convicted of such crimes deserve heavy penalties, but as I shall show presently I do not believe that it is necessary or desirable for this House to impose a minimum sentence in order to ensure that an appropriate punishment is imposed on those convicted. I believe that the various Acts in which minimum sentences have been imposed in the past few years have shown quite clearly the danger of this course, the danger of denying the courts the discretion as to minimum sentences. That danger lies in the fact that injustices may be done, and injustices are done, in individual cases if the court’s hands are tied. I need hardly say that it is essential that every act of a court of law should be a just act and not an unjust act. Mr. Chairman, the reason why in individual cases an injustice is done is because in individual cases there are circumstances which make it unjust to impose the severe penalties which are laid down as a minimum. I believe, Mr. Chairman, that the legislation whereby compulsory whipping was introduced has shown beyond any doubt the dangers of a minimum sentence, but I believe equally that this is not the only instance where that danger has become apparent as a result of minimum sentences.

Last year, when this House debated and passed the General Law Amendment Bill which contained in the sabotage clause a minimum penalty of five years’ imprisonment, we on this side of the House objected to the imposition of a minimum penalty, and the argument which the hon. the Minister advanced in support of imposing a minimum was this (Col. 71Î 5 of Hansard)—

That was the argument advanced by the hon. Minister for imposing the minimum sentence in that instance, and I take it that this will be his argument again to-day, perhaps with some other arguments added to it. I would therefore like to deal with that argument of the hon. the Minister, and I would like to make two points: Firstly, on the hon. Minister’s own admission the Bar Council indicated to him that it was against the principle of minimum sentences. That in itself, I suggest, ought to induce the Minister not to impose such sentences in legislation, because the Bar Council is a very responsible body; it is made up of all shades of opinion, political and otherwise, and in expressing its opinion to the hon. Minister it was certainly not doing so in any partial spirit. So I suggest that that in itself is a sufficient reason why the Minister should accept the amendment which I have moved. I go further and I say that it is really quite unnecessary for Parliament to impose a minimum sentence in order to make it clear to the courts that Parliament feels very strongly about a particular crime. The seriousness with which Parliament regards a particular crime, as appears throughout the years, has been shown to the courts by the seriousness of the maximum penalty. The courts have all along, if the maximum penalty has been a heavy one …

Did you see Mr. Justice van Winsen’s remarks in the papers to-day?

No, Mr. Chairman, I have not seen those remarks. Perhaps the hon. Minister will be good enough in his reply to mention them, thereby giving me an opportunity to deal with them. To continue, that has been the recognized way in which Parliament has shown to the courts how seriously it regards a particular crime—by the imposition of a very severe maximum penalty. That has worked perfectly well in the past. The classic example is the case of murder, a very serious crime for which the death penalty is the maximum penalty which a court can impose. It has been quite unnecessary in regard to that particular crime, and of course undesirable, to lay down any minimum penalties in order to demonstrate to the courts how seriously Parliament regards that particular crime, and I suggest that the same applies in respect of every other crime and also in regard to the crime under this Bill. I would point out furthermore that in the past where a particular crime has become more frequent and Parliament has decided that a more severe penalty was necessary in order to act as a deterrent, the way in which Parliament has shown to the courts its desire to have a more severe penalty imposed was to increase the maximum penalty, and automatically the courts have increased the minimum penalties. That has been the way in which it has been done by way of legislation. In addition to that, the courts have had regard to statements made by the Minister of Justice at various times that a particular crime has become more frequent and that the minimum penalty ought to be increased. In this particular instance the penalty which has been imposed for the crimes created in Clause 5, is the very highest penalty which the land can impose, namely, the penalty for high treason. That in itself is a sufficient indication to the courts as to the seriousness with which Parliament regards the crimes created in this clause, without going to the extent of providing a minimum penalty. [Time limit.]

I rise to support the amendment moved by the hon. member for Durban (Musgrave) (Mr. Hourquebie). The hon. Minister is fully aware of the fact that the imposition of penal sanctions is essentially the prerogative of the courts and not of Parliament. The prerogative of Parliament is of course to set out the gravity which it attaches to the type of offence which is created in an Act of Parliament, and therefore it is usual for Parliament to set out the limitation as to what the maximum penalty should be in a case of that nature. But, as I say, the imposition of penal sanctions is essentially the prerogative of the courts, and we on this side of the House have consistently indicated that that should be so, and that it should be left to the discretion of the courts what the penalty should be in regard to the offence with which it is dealing and has all the facts before it.

The Minister took a certain amount of pride when dealing Clause 1 to say that he was doing just that. He said in that case that he was leaving it to the discretion of the court to deal with the question whether or not bail should be granted, and if so granted what the quantum of bail should be. I do not think the hon. Minister should really take credit for that in one instance and not do it in the particular instance with which we are now dealing. For here is a very clear case where that principle should be followed and where he should leave it to the discretion of the court to impose the penal sanction, having regard to the circumstances and the facts which the court alone is cognizant of when coming to the question of penalties. I therefore support the amendment which has been moved and I hope the hon. Minister will accept it. Then I also move the amendment standing in my name—

The hon. Minister when introducing this Bill admitted that it contained stringent provisions. He said in fact that there are many provisions in this Bill which he would have liked not to incorporate because he recognized the serious and stringent terms of many of those provisions. I think the Bill contains harsh provisions, and the provision which debars a court from dealing with a juvenile offender in terms of the normal provisions applicable to that class of person, I think is particularly harsh. I need not make the point because members present will know that the Legislature has always emphasized leniency in the application of penal sanctions in so far as young persons are concerned. I realize that the age limitation of who is a juvenile has risen over the years, but that to my mind is further evidence of Parliament’s emphasis on the need for leniency in the case of a young offender. I realize that in certain types of offences a juvenile is a person who has not yet reached the age of 21; in other words, he is still under 21 years. But the Legislature has done that in its wisdom, and here we are dealing with a type of offence which I do not think the court should be deprived of its prerogative which Parliament has given it in all other types of serious cases. I do not think the court should be deprived of the opportunity to deal with a juvenile in the normal way notwithstanding the severity of the type of punishment which is being allowed for in the provisions of this Bill.

I personally think it is surplusage to debar the court from dealing with Section 352 which allows for the suspension of a sentence because I do not think that any court would ever use that provision of the law. The nature of the offence, the stringency of the penalty which is imposed are such that I think no court would ever think of using this provision of suspension. I believe there is no need to remove it. But I do not include that section in my amendment. But I do think the legislation goes too far in debarring a court from exercising that leniency which Parliament itself has always placed emphasis on in regard to juveniles. I hope the Minister will exclude those two provisions and leave the court to deal with it.

We debated this very principle at great length last year and I candidly think that nothing has happened in the meantime, at least as far as I and this side of the House are concerned, to change our minds that we were right in the standpoint we adopted last year. Therefore I do not want to appear to be discourteous to hon. members, but I frankly feel that there is no point in having the whole argument we had only last year all over again. What has happened in the meantime? I do not for one moment want to advance it as an argument, but it is a fact to be taken note of. I do not want to comment on it one way or the other, but since we passed our legislation Rhodesia has passed legislation to make the death sentence compulsory even on juveniles. As I say, I do not want to use that as an argument, but it is a fact to be taken note of in regard to this matter. Apart from that, I think all hon. members will concede that this offence is as heinous as sabotage itself. The hon. member will certainly concede that it is the equivalent of that crime. Then why distinguish between the two? Why have a compulsory sentence for the one but not for the other? But apart from that, I can candidly say that I have had many discussions since we debated this matter last year and I have heard no adverse criticism either privately or from the Bench in regard to this matter.

The Bench cannot criticize; they must just interpret the law.

Of course they criticize. It has often happened before. If the Judges thought that this was wrong they would have told us so. They would have said in passing sentence that Parliament has unfortunately decided that you shall get a minimum sentence, but if I had a discretion I would give you less. But apart from that, only yesterday Mr. Justice Diemont said the following, and this is important because the courts are guided by what Parliament says, in regard to sentences. It is true it is in the judicial discretion of the court, but the courts take their cue from Parliament and this is exactly what Mr. Justice Diemont said yesterday in this “petrol case”—

The minimum sentence happens to be five years, but the Judge told the accused that Parliament looks upon this so seriously that it imposed a minimum sentence of five years. What will happen if we do not do it in this case? Anybody appearing for an accused person will, unless he is an absolute fool, tell the Judge: Here we have the Sabotage Act. Parliament in its wisdom decided to impose a minimum sentence of five years, but Parliament does not treat this as being serious because it deliberately did not impose a minimum sentence in this case. As a matter of fact, although you cannot advance that as an argument, it will carry weight that it was before Parliament and that Parliament decided to accept an amendment to reject a minimum sentence. I view this so seriously that I am not prepared to compromise on this in any way at all. I think it is equivalent to sabotage. I think this is the sort of thing on which Parliament should look very seriously indeed. That being the case, and having had this argument practically for a whole day last year, I frankly see no purpose in having this argument all over again. We will just have to agree to differ. I know that what the hon. member for Musgrave said is correct. The Bar Council did make representations to me last year. I do not know what their attitude is to-day. They have not made any representations, probably due to the fact that the Bill was only published on Tuesday, so I am not making a point of that at all. I do not know what the attitude is now, but that makes no difference to me. The fact is that nothing has happened since then to change the Government’s mind and its attitude towards this particular clause.

The one point I want to raise with the hon. the Minister is his reaction to the amendment moved by the hon. member for Port Elizabeth (South) (Mr. Plewman), which I wish to support because I believe it is a very important amendment. When we consider this clause and see this minimum penalty of five years’ imprisonment, and when we realize that last year, under Clause 21 of the General Laws Amendment Act, we also moved a similar amendment to delete the clause to enable us to ignore the existing provisions in legislation for the protection of juveniles, and unfortunately we did not receive a reply from the Minister which could justify this drastic step. That is why we are being consistent in moving this amendment and asking the Minister to justify the provisions of this clause as it pertains to juveniles. I would also like to know from the Minister whether in terms of the offence of sabotage any cases concerning juveniles have been dealt with.

Yes, there was one case of a juvenile of 18 and another of 19 years, and both were sentenced to eight years’ imprisonment.

The case we present is that these juveniles are protected in law, and in terms of the Criminal Procedure Act of 1955, Section 342, which was amended in terms of the Children’s Act of 1960, it sets out in detail the manner of dealing with convicted juveniles and it gives protection particularly to those under 18 years, and in certain other circumstances to those between 18 and 21 years. In the Children’s Act there is specific protection for those under 18 years. If a person of under 18 associates with undesirable persons, he can be declared to be a child in need of care. These special provisions for persons under 18 years are consistent with other legislation pertaining to juveniles. If you refer to Lansdown’s “Criminal Law and Procedure” you find numerous cases where a person’s age was considered to be an important factor, because a young person can easily be influenced and indeed coerced to commit an offence and such a young person should receive some degree of leniency. Although I would like to make it clear that we on this side do not condone organizations which might use children or juveniles to further their political aims, we believe that this should be taken into account. The action should be taken against those persons who influence those young people to commit such offences. The other section which the Minister aims to delete from the provisions of this clause is Section 385 of the Criminal Procedure Act, which pertains to corrective whipping. It provides that if a male person under 21 is convicted, the court may order him to receive a whipping not exceeding ten cuts with a juvenile cane. The cane used when an adult is whipped is one which imposes severe punishment, whereas juveniles are whipped with a light cane. In 1959, when there was a controversy in regard to the whipping of certain children, the magistrate had these comments to make—

Then he goes on to describe the type of cane used for juveniles, three feet in length and 8.5 mm. in diameter, which is much thinner than the adult cane. So by ignoring the provisions of Section 385 it means that a juvenile convicted of an offence, apart from receiving a minimum term of imprisonment of five years, would be subject to a whipping with an adult cane. Therefore I think the Minister should reconsider his attitude in regard to the punishment of juveniles. Where vicious persons use children to commit serious offences, they are the people who should be brought before the court and punished, and the juvenile under 18 years of age should be dealt with in terms of the Children’s Act if he associated with such persons. Therefore I hope the Minister will accept the amendment.

