Mr. Speaker, I move without notice—

Agreed to.

Mr. Chairman, during the Second Reading debate I foreshadowed that it might be possible to come with further amendments to section 16 of the principal Act. Since the Second Reading I have given the hon. the Minister a copy of the amendment which I thought was necessary, but on further reflection it seems to me that the hon. the Minister is unable to accept the amendment at this stage. He will probably find that it will not be in order to accept it. I should like to say that I hope the hon. the Minister will find an opportunity to proceed with these amendments during this session, because it will be a great pity if the Act, as now amended, is going to be left as it is for another year. With two amendments which I suggest the registration of sectional titles will be greatly simplified. I refer particularly to section 16(2)(b) where I suggest that in a sectional mortgage bond the portion of the section which is subdivided, can be substituted for the original section under a mortgage bond. This will greatly simplify the procedure. The other amendment, which I also foreshadowed yesterday, is the procedure to be followed where a section is subdivided into two or more subdivisions. In those cases a new title should be issued in respect of each of those subdivisions and the remainder not carried on in the original title. I explained in some detail why it is necessary to dispense with and completely exhaust the existing title, because it only means additional expense, additional searches and much additional work whereas the matter could be simplified if the title were exhausted and two or three new titles issued instead of retaining the original title as the title to a remainder after subdivision. I therefore sincerely hope that the hon. the Minister may find an opportunity of introducing a further amendment to the Sectional Titles Act before the end of this session in order to incorporate the two suggestions I have made.

Mr. Chairman, yesterday evening I had the opportunity of looking at the amendments which the hon. member wants to have included in the legislation. We are of the opinion, and we have let the hon. member know this, that were I to give it serious consideration, it would mean a change in the principle of the present Bill. That is the first problem. The second problem is that as far as the Sectional Titles Act is concerned—and the hon. member will concede this to me—that Act is a very intricate one. We have a standing committee, on which quite a number of the interested parties are represented, which is continually giving attention to the practical problems which arise in connection with the implementation of this Act. In my humble opinion, therefore, it would be unfair of me towards that committee, in the first place, were I, at this stage, to consider inserting further amendments into this Bill before having given the committee a chance to discuss the matter with all the interested parties so that the best amendment could be obtained. However, I undertake to bring it to the attention of this committee as soon as possible, in order that the committee may approach the interested parties with a view to discussing the matter. If possible, we may consider introducing a new Bill towards the end of this session. But I want to tell the hon. member in advance—in fact he knows it just as well as I do—that we are often very pressed for time towards the end of the session, and while I am still able to place legislation on the Order Paper at the moment, this may not be possible towards the end of the session. I do not want the hon. member to hold it against me if I do not succeed in producing another small bill before the end of the session. I shall try my best, however, and I also express the hope that the committee will be able to conclude its activities in time as regards these various aspects, as well as the aspect raised by the hon. member for Durban Point. If it is necessary and if we have the time I can introduce another bill. Meanwhile, I should like to continue with this Bill.

Clause agreed to.

House Resumed:

Bill reported without amendment.

Third Reading

Mr. Speaker, I move, subject to Standing Order No. 56—

Mr. Speaker, on behalf of this side of the House, I should just like to tell the hon. the Minister that we appreciate the fact that he is prepared to co-operate in connection with the important amendments which we cannot put before the House at this stage. I am quite prepared to accept the hon. the Minister’s explanation and I agree that the bodies which are concerned in this matter should also be consulted. When the hon. the Minister consults these bodies, I think he will find that they will readily concede that it will bring about a very great improvement in the legislation. I certainly hope that the hon. the Minister will be able to do it in the course of the session so that the legislation may still be disposed of before the end of the session.

Question agreed to.

Bill read a Third Time.

Mr. Speaker, when the House adjourned yesterday we were dealing with the Indemnity Bill, and it appeared clear from the debate that various laws of this nature had already been passed in South Africa, just as similar laws have already been passed in other democratic countries of the world in regard to wars and internal disturbances, are still being passed and will continue to be passed. In this connection we in South Africa have had the Acts of 1914, 1915, 1922, 1940 and 1961. There was a similar Act in England in 1922. Therefore we have here an idea or principle that have been laid down clearly throughout the democratic world. In The South African Constitution of May the following is said in this connection—

Now I want to come to the hon. member for Houghton and also to certain points of view that she held here. I want in the main to give attention to one of her points of view, that is to say that what the Government should have done was to declare a state of emergency here. When one declares a state of emergency it has two results, and the hon. member must tell us now which of these two results she wanted to bring about when she argued that the hon. the Minister and the Government should declare a state of emergency. Which of the two results did she want? In the first instance the Government will declare a state of emergency when in terms of public safety legislation it is clear that the ordinary law of the land is inadequate to enable the Government to ensure the safety of the public or to maintain public order. In other words, the first thing that one wants when one declares a state of emergency is more powers in the hands of the Government. When the disturbances broke out, did the hon. member for Houghton therefore want the Government to have had more power? Was it actually her point of view that the Government did not have sufficient power to handle the matter? Did she want the Government to have more power? Is she dissatisfied with the powers the hon. the Minister has to handle a situation of this nature?

I just want you to be honest about it.

The second result is that it does enormous harm to the prestige of the country abroad. I want to ask the hon. member for Houghton whether she accepts the fact that the declaration of a state of emergency does in fact have an extremely negative effect abroad. Does she accept the fact that it is harmful to the financial prestige and reputation of the country abroad, that it creates the impression that the position in the country is uncontrollable, that the idea takes root abroad that the Minister does not have sufficient powers to tackle the matter and that the Minister had to assume further powers? Is that the result that she wanted to bring about or did she perhaps want to bring about the result whereby the idea should suddenly spread in South Africa itself that the Government could not handle the matter? After all, the declaration of a state of emergency means that the Government does not have sufficient power to control the position. Did she want the Black people of South Africa suddenly to realize that the Government of the day did not have adequate powers to handle the situation? Is that the result she wanted to bring about? There are therefore three possibilities. The hon. member for Houghton said that we should have declared a state of emergency. What result did she want to bring about thereby? I want to tell the hon. member that we on this side of the House gain the impression that she wanted a state of emergency to be declared for two reasons: Firstly, because this would have done enormous harm to the reputation and prestige of South Africa abroad …

I assure you it cannot be worse than it is.

… and secondly, because it would probably have led to greater tension within the Republic of South Africa. I want to accuse the hon. member for Houghton across the floor of the House of wanting a state of emergency to be declared for these two reasons.

The question of a state of emergency is not a matter that we can summarily leave at that. Mr. Kowie Marais expressed himself in this regard. What would have happened in the case of a state of emergency if the PRP had been in power? Let us look at the eighth principle of the 14 principles of the Kowie Marais Committee. I want to quote it. I can hardly believe that a man who calls himself a lawyer or a judge could have appended his signature to this document. I quote—

In other words, if no state of emergency was declared, a person’s “life, liberty and property” were protected.

†However, when there is a state of emergency, according to this principle, the individual’s life, liberty and property are not protected. This is what this means. It means that in a state of emergency every citizen of South Africa will suddenly be outlawed.

The point is simply that one must not take emergency powers without declaring a state of emergency.

Mr. Speaker, if a Prog government were to come into power and were to declare a state of emergency, the inhabitants of the Republic of South Africa would suddenly be outlawed in terms of this principle. That is what this principle means. The principle reads—

I think the hon. member for Houghton must be far more careful when she blames the Government for not having declared a state of emergency. The policy of the Government is that when the enemies of South Africa take action as they did during the past disturbances the matter has to be localized as far as possible. In such a case the Government tries to localize disturbances of this nature as far as possible. It is the policy of the Government to restrict such disturbances with the least possible harm resulting for our country and its people. That is why the hon. the Minister has these powers and that is why he exercises them in this way. The hon. the Minister then comes along in all fairness and says that if people have suffered losses, the Government will consider making ex gratia payments to them.

We are in a permanent state of emergency.

I think that the hon. member for Houghton has done the Government and the country an injustice by arguing that the Government is seeking to legalize the mala fide or unlawful action of the Police and other people. That is certainly not the case. I want to tell her that this side of the House totally rejects her unpatriotic actions in this House.

Mr. Speaker, the hon. member for Pretoria Central will pardon me if I do not follow up on what he said today, because I should like to follow my own course, and do it as soon as possible.

†Mr. Speaker, the maintenance of law and order is more important now than at any other time in our history. We in these benches are prepared to accept our responsibility to South Africa and all its peoples, more especially in these very difficult times. We are going to accept this Bill and we are going to support the Second Reading of this Bill. There is one amendment, however, that I am going to deal with later on and I feel that the hon. the Minister should meet us at least in respect of this one amendment which aims to protect innocent people who justify compensation.

The hon. the Minister of Justice exhibited weapons last week in this House which are weapons used internally to stir up unrest, violence and death throughout South Africa. These weapons are obviously sophisticated weapons supplied by terrorists and communists. Every policeman and every other person who encounters these criminals who possess these weapons stands a chance, a very good chance, of losing their lives. Today, in respect of this Bill, I expected hon. members to take a tough stand and indemnify those in authority to combat urban terrorism and murder. Hon. members know that this is a very different ball game and that we are fighting for our very survival in South Africa. I was absolutely astounded and even distressed that hon. members should have used legal niceties and technicalities to reject this Bill. The urban terrorist fights with bullets and hand grenades and yet some hon. members come here with niceties when the lives of our civilian population are at stake. I want to appeal to hon. members who I know have the courage of their convictions not to strengthen the hands of the urban terrorists.

In the army, sons of South Africa are fighting and some are dying in the defence of our borders. This is a fact of life. In the police force sons of South Africa are fighting inside South Africa to prevent internal disorder and they are also putting their lives at stake every time. Some armchair critics, either through ignorance, but mostly wilfully, are trying to present a situation that puts more specifically the police force in a very poor light. It is obvious that in a police force consisting of thousands of people there must be a few weak links. One finds weak links in every organization in life. They say that even in Parliament we have weak links. We do not condone those weak links; we do not condone the weak links in the police force. We say they must be routed out by the hon. the Minister of Police. However, those weak links must be very few and far between. It is totally wrong to be hostile towards the entire police force just because of the few weak links. We believe that this country owes a great debt of gratitude to these men and women who under the gravest danger and stress have performed their duties under the most difficult circumstances. The critics of the police force must remember that they, the critics, sleep well and safely at night whilst the very police that they criticize are doing their duty day in and day out. The pay and conditions of service are such that unless one is totally dedicated one does not become a policeman. That the hon. member for Umlazi can bear that out. To the extent that the police and other people have acted in good faith to perform their duty, as a reasonable person would expect them to do, there is a case to be made out for an indemnity. We have no sympathy with the rioters, the murderers and the looters, but we are genuinely worried about the innocent man who has suffered loss. This means that if a man institutes an action and the policeman can show that he acted in good faith, unless the plaintiff can prove mala fides, he cannot succeed in his action, and the plaintiff as such will not succeed.

Mr. Speaker, I would like the hon. the Minister to alleviate our very real concern about the position of the genuine claimant. The retrospectivity of this Bill is of some concern to us, because once again an innocent claimant who would normally have anticipated success, will not now succeed because this Bill is made retrospective. We in these benches have said that we support the Government in the maintenance of law and order and we would like the hon. the Minister to make it easier for us to support this Bill. As I have said, we will support the Second Reading, although we would like to ask the hon. the Minister to consider moving an instruction in the Committee Stage to cover the matter of the compensation committee. In view of the fact that one would like to ensure that there is a further safeguard against any possible miscarriage of justice, and in view of the fact that our judiciary has such an excellent reputation, I would like to ask the hon. the Minister to consider meeting us in this matter when he appoints this particular committee, and I would also like him to move this instruction in the Committee Stage.

The amendment we would like, is that the committee that makes recommendations in regard to ex gratia payments must look carefully at genuine and deserving cases. If it were possible for us in these benches to move that instruction—and I want the hon. the Minister to know that—we would have moved it, but as can be well understood, the rules of this hon. House preclude us from moving that instruction because the payments of ex gratia moneys increase financial responsibilities and an ordinary member cannot move that form of instruction. Therefore, we would like the hon. the Minister to move that instruction. I would like to tell the hon. the Minister about the terms of the instruction we would appreciate him to move in the Committee Stage. It reads as follows—

1. 1. The Minister shall establish a committee consisting of—

1. (a) a chairman, who shall be a person who holds or held office as a judge of the Supreme Court of South Africa;
2. (b) the Secretary for Justice or a person nominated by him;
3. (c) the Secretary for Coloured, Rehoboth and Nama Relations or his representative;
4. (d) the Secretary for Bantu Administration and Development or his representative;
5. (e) the Secretary for Social Welfare and Pensions or his representative;
6. (f) such other officials as the Minister may deem fit.

1. 2. The functions of this committee shall be to deal with all applications for ex gratia compensation.
2. 3. The Minister shall have power to promulgate such regulations as he may deem necessary for the smooth functioning of the committee.

Mr. Speaker, I sincerely hope—and those of us in these benches hope—that the hon. the Minister will reply positively to this aspect that we have raised. These ex gratia payments must in reality be what an injured party would have received in a court of law award. I would like the committee to lean over backwards to compensate innocent people who have suffered loss, even though some of those innocent people—as the hon. the Minister knows—would have a minimal chance of success in a court of law. Nevertheless, I would like the committee to lean over backwards where innocent people are involved; people who have suffered a genuine loss. I would like the assurance from the hon. the Minister that it is the Government’s intention to provide full compensation to innocent people who have suffered a loss through no fault of their own.

*Mr. Speaker, our country is threatened from all directions by elements who do not mean well with the population as a whole. We deplore the fact that South Africans were killed and wounded in circumstances of this nature. Our sympathy goes to their next of kin, but we also realize that to maintain law and order in these circumstances, is very difficult and that the hand at the helm must be strengthened in order to stamp out certain illegal and undesired elements. There was attempted murder, arson and theft and I have no doubt that it is very possible that innocent people suffered losses under such circumstances. Such innocent people must be assisted and I have already made suggestions in this regard. We are safely sitting in the House of Assembly and our people are safe in the country because there are South Africans, especially members of the South African Police and South African Defence Force, who answered the call of our country.

†Young South Africans have answered the call of their country and some made the supreme sacrifice in order that the rest of us may continue to build South Africa into a country which has a place in the sun for every South African. In order to enjoy civil and other rights, law and order must prevail. Without law and order there will be chaos, bloodshed and a licence to kill, and the hon. member for Houghton will have no speeches to make. [Interjections.] The Rule of Law and civil liberty can only survive if law and order prevails.

