Nationalist Government attacks on the union continued. Schoeman refused to gazette the agreement for the clothing industry, which contained the award of the arbitrators, on the grounds that it had a "closed shop" provision. The agreement was a matter solely for the union and the employers, but Schoeman had hoped that the elimination of the closed shop would break the union's-power over its members and that, if the agreement were not gazetted, the workers would rise in revolt against their leaders. We advised the employers' association that we had no objection to the deletion of the closed shop clause from the agreement. We went further. We issued a leaflet to all members, stating that those who wished to resign could do so and no action would be taken against them under the closed shop provision. Not one member resigned. Strange as it may seem, the employers, who in former years had vigorously opposed the closed shop, now insisted on its retention. They preferred to deal with a well-organised body, rather than with individuals. We let the workers know that, by refusing to gazette the agreement, Schoeman was attempting to ruin their hard-won standards. At the same time, we informed the employers that, whether or not the agreement was gazetted, its provisions must be observed and the union would take direct action against anyone who transgressed it. Every employer honoured the agreement and, eighteen months later, when Schoeman saw that his efforts had failed, he gazetted it.
On May 6th, 1949, I applied for a passport to go overseas to attend an international conference of textile and clothing workers at Lyons, France. I paid the usual fee of £1 and received the passport. Fourteen days later, the Chief Immigration Officer and one of his assistants called at my office and told me that they had instructions from the Minister of the Interior to demand the surrender of my passport, I refused and, on the 1st June, Donges, the Minister of the Interior, applied to the Supreme Court and obtained an order compelling me to surrender the passport. I lodged an appeal to the Appellate Division of the Supreme Court. Six eminent counsels, including a well-known constitutional lawyer in England, advised me that my appeal would fail and, in a moment of weakness, I felt inclined to abandon it. But tyranny must be fought at all costs and I decided to proceed with the appeal. This arbitrary act of the Minister caused great public indignation. The Rand Daily Mail, a leading paper in Johannesburg, wrote on the 25th May 1949:
"A dangerous principle is involved when the Government starts to take passports from citizens whom it does not like. This procedure bears the stamp of dictatorship and one wonders where it will end".
The Star, another leading daily, wrote on the 27th May 1949:
"By the Minister's administrative action, the Government stands condemned of using administrative powers to curtail the freedom of people who disagree with it or are critical of its actions and attitudes. Once the principle is established that passports are available only for people whose opinions are agreeable to the Government, the Union, in effect, will become a vast prison camp".
The Sunday Express of the 29th May 1949, stated:
"But is the Minister really so afraid of what Mr. Sachs might say, that he is ready to make this disgraceful inroad on the liberty of movement of a fellow South African"?
In court, the Minister relied mainly on the power of the Crown prerogative, to which Mr. Justice Malan, in another appeal before the Transvaal Provincial Division of the Supreme Court, in the case of Dr. Dadoo, whose passport had been seized, had remarked:
"The contention of the first point is based solely upon the so-called prerogative of the Crown or State-that undefined, nebulous relic of autocratic power of kings of the dim past, which is alleged still to exist and which is in modern times usually invoked by those who have arrogated to themselves autocratic power and who, upon this power being challenged, are driven to seek refuge in its very questionable existence."
The appeal was heard in the Appellate Division before a full bench of five judges and, on the 14th March 1950, the court, by a majority of three to two, upheld my appeal, with costs.
Donges avenged himself by introducing new regulations, assigning to himself full discretionary powers concerning the issue and cancellation of passports. No citizen who held truly progressive views was issued with a passport, but many travelled abroad without them until 1955, when the Nationalist Government introduced the passport Act, making it a criminal offence to leave the country without one.