I have found this debate very interesting. The Minister has indicated that he will be adamant about it. I am sorry to hear it. I hope he will yet relent after hearing arguments which perhaps were not used on the last occasion. The Minister points out that in Southern Rhodesia the death penalty is mandatory except in the case of children under 16. If my memory serves me correctly, the Minister was asked at a Press Conference whether he proposed to make the death penalty in respect of certain new offences mandatory, and his reply was very interesting, because he said that you cannot have a mandatory death penalty for a crime like this and he thought it would be best to leave it to the discretion of the court. I could not agree more. But inasmuch as the death penalty is a deterrent, why is the Minister’s attitude different towards this death penalty from what it is in respect of a minimum sentence of imprisonment?

Because I feel that in this case Parliament has a right and a duty to impose it.

If the crime is so heinous, why does the Minister not feel that the death penalty should also be compulsory?

Because then I tie the hand of the court and I do not want to do that. Parliament has the right to guide the courts, but it cannot prescribe what the exact penalty should be.

Already our law is that for murder without extenuating circumstances the court has no option but must impose the death penalty. How is this any different? When there are extenuating circumstances there is no minimum penalty in a case of murder.

Surely the courts are guided by Parliament, and this is the way Parliament guides the courts.

The Minister is a lawyer and he must have come across numerous cases where the court has said, even in a case of murder; I must find you guilty of murder, but in the circumstances I will give you two years. It is a common thing. If the accused is to get a minimum sentence, how can we here decide in all cases what sentence must be imposed? In effect we are telling the court that we know what is going to happen and we know all the circumstances in every case and therefore a minimum sentence must be imposed.

I want a man to know that if he leaves this country to be trained as a saboteur, he will get at least five years when he comes back.

Our attitude is not that in respect of this crime five years is too much. We regard this as a crime which should be severely punished.

Then why have all this argument?

Our attitude towards these people who go overseas to be trained as saboteurs is that the court should have a complete discretion in respect of the sentence, and if necessary have the discretion to sentence them to death. [Interjection.] Probably in all these cases a sentence of at least five years will be warranted, but there are other cases where the circumstances may be such that the court would like to impose a lesser sentence. But I do not want the Minister to feel that our attitude is that we do not think this is not a serious crime. But a Judge in a murder case has a discretion, and in this case the Judge can also decide to hang him. We say the hands of the court should not be tied. When the Minister says he does not want to make the death penalty mandatory but wants to leave it to the discretion of the court, I think the same argument should apply to the minimum sentence of five years.

In respect of the amendment of the hon. member for Port Elizabeth (South), I think the Minister will remember that in the film, “Sabotage in South Africa”, he spoke about the difference between a juvenile whipping and adult whipping, and the differences are considerable. I do not think anyone in this House should be asked to vote for compulsory whipping with an adult cane until they have seen the cane. I hope the Minister will be good enough one day to bring to this House the cane with which male adults are whipped. I do not think even a magistrate should be allowed to impose such a whipping until he has seen that cane and its results. The hon. member for Umbilo distinguished between what is punishment and what could be mutilation in the case of a juvenile. That cane has to be seen to be believed. I am sure the Minister does not want to mutilate the body of a young boy. A whipping administered by the gentlemen who usually administer whippings, who are fairly big men, on the frame of a small boy, would amount to mutilation. But it has another effect. I think the Minister is in effect preventing a court from imposing a whipping inasmuch as members of the Bench do know the difference between these two canes, I believe that no magistrate would sentence a boy of 16 to a whipping with an adult cane. [Time limit.]

I agree with the objections raised by the hon. members for Port Elizabeth (South) and Musgrave, but I have further objections to this clause. I am not too sure of the reasoning of the hon. member for Durban (North), which was a little obtuse. At one stage it almost sounded as if he was pleading for a minimum death sentence. But my objections are different. Firstly, no one seems to have raised the point that this is retrospective legislation. As I read it, all the penalties apply not only to people who in future advocate the aims of Communism and the undermining of the State, etc. As the Minister said, by forcible means, and I want to take issue with him on that. As I read the clause, it is retrospective and anyone in the country now who at any time in the past as far back as 1950, in a moment of indiscretion or some reckless state of mind while overseas went to UN and sought outside interference with this country now falls under this clause and could be arrested to-morrow and suffer a minimum penalty of five years. As I have said on other occasions, I think that retrospective legislation completely undermines the rule of law. It is a scandalous thing that what was not a crime when it was committed is now made a crime retrospectively by legislation, and for that reason alone I would oppose this clause. I intend to move an amendment—

You realize, of course, as I said yesterday, that we are holding certain people who were trained as saboteurs. Do you want them to go free?

Well, it was not a crime when they committed this offence. Have these trained saboteurs committed sabotage? That is the only question I want to ask the Minister.

Thank God we caught them before they could do so.

Well, the fact remains that they have not committed sabotage and for all the hon. the Minister knows they may in fact never have intended to commit sabotage.

What a shocking statement.

This is not a shocking statement. It is the normal concept of law as I understand it and as anybody else with a sense of justice understands it. I wonder how many hon. members in a moment of anger might have said, “I would like to kill that man,” but they are not put in jail for expressing a sentiment like that. They have to commit a crime, they have to commit murder before they can be hauled up before the court and charged, and I say that if the hon. the Minister is making this a crime from now on, which I think is very harsh, but at least people would know what they were doing and to what penalties they were exposing themselves, then it must not be a retrospective penalty.

I have another objection and this is also a basic objection in law and that is the placing of the onus of proof on the accused. Section 5 (b)ter states that the person who is supposed to have undergone this training, etc., has to prove his innocence beyond a reasonable doubt. I do not know what that means and I wonder whether any court can interpret it. It is like trying to prove mala fides on the part of a Minister who in his opinion has deemed somebody to be this, that or the other. This places upon an accused person the additional burden of the onus of proving his case beyond a reasonable doubt. I say that this in itself goes against the normal practice of law, as I have always understood it, in a democratic country. Sir, I want to change that and put it in another way and I am also going to move the following amendment—

In other words, the onus is on the State to prove it—

Again the onus of proof is on the State—

That does away with leaving the onus of proof on the accused to prove his case beyond a reasonable doubt—not even on the balance of probabilities, which would be something, but “beyond any reasonable doubt.” As I say, that is quite incapable of being defined. I doubt if anybody in this House could so define it.

Now I come to the amendment moved by the hon. member for Port Elizabeth (South) (Mr. PIewman). I agree with that but again I have to go a little further. He has omitted in his amendment one section of the Criminal Procedures Act. He has omitted this last part, 352, which is the part which enables the courts to impose a suspended sentence, a caution or a reprimand. I think here too, since the whole purview of this Act is so wide, it should be left to the discretion of the courts to impose a suspended sentence, a caution or reprimand, especially if it applies to juveniles I want to move a further amendment therefore—

In other words, the whole proviso is to go. As the United Party amendment stands, they have omitted part of the proviso only. I wish to omit the entire proviso, including that relating to that part of the Criminal Procedure Act which gives discretion to the courts to impose a suspended sentence, a caution or a reprimand. Those are my major objections and those are the amendments that I wish to move. But now I want to come to the wording of this Bill and to ask the hon. the Minister if in fact this is correctly worded in terms of what he said during the second-reading debate yesterday. As I understood him he said that this clause would only apply if someone, while in or outside of the Republic has “advocated, advised, defended or encouraged the achievement of certain aims by violent or forcible means …” It would only apply where persons have involved themselves with outside bodies or associations or foreign governments in encouraging a change in the system of government in South Africa “by violent or forcible means”; that is what the hon. Minister said. Sir, I have taken legal advice on this clause …

What does Mr. Molteno say?

I will tell the hon. the Minister what Mr. Molteno said. He is absolutely right; Mr. Molteno is the legal adviser whom I consulted and I imagine that even the Minister will agree that Mr. Molteno knows something about the drafting of legislation. Mr. Molteno, since the Minister has mentioned his name, tells me that this is his reading of the clause … [Interjection.] I will not consult with the hon. member for Cradock (Mr. G. H. F. Bekker) about the wording of this clause; I will come back to the hon. the Minister of Justice. If the hon. the Minister will look at line 19 of (b)bis of Clause 5 (a) he will see that the word “achievement” is repeated. In other words, it reads: “… or the achievement of any of the objects referred to in paragraph (a) to (b) inclusive of the definition of ‘ Communism ’”. If the hon. the Minister looks above that, at the other part of this clause, he will see that there is another sentence relating to “achievement” and it says “… the achievement by violent or forcible means” of the other object. My contention is that there are two separate clauses here. The one is “the achievement by violent or forcible means of any object”, etc. and the other is simply “the achivement of any of the objects referred to in (a) and (b)”, without forcible means.

You can safely leave it to the courts to interpret that.

No, I am sorry I do not agree to that. I think that should be made absolutely clear.

I thought you believe in the Rule of Law.

Yes, I do believe in the Rule of Law but I do not believe in ambiguously worded legislation.

The courts will give the interpretation to it that I have because that is the correct one.

I cannot accept that what the hon. the Minister says is correct just because he says it is correct. I have legal opinion which I happen to respect more than I respect the hon. the Minister’s. I therefore move—

[Time limit.]

The amendments moved by the hon. member for Houghton (Mrs. Suzman) amounts to this, that she wants to exonerate citizens of South Africa or people who were normally resident in South Africa, who owed allegiance to South Africa and who then showed hostility towards South Africa by their actions. If the hon. member has her way she apparently wants no legislation to combat acts of hostility towards South Africa—acts of terrorism and so forth.

No, she wants to give them medals.

What she wants is nothing but relaxations and no legislation so that the enemies of South Africa can do what they like. It is for that reason that she has again moved an amendment of this nature. Of course, this legislation is retrospective. It is retrospective to 1950 when the principal Act, the Suppression of Communism Act, was passed by Parliament. These provisions are retrospective to that date. They are retrospective because the people mentioned in paragraphs (b)bis and ter are guilty of acts which border on high treason, if they are not actually high treason. Does the hon. member want to tell me that if a citizen of South Africa or a person who is normally resident in South Africa and who under those circumstances ought to be loyal to South Africa, goes beyond the borders of South Africa to seek the assistance of foreign nations or peoples or bodies with a view to using force against South Africa, that that is an act that must be excused, that it is an act that ought not to be punished?