This Bill seeks the indemnification of certain people in authority or people who, under their direction, do things in good faith for the prevention, suppression or termination of internal disorder; for the maintenance or restoration of good order or public safety or essential services; or for the preservation of life or property. How can there by any loyal, patriotic South African or, for that matter, any humanitarian, who does not want to prevent internal disorder and who does not want to preserve life? Unfortunately in certain countries people are murdered by the thousands and then the world says nothing because anarchy is entitled to reign supreme without condemnation. However, in South Africa, if in pursuance of preventing a crime, a policeman, in the course of his duty, kills an anarchist, the whole world is in uproar. These are the sort of double standards that we on the southern tip of Africa have to contend with. These are the sort of double standards that are often accepted in the West.

The hon. the Minister is asking us to enact legislation to indemnify certain people retrospectively, but in my humble submission there should, together with the law, go out a clarion call to all responsible South Africans that if we are to survive on the African continent, it can only be if we stand shoulder to shoulder in the fight for survival. The success of such a call will require sacrifices and adjustments on the part of all those who would like to work towards the survival of South Africa. People must realize that if they want to share in the good things that this country has to offer, they must be prepared to accept the commensurate responsibility. There are those who want disorder in South Africa and who have thrived while South Africa was burning. However, those people must be brought to book as a matter of urgency. Were we living in normal times and were we not faced with the gravest of dangers, this would not be the sort of Bill to find favour with me. This Bill is a product of our time and it calls for the submerging of personal opinion and the emergence of a greater South Africanism of which I know our people are capable. Let there be no misunderstanding: We want to get the Government out of office, but by means of the ballot box—in other words by constitutional means. Certain commissions have, however, revealed that there are certain South Africans who have decided to jettison the ballot box and to cause unrest in South Africa. Opposition to this Bill is like manna from heaven for them. In view of the attitude that we have adopted, I only hope that the hon. the Minister will listen to the plea we are putting to him. In conclusion I want to say to the Government that the wealth of our magnificent country does not lie in its gold, diamond mines or mining industry; our wealth lies in the quality of all our people. Harness that quality and we have the potential of becoming the greatest country in the world.

Mr. Speaker, I must say that the hon. member for Walmer appears to me desperately to be trying not to support the amendment moved by this side of the House while at the same time he was desperately trying to support it. I think I have to inform him that the fact is that he is desperately trying to support this side of the House. We appreciate the support his group is going to give this side of the House. As far as our amendment is concerned I am sure that he must be having second thoughts about all sorts of things at the moment. I just want to refer to what the hon. member for Pretoria Central has said. In his speech he stated that he would like to enunciate what would result if this country declared a state of emergency. I think that what he must remember is that at the moment this country is so circumspect with drastic laws and drastic provisions, which have been wrapped around the whole fabric of our society, that it does not seem necessary to declare a state of emergency even if a very drastic situation were to arise, such as in Soweto on 16 June.

We accept the principle of this Bill because of the pure practicalities of the situation, much as we deplore the necessity for such a drastic step, a step which in the ordinary course of events would never have arisen or should never have arisen if the Government’s policies had been so adjusted as to provide for a stable, satisfied, happy and contented population. No one can persuade me nor, I believe, anybody on this side of the House, nor any right thinking person, that the events in Soweto and other places in the Transvaal, in Langa and Nyanga or elsewhere in the Republic, took place in disrelation to the policies of the Government towards the urban Blacks in the Republic. However much the Government, including the Minister, likes to place the responsibility for the unrest and the violence over the past six months at the feet of agitators and inciters emanating perhaps from the ranks of communism, the mere fact that tens of thousands of Blacks and Coloureds were prepared to risk life and death to join in activities such as rioting, arson and physical assault with dangerous weapons, is a clear indication that beneath the surface of the so-called stable urban Black and Coloured population in South Africa, lies a smouldering resentment and a latent frustration. This is understandable and, in fact, has been prophesied, identified and diagnosed over the past years by this side of the House. The Government however has ignored our advice; it has simply blindly and with renewed vigour pursued the course of endeavouring to make a success of its policy of separate development. The least that can be said for the disastrous outbreaks which occurred in the Black urban areas during last year, is that they have had the effect of bringing home forcibly to the mind of the Government, and of the White people of the Republic, that time is not on the side of the Government. Because as I see it, one of the philosophies of separate development is that the independent homelands would be established on such a basis that they would become the subject of pride to the Black people who up to that stage had been forced to accept citizenship of their ethnic homelands. They would in fact be proud to exercise their citizenship there.

Order! The hon. member must please not range too wide. This is an indemnity Bill.

Mr. Speaker, I shall observe your ruling. I just want to end on this one note. I have read the debates of 1922 and 1961 very carefully and I must say, with respect, that the amount of latitude that was allowed to members on those occasions was quite incredible. I felt that under those circumstances I should be able to discuss the reasons why this legislation had to be imposed: That is the real object at which I am getting.

I want to end off on this particular note—I trust you will allow me to do so, Mr. Speaker—that enormous time must be required by the Government in order to improve the situation, not only time calculated in relation to the actual independence of the homelands, but the time it will take to create in these homelands such a utopian situation that the Blacks will not rise up in unrest as they did in Soweto, that they would perhaps flock back to their homelands and perhaps exhibit pride in their expatriotism. The hon. member for Walmer was right when he talked about “going up in flames”. In fact, what is happening is that the policy and the philosophy of the NP is now going up in flames. This is the background of the Bill with which we are dealing this afternoon. We have considered ourselves, as a responsible party, to deal with this Bill as if we were in Government ourselves. We have to face a fait accompli, i.e. something with which we have had nothing to do, but which has arisen as a result of the philosophies of the Government in power at the moment. We asked ourselves what we would have done if we were the Government at the moment. We have come to the conclusion that the Bill should be supported provided, as the hon. member for Umhlatuzana so eloquently stated and moved, that provision is made in the Bill for compensation to deserving cases.

I want to warn the hon. the Minister that for a number of years now, since the fifties, we have seen drastic procedures imposed through this Parliament and drastic procedures imposed by this Government whereby access by our people to the courts of law have been denied them. We feel that in this Bill itself, although it does relate to a court and an application may be made to court upon certain conditions, the basic precept of the rule of law of the access to the court by all the people of the country who wish to do so, is being taken away. I want to warn the hon. the Minister that the people have taken notice of this trend of Government policy. They have also taken notice of the fact that there is an increasing trend by this Government in legislation to introduce a presumption clause, thus making a farce of our acknowledged system of justice in regard to an accused person, namely to the effect that an accused is innocent until he is proved guilty by the State. There is also a trend to introduce presumption clauses in regard to civil actions where the onus is normally cast upon the plaintive, the claimant himself. These trends are partly due to the situation which is being created in the country by virtue of this Government’s policy and partly because of the fact that the Government has shown an increasing arrogance which does not take regard of the man in the street. It appears that we are abrogating the ordinary rule of law more and more. In this Bill there is access to the courts, but with the presumption clause being applied, it is very difficult for any claimant to satisfy the court, with the onus upon the claimant, to the effect that the party who caused the damage was acting mala fides.

We recognize that there is a restricted period in respect of this legislation. We believe that it must operate from the date the events occurred, namely 16 June. We realize that the Bill will operate as soon as it is promulgated.

I took the trouble to ascertain what happened in regard to the 1961 Bill, and I found that the Government had completed its Third Reading on 14 June and that it came into operation on 5 July. I asked the hon. the Minister to give the same prompt attention to the promulgation of this Bill as his predecessor did in 1961. We maintain that the grey areas, as the hon. member for Umhlatuzana so rightly stated, are not covered and that there will be people, innocent parties, who will suffer loss and who will suffer damage. The hon. the Minister said in’his Second Reading speech that he would form a committee. But no details were given in regard to the formation of this committee. I would like to quote what the then Minister of Justice said in 1961 about the committee he had appointed. He said this (Hansard 1961, Vol. 108, col. 7187)—

In those days the Minister of Justice decided that this committee should be chaired by the State Attorney, the Government Attorney. We raise again, in advance, the same objections here and now, that if the hon. the Minister contemplates, if he fails to recognize what we suggest in our amendment, namely that in this Bill itself there should be incorporated a clause dealing with the establishment of a judicial committee, if he establishes a committee on the same lines as in 1961 he is again going to subject himself to the same criticisms, namely that he is placing at the head of a so-called court of compensation, a State official. This is wrong because any State official will be acting as a judge in his own cause. He will be serving his master and he cannot give an untrammelled, a free and objective mind to the cases which will be placed before him. That is why I w ant to call upon the hon. the Minister that whatever happens, whether he accepts our motion— which I doubt he will—or whether he does not, he places at the head of this committee a man such as a judge so that he can adopt an absolutely objective attitude to claims and also, particularly, that he place there a judge, a legal man, who will be able to assess the rights and wrongs of the particular claim and will be able to assess, particularly, the quantum of damages which should be paid to the claimants themselves. If the hon. the Minister is not prepared to amend this Bill in conformity with our suggestion, we on this side of the House, although we accept the principle of an indemnity Bill, will be obliged to vote against the Second Reading of the Bill.

Mr. Speaker, as is usual with the UP, the hon. member for East London City has once again assured us of their acceptance of the principle of the Bill but at the same time attached all sorts of qualifications to so doing. We have already become used to the fact that when the official Opposition adopt a certain point of view, one should not reply to it immediately but wait for some time to hear what qualifications are going to be attached to their acceptance. This is a pity, because as the hon. member for Walmer correctly said, these are times in which we ought to have unanimity in regard to basic matters. I also want to congratulate the hon. member for Walmer and his party on the point of view they have adopted in this House. Although the request he put to the hon. the Minister will probably be considered and dealt with by the hon. the Minister himself, I still gain the impression that some of the suggestions he made will in any case be implemented in practice by the hon. the Minister. However, I must add that his overall plan did sound to me to be a trifle involved.

I want now to come to the hon. member for Houghton. We heard from the hon. member for Umhlatuzana that the official Opposition supports the principle of this Bill. In contrast to this the hon. member for Houghton, who probably spoke on behalf of her party, has in effect rejected everything in regard to this Bill. I accept the fact that the UP, the official Opposition, in their acceptance of the principle, has also accepted that the actions of the Government and the Police under these circumstances were necessary, and that our legal system is such that Parliament can be asked to pass an Indemnity Act. Therefore, they accept the principle. On the other hand the PRP rejects the legal principle of indemnity totally, and not only that. They also go further. They cast suspicion on our entire system of justice by referring to the lack of confidence, as a result of the Bill which is now before us, that prevails in this country in respect of our courts of law and our administration of justice. Nevertheless, I did not hear one single word of condemnation of this false image of our law from the benches of the official Opposition.

Working arrangement.

That is precisely what makes me wonder whether this working arrangement is not paralysing the official Opposition so that an objective point of view is no longer adopted. Is this then what we are to expect of the official Opposition?

What relationship is there between you and Helen, Vause?

A very good relationship.

The point of view of the official Opposition in this House is that they accept the Indemnity Bill but that they are simply proposing a compensation board. In contrast to this, the PRP reject this idea completely. Either the hon. member for Houghton has a wrong idea of the law in South Africa or she has a total lack of knowledge of the law here in South Africa. However, I think that there is a more probable reason for her point of view because I believe the hon. member for Houghton is not an unintelligent person. I believe it is obstinacy, to put it as mildly as I can.

I believe that for this reason it is necessary for the record to clarify the provisions of our law in respect of indemnity legislation in order to make it clear that this is not just a measure that has been sucked out of its thumb by the Government in order to save its own skin. For that reason I just want to refer to the case of Krohn v. The Minister of Defence, the authoritative case on this subject, a case that was decided by our Appeal Court in 1915. In this respect Mr. Chief Justice Innes had the following to say, and I shall be particularly pleased if the hon. member for Houghton and her colleagues will listen to it—

I am reading this judgment in particular and I am going to quote from it even further because it is so necessary that the world does not gain the impression that the Bill which is now before the House has been taken out of thin air but is founded on our law, is justified and dates back some centuries. I quote further—

Before the hon. member replies to this I just want to refer her to something else, something that is generally known among all lawyers in this country and also abroad. In the case of Rex v. Bekker (17 Supreme Court, 340) Mr. Justice Solomon had the following to say—

In this connection I also want to make a further quotation for the hon. member from the case of Krohn—

This then is a “proclamation of Martial Law”—

We have therefore had the experience in this House that in regard to this matter to which the official Opposition have no doubt given a great deal of attention, there has been no rebuke of the PRP by the UP because of the PRP’s wrong appreciation of the law in this connection. We know that the UP, the official Opposition, have considered their position very thoroughly because their position differs from the position they adopted in 1961. Their acceptance of the principle is different to what the case was in 1961. In 1961 the point of view of the UP was that the officer, the policemen, should be indemnified but not the State. There is therefore a clear difference between 1961 and now in the attitude of the official Opposition. It is their attitude today that the case of an innocent party must be referred to a compensation board similar to that for which provision is made in the Defence Amendment Bill. I believe that they are thereby trying to give a more juridical image to a committee of this nature. However, if we look at the Defence Amendment Bill we see there that the Minister of Defence appoints the compensation board. The Minister of Defence appoints the chairman, who may be a judge or a magistrate, and he also appoints the other members of the compensation board, not to exceed four in number. There is no provision whereby those four members need be experts in any particular sphere. It is therefore quite possible that laymen may be appointed to that board. A member of a compensation board of this nature occupies his position on conditions determined by the Minister, and receives the remuneration determined by the Minister. Where the compensation board—this is all in terms of the Defence Amendment Bill— consists of more than four members, a decision of the majority is the decision of the compensation board. In other words, in actual fact there is no guarantee that it will be the lawyer, that is to say, the judge or the magistrate, who will make the decision. It may be the laymen who make the decision. For that reason I cannot see that the official Opposition can really be very serious in regard to the proposal that they have made, neither can I see that it is such a meaningful proposal.

In conclusion the occurrences that gave rise to the Bill which is now before us, are regrettable. Murder was committed, there was loss of life, physical injuries were suffered and property was damaged. There was intimidation. I am just mentioning a few of the things that happened. The hon. member for East London City tried to find extenuating circumstances for these things. I say unequivocally that this House ought to condemn those crimes without qualification in the strongest possible terms; that we ought not to advocate in this House that political motivation be regarded as extenuating circumstances but that we should express an inexorable and unqualified condemnation here of these occurrences.

Mr. Speaker, the hon. member for Eshowe began his speech by suggesting that this side of the House is always attaching all kinds of qualifications to our acceptance of a Bill. [Interjections.] Thereafter, however, he did not mention one single word about those so-called qualifications. As a matter of fact, he did not even refer to them again.

†Mr. Speaker, I want to quote the amendment moved by the hon. member for Umhlatuzana yesterday. I read from page 36 of the Minutes of Proceedings of the House—

In other words, Mr. Speaker, one qualification only has been put forward, one qualification to the effect that we want to see provided in this legislation the proper machinery to deal with compensation. Not “allerhande kwalifikasies”. One condition only, one demand, one basis upon which we are not satisfied with this Bill. [Interjections.] However, that hon. member did not even refer to compensation. He did not even refer to our objection or to our conditions. He completely ignored it and made a wild, and unqualified and an unfounded statement that there were “allerhande kwalifikasies”. [Interjections.]

