In connection with the first part of this clause a question was put to me which I was unfortunately unable to answer. Before putting the question, I would like to point out that under this clause any person who was born in the Union and at the same time either at his birth or during his minority became a national of some other part of the British empire, might renounce his South African nationality. That, I take it, would apply to, say, the child of a foreign consul, because, speaking generally, a person born in South Africa would, under the former part of the Bill, be a natural born Union national, but any person who, by reason of his having been born in any part of South Africa is a Union national and is also a national of some other part of the empire, may renounce his Union nationality, and the same applies to any person who, though not born in the Union, is also a Union national. There are two classes of people who are Union nationals, who may renounce their Union nationality, but the question put to me was: Take the case of a man who was born in the Union, who is a Union national and who goes to Rhodesia; he does not fall within any of these categories. He is a Union national, it is quite true, but he was not a national of any part of the British empire excepting South Africa. How can he renounce his Union nationality? That is what I want to ask. I understand the object of giving any person the right to renounce his nationality is that he may free himself from any obligations he has as a Union national, and that he may be free to undertake obligations which are attached to his new nationality within the empire. Where a man is a Union national and leaves South Africa to go to Canada, or to Rhodesia, he does not fall within these two categories described in the clause. There is no provision here for his renouncing his South African nationality, and, in that event, would the South African Government be under any obligation to protect his interests in any part of the world where he was being maltreated, or where his interests were suffering in any way? The question was put to me in a letter the other day by a man with whom I have had some correspondence on the subject. As the clause stands, I cannot see any provision made for such a person, if he desires to do so, renouncing his South African nationality. Of course, if a South African who is a British subject goes to some foreign country, he ceases to be a British subject and loses ipso facto his South African nationality, but I am now putting the case of a man who is a South African national, who is not the national of any other part of the British empire, but who removes to, and acquires domicile in, another part of the empire, and becomes a national of that part. Has he a dual nationality, or is he still a national of South Africa? I think the point is an important one.

All I can say is, it is very difficult to go into or to give a reply to the question asked by the hon. gentleman. It seems to be a very complicated matter, even to him, where he has given close attention to it, and if the hon. gentleman had asked me before I could have given attention to it and given a reply.

I called at your office to-day but you were out.

All I can say at this stage is that I will give the matter my attention, and if we take the committee stage then if any alteration is to be made it can be made there, or perhaps it would be better in the Senate.

Clause put and agreed to.

On the Heading “Chapter II.”,

I move—

Agreed to.

Heading, as amended, put and agreed to.

On Clause 7,

As it does not touch the compromise, I think I may make a suggestion, if the Minister has no objection, that instead of the word “Commonwealth” proposed by the Minister we substitute the expression—British community of nations.

The hon. member can move this when we have the new clause before the committee. First we have to delete the old clause.

Clause put and negatived.

New Clause 7,

I move—

7.

1. (1) The flags of the Union shall be—
   1. (a) the Union Jack to denote the association of the Union with the other members of the group of nations constituting the British commonwealth of nations; and
   2. (b) the national flag of which the design is set out in section 8.
2. (2) The Union Jack shall be flown with the national flag from the Houses of Parliament and from the principal Government buildings in the capitals of the Union and of the provinces, at the Union ports, and on Government offices abroad, and at such other places in the Union as the Government may determine.
3. (3) The Governor-General may by regulation fix the manner in which the flags may be flown on ships on the high seas or for special purposes or occasions.

The point I want to draw attention to is that the Minister said yesterday that it was intended to bring this clause into operation on the 31st of May, because amongst other things it was necessary to make preparations. There is one preparation that has to be made that possibly the Minister has not thought about. If there are two flags to be flown there will have to be two flag poles. It is inconceivable to have the two flags on one pole, and it will be necessary to consult communities in different parts where it is intended to fly the two flags, so that when the 31st of May comes there will be no disappointment in flying the flags. There will be no difficulty in places like Cape Town and Pretoria, but there may be in other places. I think it would be a good thing, and I suggest to the Government that they should consult our leader regarding the places where it is intended that the two flags should be flown. It would be undesirable and lamentable if there was any difference of opinion regarding this matter. It is one people will think a good deal about and wonder what is going to happen. It would be an undesirable thing in any community to get a centre which would be dissatisfied, and which would want a change when a change of Government comes. We have happily disposed of this trouble, and I am one who will do my best to make this clause acceptable in my part of the country; and it will be a general satisfaction when people realise what has been arranged and the difficulty which has been overcome.

All I can say is that the matter has been dealt with by the Prime Minister in his speech yesterday. He has given an undertaking generally that as far as possible we want in any arrangements we are making to secure the hearty co-operation of both sections, and will respect as much as lies in our power all existing sentiments in regard to these flags. I think that further the matter must be left to the Government, and we will try honourably to carry out the general undertaking that has been given by the Prime Minister.

I move—

The first reason is to bring the Afrikaans text and the English text into accord with each other. The Afrikaans word “gemeenskap” means community. I think the word “community” more expresses the idea, although “commonwealth” is always used in the order of the proceedings of the Imperial Conference. I notice that in the debate on the Imperial Conference in the Canadian Assembly objection was raised to the word “commonwealth,” and it was thought that “community” better expressed the idea. People associate the word “commonwealth” with one State, which we understand now is out of date, if all that is said at the Imperial Conference is true—the old idea of the imperial super-State. It has nothing to do with the flag question as such, but has to do with our constitutional position.

What is “common wealth” in Afrikaans?

Gemenebes.