Even though there is no law, it is a fact that is as old as the hills that if someone commits an act of this nature, he is acting contrary to the interests and the security of his own nation and of his own country and if he does so he is guilty of nothing less than high treason. But the fact that there have been technical circumstances which have precluded us from taking action against these people—our hands have been tied—does not alter the fact that they have committed an act against South Africa that is punishable and ought to be punished. The hon. member now seeks to exonerate them. The same thing applies to paragraph (b)ter. This deals with persons who have gone beyond the borders of South Africa to be trained as saboteurs, not merely to be able to perform certain deeds, to be able to handle dynamite or to do other things which are tantamount to acts of sabotage, but who have received that sabotage training with a certain object. That is how it is set out here—with the object of using the information and the knowledge that they have gained and the sabotage training that they have received within the Republic of South Africa. The hon. member wants to exonerate those people and I think that it is time the hon. member came to her senses. She tries to look after the interests of the Black people or the Brown people—never the interests of the White people. She seeks to protect any person who acts contrary to the interests of South Africa in this way, even to the extent of calling in the assistance of foreign powers or to receive training as a saboteur with the object of committing sabotage in South Africa. The time has come for her to say to herself: “I myself am a South African and I am not going to allow these acts to be committed against South Africa”.

No, she is not one.

But the hon. member does not want that. I think it is clear to all hon. members on this side that those acts for which provision is made in paragraphs (b)bis and ter were and are acts which are hostile to South Africa, whether they were committed in 1950, in 1955 or at any other time. They are acts which are hostile to South Africa, acts which cannot be tolerated, acts which are punishable, and I think the whole of South Africa feels the same way about this matter.

That is all I have to say to the hon. member for Houghton but I want to come back to what the hon. member for Umbilo (Mr. Oldfield) and the hon. member for Durban (North) (Mr. M. L. Mitchell) said. The hon. member for Umbilo referred to young people in particular. The crimes for which provision is made in paragraphs (b)bis and ter are not crimes that can be committed on the spur of the moment. It is often said that these young people are influenced by older people. It is said that they are told by older people to commit some offence or other; if they then commit that offence they can be found guilty under these provisions. But these are not acts that can be committed on the spur of the moment. They are intricate acts. If a person has adequate knowledge, if he is mature enough and if he has the intelligence to go to another country beyond the borders of the Republic of South Africa with malice aforethought in order to bring about what is set out in paragraph (b)6/s·—to seek assistance over a long period from foreign nations and people hostile to South Africa with a view to using force against South Africa—then I say that those people are sufficiently mature to incur the penalty that the hon. member or I would incur if we committed those crimes. The same thing also holds good for an offence set out in paragraph (b)ter. The hon. member mentioned the fact just now that since last year two youths have been punished for acts of sabotage. Although the Judge had the discretion to impose a sentence of only five years’ imprisonment he nevertheless imposed a sentence of eight years’ imprisonment. What has the hon. member to say about that? They are the people who talk about leaving things to the discretion of the court. In those cases it was in the discretion of the Judge to impose a sentence of only five years’ imprisonment.

What does that prove?

I mention this in support of my argument. The Judge reiterated the fact that irrespective of whether they are younger or older than 21, people who commit these acts must be suitably punished. I say that because these acts must of necessity be committed with malice aforethought and because they can only be committed by a person with experience and knowledge, those people must incur the penalty that any other person would incur under the circumstances.

The hon. member for Durban (North) has again referred to-day to the minimum penalty of five years’ imprisonment. Last year we discussed ad nauseam whether a minimum penalty of five years should be provided for in the case of sabotage. These crimes for which we are making provision here are in my opinion just as serious as sabotage, if not more serious. In the case of sabotage one might perhaps still be motivated by a grudge against a certain institution and not necessarily against the whole State, or there may perhaps be cases where the lives of a section of the community are jeopardized by the actions of such a person, but in committing the acts for which provision is being made here there must of necessity be a feeling of enmity towards the Republic of South Africa. That is why I think that these are serious offences and I feel that it is most essential for us to show the court that we view these matters in a serious light by making provision for a minimum penalty of five years’ imprisonment.

I was interested to hear the hon. member for Ceres (Mr. Muller) telling this House how that side feels and how the country should feel about people who go out side the country to learn how to commit sabotage and then come back to act as saboteurs in this country. Sir, these sentiments which are now being expressed on the other side were not so strongly expressed by them during the last war, but I want to say that we on this side have been consistent. We did not approve of it during the last war and we do not approve of it now—the United Party at any rate—but it is a pity that that side did not take the same view when they were in the Opposition that we are taking now when we are also facing a time of crisis. Sir, I cannot possibly agree with the hon. member for Houghton (Mrs. Suzman) when she says that these saboteurs who are here now and who have been trained abroad should be allowed to go free simply because it is not an offence to go out of the country …

They have not committed sabotage.

No, admittedly they have not committed sabotage but the fact remains that they went out of this country with the idea of learning how to commit sabotage, with the idea of committing treason. We would have dealt in exactly the same way with Mr. Robey Leibbrandt if we had caught him before he landed here during the war and attempted to commit sabotage. Sir, this side of the House has always opposed retrospective legislation. As the Minister and others will know the United Party has always opposed the principle of retrospective legislation, but in a case like this we are prepared to support the retrospective provision in this clause simply because we realize that the Minister and the police cannot deal under any other law with these people who have gone abroad, who have learned how to commit sabotage and who have come back here, trained to commit sabotage, but who have been intercepted and caught before they have been able to put their knowledge into practice.

With regard to the minimum sentence the Minister has said that the fact that a minimum sentence is provided for in the Bill, is an indication to the court of the serious light in which Parliament regards this matter, and he has referred to the recent judgment by Mr. Justice Diemont. The mere fact that the death penalty can be imposed is an indication to the courts as to the serious view that Parliament takes of this crime. In all the cases to which the Minister has referred, in which sentences of eight years and ten years’ imprisonment have been imposed, the court has in fact gone further than the minimum sentence. The court has imposed more than the minimum sentence. We feel that the Minister should show the faith in the courts which he showed when we discussed the earlier clause dealing with bail. There he refused to take away the discretion of the courts. He was giving the courts a discretion which they have not enjoyed since 1955.

I am not taking the discretion away now except to say that there must be a minimum sentence.

Sir, that does amount to taking away the discretion of the courts. In providing here that the minimum sentence must be five years, he is taking away the discretion of the courts. We on this side of the House say that the mere fact that provision is made for the death penalty to be imposed if the court so decides is an indication to the courts as to the serious view that Parliament takes of this matter. The Minister says that he has had no criticism from the Judges since the Act was passed last year, I think, making provision for the imposition of a minimum sentence of five years. But I submit that it is not for the Judges to express an opinion on what Parliament has done; they merely interpret the words used by Parliament in passing an Act. I know that in cases where provision is made for a minimum sentence. Judges have on occasion remarked that had it not been for the provisions of the Act they would not have sentenced the accused to that minimum fine or minimum period of imprisonment. I submit that the fact that they have not commented on the Sabotage Bill is no proof that the Judges agree with those provisions. The fact probably is that they have not had a case before them where they have felt that a sentence of more than five years’ imprisonment should not be imposed in any event.

Do you remember what you said last year?

I know I opposed it last year, and I still oppose it.

Do you remember that your side said that people pulling down placards would be charged, and that sort of thing?

We instanced what people could be charged with, but the point is this: It is because we warned that that could be done that the Minister took steps to see that it was not done. With regard to the Minister’s defence that the Judges have not commented adversely on that provision, I would like to point out that the Judges have all imposed sentences of more than five years. That is an indication that the Judges have not felt that a minimum of five years is too much.

In a similar offence before they imposed a sentence of three years.

There were no similar offences before …

What about the Strachan case of 1951 and the Taurog case.

These crimes are not common law crimes. They have only grown over the last few years. The Minister will concede that these cases of sabotage have only arisen in the last few years, except of course during the war when we had acts of sabotage. It is only in the last few years that we have had a prevalence of these acts. The Minister will know, having practised both at the Bar and the Side-Bar that Magistrates and Judges, where cases have become more prevalent, have imposed heavier sentences. They have said, “this type of crime is becoming too common and it is time we imposed sentences that will act as a deterrent.” I submit that the sentences would have been made heavier as time goes on and more criminals are brought before the courts charged with these special offences. The sentences imposed in the first few cases are just intended to serve as a warning to the public and not so much to act as a deterrent. I think in the case of Strachan he was sentenced to six years, three of which were suspended. Although no minimum sentence was provided for and although I think it was the first case of this kind that was tried by the courts, the Judge felt that it was his duty to impose a sentence of six years, three years of which were suspended. I submit therefore that the Judges will take a serious view of this type of case and it is not necessary for the Minister to provide for a minimum sentence. It must always be remembered that there may be a case where the Judge may feel that he should be more lenient, that he should exercise leniency in the special circumstances of the case but he will not be allowed to do that once this Bill becomes law. [Time limit.]

Why are you so concerned over these people?

Perhaps I can answer the question put by the hon. the Minister to the hon. member who has just sat down. The hon. member is not showing concern for these people, but concern for justice, for the normal concepts of justice—if one can only get that into the mind of the hon. the Minister. If it were so, then one might well ask, “why not have special laws, special courts and special everything concerning people who commit rape or theft or assault or murder?” It is not concern for criminals; it is concern for the ordinary accepted principles of justice.

I want to say one or two things very quickly about what the hon. member for Transkeian Territories (Mr. Hughes) said. He says that the United Party has always been against retrospective legislation but in this special case it is going to vote for it. He quotes the case of Robey Leibbrandt as an analogy. Sir, that is a very far-fetched analogy indeed. I do not know what has happened to the sense of values of the United Party. The case of Robey Leibbrandt was a completely different case from the cases of people who are suspected by the Minister, on very flimsy evidence, of having been trained to commit sabotage, and the onus of proof is going to be on them to prove that they did not train to commit sabotage. Simply to go out of the country without permission does not necessarily mean that one is being trained for sabotage. But the man has to prove beyond a reasonable doubt that he did not do something. How one does that I do not know. It is almost impossible at law to do that, and the hon. member who is a lawyer should know that. The other point is that if he looks at Clause 12 he will see the sort of very flimsy evidence on which a person can be brought under the purview of this Act. Any letter, any report in a newspaper, purporting to provide proof that such a person has been engaged in such activities in another country can be used as proof against him. I say therefore that this is far-reaching retrospective legislation. It goes miles beyond the Robey Leibbrandt case, a self-confessed convicted traitor who worked with Germany, with whom the country was at war, and who landed on our coast in a German submarine and all the rest of it. How the hon. member can possibly compare this case with the cases which this House is considering at the moment I really do not know.

Clause 5 is, I suggest, a very bad provision indeed. I very much hope that the hon. the Minister will accept the amendment of the hon. member for Houghton in regard to the question of reasonable doubt.

I certainly won’t.

I should like to draw the attention of the Committee to a very serious aspect. It is fortunate that a trial is provided for in connection with Clause 5. But if you look at sub-clause (b)ter you find that where information has been obtained by a person from a source outside the Republic which could be of use in furthering certain achievements it is presumed that the person is guilty unless he can prove beyond a reasonable doubt that he is innocent. I have said that provision is made for a trial; but with this provision that trial is reduced to virtually nothing. The present principle of our law is that you presume innocence until the contrary is proved. It is known that in certain Continental systems you presume guilt but you can discharge the onus of guilt, on a balance of probability. In regard, to (b)ter we have a provision that you cannot discharge an onus of guilt on a balance of probability you have got to prove it beyond reasonable doubt. We know that a Judge in a court often says: “I think that man is guilty but I find him innocent” because his guilt has to be proved beyond a reasonable doubt. We are now going to have the situation under this clause where a Judge will say: “I think that man is innocent but because he has not proved it beyond reasonable doubt I am going to convict him.” That is a shocking state of affairs, Mr. Chairman. That is a very bad provision indeed. In addition to that there is a minimum sentence of five years. I really do hope the hon. the Minister will reconsider this. I cannot see the need for it. I cannot see why he should require an accused person to prove his innocence beyond a reasonable doubt.