But, Mr. Speaker, let us have a look at this. In the next breath the hon. member for Eshowe congratulated the hon. member for Walmer on his attitude. I am sorry, but we cannot let these poor little lost souls get away with this sort of thing. What did the hon. member for Walmer say? The hon. member for Walmer, the egg-dancing Sir Echo, said that they supported this Bill, but they pleaded with the hon. the Minister to introduce an amendment in the Committee Stage, an amendment which would do what? An amendment which would provide machinery for compensation. That is what they asked for. So, they accept the principle, as we on this side of the House accept the indemnity principle. [Interjections.] We accept it. We accept the indemnity provided without qualification. [Interjections.]

[Inaudible.]

Now, let me draw the distinction. We accept the principle of indemnity without qualification. We oppose the Bill before the House because it is incomplete. Now, can the hon. the Minister not see the difference between supporting what is in the Bill, but not being prepared to vote for it because it is incomplete?

If that hon. Minister, Mr. Speaker, were to lose his two legs and went along to buy a pair of artificial legs, and if he were shown one leg which he liked and which he thought was fine, he would try it on. He might find that he could kick around and do an egg-dance like the hon. member for Walmer, but if they said to him: “Right, off you go with your one leg,” he would say: “What about the other leg? I cannot walk on one leg.” However, he wants us to vote for the whole package with one leg missing.

Mr. Speaker, let us just see what this means. The hon. member for Walmer says: “We accept the Bill. We are going to vote for it, but we want a committee to provide compensation, and we plead with the hon. the Minister to please introduce a committee in the Committee Stage.”

However, what is going to happen, Mr. Speaker? When, at the end of this debate, you, Mr. Speaker, put our amendment asking for machinery making provision for the payment of compensation to innocent victims, those hon. members are going to vote against it. In other words, they want compensation— they have asked for it—but when the matter is put before this House, they are going to vote against the demand for provision in the Bill for compensation. How does one deal with this sort of illogical approach?

This is not the right place for such a discussion.

Mr. Speaker, I shall deal with that. The hon. the Minister says it is not the right place. Last year, however, we dealt with a similar indemnity, an indemnity which removed the right of …

I shall deal with that.

Yes, the hon. the Minister will deal with it. In that indemnity, in the same Bill, there is specific and clear provision for the payment of compensation and the machinery which will provide for that compensation to be paid—section 103 quat of the Defence Act. Mr. Speaker, when the hon. the Minister says now that this is not the Bill for it, here is an example.

There is a fundamental difference between the Act and this Bill.

Yes, there is one difference between them.

There is a fundamental difference.

Yes, there is one difference.

A fundamental difference.

Yes, there is one difference. The question is: Should this Bill contain a provision for compensation? I say that when another Minister—I will not say a more responsible Minister, I will say a more understanding Minister—one of his own colleagues, introduces an indemnity protecting the armed forces of South Africa, he provides in the measures for compensation. However, this Minister says: “No, I am not prepared to do it; this is not the right Bill for it.” Let me remind the hon. the Minister that the hon. member for Schweizer-Reneke referred to the fact that there was a previous Bill of indemnity in this House in 1922. I want to remind the hon. the Minister of what the Nationalist Party did. The party of that day, under Gen. Hertzog and Dr. Malan, put up a filibuster. One Labour Party member spoke for four hours. The Nationalist Part fought the whole case on a demand that there be included in the Bill machinery for compensation. The Minister got up and he announced the committee he was going to appoint, its composition and how it would work. But they said that they were not interested in that and wanted it in the Bill. That Minister’s party, not this party, …

Did your party grant it in those days?

No, we did not. What I want to ask the hon. the Minister is whether his party was disloyal, anti-South African, pro-communist, pro-rioter, pro-agitator and pro-troublemaker when it demanded that compensation be included in the Bill in 1922? If not, Mr. Speaker, they cannot have it both ways. They cannot come and attack us, as hon. members there have done and accuse us of being unwilling to help the Government, unless they accept that they themselves were unpatriotic and all the other things that I have mentioned. They cannot have it both ways. What the South African Party did in 1922 was to announce, in the debate, the composition and the machinery for the compensation. They did this to make it public and did not in passing aside just state that it was going to appoint a committee. It stated it formally and publicly in the House. The hon. the Minister has not even done that. When my party’s predecessor went as far as that, the hon. the Minister’s party fought it tooth and nail, hour after hour, night after night, fighting against it. One speaker spoke for as much as four hours.

Is that why you are filibustering it now?

I am not filibustering. I am clearing away some of the fluff, the smokescreen, the puffing-billy smokescreen that we have seen put up by those hon. members who had nothing to say except to accuse this side of the House of being obstructionists. [Interjections.]

The hon. member for Schweizer-Reneke referred to the Defence Act and said it was the same as the hon. the Minister has done. He said that the Defence Act provided for compensation at the discretion of the Minister.

You did not listen.

He said it: “Kompensasie sal in die totale diskresie van die Minister wees.” [Interjections.] He said that the committee—the machinery under the Defence Act—recommended it, but the discretion was with the Minister. That, of course, is totally untrue. Firstly, the hon. the Minister is doubting the word of the hon. the Minister of Defence. I quote from Hansard, Vol. 60, cols. 400-401 of 2 February last year. This is what the hon. the Minister of Defence said—

I shall return to the Minister’s arguments on this—

This is the significant part—

Later he said this—

“Shall”, not “may”—

In other words, there is no discretion whatsoever. If the Minister’s offer is not accepted, he must appoint a compensation board and it must have a judge or magistrate as its chairman. It must consider all aspects of the case and may hear evidence and witnesses, etc. When it has recommended to the Minister, that recommendation is final and must be accepted by the Minister. Therefore the hon. member for Schweizer-Reneke is totally wrong. I do not want to waste the time of the House by quoting all these clauses, but it is here in Act No. 1 of 1976. There are provisions as to how the members of the compensation board shall be appointed, their duties, procedures, etc. This hon. Minister is dealing with a similar situation, with one exception. In the one case the Act of 1976 indemnifies soldiers, young national servicemen—in many cases 18 or 19 year old boys—against any claim, civil or criminal, if they were acting under a certificate from the Minister in an operational area, under certain circumstances. The Bill before us now indemnifies policeman …

Do you say that is the only difference?

Please, just wait a bit. I do not. It indemnifies policemen acting in a situation of unrest, riots and violence, under the instructions and command of the State. It protects them. The principle is identical. The difference is that in the one case the action takes place in an operational area, and security information relating to that action cannot always be disclosed in an open court as to the circumstances in which something happens. In the case of the Defence Amendment Act there is thus no recourse to the court if the Minister signs a certificate, but there is provision for compensation. In this Bill provision is made for access to the courts provided that one can prove lack of good faith—mala fides—or that the person was not acting with the purpose of suppressing violence and unrest. In other words, the applicant must prove two things, namely bad faith, which is virtually impossible to prove …

Why?

The hon. the Minister knows that it is virtually impossible to prove it, because how can one prove bad faith on the part of somebody unless his actions were so manifestly, so obviously and grossly unreasonable that a court would say: “This man was not acting in good faith.” To prove that he was not acting in the suppression of unrest or disorder is equally difficult, if not impossible, to prove. An innocent victim now first of all has to prove his rights to go to court by disproving the two presumptions, namely good faith and intent. He first has to prove bad faith and that the man was not acting with intent to prevent or suppress or terminate civil disorder. Only then can he start proving his claim. I have nothing against my colleagues in the legal profession, but heaven preserve me from having to go to litigation under any circumstances, unless it was an absolutely open-and-shut case. What man today can afford a Supreme Court action in which a possibility exists that he will have to pay costs. It certainly eliminates 99,9% of the people concerned or likely to be concerned in the troubles we have had since 16 June. This is simply on the grounds of cost, because hon. members must not forget that the man has to prove two things. What we are therefore saying is: Indemnify the policeman, but provide simple machinery for compensation for the innocent victim. To me it seems so logical and so reasonable that I cannot understand why the hon. the Minister is quibbling on the grounds that there is access to the courts. He refuses to accept what his colleague, the hon. the Minister of Defence, himself introduced and in fact, slightly amended to improve it, and what is now the law of his own Government, in the parallel peace-keeping machinery of South Africa. One is the police, the first line of law and order and the second is the Defence Force. Whilst the one arm of the peace-keeping machinery of South Africa adopts a reasonable and a responsible attitude, this hon. Minister adopts a completely obstinate and unreasonable attitude and refuses to make provision.

Let us take a look at the committee which, as the hon. member for Walmer proposed, should recommend to the hon. the Minister leaving the sole discretion to the Minister to determine the compensation. This hon. member pleads for a committee, but wants to make it purely advisory.

It is not a committee that I proposed.

No. It is the one which the hon. member for Walmer asked you to appoint. He wanted it to be an advisory committee with all the decision-making in the hands of the hon. the Minister. The 1961 committee, as the hon. member for East London City had pointed out, was headed by the State Attorney. He mentioned our objection that the State Attorney was an official of the Government. I want to go further and say that the State Attorney is the one person above any Government official who should not be the chairman of a compensatory committee, because his job and responsibility is to protect the interests of the State. He must protect the interests of the State by every legal device it is possible for him to find. I should like to give an example. Last year the Railway Select Committee—I have the report before me—had an incident before it in which the Controller and Auditor-General had queried a payment and claimed that it should be unauthorized expenditure because the Railways had paid out money on which it was legally entitled to claim prescription. This matter became a question of dispute between the Auditor-General based on the opinion of the State Attorney and the Railway Administration backed by the opinion of their legal adviser. The State Attorney’s opinion was that even although the Railways accepted that they were responsible for the payment, they accepted that they had received the goods for which they had paid, they accepted that those goods had been supplied in error at a wrong price and that the price which they, in fact, claimed for it was the price they had contracted to pay. They also accepted that they had a legal contract to pay for the goods, that the goods were received and that they had a moral responsibility to pay for it. The State Attorney took the line that because, technically, this matter has extended beyond two years, the Railways should not have paid what they themselves accepted as a legal and moral liability. This is the man whose view is going to determine the compensation to be paid to innocent victims, the man whose very function within the structure of the Administration is to protect the Government from paying out one cent more than they are legally obliged to do.

The hon. members who are on this Select Committee, the hon. Whip and others, will remember how, hour after hour, we argued this case. The State Attorney’s opinion—the State’s Legal opinion—was that if there is a loophole and if you are not legally obliged to pay, you can only pay an ex gratia amount and that that amount should not have been paid. It was not authorized and should only have been paid with a specific ex gratia authorization by Parliament.

But you agreed to all that.

No, I did not. I accepted that the Railways had paid bona fide and that the payment was legitimate and that we should condone payment, but that such payment should in future be recorded as unauthorized, because I said that one cannot go against the opinion of the State Attorney or of the State legal adviser.

Order! We cannot have that argued over again.

I am sorry, Mr. Speaker. I was led astray by an interjection. My point is, however, that if it is going to be the same committee that this Government appointed in 1961, headed by the State Attorney, it is not the type of body which we want to see determining compensation. If the State Attorney did, in fact, do his job on that committee, he would see that the minimum possible compensation was paid. We want to see a person who is trained, who is experienced and whose background is a judicial one which makes him look at things impartially seeking justice and seeking what is fair and right. He must be a person accustomed to judge facts and evidence, not an official whose duty is to the Government, but a person whose duty and whose training is to evaluate evidence and to come to a fair and just finding. That is why we have no problem at all with the principle of indemnity. We back it all the way, but, equally, we are not prepared to let a Bill go with one leg, the other leg being amputated, while it is left to a committee which the hon. the Minister will appoint in his own discretion with the final decision probably resting with the hon. the Minister himself. Therefore we will not support the Bill although we support the principle of indemnity. That is also why we have moved a reasoned amendment …

Order!

… and that is why we will not support the total condemnation of the PRP, which is condemning the Bill in toto. We do not. We do not condemn what is in the Bill; we are opposed to what is not in the Bill. [Interjections.]

Order!

We object to the omission from the Bill of machinery which we believe to be essential. We shall vote for the amendment of my colleague, an amendment called for a committee … [Interjections.]

Order!

The hon. members may laugh. Mr. Speaker, I am getting a little sick of this Government laughing over the misery and destruction of human lives and laughing over the consequences of riot and bloodshed, murder and arson, treating a matter of this importance as though it were a political joke! If that is a measure of the concern this Government has for the innocent victims of the riots of the last seven months, then God help the victims if this measure is passed without proper machinery for their compensation. I support the amendment.

Mr. Speaker, I hope the hon. member for Durban Point will not mind if I do not deal with his speech. I am a little confused now by my colleagues in respect of the working arrangement, but they are moving over and perhaps by the end of the Second Reading debate they will support our amendment.

There is one point on which every member of this House will agree without exception, I have no doubt, and that is that the unrest in South Africa since 16 June last year has harmed South Africa. It has harmed us internationally and internally. We all agree on that, both sides of the House and even the enemies of South Africa. The difference is merely that the enemies of South Africa are glad about that harm; we, however, are not glad about that harm, and both sides of this House have to try, therefore, to lessen that harm.

Say what happened.

I am coming to that. We have to try to lessen the damage done to South Africa. What is the damage that has been done to South Africa? I want to deal with the damage briefly because it relates to the response of this House to that damage in the form of this Bill. Firstly, there has been a very serious drying-up of foreign sources for loans. I am not an economist, but noted economists on both sides say that this is so. Secondly …

Order! I shall allow the hon. member to give some background for his argument, but I cannot allow him to enter into that kind of discussion.

Thank you, Mr. Speaker. There has been all kinds of damage to South Africa, and just very briefly let me say that there has been a resulting lack of confidence in South Africa because of the unrest, there has been strong criticism of South Africa, some of it grossly unjust and some of it perhaps partly true and there have been rumours about police action, some of the rumours perhaps grossly untrue, and there has been fast-growing international isolation, a fact which was mentioned in this House in the opening speech of this session.

Finally, there has been a rapidly growing polarization between the White race and the other races in this country. There has been a growing legacy of bitterness.

We are concerned today in this House with what the proper way is for us to respond to the things that have happened as a result of the internal unrest.

Who are “we”?

When I say “we”, I am talking of this House. What is the proper way for this House to respond? What action should we take to minimize the damage that has been done to South Africa? I do not know whether the hon. members opposite are interested in that. [Interjections.] How may we best deal with the attacks, serious attacks, that have been levelled at South Africa? [Interjections.]

Order!

Mr. Speaker, on a point of order: I think it is quite all right to have interjections, but tedious and repeated interjections are another matter.

Order! Hon. members are making too many interjections. The hon. member may proceed.

