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Salient. Victoria University Student Newspaper. Volume 33 No. 14. 1970

Evidence and the Boss Bill

Evidence and the Boss Bill

In South Africa the recent passage in Parliament of the "Boss" Bill, particularly Section 29 thereof authorises the Prime Minister or his representative or any Minister to issue a certificate and thereby prevent the evidence being given or information being furnished in any Court of Law or statutory body as to any fact, matter or thing or as to any communication made to or by such person and no document may be produced in such proceedings. The effect of this is that any such authorised person can effectively prevent any evidence from being led before the Court in any such proceedings. It is worth noting that even at this late stage resolutions have been placed by certain Attorneys before their Law Societies asking the Law Societies to condemn Section 29 and alleging that "seen in its broadest context Section 29 affects the very basis of our Constitutional Law and more particularly has a far-reaching effect in as far as it affects the relationship between State and citizen." In 1966, the Natal Supreme Court said; 'This Court must act as a buttress between the citizen and the government be it national, provincial or local to ensure that citizens' rights .... are maintained". Bar Councils and even Judges and professors of law at different universities have recently protested against the "Boss" Bill and at present a judicial commission of enquiry before a Judge of the Appellate Division has been instituted.

Under Section 17 of the General Law Amendment Act, 37 of 1963, the notorious 90 day detention clause was introduced. Persons were detained by the police without warrant. They were detained specifically for the purpose of interrogation. They were detained until the Commissioner of Police was satisfied that they had satisfactorily replied to questions put to them. But the detention was limited to 90 days. The Court held that it had no jurisdiction. Even in the matter of giving the detainee limited rights such as the provision of reading material, daily exercise and other minor privileges, the Appellate Division overruled a lower Court which allowed a detainee such rights saying: "When due regard is had to the purpose of Section 17 that is to induce the detainee to speak-in order to achieve that object of the legislature .... I find myself unable to support the order made by the lower Court", which allowed certain privileges to the detainee. The detainee could not enjoy his pre-detention rights, said the Court, as it was impossible to draw the line. "In the present case, we are concerned only with reading matter and writing material but is the detainee who in happier days habitually enjoyed champagne and cigars entitled as of right to continue to enjoy them." Whilst the Court said that the example was extreme, the Court had difficulties in interpreting where the line could be drawn in allowing a detainee any privileges. The Court said that; 'The purpose of detention .... is intended to induce a detainee to speak and any interference with that intention which may negate the inducement to speak will defeat the purpose of the legislature". (See 1964 (2) S.A.L.R. 551).

Finally, by Act 83 of 1967 the Terrorism Act quite emphatically and simply said in Section 6(5) that the Court had no right to pronounce upon the validity of any action taken under the Section or order the release of any detainee. Section 6 of that Act deprives the detainee of any right of access to any lawyer, Minister of Religion, member of his family and he may be detained indefinitely, incommunicado, and until such time as he has satisfactorily replied to all questions put to him by his interrogators. He is specifically detained for the purpose of interrogation. Sub-section (7) of Section 6 reduces the privilege earlier given to detainees by permitting visits by a Magistrate only once a fortnight and only "if circumstances so permit".

It would therefore seem that the powers of the legislature and the enforcement of the laws passed by it strongly resemble those that existed in Germany from 1933 onwards. However, the differences between the German and the South African situation must be stressed.

Germany's population in 1933 was some 65,000,000. Some 43,000,000 people voted in the March 5th, 1933 general election and the Nazis and their partners obtained some 52 per cent of the votes cast. Hitler gained a bare majority and obtained control of 340 seats in the House of Deputies' 647 seats. On August 19th, 1934 a plebiscite confirmed Hitler's appointment as Fuhrer and Reichskanzler by 43,500,000 votes cast or 88.2 per cent of the electorate.

The Nationalist Party in South Africa gained a bare majority in 1948. In 1966 our total voting population was 1,800,000 out of a population of some 18,500,000. In the general election in 1966, 1,324,995 votes were cast and the percentage poll was 83. The total South African population is made up as follows: —
Africans 12,500,000
Whites 3,500,000
Coloureds 2,000,000
Asians 500,000
Total 18,500,000

The total amount of voters is only 10 per cent of the population.

Whereas in Nazi Germany the majority of the voters voted in favour of accepting the philosophies of the Nazis and their party, the position in South Africa is that the majority of South Africans have never been permitted to express their acceptance or rejection of the policies of any government in power in South Africa simply because the vast majority of the people have no vote and do not elect representatives to Parliament.

Of the minority who vote in South Africa although it is clear that many of them have Nazi tendencies and have expressed them vociferously on occasions, it is contended that they are in a minority. Whilst the White voters often place faith in German philosophies and draw strength from fascist or other totalitarian regimes and show marked tendencies towards following the practices of these regimes, the majority of the Whites in South Africa continually seek to justify their attitude and perpetually and loudly proclaim their good faith towards all and their belief that they are honestly acting in the best interests of all in South Africa. In my mind, there is no doubt that the Whites in South Africa and the government is sensitive to criticism and sensitive to pressures and is affected by world opinion despite the fervent denials (in fact, the strength of the denials make me believe that 'he protests too much') — (see how sensitive Vorster is to Hertzog's criticism) The South African community is a conglomeration of custom, cultures and languages of its various and varied peoples. They are not one people. There is the unrecognised but powerful influence of African cultures and customs, the powerful influence of the world-wide English language, its people and its culture; it is inescapable and permeates every strata of the society. There is the powerful influence of the Afrikaner/Huguenot culture and the traditions and history of the Afrikaner people showing a reaction against authority particularly in the last century, and the individualism and independence of Afrikaners.

Again there is the strength and the richness of the South African economy and the forces of integration inevitably linking and communicating with all sections of the community; the increased influence of the communication of ideas from all over the world and news of world events (even without television) help to bring about progress and the outlawing of apartheid, tribalism and feudalism. There is in the South African society an increased respect by all the people for the accomplishment of South Africans in every field of endeavour.

In addition, one cannot underestimate the importance of the fight of the press for the retention of its freedom to criticise and so far this fight has not been unsuccessful: there is the fight of some of the lawyers for the upholding of the Rule of Law and the criticism of the erosion of the Rule of Law in South Africa: There is the courageous opposition of the student bodies against the forces of authoritarianism in which NUSAS has played an important part: there is the outspoken criticism of the authorities by many churchmen and the protests by civilised and progressive organisations such as the Black Sash there is the Institute of Race Relations, an organisation dedicated to finding the truth about conditions in South Africa and to publishing it and there is the Progressive Party which has a solitary vote in Parliament but is a force for protest in opposing the government and the White supremacists.

All these factors are of importance and significance and will help to bring about the inevitable changes that will come in South Africa. They have no parallel in Germany after the 1934 plebiscite by which time All opposition and difference of opinion had been smashed.

We must learn the lesson and we must, above all not abandon hope. It is necessary that every one of us every day realises that something can be done, a protest made, an action taken and even though we may be unaware of its effect and the result may not be seen or known, we may obtain satisfaction and retain our self-respect in doing what we consider just and necessary. We must have faith that change will come about. Meaningful contact must be maintained between all the people of our country. Our duty to keep well-informed on South African matters particularly on racial affairs and to keep well-informed on matters overseas is clear and important.

We must be courageous and continue to do what we believe in. A new society is not around the corner but each one of us can help to bring it about by acting in accordance with the principles we cherish.