I am amazed that vou did not see it until the hon. member for Houghton drew your attention to it.

When you think that a Judge can even believe a man to be innocent and yet be obliged by this provision to find him guilty, I think you realize how very far it goes. It is fortunate that this one section alone introduces this provision in regard to guilt or innocence in so far as the crimes which can be committed under Section 11 of the Principal Act are concerned. I say it is highly objectionable and it does in fact make a mockery of the trial. There is indeed provision for a trial for which one is grateful but when you have a provision of that kind it makes an absolute mockery of it. I do hope that the hon. the Minister will see his way clear to amend that particular provision.

I think the matter which the hon. member for Pinelands (Mr. Thompson) bas just raised is one about which the hon. the Minister should not express his surprise. He knows that the powers which he asks for in this clause are very far-reaching powers …

They were intended to be so.

I appreciate that. I did not suggest that the Minister did not intend to ask for those powers. There is no doubt about it that this type of powers are only sought in times of great difficulty and when the country is facing a very serious situation. I think the Minister will help his case very much more if he were to be a little more open with us. I remember the Minister saying to the Press a few days ago that he will give this House information which this House would hardly credit. In other words, the House would be most surprised because it did not know what was taking place in the country. I am not suggesting that the Minister said anything out of place in having made that statement. In fact, one read what he did say with a great deal of interest. We have for a day or two been waiting to hear from the Minister what those disclosures are which he said he would make to the House in order to acquaint the country of what was taking place and the able steps the police had taken to break those organizations. But over the last few days we have not heard anything from the Minister in this respect.

Then you must have been absent from the House.

I was only absent on Wednesday, Sir. To the best of my knowledge and belief I do not think the hon. the Minister dealt with any matters of this type on Wednesday. I was here yesterday and I fully appreciate what he said then. I also agree with all that has been said by and large, even with some of the Press statements to the effect that the Minister was endeavouring in as judicious and forceful a manner as possible to acquaint the House with the fact that the country was facing certain serious situations.

We gathered from what the Minister did say at various gatherings and to the Press that he would explain some of the things that were taking place to us. Not that I am seeking that information. I accept that where the hon. the Minister asks for very wide powers such as he asks here where a man must prove beyond reasonable doubt that he is not guilty, he needs them. But I do feel that the hon. the Minister should go beyond some of the histrionics which he indulged in yesterday, perhaps quite rightly; I appreciate that in these difficult times the emotional outlook on the matter is very important. We are all fellow-citizens and we all feel very strongly about what has happened in our country. However, the hon. the Minister will agree that this side of the House has every confidence that the forces under the command of the Minister will take everything into account and that these forces will deal adequately with the situation. This side of the House has supported the Minister in some of the steps which have been taken. We have waited patiently for what the Minister has had to tell us. I do feel that in these circumstances the hon. the Minister might go a little beyond a purely technical discussion of some of the provisions of the Bill. It is in that sense that I suggest to the hon. the Minister that he might perhaps give us some information.

I am very pleased that the official Opposition supports this amendment that I have moved in regard to the question of reasonable doubt. I hope to be able to persuade them to support also the amendments regarding retrospectivity in this clause. I want to draw their attention to two important factors. I touched on one when I spoke originally on this clause but I did not go into any great detail. The other point which I did not touch upon is this, and it is very important: Do hon. members realize that after having been found guilty, retrospectively or otherwise, under this clause it means that all such persons when sentenced to a sentence of not less than five years, thereafter fall under an earlier provision, namely that the hon. the Minister may keep such people in permanent internment? This means that persons cannot only be kept in gaol for five years for committing a crime years ago when it was not a crime but may be kept, after that five-year sentence is up. in permanent internment by the Minister in terms of the earlier clause which this committee has passed. I hope hon. members realize the seriousness of having voted for that clause.

Why do you say “permanent” when you know very well it is from year to year?

From year to year only as long as the hon. the Minister decrees it from year to year. The Minister knows full well that if he wants to extend the powers he has taken under Clause 4 he may do so easily year after year as he has done in other cases.

Well, why don’t you say that? Why do you, for the purposes of the record, say “permanent”, when you know it is not so?

It is permanent as long as the hon. the Minister wants it to be permanent and I repeat that.

In a state of emergency.

A state of emergency is a very different thing. The hon. member does not seem to realize that the whole of this is escaping the responsibility of declaring a state of emergency. But the powers which the Minister is taking are exactly the sort of powers that a country takes only when a state of emergency has been declared. That is precisely my point. Anything is permanent as far as this law is concerned if the hon. the Minister so decrees. I have already given two examples and I might say that in neither case has there been any suggestion that the Minister is going to withdraw the provisions. The one is in fact now becoming entrenched permanently in our legislation, that is the Unlawful Organizations Act, and the other is being repeated again this year.

This is the point I want to make: Persons are retrospectively accused and sentenced. As the hon. member for Pinelands (Mr. Thompson) has pointed out, in supporting my amendment for the accused to prove anything “beyond any reasonable doubt” is practically impossible: it makes almost a mockery of the trial. A minimum sentence of five years is imposed and thereafter the Minister can keep that person, as long as he decrees anyway, in permanent internment. That is the effect of this clause. More important is this. I want to point it out to hon. members of the Opposition and I hope they are going to listen, because they have already had second thoughts about one of these things …

Gentlemen, please listen to the lady.

I hope the hon. the Minister will listen too, Sir. I hope that for once, although he says he listens to his wife but does not do what she says, he will listen and do what a lady says. The important point is in Clause 12. Hon. members must study Clause 12. They must realize that under Clause 12 of this Bill it makes it possible in terms of the amending legislation introduced last year to Act 56 of 1955, i.e. the Passports Act, to deem anybody who has been out of the country as having been out of the country unlawfully without a passport on prima facie evidence of any document such as a newspaper, or a letter written from that foreign country. Clause 12 extends that provision by saying that any person can be deemed to be guilty under the Passports Act, not only of being out of the country but if he has made any statement. This means—I think I am right in this interpretation—that persons who have made any statement advocating or assisting, etc., any time since 1950, the use of forcible measures against South Africa, may, in terms of the new extension, be guilty of a crime. I am right. I hope hon. members saw the hon. Minister nod his head. So that on the flimsiest evidence of a newspaper report that So-and-So said in 1951 that South Africa should be forced to do so and so a man can go to gaol for five years; the trial means hardly anything and even after those five years the Minister can keep him there. All this talk about minimum sentences means absolutely nothing in view of Clause 4 which gives these vast powers to the Minister. I hope hon. members realize the significance of this retrospectivity. I know the hon. the Minister disagrees with Advocate Molteno in his interpretation of the wording of this clause but if he will consider the insertion, after the word “achievement” of “by violent or forcible means” it will be repeating that proviso that it only applies to “advocating the achievement by violent and forcible means of any of the objects referred to in paragraphs (a) to (d)”. That would at least do something to set right the ambiguity which I believe exists in this clause. I accordingly move this little amendment and I sincerely hope the hon. the Minister will accept it. It does not in any way alter any of the principles embodied in this Bill. I move—

“by violent or forcible means”.

As far as I am aware, Sir, the hon. the Minister has not replied to the amendment which I moved. I think I should start by saying that I rather resent the Minister’s interjection at one stage when he asked why we were concerned about “these people”. I say we are dealing here with the question of the administration of justice. It is because I am dealing with that that I moved my amendment. We are concerned here, Sir, with the administration of justice which we should like to keep unsullied in every possible way. All the hon. the Minister said to me was that last year we discussed this principle. Two principles had been raised by the time I addressed this House. The hon. member for Musgrave (Mr. Hourquebie) had dealt with the question of the minimum sentence. I had dealt with an entirely different one that was the question of whether the juvenile should be given the leniency which Parliament had always allowed in their case.

We discussed that very fully last year.

My recollection is that we did not. The principle that was dealt with last year was this question of minimum sentence. That I accept.

And the question of juveniles.

I have not got Hansard before me and cannot therefore refute what the hon. the Minister says. But my recollection is that it was not dealt with. I make that statement perfectly seriously. Even if it was dealt with I ask the hon. the Minister to deal with it again now. Both myself and the hon. member for Umbilo (Mr. Oldfield) have advanced arguments—whether they were advanced before or not does not matter—which I think the Minister should deal with in fairness to the case put before him. I would therefore ask him to give consideration to the arguments which have been advanced in regard to the leniency that should be extended to juveniles. He should not simply dismiss the matter by saying that it was dealt with last year. The cases that have been mentioned are arguments in favour of the contention of this side of the House. The cases that have been mentioned are important and the Court has dealt with the matter as though there was no minimum sentence. I do not think the possibility of dealing with it otherwise should simply be rejected. Cases might arise in which the court should not be debarred from dealing with it otherwise. That is the extent to which the amendment moved goes. I would therefore ask the hon. the Minister to give consideration to the argument that has been advanced first by myself and then by the hon. member for Umbilo.

It is quite clear from their actions in respect of Clause 5 that hon. members of the United Party are trying to justify what they did yesterday. It is perhaps time that this was said. Mr. Chairman, the Opposition voted in favour of the principle of this Bill yesterday, and we were very grateful for it. Now the hon. member for Houghton (Mrs. Suzman) has taken the lead and one by one the members of the United Party are following her example of trying to nullify the effects of this clause which contains one of the main principles of the Bill. The time has come for the hon. member for Houghton to take stock of herself politically. The hon. member for Houghton must remember that she is living in the Republic of South Africa and that she owes something to the country in which she lives. She must also think of the safety of this country. Clause 5 does not seek in any way to prejudice or to punish any inhabitant of the Republic who shows the slightest loyalty to this country. I say this too to speakers on the Opposition side who have participated in the discussion on this clause. This clause will not adversely affect any citizen of the Republic who has no intention of undermining the State or the safety of the State. These steps are not usually taken but we are very conscious of the fact that under these circumstances it is necessary that extraordinary powers be given to the hon. the Minister. If the hon. the Minister needs powers such as those given to him in Clause 5, then the House of Assembly in South Africa ought at least to be unanimous in giving those powers to the Minister for the sake of the safety of the whole country, not only for the safety of the White man but also for the safety of the millions of non-White living in this country. These powers are also being given to the Minister to enable him to deal with those people who have been trained in sabotage camps and to deal with them before there is bloodshed in South Africa.

The hon. member for Houghton must remember the implications of her words in this House. She must remember what the effect of her words will be in the outside world. She has a very willing Press to support her and she enjoys a great deal of publicity outside. We know what forces we have to deal with and it is time she paused for a moment and took stock of herself politically. If she as a South African takes stock of herself she will be frightened by what she discovers.

Order! The hon. member must confine himself more specifically to the clause.

I want specifically to discuss the contents of this clause on which amendment after amendment has been moved in order to nullify the effect of this clause. What does this clause seek to do? It seeks to punish those people who have received sabotage training and it gives the Minister the power to act. The Opposition voted for this principle yesterday but this evening they are trying under this clause to run away from their former attitude. If they want to stand by what they did yesterday then they should support this clause as it stands here.