The question really is: What is the wisest way in which to react in this situation? I am not talking of the easiest way or the most expedient way, but the wisest way from the point of view of South Africa. The hon. the Minister of Justice has responded by introducing this Bill. He did not introduce it to have it rubber-stamped. He did not introduce it merely to have it passed without any debate. He introduced it to have it deliberated on, considered and carefully weighed by the members of the House.

What does the Bill in fact do? The first thing the Bill does is that it takes away certain rights of citizens. It takes away a right to go before the courts, with legal representation. It takes away all the benefits of the litigant going to court. It takes away the well tested procedures that ensure fairness, the procedures that our courts, a very high judicial system, have developed over the years. It also takes away written pleadings in which the issues are precisely pleaded so that the judicial officer knows precisely what the issues are. It takes away the right to the discovery of your opponent’s documents before trial, documents such as post-mortem reports, medical reports, and others. It takes away the right of the citizen to a trained and impartial judicial officer.

Are you sure?

It also takes away the right to appear in an open court. Of that I have no doubts whatsoever.

What about subsection (3)?

Order!

In place of these rights the hon. the Minister of Justice has intimated that a committee will compensate people who are injured or who have suffered damages.

I never said it was in place of those rights. I never said a word about that.

I say it. The hon. the Minister has said there will be a committee to compensate people.

Not in place of those rights. I never said that.

But that is what I say. It must be clear that however honourable the hon. the Minister of Justice is—I do not doubt his honour—this course does not give citizens any rights at all. In fact, it takes away their rights.

All their rights? Are you sure?

I shall deal with that point. It replaces those rights with no more than a spes, a hope. Of course I accept that the position is different if one can prove mala fides. The hon. member for Bloemfontein West, who has been an advocate for a short while, knows how virtually impossible it is to prove a lack of bona fides in this kind of situation.

Why has the hon. the Minister of Justice introduced this Bill? He says it was done not to deny compensation—I accept that. He says he has introduced it for two reasons. The two reasons, summarized as I see it, are the following: Firstly, he says he does not want policemen filling the courts and therefore not able to execute their normal duties. He claims that this will lead to a disruption of police services. Secondly, he says there will be false claims and that the State will waste time and money defending them. Those are the two reasons the hon. the Minister of Justice has given. With great respect to the hon. the Minister of Justice, those two reasons hardly bear a moment’s scrutiny. Secondly, these two reasons place the matter of State indemnity for the first time in South African legal history on an entirely new basis. If these are the reasons for this Indemnity Bill, then it has taken an entirely new place in South Africa’s legal system and an untenable position in terms of our legal tradition.

I should like to deal briefly with the hon. the Minister’s two reasons. First of all he says that all the policemen will be filling the courts. You can only have one policeman in one witness-box at one moment. Maybe you can have one waiting outside. Anybody who has been in practice in the courts of this country, as I have for 20 years, knows that courts always excuse witnesses for attendance when they are asked to do so. The witness before and the witness after is excused as well as all the others and there is never any question that you have 30 witnesses waiting outside the court. Secondly, there are only a limited number of civil and criminal courts available in South Africa and there are also only a limited number of judges and magistrates available. Thirdly, police attend the courts every day in other cases in the ordinary course of their duty.

In addition, the cases cannot all come to trial at the same time. There is a waiting list of something like 1½ years in most supreme courts in South Africa for civil trials and the matters come on in order. How many of these cases will even get as far as trial? How many civil cases in South Africa are settled before you come to trial? The hon. the Minister of Justice knows that nine out of ten cases never get to trial. Maybe 49 out of 50 never get to trial. A simple example of a case of this very nature was in the early 1960s, the case of Stephanie Kemp v. The Minister of Justice and Sergeant Van Wyk. At the discovery stage the State threw its hand in and settled the case. That is the sort of thing that happens.

I now come to the second reason the hon. the Minister gave, in regard to false claims. Now, the hon. the Minister says this wastes time and money. There is no better way of settling the matter than to place a false claim before a court because a court will expose that claim very quickly. The weapon of cross-examination has been described by an eminent legal man, Mr. Wigmore, as the greatest forger of the truth known to man, and I absolutely accept that. If there are false claims they must be exposed in court for the benefit of all of us. On this point I want to draw the attention of the hon. the Minister of Justice to a very important point. If you take cases to court you will save far more time than you waste because the judgments of the courts of this country are public property. They are published throughout the country. What happens is that immediately there are one or two judgments there is a guideline for litigants and you find that virtually every case after that is settled. So if these matters were to be brought before the courts it would in fact save a tremendous amount of time.

What in fact should our response be to the outside world in so far as this unrest is concerned? In order to restore international confidence we should put ourselves in the position that we have answered our critics and our answer should be an effective one. Our answer should simply be that at all times, except in a declared state of emergency in South Africa, our courts are open to everybody.

With regard to the internal situation in South Africa, there is the question of restoring confidence to our own people. I have spent a great deal of time in Pretoria in the last two years and I am alarmed at the large number of people whom I have encountered—and I am even talking about White people right across the strata of political thought—who now have a lack of confidence in South Africa. The question of confidence for our own people, and I am talking about the 25 million people who live in this country, is of the greatest importance to our survival in South Africa. We must all have confidence because we, all 25 million people, are going to have to share this country. Nobody has any doubt about that, even those people who believe that we must split the country up. Some believe that we must split it up and some believe we are going to share a common society, but either way, from the Limpopo to Cape Point, this country is going to be lived in by those 25 million people. If we are going to be sharing it with those people, now is the time to start building up that confidence. Mr. Speaker, we are going to have to live with the people from Soweto, the people from Guguletu and …

Order! The hon. member must bring his argument back to the Bill. [Interjections.]

Mr. Speaker, the hon. the Minister of Justice has brought this Bill before this House on grounds entirely different—as I have already said—from any ever before used in South Africa, and here I want to refer to the speech by the hon. member for Eshowe, who said that the hon. member for Houghton was rejecting the legal principles of South Africa. He totally misunderstood her standpoint, but in any event, it is the Government—on the contrary—which is rejecting our legal principles. Mr. Speaker, I shall illustrate this to the House. On every previous occasion in South Africa—I am talking about 1914, 1915, 1922, 1940 and 1961—every one of such Bills was preceded by a declaration, a declaration either of emergency or of martial law or of war. This declaration has great importance in itself, for it gives notice to the people of South Africa—to the police, to the officials and to the citizens. It says: “Take notice that we are in a state of emergency.” It says to the police: “Take notice that your priority now is to restore order. Forget about the niceties of the law. You must restore order. That is your priority now.”

As the hon. member for Eshowe said, we do not for one moment allege the police have extra powers. It just says: “Do not worry too much about the niceties of the law, but restore order now”. That is what it says to the police: “You must restore order,” and then, later, the police are indemnified where they have been culpable, because they have had this notice from the Government. This notice says to the citizens of South Africa: “Pasop!” It says: “Now there is a state of emergency. You must be careful; you must keep out of the way. We are not keeping strictly to the laws now because there is a state of emergency”. That is what it says to those citizens.

Mr. Speaker, in those circumstances, where the State has given notice, there can be no objection to the indemnity Bill, but here the police and the citizens of South Africa were given no notice whatsoever. There was no emergency; there was no suspension of the rule of law. In fact, we expected our citizens in Soweto, in Guguletu, in Langa and elsewhere to keep on going to work. We expected them to use public transport, and they did so. They faced risks for themselves, naturally, but they did it also for the benefit of the country. Here now, at this stage, without giving any notice, we say: “But, any risks you take, any damage you suffer, will in no way be compensated for in the courts.”

Mr. Speaker, it is more important in this case, because of these facts, to retain the right to go to court in this kind of legislation than it is in the Defence Act where it affects only a few people up in the operational area. Here we are dealing with the heart of South Africa. If we embark on this sort of precedent it will simply be said of us by the outside world that they do not agree with us. The trouble is that this is a fact of life that we have to face. The outside world will say: “Yes, they are sweeping it under the carpet in South Africa. ”

Mr. Speaker, if we embark on this sort of legislation without a declared state of emergency, we are admitting that finally, in normal times, we are moving into a siege situation in South Africa. Finally, I just want to say that I believe this is a very bad precedent for South Africa. In our view this is against the interests of South Africa, and we therefore cannot support the Bill.

Mr. Speaker, I have listened to the hon. member for Durban Point and I paid carefull attention to his exposition of the Defence Act and the Select Committee on Railways and Harbours, but in his speech I found very little concerning the Bill under consideration. What I did find was that very little was said for a very long time and was said very loudly. [Interjections.] I also listened to the hon. member for Durban Point and I agree with him that some harm has befallen our country. We are all agreed on that. However, I do not think that we are all agreed that the maintenance of law and order is of the utmost importance. I have listened to qualifications and suppositions, but no clear, unequivocal statement that law and order must be maintained at all costs has been heard from that side.

*This side of the House believes unshakably in the rule of law. It is of primary importance for the rule of law that there be peace and order in society. The Government will see to it that law and order is maintained in South Africa. We shall do everything in our power to enable the police to tackle this task without qualms. The police are there to perform a duty. They do so under difficult circumstances and we cannot expect a man’s judgment to be calm and collected in the heat of the struggle, when stones are being thrown at him and he is even in peril of his life. Therefore I cannot understand why any notice at all should be given of a difficult situation which may arise. Basically I can see no reason why people should be warned to be careful and to respect the law. Why should one have to tell someone else that he must respect the law? Surely he ought to do it in any case.

It is precisely because we believe in the rule of law that the courts are open. No rights are being removed and the courts are entirely open to anyone’s pleadings and statements. There is really nothing to stand in anyone’s way. I am unable to comprehend how it can be said that it is impossible to prove mala fides. Mala fides is nothing more than ill-will. In all cases of ill-will the doors of South Africa’s courts are entirely open. The hon. member for Houghton said that it was impossible to prove ill-will. I, in turn, want to point out to her that ill-will is proved 1 000 times every day in South Africa’s criminal courts. All that must be done in the case in question is to prove ill-will. The hon. member referred to a green Chevrolet and a White Valiant. I believe that she is an intelligent woman and I also believe that she knows that the doors of our courts are open to people who believe that there has been ill-will. Why does she not advise those people to whom she referred, to institute legal proceedings in our courts? My argument is that instead of doing that, she makes propaganda in the House for foreign consumption. The right thing for the hon. member to do—she has been sitting in the House for a long time now—is to advise her informants, whose integrity I sometimes doubt, that the courts are standing open to them and that their cases may be heard if there was mala fides on the part of the Police.

Sir, this mala fides clause means in reality that when a policeman has committed a criminal act and has done something in ill-will his principal, viz. the State, can be held responsible for what he has done. In other words, in this Bill we accept, in the first place, the bona fides of the Police. In the second place, if a man has acted in ill-will, we must deal with him as we would in a criminal court, where a man is presumed innocent until proved guilty. Precisely the same applies here. We presume the innocence of the police in these difficult circumstances and anyone can prove the contrary. There is a legal expression which states: omnia rite acta esse praesumuntur. In other words, there is a presumption that wherever the State took action, it did so lawfully. It is very simple and there is no wonderful principle involved. If only one’s eyes would open and one did not always, both before and after the event, want to place the blame on the police, there would be no problem with this legislation. However, if one wears coloured spectacles, perhaps tinted a shade of red and black, it is difficult to see what stands in this legislation.

Sir, I believe that we are dealing with vandalism and terror and that we must protect the police. I also believe that our courts ought to be open when someone acts in ill-will. Thirdly, I want to make it quite clear that there is nothing in this Bill which removes a citizen of the right to take action against another citizen. All this arson, all these losses and assaults, were not, after all, the work of the police. Surely it was citizens who were taking action against other citizens. There is nothing in this Bill which prohibits those people from going to the courts. As I have said, the rule of law is maintained at all times by this Bill.

To show how good the intentions of the Government are towards all the sectors of our population, there is a fourth point which I want to mention. The establishment of a committee is being envisaged with a view to precisely those cases in which excessive—if I may put it in that way—losses have been suffered, even if the actions of the police have been bona fide and entirely correct. In such cases these people will have to be accommodated. The Minister, who has been so unnecessarily, has taken it upon himself to establish this committee with a view to rendering assistance in all possible cases, even to people who are not redly entitled to it in law. I therefore want to make it clear that I personally reject any insinuation that South Africa has waived the rule of law, that matters have got out of hand and that this Government is acting in anything like a dictatorial fashion. I believe that any impartial person will agree with me that this Government has in fact tried to do everything possible to be of assistance where necessary.

As I have said, Sir, it all depends on the spectacles through which one views at matters. Which person one wants to put in the dock, will depend on the spectacles which are used and I want to say at once that we must now decide to take the police out of the dock. They ought not to be there. That is not their place. Those people who were responsible for the revolts, the losses and the murders, are the people who ought to be there. It is in South Africa’s interests that we keep them there under the magnifying glass. The converse is also true, and that is that the inhabitants of South Africa—White, Brown and Black—must be assured of the fact that the Government will do everything to ensure that their lives are protected. They must know that the Government will enable the police to protect their property and lives. It is therefore in the interests of every citizen that this legislation be passed, because there is another side to the picture. The person who actually suffers is the average citizen in the city. What is happening in this legislation is that the onus is being shifted, and I am satisfied that, if it is a motion of confidence in the police for their exemplary behaviour and for their loyalty towards us in this country, I want to associate myself with it. I do indeed consider it a motion of confidence in their loyalty and their sense of duty. In everyone’s interests, I believe that the police should also know that we appreciate what they have done and that we shall strengthen their hands in their difficult task—just as they strengthen our hands here in the House of Assembly and by so doing place us in a position to govern the country properly.

Mr. Speaker, the hon. member for Pretoria West will forgive me if I do not follow him directly, because there are other hon. members who have taken part in the debate, with whom I should like to deal. The first hon. member I should like to deal with, is the hon. member for Durban North. I do not blame him at all for being confused by his colleagues in the working arrangement. Although I disagree with the standpoint of his party in the Second Reading, I would like to congratulate him for the way in which he conducted himself in this debate by not providing ammunition for the enemies of South Africa. This is a sharp contrast with another hon. member who has taken part in the debate, viz. the hon. member for East London City, who found it necessary to say that there was so much restrictive legislation in South Africa that there is no need to declare a state of emergency. He also found it necessary to say that there was smouldering resentment among the urban Blacks. He found it necessary to say that time was running out for the Government. He found it necessary to say that the Government’s policy had collapsed and he found it necessary to say that the country was going up in flames.

Now, much as I might disagree with Government policy and its application—and I do—I believe that the continued repetition of these clichés only serve to provide ammunition for the enemies of South Africa. In supporting my colleagues in their support for the principle of this Bill, I also feel compelled to congratulate the hon. member for Umhlatuzana with the brilliance of the speech he made earlier in this debate. It was a dextrous and eloquent exposition which pinpointed the dilemma of the UP at the present time. Having listened to the speech made by the hon. member for Edenvale during the no-confidence debate, it was clear to me that the hon. member, as well as some others who feel that way, would have preferred to support the amendment proposed by the hon. member for Houghton.

