282
SIR ERNEST OPPENHEIMER
A
serious problem now faced the producers. They were afraid that the
composition of the proposed commission of inquiry made it unlikely that
they would get a fair hearing. They could, alternatively, plead before
the commission that its composition was defective and ask it to resign;
if the tribunal refused to do this, then, subsequently and under
protest, the producers could give evidence. Or the producers could
protest against the composition of the commission and, if it did not
resign, refuse to give evidence, facing any consequences which might
flow from such refusal. The producers, naturally, took legal opinion
and on 25 April 1932 the following cable was sent to De Beers in London:
At a meeting of the board held today at which [counsel were] present after investigating whole position they strongly advise:
(1)
That we and associated companies should again claim that lay
members of commission are on account of their past actions and
connexions with the industry and Advisory Committee incapable of coming
to an impartial decision.
(2)
That charges be framed against these lay members of directly
contributing in part to industry's present condition and that these be
laid before the commission.
(3)
That the application for them to recuse themselves be renewed on
the grounds that their own conduct becomes subject of investigation by
themselves.
If
they recuse themselves the matter ends. If not, counsel advise that we
and associated companies and Oppenheimer decline to take any further
voluntary part in proceedings which can in our view only end in biased
finding.19
19 The detailed case for such refusal to attend was based on the following line of argument:
'Counsel
advise that the Governor General cannot legally confer upon the
commission any powers of compulsory attendance before it except in
respect of persons resident in the Transvaal and then only to enforce
attendance in the Transvaal. This view is based on the territorial
limitations existing when Transvaal Ordinance No. 30 of 1902 was passed
and upon section 16 of the South Africa Act. There is apparently no
pre-Union Cape legislation as regards commissions and no Union
legislation. Counsel feel strongly that voluntary participation after
recusal application refused will amount to submission inevitably
enabling Government to say that as there was with full knowledge
submission to the proceedings and as the case was fully investigated
practically by consent it is too late after the finding to contend that
such finding is not a proper one—this assumes of course an unfavourable
finding. We feel there is gravest risk of this owing to bias of lay
members and influence they will undoubtedly bring to bear upon third
member. Government's possible contention above referred to, however
fallacious, is specious enough to cause grave potential prejudice to
ourselves, associated companies and Sir Ernest Oppenheimer. On the
other hand, refusal to appear before commission which in our conviction
is largely biased will lead either to its collapse or to its proceeding
to the Transvaal which we beheve very unlikely and in which event Sir
Ernest Oppenheimer