I can assure the hon. member for Wolmaransstad (Mr. G. P. van den Berg) that this side of the House is not purposely prolonging the debate on this particular clause for any reason other than to obtain information from the Minister and to put forward our point of view. The hon. member for Port Elizabeth (South) (Mr. Plewman) has moved an important amendment to which we have had no reply from the Minister. The hon. the Minister has indicated that he has given reasons why juveniles should be treated the same as adults last year when we discussed Clause 21 of the General Law Amendment Bill. I looked up the debate on Clause 21 last year and I found that the time devoted to that Clause almost entirely on the subject matter of the definition of the word “sabotage”. A similar amendment to the one moved here was moved by the hon. member for Durban (North) (Mr. M. L. Mitchell) when the Question was put and the vote was taken without the Minister of Justice replying to that amendment on that occasion.

Because it was fully discussed in the second reading, and you know it.

During the second reading the hon. the Minister did reply to the points raised but in the Committee stage we specifically wanted replies to these sections which had been omitted from that Bill. Similarly, Sir, we are asking for the courtesy of the hon. the Minister to reply to the amendment which has been moved on similar lines whereby these important sections of the Criminal Precedure Act of 1955 are going to be omitted. This will have serious consequences in regard to juveniles who may be brought before court in terms of Clause 5. I think I should just refresh the memory of members of the committee in regard to Section 342 of the Criminal Procedure Act which was amended in terms of the Children’s Act of 1960. The hon. the Minister is fully aware of the contents of that Act because he was then the Deputy Minister of Social Welfare and he introduced the Children’s Act in this House. Section 342 lays down the manner of dealing with convicted juveniles and says—

Order! The hon. member has already advanced those arguments. I must ask him to advance new arguments.

I shall naturally obey your ruling, Mr. Chairman, but Section 342 of the Criminal Procedure Act is of paramount importance in submitting our case. When I spoke earlier to-day I did not deal in detail with Section 342, I merely mentioned what the terms of that section were. During the course of my address earlier, by way of interjection, the hon. the Minister said that there were two persons under the age of 21 who had been convicted in terms of the Sabotage Act, in other words, the General Law Amendment Act of last year. He gave their ages as 18 and 19. I want to know whether any cases have been handled under the General Law Amendment Act of 1962 where the persons concerned were under the age of 18 and who are defined as children in the Children’s Act of 1960. I am trying to get information from the hon. the Minister in regard to the manner in which these juveniles shall be treated because specific means are enshrined in our legislation whereby these people may be reformed without having to undergo a term of imprisonment. It is generally recognized that terms of imprisonment are not beneficial to a young person. Other remedial means must be found to reform that person. Consequently these important provisions which are laid down in our legislation so as to bring about a more successful reformation of these young persons are now being deleted from this clause. My submission is that we are entitled to hear from the hon. the Minister the reasons why these important provisions are now being deleted in terms of this clause which is now before the Committee.

I have listened for a long time and with great patience and attention to the arguments of the Opposition. It has become perfectly clear to me that the Opposition are using delaying tactics and it is perfectly clear that they are using these delaying tactics in order to give effect to the lead that was given by the hon. member for Hospital (Mr. Gorshel) in the Sunday Express when he suggested that the Opposition were able by means of delaying tactics to prevent the detention of Sobukwe if and when the Bill is passed.

I did not say that.

It is perfectly clear to me that the Opposition are not seeking information; they simply want to waste time. I want to say nothing further in this regard except to tell the Opposition that the time factor does not embarrass me in the least. If they want to waste time in regard to this matter—I have restrained members on this side of the House from participating in this debate up to the present—then that is their affair. I am not going to plead with the On-position for time. Last year we discussed this matter very thoroughly. The hon. member for Port Elizabeth (South) (Mr. Plewman) now pretends to know nothing at all about this matter. His memory is so short that he forgets what was said by that side of the House. The Bill was described as “The Children’s Hanging Bill”. That was how long we discussed the Bill last year.

I did not say that.

The hon. member now pretends to be innocent: he puts the blame on other people. I am tired of this. Mr. Chairman. We argued like reasonable people earlier on in this debate. The hon. member for Zululand (Mr. Cadman). the hon. member for Durban (North) (Mr. M. L. Mitchell), other hon. members and I argued about the merits of the matter in a reasonable way. If we want to waste time we must at least be honest enough to admit that we are out to waste time. If hot, we should deal with and discuss this matter on its merits. I told hon. members at the start that I did not want to be discourteous. I have never been discourteous.

Oh!

I cannot resent that coming as it does from the hon. member for Kensington (Mr. Moore).

Mr. Chairman, on a point of order, what is the hon. the Minister talking about?

Order! That is not a point of order.

As I told hon. members at the start I do not want to be discourteous but I am not prepared to repeat the same arguments that we discussed ad nauseam last year merely in order to waste time. I have given hon. members the reason why I do not want to do so. In my view this crime is more serious and is certainly related to the crime of sabotage and that is why the same principles that applies to that crime should also hold good in respect of this crime. I am not prepared to take it any further. I cannot take it any further unless I am prepared to repeat all the old arguments in that connection. But I should be very grateful if the Opposition will be courteous enough to tell this side of the House whether we are now discussing this clause on its merits or whether we are wasting time in order to thwart a decision which the Cabinet may possibly take in connection with Sobukwe. If the Opposition will tell me that then we shall know precisely where we stand and then we can continue the discussion on that basis.

I am sorry that the hon. Minister has adopted the attitude that he has now adopted, because up to now he has listened to the arguments put up by this side of the House and he has answered them. I want to say to the hon. the Minister that what he said about Sobukwe and the attitude of the official Opposition was quite unwarranted.

I referred to the Sunday Express and what one of your members had stated.

I think the hon. Minister would not have said such a thing if he were not so annoyed in respect of this side of the House. I hope the hon. Minister will indicate that he does not in fact think that this side of the House has that regard for Sobukwe. The hon. Minister knows that we do not. Mr. Chairman, there are two aspects that I want to deal with very briefly and they involve the hon. members for Houghton (Mrs. Suzman) and the hon. Minister of Justice. The hon. member for Houghton said in relation to a speech that was made by one of my learned colleagues that she was glad that the official Opposition would support her amendments, but she drew the wrong conclusion from what the hon. member for Pinelands (Mr. Thompson) raised. It was a point which he as a lawyer was shocked at. And I am not surprised, Sir, because there are lots of things in this Bill and this clause which to a lawyer are anathema in many respects, and not only to us, but to the hon. Minister himself, and the hon. Minister has said so. The hon. member for Pinelands raised a matter which one finds nowhere in our law. I have never seen it in our law before. It does not mean to say that “I do not like it, I will not have it and I am not prepared to listen to anything the hon. the Minister has got to say about it”, but I ask the hon. Minister to give some indication to this Committee as to why it is that the wording here is so different from what it usually is when the onus of proof is placed upon an accused person. I appreciate that in the circumstances here it may be necessary to place the onus upon an accused person when he has committed acts outside the Republic.

The difficulty obviously is that you do not know where to get the evidence and you must rely on whatever evidence you can get.

We appreciate the difficulty of proving an offence outside the Republic. There is one person who can prove that he did not undergo training which looks in all respects as if it were for sabotage. The only one person who can explain that he has these documents for some other reason is the accused. We appreciate that. All we are asking the hon. Minister is: Normally when the onus is placed upon an accused, and in this case it appears to be justified on the facts the hon. Minister has given us, he has to prove it on the balance of probability, and all the hon. member from Pinelands wants to know from the hon. Minister is why is it. if it is “beyond reasonable doubt”, why is it not on a balance of probability.

So far as retrospectivity is concerned, the hon. member for Houghton must remember that certainly so far as the death penalty is attached to these crimes, the court has the discretion, and I do not think a Supreme Court would impose the death sentence on someone in respect of a crime committed before the death sentence became operative. They may or may not, but I think it is a matter for the courts to decide. I do not think the hon. member for Houghton has any objection to that. But the hon. Minister put a question to her, and this is the point: The hon. Minister says he has (and I must accept it) a number of people in the hand now who have trained, so far as he is aware, for sabotage. The hon. member for Houghton says “No, they may not commit sabotage”. But that is not the point, Sir. The point here is that the crime provided for is not “committing sabotage”. The crime that is provided for is “training for sabotage”. This is the difficulty. We are not against such a crime being created. If the hon. member for Houghton is, she should say so.

It must be proved beyond reasonable doubt.

The hon. member must not rely upon chance phrases, small phrases out of their context and say that we are going to support her. But we are going to support her in one amendment, and that is her amendment relating to the provision of the proviso to sub-section (d). We will support her there because that is a provision for the suspension of the sentence in the discretion of the court, and inasmuch as the amendments we have moved to restore the discretion of the court are rather allied to the same thing it would be consistent if we were to support her.

If Clause 5 has revealed one thing to us it is the weakness of the United Party. The United Party tried to bluff the country when they voted for the second reading yesterday, and we know that they supported merely because the public outside expected this legislation to be placed on the Statute Book. But the hon. member for Houghton (Mrs. Suzman) has virtually challenged us to-day by saying that she is going to take the United Party in tow this evening. Here we have proof that they actually voted for the principle of the Bill at the second reading. But now they are afraid and are forced to sit on two stools, and that is a very difficult thing to do.

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

Mr. Chairman, Clause 5 proves the weakness of the United Party and we want to challenge them to tell us whether they are going to vote for this clause or not. Do they want this clause to be placed on the Statute Book? We have heard from the hon. member for Houghton that the persons who are trained beyond the borders of the Republic to commit sabotage have done nothing wrong. They can at any time return to the country as quite innocent people. Now she has convinced the United Party of this and they agree with her. The people outside of this House will take note of how the United Party has tried to sit on two stools. Clause 5 has revealed the nakedness and the weakness of the United Party.

The hon. member must come back to the clause. He is discussing the United Party and not the clause.

Yes, Mr. Chairman, I am merely indicating the weakness of the United Party that has been revealed by Clause 5.

Question put: That the words “this Act” in line 9, proposed to be omitted, stand part of the Clause, and a division was called.

As fewer than 15 members (viz., Mrs. Suzman) voted against the Question, the Deputy-Chairman declared it affirmed and the first amendment proposed by Mrs. Suzman dropped.

The amendment proposed by Mrs. Suzman in line 19 was put and a division was called.

As fewer than fifteen members (viz., Mr. Barnett and Mrs. Suzman) voted in favour of the amendment, the Deputy-Chairman declared it negatived.

Question put: That the words “this Act” in line 23, proposed to be omitted, stand part of the Clause, and a division was called.

As fewer than 15 members (viz., Mrs. Suzman) voted against the Question, the Deputy-Chairman declared it affirmed and the third amendment proposed by Mrs. Suzman dropped.

Question put: That the words “and who fails to prove” in lines 31 and 32, proposed, to be omitted, stand part of the Clause, and a division was called.

As fewer than 15 members (viz., Mrs. Suzman) voted against the Question, the Deputy-Chairman declared it affirmed and the fourth amendment and the amendments in line 33, proposed by Mrs. Suzman, dropped.