This emphasizes the brilliance of the speech made by the hon. member for Umhlatuzana and of the amendment he proposed. It was his duty to propose an amendment and to make a speech that could only be described as similar in nature to the course of a yacht tacking against the high wind. It is a course that veers from the left to the right and makes slow and painful progress.

The hon. member for Houghton and others said that they would be prepared to support such a measure if there was a declared state of emergency in the Republic. The hon. member for Houghton actually went on to challenge the hon. the Minister to declare a state of emergency. The hon. member for Houghton has been a member of this House long enough to know that a declared state of emergency has vast ramifications and would certainly not be in the interest of South Africa, except perhaps that it would severely restrict the activities of her party. The hon. member had a lot of other things to say, which one would normally have expected, but I leave the matter there.

I think one is entitled to say that this is a small Bill with far-reaching ramifications, viz. the indemnification of the State, the executive council of the Republic, persons in service of the State and persons acting under their authority in the prevention, suppression or termination of internal disorder or the maintenance or restoration of good order for public safety, essential services or the preservation of life and property. In other words, the maintenance of law and order, so that the peaceful process of the social and economic order may proceed and develop with the minimum hindrance from the unlawful and the revolutionary. We in these benches gave South Africa the undertaking that we would support all reasonable and necessary steps taken by the Government in regard to internal and external security. We believe that this Bill is both reasonable and necessary and we shall not, like others in this House and outside it, use the Bill as a platform for launching unwarranted attacks on the South African police and, in particular, the riot police, without whose prompt and continued action over the past months, none of us would be able to sleep peacefully.

I had a little to do with controlling riots in my time. These riots were mostly instigated by the Communist Party in and around Milan just after the termination of the last war. I was a very young boy then. The difficulty of those in charge of controlling riots and of those acting under orders in controlling riots, is that it is virtually impossible to distinguish between the instigators and the rioters on the one hand and the panic-stricken and innocent bystanders on the other hand.

Once a riot is under way, it becomes a solid, roaring mass of humanity and no mediation will stop it; only violence. This is where the need for indemnification comes in. One cannot have a situation arise where members of the police force or the State are constantly brought before the courts for murder or assault where they had acted in good faith in quelling a dangerous situation which could lead to anarchy. It cannot be denied that there will be cases where someone acts mala fide but we believe that these cases are adequately covered under this Bill and other existing Acts, particularly now that the hon. the Minister has given notice of the amendment he will move in the Committee Stage, an amendment which will have the effect of allowing the courts to revert to their normal procedure in regard to allowing costs. That there will be cases where innocent bystanders will be affected, can also not be denied. The hon. the Minister has given an undertaking, and we in these benches sincerely hope that he will move an instruction at the Committee Stage, that there will be a committee to deal with ex gratia payments.

*In conclusion I should just like to emphasize that a policeman’s lot is not a happy one anywhere in the Western world. As the guardian of law and order, he is the first target of the communist propagandist. He is the first target of those who want to undermine law and order. He is in the front line every day and without the indemnity provided for in this legislation, his task would be an absolutely impossible one. I should like to make use of this opportunity to say from these benches: Thank you very much to the police for all the wonderful work they have done in recent months in South Africa. We appreciate it. We fully support the Second Reading of this Bill.

Mr. Speaker, I congratulate the hon. the Minister on his powers of endurance. When I was a boy I used to read western stories about the Lone Star Ranger. There sits the Lone Star Minister. Where are his colleagues to see him through this Bill? Since June 16 that hon. Minister—and that hon. Minister alone—has carried South Africa, together with the police for whom I have nothing else but admiration despite the criticism which has been hurled at them. The hon. the Minister alone has carried South Africa. Through him I was granted permission to go to Soweto where I saw what the police were doing. I felt for them because I am also one who has been through riots in my time and I knew what they were going through. He has carried South Africa and it is to the shame of his other colleagues that they have not said a word in support of him.

As a practical ex-policeman, and a man of few words, I am going to confine my speech to one or two points because the other points have been adequately covered by speakers on both sides of the House. Let me remind the House that the functions of the police, as laid down by Act of Parliament, are: The preservation of the internal security of the Republic; the maintenance of law and order; the investigation of any offence or alleged offence and the prevention of crime. What does all this add up to? It adds up to the maintenance of law and order and the preservation of life and property, and this alone makes the police force the first line of defence of this country. With all due respect to the Defence Force— and I had my part in it—the police are the first line of defence in South Africa, whether on the borders of Rhodesia or within the borders of South Africa.

This is a Herculean task, deserving of the active and loyal support of every fair-minded citizen, whether he is White or Black. This support is accentuated in times of stress and internal disorder such as we have had since 16 June 1976. Not only is it only fair to each member of the force who is called upon to perform these onerous and dangerous tasks, at great risk to his life, that he should have the protection envisaged in this Indemnity Bill. It is also only fair to those citizens who expect the police to perform these duties. One thing, however, must be remembered. These duties are performed within the ambit of the law. It is not true, as some people have suggested, that the police have been told: “Gaan in en skiet die donders!” [Interjections.] Whether the police are called out in a hurry, or whether it is a riot planned in advance, the police have to work within the ambit of the law, and the officers see to it that they do so. I do not for one moment say however, that mistakes do not occur, and it is for this reason that this Indemnity Bill is required, and we in these benches therefore support the principle of the Indemnity Bill. We have no quarrel with the Bill in so far as it indemnifies the police. Indeed, we support this. Where we wish to differ, however—and this has been eloquently put by the hon. member for Umhlatuzana, the hon. member for Durban Point and other speakers in these benches—is in respect of the mode of compensation to the genuinely innocent injured parties, and I am now speaking about the genuinely innocent, not the bloke who tells one he happened to be standing in his doorway.

Are you concerned about Helen?

The hon. member for Houghton yesterday quoted facts from Standing Orders relating to how and when the policemen may use their fire-arms. I would just like to inform the House that those Standing Orders went out of date over 40 years ago. [Interjections.] Those Standing Orders went out of date in the 1930’s, when I was still a young constable. I am sure that if she had gone to the police she would have received the updated Standing Orders …

Tell us what they are.

… which are even more drastic than those she quoted.

Ah, they are even stricter.

To soothe the savage breast of the hon. member for Houghton, I would like to tell her that I support her statement that the compensation aspect of this Bill will have a bad psychological effect on the Bantu people in so far as their faith in the courts is concerned. I agree with her on that point for the simple reason that, although the sovereignty of the law, as the hon. member for Pretoria West put it, is maintained in the Bill, but when the ordinary man in the street reads this, he does not see it. I have heard lawyers dilly-dallying about it across the floor of the House. If they have different interpretations, what must the poor layman think and what must the poor policeman think? Justice must be seen to be done. If something such as the hon. member for Umhlatuzana suggested is inserted in the Bill, the people of South Africa, whether they be White or Black, will see that there is something positive embodied in the Bill which makes provision for compensation to be paid to the genuine innocent injured person who had nothing to do with the riots. That is why, apart from making it a good statute, even from the point of view of race relations I would urge the hon. the Minister to insert a provision to the effect that machinery be set up to ensure that the injured person, who faces such grave problems, will receive compensation without having to go to lawyers and through the processes of courts which are such time-consuming and money-consuming processes. In the end the Minister will end up making an ex gratia payment in any case. In order to cut all that out, the proposition put forward by the hon. member for Umhlatuzana should be taken up. The people of South Africa and particularly the Black man will then see that the White man is not merely protecting the police but is protecting his rights as much as those of anybody else.

Mr. Speaker, in the first place I want to tell the hon. member for Umlazi that the hon. the Minister does not need the assistance of other Ministers because he is capable of handling his own portfolio very effectively.

In considering this important Bill there are two questions which must be asked. The first question is: Is this specific Bill complicated, without precedent in legal history, unfair, unjust or unnecessary? The second question I want to ask is: Why is there such a vast difference between the approach of our party and that of the PRP? The reason for this is that there is a radical difference between these two parties in regard to their basic points of departure and religious attitude. This I shall explain later.

Let us consider the first question: Is this Bill complicated, without precedent in legal history, unfair, unjust or unnecessary? To all these possibilities a negative reply must be given. Let me explain. The fundamental principle of the Bill is based on an acknowledged legal principle which applied in both the Roman Dutch law and English law. Verloren van Themaat puts it very clearly on page 140 of his book: “Wanneer die Staat of sy gesag ernstig bedreig word deur oorlog of binnelandse wanordelikhede, laat sowel die Engelse as die Romeins Hollandse reg sekere beperkings op persoonlike vryhede toe.” In our own law we have precedents for indemnity legislation. I want to quote parts of the preambles to the various Acts very briefly: Act 1 of 1914—for the prevention and suppression of internal disorder; Act 11 of 1915—preserving and restoring public safety in the Union; Act 6 of 1922—in relation to measures taken for the prevention and suppression of disorder or disturbance, the maintenance of good order and public safety; Act 13 of 1940—the maintenance of public order; Act 61 of 1961—for the prevention or suppression of internal disorder or the maintenance or restoration of good order or public safety. The principle of indemnity contained in the Bill is, therefore, nothing new.

The essential principle at issue is to protect officials, specifically the police, after certain things have taken place, against legal proceedings which are or may be instituted against them due to possible incidental unlawful action taken in good faith in combating such a situation. It is a fact that it is one of the functions of our police to prevent, suppress or terminate internal disorder and to maintain or restore good order or public safety. In carrying this out it is sometimes necessary for the police to make use of force and to prevent violence. Then people are injured or killed in good faith. Let us look at some of the circumstances which have occurred in the past and which have made previous indemnity laws essential. During January 1913, 21 strikers were killed and 74 injured in Benoni whereas nine Bantu were also injured. We then had Act No. 1 of 1914. In 1921, 162 people were killed and 129 wounded in Bulhoek. At the time of the 1922 strike, 140 strikers were killed, 287 strikers were wounded, 31 non-Whites were killed and 67 non-Whites wounded. Act No. 6 of 1922 followed on this. In Sharpeville, 70 people were killed and 177 injured in 1961. After this we had the Indemnity Act No. 61 of 1961. Now this Bill follows the disorder of last year. In such circumstances officials, specifically the police, must be indemnified against civil or criminal proceedings in which they acted in good faith.

The question arises whether a person who took part in such a campaign which gave rise to internal disorder can now turn round and claim damages from that authority which he wanted to destroy. This sounds illogical and unfair, but in our legal system there is nothing preventing such a person from instituting such proceedings. The courts can be misused and the State can be put to great expense in contesting claims. Furthermore it is a waste of time. We must also realize that if there is no such indemnity Act, no one will join the Public Service as an official or a policeman. Why not? Because he could consider that he would be personally responsible for these claims.

But the Act is very fair. If, for example, it was an exceptional case in which a policeman acted in bad faith, then such aggrieved persons have the right, in terms of the Act, to indicate that the policeman did not act in good faith, but in bad faith. Then an aggrieved person has a claim. It will be easy for the alleged claimant to prove that the acts were not carried out in the process of suppression of internal disorder. In other words, this Bill provides no absolute and unconditional indemnity. The claimant can prove that a person who caused the damage did not perform that action with the intent of suppressing, terminating or preventing internal disorder. His claim for damages therefore remains. In this connection I refer to the far-fetched fairy-tales of the hon. member for Houghton concerning a white or a green motor-car. The legislation is not complicated, but is clear.

We must understand one aspect very clearly. The Bill only applies in respect of the bona fide acts of the State. If an alleged claimant can prove that the State acted mala fide or with malicious intent, the State can be held responsible through the courts. That is why the allegations made yesterday by the hon. member for Houghton are utter nonsense.

In a nutshell; My answer to the first question is that the Bill is not complicated, not without precedent, not unnecessary and not unfair or unjustified.

Now I come to the second question. Why is there such a vast difference in approach between our party and the PRP? My answer is that there is a radical difference with regard to basic points of departure or religious attitudes.

Let me explain this. In considering such legislation the deeper-lying point of departure on which, as an individual and as a member of a party, one has to base one’s point of view, is the question whether it is in the interests of South Africa to adopt such legislation or not. This alone should be the decisive question. Because since its foundation the NP has stood by this fundamental principle, it has no difficulty with regard to this Bill and realizes that it is in the interests of South Africa, but because the PRP has never put the interests of South Africa first and because the principle is foreign to them, they are opposed to this legislation. In fact it was to be expected. Surely it is part of their party’s policy or philosophy to be anti-South African. It is part of their party’s history, and that is why they will not have any future either.

The second point of departure in considering this Act is whether one is on the side of law and order, on the side of the representatives of authority, in other words, the police. The police of South Africa—White and non-White—must know that the NP, the Government, the nation at large, are on their side and will afford them every possible measure of protection when they have to go out—often in mortal peril—to maintain and protect the security of the State. Is the PRP going to adopt this point of departure? Then they must be in favour of the legislation! I hope that one day, in the United PRP that is to be founded—perhaps after the Easter recess—the hon. member for Umhlatuzana will give a lesson to the members of the old PRP to act as responsibly in regard to legislation of this nature as he did in his good speech yesterday.

A third point of departure in considering this Bill is whether we, and whether South Africa, should have confidence in the law. Is there justification for adopting this legislation? According to the PRP there is not. According to my humble opinion, and that of my party, the answer to this is a positive and unambiguous: “Yes.” Why must this legislation be adopted? Because it has tremendous moral significance and because it inspires confidence—confidence in the law, in fact— in the Government, in the State, in those men and women who have to maintain the security of the State, inter alia the police. That is why it is necessary for the State and the authorities to have the assurance in law that they have the full and unconditional support of South Africa in the prevention, suppression or termination of internal disorder or in the maintenance or restoration of good order or of public safety. We ought not to withhold from the State any means of realizing this aim. Does the PRP want to maintain that the police act maliciously and that they shoot and kill everyone indiscriminately? We all know that the police act with great self-control and with great responsibility at all times.

We are a peace-loving nation. We seek peace at any price, but we also say to the champions, the spokesmen, the agitators, the instruments, the inciters and perpetrators of internal disorder, or to those who want to destroy good order or public safety, that we shall answer their force with force. We do not say this in a spirit of aggression. We say it is in the interest of law and order.

In a situation of internal disorder such as this there is always so much confusion. Who can take it amiss of the police when people are shot and killed or injured in good faith? No reasonable person in South Africa will hold this against the police. On the contrary. Every reasonable person will thank the police for risking their lives for our safety. The exception is the PRP, which, through the hon. member for Houghton, maintains that the police act in bad faith when they kill or injure people. We reject the standpoint of that party. Do they want the police not to act? Do they want the police not to maintain law and order? Must the police stand back and do nothing? Surely that is ridiculous. Does the party think more of the lives of the rebels, lawbreakers and inciters of unrest than the lives of the police?