Question put: That the words “Provided that” in line 41, proposed to be omitted, stand part of the Clause,

Upon which the Committee divided:

AYES—64: Badenhorst, F. H.; Barnett, C.; Bekker, H. T. van G.; Bekker, M. J. Η.; Bootha, L. J. C.; Botha, H. J.; Botha, M. C.; Botha, P. W.; Botha, S. P.; Cloete, J. H.; Coetzee, B.; Coetzee, P. J.; Cruywagen, W. A.; de Villiers, J. D.; du Plessis, H. R. H.; Frank, S.; Grobler, M. S. F.; Haak, J. F. W.; Hertzog, A.; Heystek, J.; Hiemstra, E. C. A.; Jurgens, J. C.; Keyter, H. C. A.; Knobel, G. J.; Kotze, G. P.; Kotzé, S. F.; Labuschagne, J. S.; Loots, J. J.; Malan, A. L; Marais, J. A.; Martins, H. E.; Meyer, T.; Mostert, D. J. J.; Niemand, F. J.; Otto, J. C.; Rall, J. J.; Rall, J. W.; Sadie, N. C. van R.; Schlebusch, A. L.; Schlebusch, J. A.; Schoeman, J. C. B.; Serfontein, J. J.; Stander, A. H.; Steyn, F. S.; Treurnicht, N. F.; van den Berg, G. P.; van den Berg, M.J.; van der Merwe, P. S.; van der Spuy, J. P.; van Niekerk, G. L. H.; van Rensburg, M. C. G. J.; van Wyk, G. H.; van Wyk, H. J.; van Zyl, J. J. B.; Venter, M. J. de la R.; Venter, W. L. D. M.; Verwoerd, H. F.; Visse, J. H.; von Moltke, J. von S.; Vorster, B. J.; Waring, F. W.; Wentzel, J. J.

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

NOES—40: Basson, J. A. L.; Cadman, R. M.; Connan, J. M.; Dodds, P. R.; Durrant, R. B.; Eaton, N. G.; Emdin, S.; Field, A. N.; Fisher, E. L.; Gay, L. C.; Gorshel, A.; Henwood, B. H.; Hickman, T.; Higgerty, J. 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.; Oldfield, G. N.; Plewman, R. P.; Radford, A.; Raw, W. V.; Ross, D. G.; Steenkamp, L. S.; Streicher, D. M.; Suzman, H.; Taurog, L. B.; Thompson, J. O. N.; Timoney, H. M.; Warren, C. M.; Waterson, S. F.; Wood, L. F.

Tellers: H. J. Bronkhorst and A. Hopewell.

Question accordingly affirmed and the remaining amendment proposed by Mrs. Suzman negatived.

Question put: That all the words after “that” in line 41 up to and including “that” in line 46, proposed to be omitted, stand part of the Clause,

Upon which the Committee divided:

AYES—63: Badenhorst, F. H.; Bekker, H. T. van G.; Bekker, M. J. Η.; Bootha, L. J. C.; Botha, H. J.; Botha, M. C.; Botha, P. W.; Botha, S. P.; Cloete, J. H.; Coetzee, B.; Coetzee, P. J.; Cruywagen, W. A.; de Villiers, J. D.; du Plessis, H. R. H.; Frank, S.; Grobler, M. S. F.; Haak, J. F. W.; Hertzog, A.; Heystek, J.; Hiemstra, E. C. A.; Jurgens, J. C.; Keyter, H. C. A.; Knobel, G. J.; Kotze, G. P.; Kotzé, S. F.; Labuschagne, J. S.; Loots, J. J.; Malan, A. I.; Marais, J. A.; Martins, H. C.; Meyer, T.; Mostert, D. J. J.; Niemand, D. J.; Otto, J. C.; Rall, J. J.; Rall, J. W.; Sadie, N. C. van R.; Schlebusch, A. L.; Schlebusch, J. A.; Schoeman, J. C. B.; Serfontein, J. J.; Stander, A. H.; Steyn, E. S.; Treurnicht, M. F.; van den Berg, F. P.; van den Berg, M. J.; van der Merwe, P. S.; van der Spuy, J. P.; van Niekerk, G. L. H.; van Rensburg, M. C. G. J.; van Wyk, G. H.; van Wyk, H. J.; van Zyl, J. J. B.; Venter, M. J. de la R.; Venter, W. L. D. M.; Verwoerd, H. F.; Visse, J. H.; von Moltke, J. von S.; Vorster, B. J.; Waring, F. W.; Wentzel, J. J.

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

NOES—41: Barnett, C.; Basson, J. A. L.; Cadman, R. M.; Connan, J. M.; Dodds, P. R.; Durrant, R. B.; Eaton, N. G.; Emdin, S.; Field, A. N.; Fisher, E. L.; Gay, L. C.; Gorshel, A.; Henwood, B. H.; Hickman, T.; Higgerty, J. 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.; Oldfield, G. N.; Plewman, R. P.; Radford, A.; Raw, W. V.; Ross, D. G.; Steenkamp, L. S.; Streicher, D. M.; Suzman, H.; Taurog, L. B.; Thompson, J. O. N.; Timoney, H. M.; Warren, C. M.; Waterson, S. F.; Wood, L. F.

Tellers, H. J. Bronkhorst and A. Hopewell.

Question accordingly affirmed and the amendment proposed by Mr. Hourquebie negatived.

Question put: That the words “three hundred and forty-two, three hundred and forty-five or” in lines 48 and 49, proposed to be omitted, stand part of the clause,

Upon which the Committee divided:

AYES—63: Badenhorst, F. H.; Bekker, H. T. van G.; Bekker, M. J. Η.; Bootha, L. J. C.; Botha, H. J.; Botha, M. C.; Botha, P. W.; Botha, S. P.; Cloete, J. H.; Coetzee, B.; Coetzee, P. J.; Cruywagen, W. A.; de Villiers, J. D.; du Plessis, H. R. H.; Frank, S.; Grobler, M. S. F.; Haak, J. F. W.; Hertzog, A.; Heystek, J.; Hiemstra, E. C. A.; Jurgens, J. C.; Keyter, H. C. A.; Knobel, G. J.; Kotze, G. P.; Kotzé, S. F.; Labuschagne, J. S.; Loots, J. J.; Malan, A. L; Marais, J. A.; Martins, H. E.; Meyer, T.; Mostert, D. J. J.; Niemand, F. J.; Otto, J. C.; Rall, J. J.; Rall, J. W.; Sadie, N. C. van R.; Schlebusch, A. L.; Schlebusch, J. A.; Schoeman, J. C. B.; Serfontein, J. J.; Stander, A. H.; Steyn, F. S.; Treurnicht, N. F.; van den Berg, G. P.; van den Berg, M. J.; van der Merwe, P. S.; van der Süuy, J. P.; van Niekerk, G. L. H.; van Rensburg, M. C. G. J.; van Wyk, G. H.; van Wyk, H. J.; van Zyl. J. J. B.; Venter, M. J. de la R.; Venter. W. L. D. M.; Verwoerd, H. F.; Visse, J. H.; von Moltke, J. von S.; Vorster, B. J.; Waring, F. W.; Wentzel, J. J.

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

NOES—41: Barnett, C.; Basson, J. A. L.; Cadman, R. M.; Connan, J. M.; Dodds, P. R.; Durrant, R. B.; Eaton, N. G.; Emdin, S.; Field, A. N.; Fisher, E. L.; Gay, L. C.; Gorshel, A.; Henwood, B. H.; Hickman. T.; Higgerty, J. 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.; Oldfield, G. N.; Plewman, R. P.; Radford, A.; Raw, W. V.; Ross, D. G.; Steenkamp, L. S.; Streicher, D. M.; Suzman, H.; Taurog, L. B.; Thompson, J. O. N.; Timoney, H. M.; Warren, C. M.; Waterson, S. F.; Wood, L. F.

Tellers: H. J. Bronkhorst and A. Hopewell.

Question accordingly affirmed and the amendment proposed by Mr. Plewman negatived.

Clause, as printed, put and a division called.

As fewer than 15 members (viz., Mrs. Suzman) voted against the clause, the Deputy-Chairman declared it agreed to.

On Clause 7,

I should like to know why the Minister thinks it necessary to widen the scope of the law. It seems to me that the definition of Communism is extremely wide already. Why does he wish to alter the long title?

It was to fit in Clause 5 and particularly the first portion of it.

Clause put and agreed to.

On Clause 8,

I move the amendment standing in my name—

The intention is to make it clear that Clause 8 is to be limited to what is set out in Clause 11. Clause 8, as it stands, allows for their being no preparatory examination in those cases where the Attorney-General otherwise directs. In other words, it allows the Attorney-General to direct that there shall not be a preparatory examination in any type of case whatever, should he think fit. I must refer to Clause 11 in order to illustrate what I am about to say in regard to Clause 8. Whereas in Clause 11 the discretion to do away with the preparatory examination exists only where there is any danger of interference with or intimidation of witnesses, or when it is deemed to be in the interests of the safety of the State or in the public interest, as I understood the Minister to say in the second-reading speech it was in those specific instances that he desired an Attorney-General to have the discretion to rule that there should not be a preparatory examination. In the order in which these sections appear in the principal Act, Section 152 will be inserted in a chapter unrelated to that governing preparatory examinations. The chapter governing preparatory examinations is the one in which Section 54 appeared, the section referred to in Section 8. Section 152bis, if it is intended to govern the general powers given in Section 54, is inserted in a portion of the Bill which is not apt for that purpose, and in order to make it clear that there is not to be a general exception from the ordinary rule that there is to be a preparatory examination, it is proposed in my amendment to make specific reference in Clause 8 that the power of the Attorney-General to make an exception is only to be exercised in those circumstances set out in Section 152 bis, which appears in Clause 11. To summarize, it is to put into effect what I believe the Minister intended and it is to link in its terms the amendment in Clause 8 with the amendment in Clause 11, so that there can be no ambiguity along the lines that whereas there is a restriction in Clause 11, the amendment in Clause 8 is open and general and without any restriction at all.

In actual fact, there is no difference of opinion between the hon. member and myself, and I am told by the law advisers, and I accept that as a fact, that what the hon. member wants in his amendment is already in the clause. But to obviate discussion and unnecessary differences of opinion, I am quite prepared to accept the amendment. It is perfectly clear. In the clause itself it says, “except when the Attorney-General otherwise directs”, and the Attorney-General can only otherwise direct if he wants to act in terms of Section 152. I am told by the law advisers that it is six of the one and half-a-dozen of the other, but if it will cut out unnecessary discussion I am prepared to accept the amendment because that is in fact the intention, as I said in the second reading.

I want to make it clear that I am not going to vote against this clause because I will vote against the clause which is now linked to it, Clause 11. I do not therefore consider myself bound in any way to Clause 11 by not opposing this clause.

Amendment put and agreed to.

Clause, as amended, put and agreed to.

On Clause 9,

This is the clause which appears to be becoming a hardy annual in Parliament. It is the clause which provides that the twelve-day detention provision which was put into the law in 1961 is to continue for a further year. I have not heard anything that the Minister has said so far to justify its retention. I did not hear the Minister in his second-reading speech making anything but just passing mention to it; he did not give any reason for it. Unless the Minister can give the House some reason why this provision should be retained, we will have to vote against this clause.

The history of this clause is quite interesting. It was introduced by the hon. the Minister’s predecessor in 1961. The hon. the Minister then made it quite clear that the reason for introducing this provision was at that time that the Republic’s celebrations were about to occur and the Minister had had wind that there might be some demonstrations or disturbances in regard to the celebrations and therefore he thought it necessary to introduce this clause. But the reason for introducing it was based on two foundations. The one was that you can only hold an accused for 48 hours pending investigation and then have to keep bringing him into court and he said that was a nuisance. The other thing he said was that as the decision in Rex v. Shaw and Others, which was decided in 1922, provided that the magistrate was not entitled to refuse bail on the grounds that the detention of an accused would be in the interests of public safety. We pointed out then, and I want to put it to the Minister again, that surely the remedy is to alter the law relating to bail so that it is possible for a court to refuse bail if it is in the interest of the safety of the State. I suggest to the Minister that if he were to do that to make it clear that the case of Rex vs. Shaw does not apply, this iniquitous provision—and I call it iniquitous advisedly—should be removed from our law. The Minister of Justice at that time made it quite clear that this was a temporary measure; it was intended to be a temporary measure. If the Minister would explain to us why he still wants this provision we would be glad. I would also ask the Minister why it is that the law relating to bail has not been amended so that this provision, which is supposed to be of a temporary nature, can be removed from our Statute Book. I do not move to delete this clause but we will vote against it if the hon. the Minister cannot explain it and make out a case for it.