Does the PRP not realize that the classic state of emergency no longer exists; it exists all the time, lying dormant in an innocent form. The First and Second World Wars were declared, but is the PRP unaware that war will not be declared again. This is what the special correspondent to one of our well-known daily papers, Die Volksblad, wrote as long ago as 9 December 1971—

Our party’s policy and philosophy is founded on the principle of the interests of South Africa, the maintenance of law and order and the establishment of confidence in the law and that is why we say to the Government and to the police that we willingly indemnify them in respect of what they have done in the past. We support them in regard to this Bill because it is necessary to take all possible measures to ensure the continued existence of Christian civilization in South Africa.

Mr. Speaker, the hon. member for Bloemfontein East has responded in the way in which other hon. members on the other side of the House have done or have learnt to do over the years. That is that whenever they are especially sensitive to the criticisms which come from these benches, they make the accusation that we either have a lack of patriotism or do not stand for law and order in South Africa. Let me make it quite clear. As I shall show during the course of my remarks, it is our opinion that legislation such as this which has been proposed is, in fact, going to do damage rather than do good for South Africa. Legislation such as this which is being put on the Statute Book is, in the long run, going to make it more difficult to maintain an orderly society in South Africa than it is at the moment.

The hon. member who just sat down, together with certain other hon. members, has spoken almost as if this was now a permanent piece of legislation. They are saying that our police must have this power and this authority. Let me make it quite clear that this legislation is retrospective. It is not clothing the police with any more powers for the future. It is not doing that, so all these gentlemen who are saying that we are hot giving the police the powers that they need are quite wrong, because this does not deal with the future situation. This deals with a post facto situation and it only applies until the legislation becomes law. In other words, we are dealing with the past, not with the future. All the accusations that we are trying to prevent the police from acting in a certain way in a future situation are therefore quite untrue, inaccurate and irrelevant. If the hon. members really feel this—and heaven help us if they do—they should be suggesting that this should be a permanent part of legislation in South Africa. Let us make it quite clear that this legislation gives neither the police nor the Government any more power for a future situation. It gives them no more power in the future, and the rejection of this Bill will not take away from them any statutory power that they had in the past. This is the situation; it will neither give them more power in the future nor will the rejection of this Bill take away any statutory power that the police have had in the past. This Bill has got nothing to do with it.

This Bill, in particular the provision relating to mala fides and the placing of the onus of proof that the police have acted in bad faith on the plaintiff, has the effect of making it virtually impossible for a citizen to seek redress for alleged damage that he has suffered in a past situation. What is more, it goes a long way towards exonerating agents of the State in respect of actions that they may have taken which would ordinarily fall under other categories of misdemeanour. Gross negligence, for instance, cannot be taken into account as a factor for damages or for prosecution of the individual concerned. Let us look at it in that context. It has not to do with the future situation and if this Bill is rejected it will take away no single power that the police have had in the past.

The onus of proof is now on the plaintiff to prove bad faith. The hon. the Minister knows that it has the practical effect of excluding from the courts the possibility of a successful claim against the State in almost all of the circumstances in an unrest situation. The hon. the Minister is aware of that. He would not have introduced it in these terms if that had not been the intention of this legislation. As a result of this, it does three things. Firstly, it involves a serious denial of the right of a citizen to claim redress for loss or damage which he has suffered in the past. There is a denial of that right, whether the hon. members agree with it or not. Secondly, there is a serious intrusion into the normal process of the administration of justice, because prosecutions of people acting outside the law, people acting with gross negligence, would normally be done through the Attorney-General initiating prosecutions against them. This piece of legislation therefore intrudes on the normal process of the administration of justice in South Africa. Thirdly, the practical effects of the bad faith provision and the onus of proof of the plaintiff involve a serious curtailment of the ordinary powers of responsibility of the courts to adjudicate in a very sensitive and important area, the area of a dispute between a citizen on the one hand and the executive of the State on the other. Because the courts are not part of the executive, they are the only institution capable of applying strict impartiality, using precedents and making rules of procedure in this very sensitive area of the balance between the individual and the State.

The question has to be answered: Has a good case been made for a step which has such serious implications as those which I have suggested this afternoon? We believe that the case has not been made. There has been rhetoric and talk of patriotism and of what we have to do in the future but no adequate case has been made for the Bill. We believe that the passing of this Bill will aggravate the damage which has already been done in the sensitive area of citizen and State relationships in recent months. I think that the hon. the Minister is aware of this, because he did have a tough job for three months, when the other Ministers seemed to hot-foot it out of the country. The hon. the Minister is aware that as a result of the events during recent months, there has developed a tension, a strain between a significant number of the citizens of South Africa on the one hand and the State or the authorities on the other. We believe that these relationships have been under strain and that every attempt should be made, in the interests of South Africa, to see that these strained relationships are eased and that some repair is done to the strain and tension which exists between a significant number of the Black members of the South African community and the authorities. The best way of doing this, is that when there are particular instances of grievance and complaint, where the individuals wish to go to court, the Minister should say: “So confident am I of my officials, whether they are police or others, that we are quite prepared for the independent courts of South Africa to adjudicate in this matter.”

So, Mr. Speaker, I want to put it to you that, first of all, I believe that this legislation is going to weaken confidence in the police force as a whole. We believe that it is necessary in any country, particularly in a country like South Africa with its varied population and its strains and tensions, that confidence in the police force is an essential factor for maintaining an orderly society. This is important in the case of the Whites who have a say in the passing of the laws. It becomes much more important, however, that Black South Africans should have confidence in the police force, because they have no say in the passing of the laws which they must obey in the urban areas. The police are in an unenviable position; everybody in this House will concede it. They find themselves interposed between the White law-makers, responsible to a White electorate in South Africa, and the masses of Black people who have to obey the laws in the making of which they have had no part. It is a problem of a special nature for us in South Africa and for the police.

One can look at the situation once again and I believe that the hon. the Minister of Justice is aware of it. No matter how much good work has been done by the police during recent months, the fact of the matter is that in the eyes of a significant number of Black people certain decisions that were taken, certain methods that were used and the actions of certain individuals within that police force, did result in a situation in which many of the Black citizens of South Africa, most unfortunately, came to see the police force as a whole, as part of the ingredient of the conflict between them and the authorities. We believe it is regrettable, and that everything possible should be done on the part of the Government to try to remove that attitude and undo the damage that has been done as a result of all these circumstances. I believe that it could best be done by this hon. Minister saying: “If there are people who have claims, if there are people who have grievances, then let the ordinary process of the law takes its course and let them go to the courts”. I want to recount to the hon. the Minister—he may be aware of them—three occasions which illustrate the problems and tensions which exist between the Black community and the police as a result of recent events. On 6 September, soon after the outbreak of the unrest in Cape Town, I attended a meeting and listened to some 40 Coloureds and Africans in Cape Town, who expressed their grievances. Rightly or wrongly they felt hurt because they had seen certain events take place. When one explained to them that it was a difficult situation, they said: “It is no use your explaining; we saw”. It is only when it was said to them: “The courts will be able to adjudicate. If you are right, the courts will be on your side; if you are wrong, the courts will be on the other side”. The thought that the court was still there as the final arbiter, was an important factor in easing the tension in the minds of certain people who were involved—to their belief—innocently in the situation in Cape Town.

A short while after that I was asked to come to an office in the industrial area of Johannesburg where I met 15 African women on the day after the attack of the migrants on the settled workers in Soweto. They were upset because they believed, from what they saw, that the police had protected the migrant workers in their attack on the permanent residents. Once again, in order to try to calm their feelings—in this regard I must pay tribute to Gen. Prinsloo—I straightaway contacted the Chief of Police by telephone and told him that I had before me the 15 people who had been victims of such an attack. He told me to tell them that the police were in no way protecting the migrant workers, but that they were there to see to it that law and order were maintained. I conveyed this and told them what the General had said. They then said: “The General might say this, but we actually saw what happened”. This is the problem we have to face. As far as I am concerned, the police have been very generous in giving me access to them and discussing these problems with them. On the night of 26 September I was ’phoned from Nyanga by someone with the same problem, namely that the migrants were attacking the settled workers. This time I got through on the radio intercom telephone to Maj. Van Rensburg of the Riot Squad in Cape Town. He explained the situation to me. I conveyed Maj. Van Rensburg’s explanation to the Black people in Nyanga, but at 7 o’clock the next morning there was another outbreak of violence. For a second time I managed to get through to Maj. Van Rensburg, who was very courteous and did his best to convey the difficulty of the situation to me; But, when one conveyed this to the people who were caught up in the actual violence their belief remained that the police were on the side of the migrants. There is tension and suspicion, and I believe that this suspicion is going to be heightened if individuals who have cases against the authorities are going to be deprived in practice from going to the courts. Secondly, I believe that it is undoubtedly going to diminish the respect many Black people in South Africa have for the courts. I believe the courts of South Africa will maintain the image of impartiality. To the Black South African the courts have not only been impartial—which is a very good thing—but have also been tremendously powerful, because if one does not have an M.P., if one does not have a vote and cannot change the laws, at least one has the court as a custodian of one’s freedom.

The Black people see the courts as something which can interpose between the executive as the agents of the State on the one hand and the individuals who have to obey the law on the other hand. The very effect, for all practical purposes, of curbing the power of the courts in this particular set of circumstance is, most unfortunately, going to cause the Black people to see the courts as something less important and less powerful than they have been in ensuring an orderly society in South Africa in the past.

The hon. the Minister has indicated that claims will be referred to a departmental committee. In 1961 there was a committee under what was then known as the Government Attorney, the State Attorney. In col. 7187 of Hansard of that year it was stated that at the time that committee was set up and the legislation was put to the House, there had already been 244 demands while 224 summonses had already been issued to the total value of nearly R900 000. I wonder whether the hon. the Minister can establish from his records to what extent the departmental committee under the Government Attorney at the time, in considering the 244 claims, approved or refused to approve claims and what the total value of ex gratia payments was? This will be a good guide, because here were claims which were submitted to the courts and were taken over by the committee. It will be a very good indication as to how that committee applied itself in terms of ex gratia payments.

How would you know?

Mr. Speaker, we are talking about the claims and we are wondering how the committee had responded to them. Secondly, the hon. the Minister did not mention it in his statement, but at that time the hon. the Minister of Justice said that the committee would not consider any claims by people who claimed that they were unlawfully detained or arrested. I want to know whether this committee is also going to have that proviso. Does this legislation mean that even if people were wrongly detained by the hon. the Minister or they were unlawfully arrested by one of his agents, neither the court nor his committee will in these circumstances consider such claims?

If they were arrested in good faith the police are indemnified.

They are free, but the onus is going to be on the plaintiff to prove bad faith on the part of the hon. the Minister. Can the hon. the Minister tell me of a set of circumstances in which he believes the wrongful detention of a person could be proved to be an act of bad faith? Can he illustrate his point?

I have said that this measure will not enhance the stature of the police in the eyes of the Black community. I have mentioned that it will curb considerably the power of the courts and therefore lessen the respect of the Black community for the courts. Thirdly I want to say to the hon. the Minister that the introduction of this legislation at this time emasculates in advance the possible findings of the Cillié Commission, because it is being put to this House while that commission is sitting. Regardless of the findings of the Cillié Commission, regardless of its recommendations, this Bill will effectively prevent criminal or civil action against agents of the State being successfully dealt with by the courts except on the basis of proven mala fides.

Where do you find this in the Cillié Commission? What did we instruct them to do? What must the Cillié Commission do?

I am talking about what the Bill will do. What if the Cillié Commission finds that agents of the State have exceeded their lawful authority? What will the hon. the Minister’s response then be? What if the Cillié Commission finds, in one or a number of instances, that agents of the State have used unnecessary or excessive force in the execution of their duties? After all, this is a judicial commission. What if it finds that certain people in high or low places have been grossly negligent? What if it finds that agents of the State, in this situation, committed serious errors of judgment? What if it finds that certain innocent individuals have suffered damages and that the indication is that they suffered damages as a result of any of these misdemeanours? In terms of this recommendation, if there should be any finding or recommendation of the Cillié Commission, a finding which deals with lawful authority having been exceeded, unnecessary or excessive force or violence having been used or with gross negligence and serious errors of judgment nobody can have an action, either civil or criminal, against the State, even if the Cillié Commission finds this and recommends that action be taken in this regard. And so the hon. the Minister is, in fact, emasculating the possible findings of the Cillié Commission. I think there may be some merit in introducing a judge into the proceedings rather than the hon. the Minister of Justice.

The hon. the Minister argued mainly that it was a question of cost, time and disruption of the Police Force’s further duties which was the major factor necessitating the introduction of this procedure rather than the normal procedure of the courts operating under the normal laws of the country. I do not want to argue that this can or should be lightly or completely ignored. However, I put it to the hon. the Minister, that the amount of cost, time and future disruption of the Police Force, should there be actions flowing from the events of the past few months, is infinitesimal when compared with the continuing cost to South Africa of the total impact of those events. Surely time, disruption and cost cannot be decisive factors when the rights of individuals are at issue. Time, cost and disruption cannot be vital factors when we have to deal with the question of the confidence of the Black communities in the competence and the justice of the whole apparatus of government in South Africa. We believe that if the normal procedures through the courts were allowed to continue, repair would be done to the tensions which exist between the Black communities on the one hand and what I call the total apparatus of the Government on the other hand. Because we believe it is necessary to repair the damage done in recent months, we believe that if we allowed the courts to do this, millions of our Black citizens, because of their respect for the courts—and I believe that they place respect for the courts above respect for any other branch of government in South Africa— would feel that it was possible to repair some of the damage. However, if this Government insists on making the courts less effective, thus making it almost impossible for citizens to obtain redress for the claims they have, in practice, in the courts of South Africa—i.e., if we do not allow the courts to play their traditional role—this legislation will only aggravate the tensions in our society and do damage to the South African public as a whole.

Mr. Speaker, listening to the hon. member for Sea Point, one cannot help gaining the impression that every policeman here in South Africa is the enemy of the Black man. The hon. member is trying to create the impression that this legislation will weaken the position of the police in the eyes of the Black man in this country. That was the hon. member’s argument. I want to object in the strongest possible terms to the general impression constantly being created that all White men and all Black men here in South Africa are always hurting or destroying each other with a dagger or a gun in their hands. I want to object in the strongest possible terms to the idea that the people who have to maintain order in South Africa, are the very people who exploit the poor Black people and try to vent their spite on these people. It seems to me that the memory of the hon. member for Sea Point concerning these riots which occurred in South Africa, is very short. Has he forgotten about non-Whites in places like Soweto, who were protected by White people there? Has the hon. member forgotten about the photos he saw in the Press of young policeman playing soccer with Black youths? Has the hon. member forgotten about the Press reports and photos taken of non-White women who saw to it that White and non-White policemen were regularly provided with food during the riots? However, the impression must be created that the police are the people who are responsible for the situation in South Africa. This legislation— and I shall come to this—has been introduced against a certain background. Have the hon. member for Sea Point and other hon. members in this House forgotten the appeals made by responsible people in South Africa that the riots should be stopped. Those appeals came from people like Chief Gatsha Buthelezi, Chief Lucas Mangope, Dr. Bergins and even from a man like Sonny Leon, who does not agree with this Government and who often vents his spleen on every White man in South Africa. Even they pleaded for the non-Whites involved in the agitation and disorder to cease their activities. However, according to the hon. member for Sea Point and his followers, it is only the police, the authority in the country, that are the cause of all the trouble.