The history of this clause is well known to hon. members. Naturally it is not a clause with which lawyers are in love, and I am not in love with it either. I have, however, consulted with some Attorneys-General in connection with this clause, as to whether there was any necessity for keeping it on the Statute Book for another year, and they told me that it is in fact necessary to have it for this year.

And for next year and the year after.

No, the hon. member is wrong there. The position is that we will be in a position to come to the House next year and bring forward positive proposals on the lines suggested by the hon. member, but at this stage the Attorneys-General tell me they must have it, and I can quote one case to the hon. member to show how necessary it is to have this clause at the moment. At the moment we are detaining two people in Cape Town in terms of that clause, and naturally if I should allow this clause to lapse I cannot detain those two people, and I think the hon. member understands to whom I am referring. The hon. member can take my word for it that it is necessary, according to the Attorneys-General. I can elaborate on it if necessary, but we are going to consider it in the recess and come to Parliament next year with positive proposals in this regard.

AYES—62: Badenhorst, F. H.; Bekker, H. T. van G.; Bekker, M. J. Η.; Bootha, L. J. C.; Botha, H. J.; Botha, M. C.: Botha, P. W.; Botha, S. P.; Cloete, J. H.; Coetzee, B.; Coetzee, P. J.; Cruywagen, W. A.; de Villiers, J. D.; du Plessis, H. R. H.; Frank, S.; Grobler, M. S. F.; Haak, J. F. W.; Hertzog, A.; Heystek, J.; Hiemstra, E. C. A.; Jurgens, J. C.; Keyter, H. C. A.; Knobel, G. J.; Kotzé, S. F.; Labuschagne, J. S.; Loots, J. J.; Marais, J. A.; Martins, G. E.; Meyer, T.; Mostert, D. J. J.; Niemand, F. J.; Otto, J. C.; Pelser, P. C.; Rall, J. J.; Rall, J. W.; Sadie. N. C. van R.; Schlebusch, A. L.; Schlebusch. J. A.; Schoeman, J. C. B.; Serfontein, J. J.; Stander, A. H.; Steyn, F. S.; Treurnicht, N. F.; van den Berg, G. P.; van den Berg, M. J.; van der Merwe, P. S.; van der Spuy, J. P.; van Niekerk, G. L. H.; van Rensburg, M. C. G. J.; van Wyk. G. H.: van Wyk, H. J.; van Zyl, J. J. B.; Venter, M. J. de la R.; Venter, W. L. D. M.: Verwoerd, H. E.; Visse, J. H.: von Moltke, J. von S.; Vorster, B. J.; Waring, F. W.; Wentzel. J. J.

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

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

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

Clause accordingly agreed to.

On Clause 10,

Although I have no objection to a trial by a Judge without a jury, sub-section (c) relates this to Clause 11, and again I want to make it clear that by not dividing the House on this clause I do not in any way consider myself bound to Clause 11.

Clause put and agreed to.

On Clause 11,

I have objections to this clause. Again there is the retrospective aspect of it and I have made it clear before that I object in principle to legislation with retrospective effect. The other point is this. I do not believe that anything has been made out this year over and above the case which was put by the Minister last year in favour of summary trials with no preparatory examinations.

What about the Snyman Report? You have not listened to the argument.

Yes I have, but last year the Minister used much the same argument in the Sabotage Act, about witnesses disappearing and being intimidated, and he mentioned the Strachan case, in which a witness had, I think, actually been murdered and as the result of it another witness had committed perjury. But the arguments against it were, I thought, so overwhelmingly in favour of retaining the long-established practice of holding preparatory examinations that I cannot support this clause, even in terms of the amendment moved by the hon. member for Zululand. Therefore I cannot support it. A preparatory examination has a very definite value as it enables the accused to know the case that is being put against him and what witnesses will advance against him. In all conscience I cannot vote for the abolition of preparatory examinations. [Interjections.] The hon. member asked how you can protect the witnesses. How do you ever protect witnesses? How do you protect your witnesses in a case that has already been sent to the Supreme Court? They are known by everyone concerned. It means that for ever you have to have guards to protect them. During the trial itself it is the duty of the State to protect its witnesses. Indeed, those were the very arguments advanced by hon. members of the Opposition last year when they voted against this. [Interjection.] If the State cannot protect its witnesses it must learn how to do so. I understand magistrates can order trials to be held in camera under certain conditions.

That is a bigger evil.

It might be a bigger evil and I do not like it either, but I do not think it is as big an evil as doing away with preparatory examinations. I am not advancing it as a positive suggestion, but I say it can happen. I think it is the duty of the State to protect its witnesses and it is nonsense to say that once the preparatory examination is over the witness is no longer in any danger. What about the trial when the accused is sent to the Supreme Court? Then there is the same danger to the witnesses. In fact, they are in danger for the rest of their lives if there is such a widely organized terrorist organization, and doing away with the preparatory examinations plays only a small part in this as far as the witnesses are concerned, but it is a very large part indeed as far as the normal principles of justice are concerned.

I am afraid you are very badly informed.

It is in an old-established principle of law that the accused shall be entitled to know exactly what charge he has to face and that he has the right to listen to witnesses. Otherwise he will not know how to defend himself.

I want to say, Sir, that we on this side are supporting this clause. In regard to what the hon. member who has just sat down has said I should like to remark that I myself have had experience of what is taking place now in so far as the question of witnesses appearing at trials is concerned after preparatory examination. We do not get the picture of this clause clearly in our minds unless seen against the backdrop of the subversive activities being carried on by Poqo, Umkonto We Sizwe, and other similar organizations. These in the main are Bantu organizations although they are assisted, as we have seen recently, by Asiatics and by Whites. Now, where these people are playing for high stakes where, as experience has shown, human lives weigh nothing with them; where they are prepared to commit murder—because they are playing for high stakes where their own lives may be in danger—and where they have proved that they are willing to take other people’s lives in order to defend their own cause, then, Sir. we come down to the point of this clause, namely that the fact that witnesses give evidence may be the cause of their going to the gallows or being committed for a long period of imprisonment.

Protect them!

How?

The hon. member for Houghton says that they must be protected. Are we then, after our criticism of what the Government is doing, virtually to suggest that they imprison the witnesses so that they can be available for trial? Do we have to suggest that they be placed in change of policemen or that they should be locked up or something? How are you going to preserve the witness from the assassin? That is the point. Once a witness has been identified at a preparatory examination he becomes a marked person so far as the miscreants are concerned. Although I am no lawyer—I am only a poor farmer from the backveld—I should like to say that as I apprehend it, the basis of our justice is based upon evidence being given in regard to the commission of a crime, or of the intention to commit a crime or whatever it may be But it is evidence: it is the production of evidence— in other words, it is not what the person thinks or has in mind, but witnesses. The law calls for witnesses to be produced. If you can do away with witnesses, the whole basis of the law falls to the ground. What becomes of your justice then? A witness may have been a witness to a motor accident or a theft or one-hundred-and-one other things. Sir, what does it pay those witnesses to come and give evidence? What does a witness who comes to give evidence about a motor accident get for coming to court and wasting his time to give evidence in regard to such a motor smash? The witness, Sir, does not get anything out of it: his time is wasted, and very often they are placed in a very embarrassing position. There is therefore nothing in it for the witness. When you add to that the risk of losing his life in the bargain, how many witneses are we then going to see coming forward to give evidence in these questions? How many Bantu witnesses particularly will we see coming forward? They may not even have, and in the main they certainly have not, the same regard which we have for our public and civic duties to come forward and give evidence in matters of this kind, particularly in matters of this nature. Intimidation may already be taking place.

You are not going to get your witnesses unless they are certain that their lives at least will be safe but what we have seen happening and what I know of my own experience and what I have gathered from first-hand conversations with the elders of many of our bigger tribes, the day has arrived where a witness is dead scared to go to court and be identified thereby jeopardizing his life. The first principle to be observed in this connection, Sir, is set out very clearly in the Snyman Report, that you do away with your preparatory examination; the witness cannot then be identified by people who are hostile to him and he can therefore come and give his evidence. After that he can appeal for police protection. His life, however, will be in jeopardy between the period of the preparatory examination and the time when the trial itself comes on. Therefore we support this clause. We think it is an excellent clause under the circumstances and is very necessary.

The two hon. members who have spoken last have demonstrated one thing very clearly. Both are laymen in the sphere that we are dealing with here except that the one layman spent some time with a senior advocate while the layman who did not have the advice of such an advocate but merely used his sound common sense saw the position as it really is and interpreted that position correctly. That was the hon. member for South Coast (Mr. D. E. Mitchell). In contrast to that, look what the hon. member who had the advantage of that legal advice made of it! I am grateful to the hon. member for South Coast, who knows the Bantu, for having put the position to the House precisely as it is. I subscribe to every word that he said here this evening.

On the other hand the hon. member for Houghton suggested that we were dealing here with something entirely new. She will remember in pursuance of the Strachan case that I told her that there were tlree accused persons in that case but that eventually only Strachan was convicted because after the preparatory examination one witness vanished completely—it it was assumed that he was murdered—while the other witness was so intimidated that he committed perjury and is at present still in gaol because of that fact. The hon. member has now put forward the nonsensical idea that we must protect every witness. Does the hon. member realize that we have to deal with thousands of witnesses? Does she realize that we have a total of only 28,000 police? Does the hon. member want to advocate the nonsensical idea that we must provide a policeman for every witness to protect that witness 24 hours out of 24 and, moreover, to protect him from people for whom the hon. member has been pleading the whole evening? I take it that she knows them very well.

That is a stupid remark and you know it.

It is by no means a stupid remark. I draw that conclusion from the hon. member’s defence of these people. The hon. member must not imagine that by using fine words and phrases she can get away from the fact that she is protecting certain people. And in that regard I am not going to exonerate the hon. member.

She comes along here and insinuates that it has always been a rule of our law—this is what I heard and understood her to say and I think other hon. members will agree that that is in fact what she said—that a man must know what the case against him is. She insinuates that in terms of this clause an accused person will not know what case is being brought against him. That is nonsense and the hon. member knows it. One need not spend a whole evening with a senior advocate to be able to know that. One need only use one’s common sense to know that this is the case. An accused person will know full well what the case against him is because a summons has to be served on him. The hon. member knows our courts and knows that if an accused person maintains that he has not had sufficient time to prepare his case, the court will give him the necessary time. There has never been the slightest doubt that such an accused person will be given that opportunity. The hon. member ought to know furthermore that any evidence must be given in the presence of that accused person and of his legal representatives. The accused will also have ample opportunity to examine a witness just as he has at the moment and as he has always had. Why must we cast suspicion on our administration of justice? Let us make as much political capital as we like but let us at least show sufficient patriotism not to cast unnecessary suspicion on our administration of justice.

I do not mind the hon. member’s insinuation that she cannot accept my word but I want her at least to accept the word of Mr. Justice Snyman. I owe it to him. That is why I have risen to reply, something that I would not have done otherwise. It must have been perfectly clear to the hon. member from the correspondence that I read out to the House that Mr. Justice Snyman said that this provision gave effect to the recommendation that he made in his interim report. The hon. member for South Coast was quite correct in saying that in this regard we were merely giving effect to a recommendation submitted to us by Mr. Justice Snyman.

In respect of this whole Bill?

In respect of this clause that we are now dealing with. That is all that we are dealing with now. The hon. member has been in this House long enough to know that in the Committee Stage we only deal with the particular clause which is under discussion at the moment. Why does she want to create suspicion where there is no cause for suspicion? There is plenty of room for political differences and there is plenty of time for them. I want to ask the hon. member please not to drag our administration of justice into this discussion simply because she is a disappointed politician.

The hon. member for South Coast has indicated what the attitude of this side of the House towards this clause is, and I do not think it is necessary for me to take it any further except to say that one need only read paragraph 26 of the Snyman Commission’s Report to appreciate that this clause is the implementation thereof. I do not think the hon. member for Houghton can have read it or, if she has read it, I can only say that she has been extraordinarily irresponsible in her attitude.

I should like to ask the hon. the Minister whether, as a matter of practice, some change in the statement to the accused is going to be made—some sort of sworn statement preferably or some other statement. I suggest something in the nature of the names being cut out from the statement so that there will not be identification of the witnesses. I suggest this in order to enable an accused on a capital charge still to be given an indication of the evidence which will be led against him.

That is a very interesting question. We have of course already had a considerable number of trials of this kind, that is to say, trials without preparatory examinations. Indeed, we have already had at least a dozen of this kind of trial. They have already been dealt with. We had three such trials in succession at Queenstown; there was the case of the lecturer and the two youths which was disposed of a day or two ago in Grahamstown by Mr. Justice Cloete; there was that case referred to this evening which was heard by Mr. Justice Diemont, and so forth. All these are cases which have been tried without a preparatory examination. I asked the various Attorneys-General who had to deal with these matters how this system operated in practice. They informed me that they experienced absolutely no difficulty in practice. I have not received any complaints from the advocates who appeared for the defence either; from all points of view these trials went very smoothly; there were no hitches or anything of that nature. These trials took place just like any normal trial in an inferior court. We experienced no problems and up to the present it has not been found necessary to do anything of the nature suggested by the hon. member These matters have been resolved by asking for details and we have not experienced any practical difficulties in that connection at all.

I am not going to comment or to pay any attention to the rather pompous comment which was made by the hon. memfor for Durban (North). I should rather like to reply to the hon. the Minister. Sir, it is not only Senior Counsel who has influenced me in my attitude, but Junior Counsel as well—Junior Counsel on the opposition side of the House! Exactly the same arguments used by the hon. the Minister to-day were used by him on 5 June 1962. Then he stated, as he again stated to-night, that one witness had disappeared, one had been kidnapped and might even be dead, etc. I say, Sir, that on 5 June 1962 the same arguments were used, with this difference, Sir, that on that occasion the hon. member for South Coast was not convinced by them and consequently his name appears on the list of those who voted against that particular clause providing for the abolition of preparatory examinations.

I said just now that I was not only influenced by Senior Counsel in my attitude towards this Bill which is being rushed like a steam-engine but also by the eloquence of Junior Counsel on the back benches of the United Party in speeches last year. The hon. member for Pinelands (Mr. Thompson) who is now sitting so pensively in his seat, on 5 June 1962, according to Hansard, Col. 7111 of that date, is reported as having said—

Now. this is in relation to a charge of sabotage—in other words, somebody who has already committed sabotage and is before the court. The hon. member made a very eloquent plea which convinced me not only for that night but right up till to-night. I am still convinced as a result of the eloquence of this hon. member and others. The hon. member whom I have just quoted went on to say the following—

I think, Sir, that everyone will agree that a minimum of five years in gaol up to the maximum penalty of death is a pretty high sentence. The hon. member for Pinelands went on—

Now what has changed in the course of justice in the country during the past year? We had sabotage then and presumably we have sabotage now! But what has changed the hon. member’s mind and what has changed the mind of the simple farmer, the hon. member for South Coast? That argument convinced him last year but this year he is convinced by the arguments of the hon. the Minister. It seems to me, Sir, that there is something inconsistent in these changed attitudes. And not even the Report of the Snyman Commission, Sir, can convince me that any of the basic principles which were so important last year that they made the whole of the Opposition vote as one in favour of the principle of the retention of preparatory examinations, has changed since that time.

I think the hon. member for Houghton has been carried away a little.

Yes, I am—with despair!

She has advanced a very curious proposition which it is difficult to classify as responsible. When she first spoke, she accepted that we had reached the stage—I am not going to go into the reasons for that now—where the State cannot protect its witnesses. Having said that, she proceeded by saying that the State ought to be able to protect its witnesses. An analogy which immediately springs to mind in connection with an approach like this is to say of a person who has broken his leg “I know you have broken your leg; I know you cannot walk without crutches, but you shall not have crutches because you ought not to have broken your leg”.

Did that not also apply last year?

She now asks me why we did not say that last year. Last year we were faced with a situation where, so far as we could judge, the ordinary course of justice could still prevail. The hon. member has asked what has happened in the past 12 months to change that. But surely within the last 12 months we have received a report from a responsible and independent inquirer concerning the very question of whether or not the judicial process is able to function. He has tabled an urgent report, an interim report, wherein he states one of his findings to be that the judicial process is unable to function, because there is no protection for witnesses.

That is also what the Minister said last year.

I am very surprised indeed that the hon. member for Houghton should in her view apply the same criticism of Mr. Justice Snyman as she applies to the hon. the Minister of Justice. If she cannot see any change in the situation, then she is completely blind. Are we, Sir, to disregard entirely the interim report which had been submitted as a matter of urgency? Are we to disregard entirely the fact that one of the main findings of that report is that the judicial process has broken down because witnesses can no longer be protected? And, when a measure comes forward to remedy that situation, are we to be responsible or are we to adopt the attitude of the hon. member for Houghton? I think the hon. the Minister will be the first to agree with me that in the ordinary course of events one should have preparatory examinations. That goes without saying. But if, on the other hand, we have reached a stage where the existence of a preparatory examination renders nugatory the entire judicial process then quite obviously some sort of remedy must be brought in. This then is the intention of this clause. The hon. member says that an accused person must know what the facts are which constitute the offence which he has to meet. With that I quite agree.. Normally the ideal way of presenting him with those facts is through the medium of a preparatory examination. About that there is no argument. But the fact that in certain circumstances that is to be done away with, does not mean that there will necessarily be a miscarriage of justice. What does follow is that in many cases there will be a slowing down of the judicial machine. The Minister has already given us some examples of that. That is so because no judicial officer will allow a trial to continue if the accused person or his advocate gets up and says “My Lord, this evidence has come as a surprise to me; I am not prepared to meet it at this stage. May we have a short adjournment in order to consider the situation?” Under such circumstances an adjournment will invariably be granted so that the accused person is not taken by surprise.

How long will such an adjournment be?

The adjournment will be for so long as the defence needs to prepare its case. Now, that is a disadvantage in the sense that the whole machinery of the law will be slowed down …

And changed!

Trials will take longer but it does not follow, as I have already said, that there will be a miscarriage of justice at all.

As I said earlier, this amendment necessitates the bringing into being of a less desirable process than that which we formerly had when we had a system of preparatory examinations. But because it is less desirable, it does not follow at all that it will constitute a miscarriage of justice. In the circumstances there can surely be no argument for opposing a discretion being given to an Attorney-General to circumvent the system of preparatory examination in certain circumstances. I hope that the hon. member for Houghton, even at this stage, will have second thoughts on the subject—that is a privilege of her sex.

I do have second thoughts, Mr. Chairman, but not on that. I have something else to ask the Minister in connection with this clause. I wonder whether the Minister will be kind enough to explain to me what the following phrase in sub-section (2) of this clause means—

I ask this particularly, Sir, because on 12 February 1963, I put a question to the Minister concerning trials at Robben Island to which at that time I got a very interesting reply. This was my question—

1. (1) Whether any (a) preparatory examinations or (b) trials other than examinations or trials for contraventions of the Prisons Act, 1959 are being conducted or have since 10 August 1962 been conducted on Robben Island; if so. (i) how many, (ii) for what offences and (iii) where were these offences committed;
2. (2) whether, in terms of Sections 61 and 156, respectively, of Act 56 of 1955, the public has access to such (a) preparatory examinations and (b) trials; if not, why not; and
3. (3) what provision is made to enable accused persons whose cases are heard on Robben Island (a) to call witnesses in their defence and (b) to have ready access to legal advisers.

This was on 12 February and. of course, the position may have changed since then. If it has, I hope the hon. Minister will fill in the details of that. At any rate, the reply which I received to my question on 12 February was that no preparatory examinations were held but that one trial had been held which had to do with housebreaking, intent to steal and theft on Robben Island itself. I was also informed that the public did have access to these trials in terms of Section 206 of the Criminal Procedure Act, 1955, and in terms of the provisions of Section 58 (2) of the Prisons Act, 1959. All this is very important, Sir, because it so happens that the whole of Robben Island is now a prison. A court has been set up within that prison. In order therefore to have access to any of these trials, the public must get special permission to get inside the prison which is Robben Island. In other words they must have special permission to land on the Island.

The Minister gave a reply to the Press on this question the other day when he granted them an interview in regard to this Bill. When asked “are courts being held in prisons”? he said “yes. Certain cases are being heard in gaol; cases have been heard in Worcester Prison for instance.” He was then asked “And Robben Island: Have courts been held there?” To which he replied “Yes, that is no secret. You have read about it in the newspapers.” Now I should like to ask the hon. Minister whether cases have since then occurred; what access did the public have? I want to know whether cases involving sabotage or any crimes falling under the provision of the principal Act, or any other so-called political crimes, are in fact taking place on Robben Island and exactly what access the public has to those cases.

The hon. member has asked me to give her certain information about Robben Island. Naturally. I do not have the necessary information with me. The hon. member can therefore either put a question on the Order Paper to which I will reply in due course, or I could supply her with the information as soon as I have been able to see the Commissioner of Prisons in this connection. Before I have seen him I would not know what the position is regarding the questions put to me by the hon. member.

As far as sub-section (2) of this clause is concerned, it is clear that the hon. member did not listen to my second reading speech. It often happens that ladies do not listen when they should. The hon. member will remember that during my second reading speech I told the House that the hon. Mr. Justice Snvman recommended that special courts be held. I then wrote to the hon. Justice Snyman and I read out the following paragraph from that letter—

I also read out the reply which the hon. Mr. Justice Snyman gave to this—

*That is the whole story and that is what we are doing in sub-section 11 (2). I also said during my second reading speech that such courts could be held at any place within the jurisdiction of a court. I also pointed out that in making that recommendation the Judge had in mind that where a circuit court did not normally sit in a small town but only in the larger towns in the vicinity and only at fixed times of the year which were more or less determined in advance, the Attorney-General can now say at any time that the court shall meet immediately at some or the other town and, in consultation with the Judge-President, make a Judge available to try those cases there.

How will people know where these cases will be tried?

I really do not think—and hon. members opposite will agree with me in this—that I am called upon to answer such stupid questions.

Clause put and a division was called.