The hon. member’s whole argument was that “relations are under strain between the citizens and the State and that this Bill will weaken the position of the police”. With whom did the hon. member speak? I shall tell him whom I have spoken to since we had the disorder in South Africa. Innumerable Coloureds and Bantu have told me: “This thing must be stopped in South Africa. What is wrong with the police? Why do they not take far sterner action?” Apparently the people whom the hon. member for Sea Point spoke to were those who always say: “You are taking too stern action.” The hon. member for Sea Point must not forget that there are many people in our urban Black areas and Coloured areas who regularly ask the Minister of Police and of Justice: “Give us more police protection.” They say to me, as a public representative, and to other hon. members: “On Friday afternoons we are not safe. We have to get off the bus and run home because if we do not do so, our pay packets are stolen.” But now, suddenly, every last Black man and Coloured is against the police. Surely that simply cannot be true.

I think it is the primary duty of any State, any Parliament and any executive council to protect its public servants, because whether one agrees with the laws or not, it is they who have to carry out the laws of the land. If we did not have public servants, our machinery would cease to exist and the whole country would come to a standstill. That is why I do not find it strange that there are already a large number of Acts in our Statute Book which provide that if a public servant has acted in good faith, the public has no grounds to institute a civil or criminal case against him.

One even comes across this in an Act like the Soil Conservation Act. If an official acts in good faith, then I, as a member of the public, do not have the right to call his act into question. That is why no state of stature can expect to attract an official of stature, an official with ambition and dedication, to the public service if it is not its approach to protect its officials. The State does not only have an obligation to the public, it also has a strong moral obligation to its own machinery and therefore to its own servants. This legislation must be seen against the background of what we have experienced in South Africa over the past eight or nine months, when we experienced the bloodiest and most violent disorder in our history. Even a man like Oliver Tembo, an expatriate chairman of the PAC, stated overseas that the banned PAC or ANC definitely had a hand in the riots we have had in our country. The riots were not aimed solely at the present Government; they were aimed against the whole State. They form part of a revolutionary action; they were by no means aimed at bringing about peaceful change in South Africa. They form part of the confrontation politics which the people in South Africa wanted. It was part of their idea to bring about change by way of violence. If there is no indemnity for people who have to maintain law and order, then this will constitute a further encouragement for the lawless elements to continue. Particularly after they have done all the damage, they will still be afforded the right to claim damages as well. It is conceded that innocent people could also have been victims. That is why I think it is that the police acted with the greatest circumspection. It is not at all clear to me—as has in fact been maintained—that they caused injury to innocent people intentionally. In a time of unrest those who maintain law and order would rather seek the co-operation of the orderly and peaceful people. I think that it also forms part of the training of police today that they should have that approach, viz. to seek the co-operation of these peaceful and law-abiding people.

The hon. members here on my right—those of the PRP—want nothing to do with this legislation. But, Sir, by implication, therefore, the arsonists and rioters acted correctly and those who wanted to restore order acted incorrectly according to these hon. members. As far as I can remember, not a word has been said in the policy’s favour by the hon. members of this party. They are apparently taking under their protection the people who want to challenge law and order and take it into their own hands. It is high time that the people of South Africa should know where these hon. members stand and where their supporters stand in regard to the maintenance of law and order in this country. There is growing suspicion about them in this regard. We in these benches believe that we should not give in in any way to the advocates of violence. I have already told you, Sir, that there have been newspapers, there have been prominent South Africans, people and bodies that have made appeals for the termination of the disorder in South Africa and that students had to continue with their studies, but how many people said anything about the valuable State buildings that were burned down? How many people had anything to say about the valuable books, and even dissertations by post-graduate students, which were destroyed.

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

Mr. Speaker, I understand that, but this legislation is against the background of what has taken place …

The background has been sketched repeatedly.

That is why I say that the indemnity being provided here is of greater importance to the official, to the State and to those who have to carry out their duties than to those people who cause the trouble. Neither I or anyone in these benches will ever be prepared to condone the actions of those people. We want to say to the hon. the Minister that we support his legislation. We hope that he will give serious consideration to the matters raised by the hon. member for Walmer relating to his compensation committee.

However, as regards the principle of indemnity I want to tell the hon. gentleman that he has the strongest support from my colleagues and myself in these benches.

Mr. Speaker, I wholeheartedly agree with what the hon. member for Newton Park said in connection with the role of the Police in the recent unrest, particularly with regard to the criticism he levelled at the hon. member for Sea Point. The hon. member for Sea Point strongly opposed the adoption of this legislation today, because in spite of the fact that he is a witness of the unrest and anarchy and violence which took place there, despite the fact that he was also present where the police had to act in order to prevent further violence, he wants to persuade this House not to adopt this legislation. According to him, the people who will get involved, those who would like to go to the courts—Black people whom he saw—suposedly do not have the confidence to do so. In spite of the fact that he ought to realize that the State has to maintain law and order at all times, in regard to this occasion he does not want to concede to this Government that action, that authority of the State. Just like the hon. member for Houghton yesterday, he would prefer to see this State collapse than for it to do its duty and maintain peace. It would be better for the State to collapse. In spite of the violence committed, in spite of all the things that happened in South Africa in the second half of 1976, the State should rather collapse. Nevertheless, under these circumstances the PRP sees an opportunity to get in a blow against the Government of South Africa.

In a speech last night, Mr. Speaker, the hon. member for Houghton also strongly attacked the hon. the Minister. She attacked him because in her opinion he had no right to introduce this legislation. What her initial point of attack amounted to was that the hon. the Minister was only entitled to act if he did so by way of proclamation, as in the case of martial law and in the case of a state of emergency. “I want him to be honest”, she said here today. She was referring to the hon. the Minister. She went on to say: “The hon. the Minister cannot have emergency powers without declaring it. ”

Mr. Speaker, under that mistaken impression of what she considers right, she is also creating in this House, and throughout the country, the impression she would like to convey, viz. that the hon. the Minister acted illegally in that he did not issue a proclamation. However, it is a very clear right—a right which the hon. member for Durban North, too, would do well to remember—that as far as martial law is concerned, it is unnecessary to proclaim it before all the consequences of true martial law do in fact result from it. In this connection I need only refer to the case of Dedlow in the Transvaal, in 1915, in which a bench of three judges decided—

The hon. member for Houghton said that the hon. the Minister had first to issue a proclamation. This same principle applies with regard to the state of emergency. In the state of emergency which existed in 1960, the same principles applied, viz. that publication and proclamation were not essential. The proclamation is not essential in a state of emergency either. In terms of the Public Safety Act (Act No. 3 of 1953) it is unnecessary to acquire any rights by way of proclamation in the state of emergency already in existence. It is only necessary, as we on this side of the House have already said, when one may require further powers to act in a specific state of emergency in the country or a specific area. Only then is it necessary to issue a proclamation. The hon. member for Houghton is therefore wrong in both cases when she wants to convey the impression to the world that the Minister acted wrongly in that he did not issue a proclamation. The proclamation of those rights has nothing to do with the existence of those rights. The rights in any event derive, not only from our common law, but from law laid down in South Africa and in other civilized countries of the world by tradition.

The hon. member for Houghton tried to create the impression here yesterday that she wanted to decide in what circumstances a state of emergency could exist. The hon. member wants to say when it is right and when it is wrong to act in that case. In the case of Stanton v. Minister of Justice and Others, SALR 1960(3), it is clearly stated by a judge that the existence or otherwise of a state of emergency is a matter for that specific official or that specific Minister to decide, and he clearly states that it is not within the jurisdiction of the court to state its opinion in place of the opinion of that specific official, because the Minister or authorized official whose task it is to decide whether that situation exists, is carrying out what is clearly an administrative function which is not subject to any interference by any court.

This is law which applies in our country in general. The court does not have that power and the court will not be able to exercise it and the hon. member for Houghton will not be able to exercise it because she is not always on the scene, although she often is, as she testified here. In any event, she is not the official to whom this has been entrusted.

Yesterday the hon. member for Houghton attacked the fundamental principles on which the State is based, because she does not want the Government to use such powers. Just like the hon. member for Sea Point, she does not want there to be any order in this State and in this Government. These two hon. members want to subvert the authority of the State and by so doing she wants to undermine the society and the Government, which she does not like. Yesterday in the House the hon. member for Houghton testified to what she saw and to what happened there, in spite of the fact that a commission has been appointed which is investigating this matter. One asks oneself: Did she go and testify before the commission and advise those people in regard to what they should do in those circumstances? I do not believe so. The hon. member must realize that what we are faced with today is based on a principle which dates from the time of the Romans, namely, that the security of the State is the primary right.

This rule was not laid down by the NP; it dates from Roman times. The law in South Africa with regard to what we are doing today dates from a case in 1902—the case of Marais—in which judgment was passed by the Privy Council in England and which lays down the principles we are dealing with here today, namely that in times of unrest, the civil and criminal courts are not entrusted with the right and the function to pass judgment in regard to any proceeding against the officials who have to maintain that peace. The hon. member for Eshowe also referred to this, but I want to repeat it, and I quote a sentence by Mr. Justice Rose-Innes in the Krohn case—

That right is the right which the Government wants to reconfirm by way of this instance and this legislation. It has been in existence for a long time already in our Common Law and in the Common Law of every civilized Western nation and is supported by tradition and practice. The hon. member for Houghton has no place in her point of view for such an accepted and urgently needed principle, and the reason is very clear. On the contrary. She states that this Bill represents a denial of all law. Therefore the agitators must be able to disturb the peace at will. The conclusion I draw from what she said yesterday—it was repeated today by the hon. member for Sea Point—is that the rioters may proceed at will and all they have to do is have recourse to the ordinary civil and criminal courts. This view is supported by the previous speaker who explained it in a very sound and clear fashion. The Bill being discussed is not only based purely on principle, but it has become the custom in this country that there should be such acts.

Various other misconceptions exist with regard to what has to be done, and one of them is that expressed by the hon. member for East London City, who states: “This legislation again shows the increasing arrogance of this Government.” He says this because this hon. Minister “introduced the presumption that an accused is guilty”. That “presumption” has existed for more than 100 years in the English law from which we got it. It is a concept which no one has ever called into question, namely that one has to prove mala fides if one wants to institute proceedings under this Act. The hon. member for East London City wants to create the impression that this Minister has once again made inroads on the ordinary freedoms of the individual. As a lawyer he ought to know that it is the common law in South Africa that this is the position, supported by judgments given by various judges in our courts.

I want to deal with the points made by the hon. member for Umhlatuzana, namely the way in which he wants the principle of damages to be introduced here. Then, too, there is also the hon. member for Durban Point who states: “I cannot understand how the Minister can do this.” I shall conclude by explaining this to the hon. member for Durban Point so that even he can understand it clearly. This principle of indemnity is a single principle. We are dealing with one principle and it is the principle of the indemnity which is afforded the State’s action, not through the actions of the NP but due to a principle to which every State worth its salt is entitled, namely that the officials are protected in what they do to bring about peace and order for its subjects. They are protected by the so-called presumption. Now the hon. members for Durban Point and Umhlatuzana want to introduce a principle here which is in direct conflict with the principle of indemnity. They want to unman the Government on that principle, because what else will one achieve if that principle is so watered down as to become meaningless. Why do they want to introduce the principle of damages to the Statute Book together with a principle which stands on its own. That aspect, too, has been mentioned on this side of the House. The hon. members for Umhlatuzana and Durban Point will not be able to expect that this side of the House will allow a mixed marriage of that nature. To allow this would amount to a mixed marriage and the rest of the House is well acquainted with the attitude of this Government in that regard. I want to state very clearly what the issue is today. It concerns a single aspect, viz. that no Government worth its salt will forgo its power to act under indemnity, or will water that power down and create a precedent in which indemnity is mixed with damages and everything that involves.

Mr. Speaker, in 1961 the House debated a similar measure, and it was my duty then, as chairman of the justice group, to set out the UP’s view on that legislation. I moved an amendment at the time in similar terms to the amendment which we have moved today. The wording was not exactly the same, but the intent was the same. Mr. Harry Lawrence, on behalf of the Progressive Party, moved an amendment in similar terms, namely accepting the principle indemnity, but appealing also for compensation. I should like to point out that the hon. member for Sea Point has referred to the Cillié Commission and also stated that the fact its report had not yet been tabled, might affect the issue. I also think it is a pity that we do not yet have the Cillié Commission’s report before dealing with the matter. When we dealt with the Bill in 1961, we did have the report of Judge Diemont on the disturbances then. We were not left in any doubt as to what his report was going to be. Hon. members who were here at the time will remember that he condemned the actions of the police. In the first place he said that they were not properly instructed, that they struck people indiscriminately, they struck people on the ground and used unnecessary force, etc. Why I mention this, is to point out that in that case we did have the report of a commission, a report which was adverse to the conduct of the police. Yet, the principle of indemnity was accepted.

We voted against the Second Reading, which means we voted against the principle.

You voted on your amendment.

We voted against the principle of the Bill.

Mr. Lawrence, speaking at the time, accepted the principle that there should be indemnity. He said that he agreed with the principle that it was the task of the Government to protect its servants acting bona fide in accordance with their instructions.

But he moved an amendment …

Yes, he moved an amendment the same as we did …

No, it was not the same as yours.

Our amendment was rejected, as was that of the Progressive Party. Since 1961 we have had the amendment to the Defence Act, in which the hon. the Minister of Defence has made provision for a committee or a board to deal with compensation. What we are asking for now, is not something alien to our procedure and to our system. We have a precedent which was established by the Government. After all, as has been pointed out by speakers on this side of the House, it is exactly what was asked for by the NP in 1922. The hon. member for Walmer has asked the hon. the Minister to move an instruction for a committee to be appointed to deal with the matter of compensation. The hon. member explained what type of committee he wanted. Dr. Malan did not move the instruction in 1922, but pointed out that if it had been within the rules, he would have moved it, but he could not do it because of the question of expenditure. But he set out what he wanted. What was the reaction of the Smuts Government to that? It has been pointed out by the hon. the Minister and others that Geni. Smuts refused to accede to Dr. Malan’s request to amend the Bill, but he instructed his Minister of the Interior, Mr. Duncan, to deal with this committee very fully. He undertook to pay compensation. He did not deal with it in a cursory manner as was done by this hon. Minister. This Minister said he was prepared—

A proper investigation.

Yes, but that is all we get. Mr. Duncan set out fully what the committee would do, how it would act, what it would consider and what cases it would consider. It was not merely done by way of a cursory remark as this hon. Minister did. There is also the example set by the hon. the Minister of Defence. That hon. Minister set out in detail how his committee would act and, surely, the least we can expect is that this hon. Minister could have done something similar. He obviously also accepts the principle that where there is indemnity there must, simultaneously, be some provision for compensation for innocent persons. He accepts that principle.

This matter has already been fully discussed and I do not want to go into all the reasons that have been given again. We have set out our attitude towards the Bill; we have indicated that we accept the principle of indemnity, but that we want a certain amount of protection. There are three ways of opposing a Bill of this nature. One way is by means of a reasoned amendment, which we have done in this case. We are opposing the Bill for the reasons stated. We accept the principle of indemnity, but for reasons which we have set out, we refuse to accept the Bill. One can, however, also oppose a Bill merely by objecting to the Second Reading—that is, without a reasoned amendment. The third way of opposing a Bill is to move that it be read “this day six months”, which members of the PRP, namely the hon. member for Houghton, has in fact done. The last method shows the strongest form of objection to a Bill. That is done where a Bill is totally rejected and where the principles are considered to be so abhorrent that the House cannot consider them at all. In my 29 years of service in this House we, on this side, have used the “be read this day six months” amendment, but we have used it sparingly and only where we considered the Bill to be so bad that we could accept nothing in it. However, we do not find that the principles of this Bill are so abhorrent that we cannot consider it at all. We intimated that we accepted the principle of indemnity. Not only now has this principle been accepted by this House; it has been accepted as part of our history in South Africa and it has been accepted as part of the history of the world. And the mother of freedom and democracy, Great Britain, has used it frequently; so there is ample justification for accepting the principle of indemnity. However, although we have said that we accepted the principle of indemnity, we insist that there must be provision for compensation.

As we are not satisfied with the manner in which the hon. the Minister is dealing with this question, we shall oppose this Bill by voting for our amendment, and I have no doubt, unless there is a rapid change of heart after the hon. the Minister’s speech, that we will lose. Then the motion by the hon. member for Houghton will be put.

That is right.

That is right. For once the hon. member is right! Unfortunately, there is no provision in our rules for abstentions. One has this rule also in other Parliaments, as also in the United Nations, a rule in terms of which one can abstain from voting if you cannot support or oppose a motion because of its wording. There has been some talk amongst the Whips about changing our rules to provide for an abstention, but as we, in terms of our rules now, cannot abstain from voting and as we cannot vote for the amendment “that the Bill be read this day six months”, nor for the Bill, will for the reasons I have stated, leave the Chamber when the hon. member for Houghton’s motion is put. I just wanted to explain our position and indicate what we are going to do.

Mr. Speaker, I have spent the entire afternoon, as well as yesterday, listening to the arguments of the hon. members in this debate. I think it is correct to say that the matter has been commented on from every possible angle. I want to express my appreciation to all hon. members for the various points of view which were raised. It affords one an opportunity of reflecting on the question of whether one’s approach was an entirely correct one, and if one was then correct, it affords one an opportunity to reply to the various arguments which were raised.

A striking feature of the debate was the emotional state in which the PRP found itself as far as this Bill was concerned. In the first place I was very surprised at the amendment moved by that party. After that, the hon. member for Houghton began to tell all kinds of horror stories about the police, and she was followed by the leader of that party, the hon. member for Sea Point, who first told of all his experiences and then tried to soft-soap the police a little by saying that he had done his utmost to persuade the Black people that the police were not their enemies. However, he also recounted many of the horror stories he had heard in Soweto. These were dragged into the House and laid at the door of the police. I think the hon. member for Newton Park was quite correct when he said that these people pretend that the police are engaged in a never-ending conflict with the Black people of South Africa. While I was sitting here, the Commissioner of Police sent me a short report from Soweto. Hon. members will recall that I told this House the other day about all the terrible explosive material we found in Kliptown, near Klipspruit. The report reads—

That was last night—

I hope we do not receive a summons for this. I quote further—

But the hon. member told the newspapers that she is in closer contact with the people of Soweto than my police are. She told the newspapers she knew far more about what was happening in Soweto, and I am therefore amazed that the hon. member for Sea Point did not congratulate the police as a result of this report since he quite probably knew about it. Instead of doing so, however, they come forward with a whole lot of stories about South Africa and the police of South Africa, stories which merely hurt one.

This emotional state is not confined to the PRP only; that is the danger, and that is why this Bill is so extremely necessary. I have here in my file an article taken from the Rand Daily Mail of … I cannot ascertain the date at the moment … the caption of which reads: “The roll of the riot deaths”. Then follows a formidable list of people allegedly killed there by the police. We then asked the police to find out whether all those people had really died in the disorders, and found that the death of 57 persons had had nothing to do with the disorders. One person was murdered with a sharp instrument, another person died from multiple stab wounds, there was also a back injury, a head injury, another stab wound, an assault, a vehicle was stolen and the person who stole the vehicle was shot by a policeman, there were more stab wounds and head injuries as a result of a fight which broke out, skull fractures, one person died from carbon monoxide poisoning and there was another case of murder. Despite these facts, the Rand Daily Mail had indicated that all these persons had died in the riot area. We can therefore understand what is going to happen if we do not have this legislation placed on the Statute Book. Our courts are going to be absolutely inundated by cases in which the death of people as a result of other circumstances is laid at the door of the police. Therefore it is, after all, the basic right of the State, its Police Force and its officials dealing with these matters, to be protected. Whatever reasons hon. members care to give for it, we did not seek the riot situation or create it. It simply developed, and we had to maintain law and order there. Therefore one can hardly expect a policeman, having acted in good faith, to be charged for his conduct afterwards in a court or to be held liable for damages, for hon. members will remember that it is not only the Minister of Justice who is charged. Persons are also charged in their personal capacity. I think that would be unfair.

No one disputes that.

No, the hon. member does not dispute that, but those people do. It would be unfair to South Africa if we did not grant these people indemnity under those circumstances. All that is happening here is that I am laying down the principle that a person who, in a riot situation, took action to combat the riots, acted in good faith, and that he is therefore entitled, in the eyes of the public of South Africa—who were saved by these people—to be granted indemnity against court proceedings, no matter by whom such court proceedings are instituted. It makes no difference who wishes to institute proceedings against whom. When they have acted in good faith to combat disorder, South Africa grants them indemnity from the ordinary administration of justice, not from the courts.

However the hon. member for Umhlatuzana is asking me to establish a compensation board. However there is a fundamental difference between this legislation—this Bill before this House—and the Defence Act. The Defence Act makes provision for a situation somewhere on the borders in an operational area, far from the ordinary courts, in which people have to take action to protect South Africa against an external onslaught. There the courts are completely excluded. If the hon. the Minister of Defence states that something happened in an operational area, there can be no court case, no matter what the test may be.

The principle of compensation is the same.

Wait a minute. I am going to the compensation. Give me a chance to develop my argument.

I can see already that it is wrong.

There the courts are excluded entirely. But what is more: The Minister of Justice received a directive from the State President that no cases may come before the court. As a result of those circumstances my respected and honourable colleague arrived at the conclusion that there should be a court of some kind or other. There should be a compensation court for people who really have a case, for what is at issue is damage, and they cannot touch the S.A. Defence Force in an ordinary court. What is at issue is damage, and therefore there will be a compensation court. This is in fact a substitution of the court. The hon. Minister of Defence decided that there should be a court of compensation.

What happened in my case? The courts are in no way excluded by this Bill. If a constable were to state in court that he had acted in good faith and carried out the order of an officer, this would, even under the ordinary legal system, under the ordinary norms of our law, have been a factor which would be taken into consideration when ascertaining whether he had been negligent and whether he should be held liable for damages. Surely we cannot allow the constables to go to the courts in all similar cases to describe the circumstances in which they acted. That is why we say that people may go to court provided the action taken was not taken in good faith.

A great fuss was made about the onus of proof which should be there. Of course it should be there. What is the onus of proof? Should the plaintiff prove beyond any reasonable doubt that a person acted mala fide? On the contrary. He should prove on the balance of probabilities that the person concerned acted mala fide. This is therefore a horizontal onus of proof—it is not a case of “beyond all reasonable doubt”. The onus is placed on him to bring his facts to court first. After all, we cannot expect the policeman to do so. The plaintiffs have to do so. I have to say: “These facts indicate that this person acted mala fide." In all cases in which recourse is had to a court, this is the test which the court will apply. The court has to ascertain whether or not the person concerned acted in good faith. This is the principle of indemnity under which the South African Police work. In every case where the action taken was not taken in good faith, the court will make its findings. The hon. member for Durban North alleged that we are excluding the courts here. That is not true; the courts are still there. All they now have to do is apply another test. It is not, now, a test of negligence, but the test of whether or not the official acted in good faith.

What matters now remain? There are only certain matters which are not taken to a court. Imagine that a policeman acting in good faith injures a person in the execution of his duties. The State is then granted indemnity, and the court will have to decide whether or not he acted in good faith. It is not I who decides that. Nor will it be a compensation court. In other words, the decision will not be arbitrary. The court itself will have to decide whether or not he acted in good faith. Consequently the court is surely not being excluded. In the case of a policeman who did act with mala fides, the court will decide that the State and he are not granted indemnity from compensation. The court will proceed to determine compensation.

Then one has the case where an innocent person is injured by rioters, and not by the police. Who will then be responsible? Prima facie, of course, the State is not responsible for that. The police cannot be held responsible for that. In the case of rioters murdering a person, who is responsible for that? The victim’s next of kin cannot sue the State for it. They have to sue the rioters. But they will not be able to lay their hands on them. Then one has the heart-break cases. Cases also occur in which people are injured by the police, entirely by accident. It can happen that, while a disturbance is taking place in Adderley Street, a person may quite innocently come walking out of a shop. Although he heard something that sounded like firecrackers he did not know what was happening. As he came walking out of the shop, a constable threw a tear-gas grenade which struck and injured him, or something like that. Something like that is completely accidental. Once again, such a person cannot sue the constable and demand compensation from him or from the State. After all, it was purely an accident. No one could have foreseen that that person would have come walking out of the shop at that moment. In those cases ex gratia payments are made.

I now want to react to the speech made by the hon. member for Walmer. He came forward with a very good suggestion, and let me say at once that I am very sympathetic towards the cases of people who are injured under those circumstances. The question is simply whether I should make provision in this Bill for similar cases. This is an indemnity measure.

As far as ex gratia payments are concerned, I cannot apply the norms which are applied in terms of the other relevant legislation, for in the latter case it amounted to a substitution of the courts. In my case it is purely ex gratia payments. I am bound by the amount of money which I have available for this. The amount which the Treasury has made available for this purpose, has to suffice for all the people who come to me for compensation. Even though my committee were to tell me that a specific person should receive R400, if I do not have it, I would only be able to offer him an ex gratia payment of R100, for example. In actual fact I do not owe such a person anything, but because I feel sorry for him, like everyone does, I shall pay him within my means. Let me say that I intend appointing a judge, a magistrate, and a practising attorney to advise me on the real heart-break cases, the real accidents, to determine what cases should receive priority, in what cases we should pay compensation, and what amounts we should pay. Unfortunately I cannot, for the reasons I have given, include something of this nature in legislation. Nor can I say with certainty that I will be able to pay compensation in full. In any case all the people who receive compensation will be people to whom I do not owe anything. I want to give hon. members the assurance that we will accommodate similar cases to the best of our ability. However, I cannot qualify it any closer than that. I shall appoint a judge, a magistrate and a practising attorney who can determine how much each case should receive or whether they should perhaps receive nothing.

Mr. Speaker, may I ask the hon. the Minister how it will affect the validity of the Bill if that were made a provision of the Bill?

Sir, my hon. friend simply wants to have an amendment accepted. Surely I cannot do any more than say that my department will make ex gratia payments in many cases. Nowhere is provision made for similar payments in legislation. Many people come to me and say: “In spite of the fact that there is an indemnity clause that counts against me, I want to sue you.” Then we ask them how much compensation they want, and if it is fair, we pay them. Ex gratia payments must, pre-eminently be arranged administratively. Surely it cannot be laid down in legislation, for then I would be binding myself absolutely. Such persons would then be able to say: “But there is a compensation court; I want the compensation determined by that court.” Perhaps I am not able to pay. We must see whether the priorities are not perhaps different.

We did not ask for a court.

No, but I am now referring to the compensation committee you would like to have in the Bill. I say that it might not be possible for me to pay those specific amounts of money. The department has only limited means. We only receive a certain amount which we have to distribute. But we first have to see what our priorities are by allowing our committee to make a determination. I cannot take the matter further than that. I am demonstrating my bona fides to the people who were hurt; I want to help them wherever possible. I insist, and I think this House also insists, that we should in fact pilot through this Bill.

Mr. Speaker, if you would just grant me a few moments more, I should like to say that I reconsidered the matter very earnestly, after the hon. member for Umlazi has made such a fine speech. He always has a good word for the police, for he was a policeman himself and therefore knows what he is talking about. I conferred with my officials. We reconsidered and discussed the entire matter, but we cannot do any better than what we are proposing here.

I do want to say, however, that a refreshing note was sounded from the Opposition benches this afternoon. We are not opposed to opposition; I like opposition, but then it must be intelligent opposition, and I want to say this to hon. members, and I am saying it in all amity: That is where the Opposition of the future will sit, in the benches of the Independent UP. [Interjections.] I say that a refreshing note was sounded from those people, and do you know why, Mr. Speaker? Those people do not look to the left or to the right; they are not courting Auntie Helen or anyone else. What came from that side was straight talk. It is still going to be a bad day for the Opposition, because those people represent the real English-speaking South Africa, and a few of us move among English-speaking circles as well.

I cannot take the matter any further than that. I am now requesting that this Bill be read a Second Time. I ask for the rejection of that amendment. I have told those hon. members that I considered their proposal very seriously. I cannot do any better than what I have now offered, and as far as they are concerned, I want to say that we, i.e. the S.A. Police and the Government, totally reject their standpoint.

Question put: That the words “the Bill be” stand part of the Question,

Upon which the House divided:

Tellers: J. M. Henning, N. F. Treurnicht, C. V. van der Merwe and W. L. van der Merwe.

Tellers: T. G. Hughes and W. M. Sutton.

Question affirmed and amendment moved by Mr. R. M. Cadman dropped.

Question then put: That the word “now” stand part of the Question,

Upon which the House divided.

Question declared affirmed and amendment moved by Mrs. H. Suzman dropped.

Bill accordingly read a Second Time.