I hope my hon. friend is not going to insist on that. If possible, let us leave things. It is no use objecting to the word “commonwealth.” I know what it is. There are people who hold the word “commonwealth” to mean one State entity, but that is not necessarily so; apart from that, we must see we follow the words of the Imperial Conference on which this is based, and the words of the Imperial Conference are “British Commonwealth,” and not “British community.” It may have been better to use “British community,” but the words “British commonwealth” being there, I should certainly say that we maintain those words in harmony with what the Imperial Conference has used. In the Afrikaans version the word used is “gemeenskap.” That ought to be “gemenebes.” I move, as an amendment—

I move—

If we make this provision conform to the resolution of the Imperial Conference, we must put in the word “free.” In the declaration of the Imperial Conference we find the words “freely associated.” I hope the Minister will accept this.

everything in the Bill is, of course, subject to the declaration of the Imperial Conference. The words used here must be interpreted subject to that declaration. If the Bill speaks of “association,” then it means “free association.” I do not think that the word “free” need be put in because “association” means “free association.”

Amendments proposed by Mr. Swart and Dr. van der Merwe put and negatived.

Amendment proposed by the Prime Minister put and agreed to.

New clause, as amended, put and agreed to.

On Clause 8,

I move—

Agreed to.

Clause, as amended, put and agreed to.

Clauses 9 and 10 put and negatived.

On Clause 12,

I move—

Agreed to.

Clause, as amended, put and agreed to.

Schedule put and negatived.

On the Title,

I move—

Agreed to.

Title, as amended, put and agreed to.

House Resumed:

Bill reported with amendments and specially an alteration in the Title.

Amendments considered.

On new Clause 7,

An amendment was made in the Dutch version which did not occur in the English.

New clause, as amended, put and agreed to.

On amendment in Clause 8,

I move, as an amendment to this amendment—

There is a sentence beginning—

Some may think this will unnecessarily offend susceptibilities. It will make no difference.

seconded.

Agreed to.

Amendment, as amended, put and agreed to.

On amendments in the Title,

I move—To omit “national”.

It is far from my intention to disturb the good understanding prevailing on this question, but we must take care that this sudden brotherly love does not make us lose our heads and do all kinds of unwise things. Take, e.g., the amendment made by the House in the Title. The Title now reads [Title read]. The Bill, however, says that the Union Jack indicates the association, and that there shall be a national flag. To say in the title that provision is being made for national flags and for the symbolizing of the Union Jack may cause confusion, because the Bill only provides for one national flag.

I second the amendment. I hope the Minister will agree to this, because the present language of the title will cause confusion. When we speak of the “national flag” it must stand for our nationhood, while the Union Jack indicates something separate.

My attention has not as yet been called to it. It must not be “national flags” but “for a national flag of the Union of South Africa, and the symbolizing by the Union Jack of the association of the Union with the other members of the British commonwealth of nations.” There is only one national flag and the other part provides for the flying of the Union Jack with the object of symbolizing such association. It probably got into the hands of Mr. Speaker by mistake.

Then I will withdraw my amendment.

It was not the intention to put “national flag” in the title.

The words which I put are as they appear on the Order Paper and as passed in committee. The best way will be if the House is in favour of adopting the suggestion of the Minister to move the amendment which was passed in committee. It can then be rejected.

I would like to know how the title would then read.

Amended title read.

If I am in order, I would like to point out that the clause we have adopted, Clause 7, provides definitely that the flags of the Union shall be so-and-so. If there are two flags of the Union they must be national flags, it seems to me.

Surely Clause 8 makes it clear what the national flag is. There is one national flag under Clause 8.

It is set out in the latter part of the clause, but the first line of Clause 7 reads—

1. (a) the Union Jack to denote the association of the Union, etc., and
2. (b) the national flag, etc.

Both these flags are the flags of the Union and it seems to me that both are our national flags, and that was the understanding that I, at any rate, had when Clause 7 was passed.

Would it not be in order if the heading of the Bill simply read—

and stopped at that?

I may point out that would also be in accord with Clause 12, which says that this Act may be cited as the Union Nationality and Flags Act. Therefore, it seems to me that it is quite easy now to amend the long title so as to read—

I move—

seconded.

With leave of the House amendment proposed by Mr. Swart withdrawn.

Amendments proposed by Committee of the Whole House put and negatived.

Amendment proposed by Mr. Close put and agreed to.

Remaining amendments put and agreed to.

I now put the question that the Bill, as amended, be adopted.

Is that a motion for the third reading?

No. It is the usual question.

Motion put and agreed to; third reading tomorrow.

announced that the Committee on Standing Rules and Orders had discharged Mr. Nathan from service on the Select Committee on Pensions, Grants and Gratuities and had appointed Mr. Gilson in his stead.

I wonder whether, in view of the more moderate atmosphere reigning nowadays, it would be too much to hope that the Minister of Mines would modify his views on this Section 20. We have been opposed to it from the very start on both moral and on legal grounds. We think it is an extremely unhealthy precedent. I would like to ask the Minister to give us an explanation, in case he is going to stand firm on this Section 20, how he reconciles it with the conduct of the Government in regard to the proclamation of Welverdiend. Last session he told us with considerable indignation of the sub-divisions which had taken place on various farms. Subsequently to his speech in this House, Welverdiend was cut up into 50 portions. After he had made it clear to this country that he was not going to tolerate sub-divisions, we find that the owners of Welverdiend paid so little attention to the Minister’s warning that the farm in April of this year was cut into 50 portions and in August of this year the Government goes and proclaims a large number of those portions. I think we are entitled to an explanation of this, and we are entitled to hear from the Minister how he reconciles the Government attitude with regard to Welverdiend and the Government attitude or his own attitude with regard to other sub-divisions. It was subdivided and proclaimed subsequent to the Minister’s very strong attitude on the question of sub-divisions. Surely that is a very curious state of affairs.

He was on his travels.

Yes, but the Government knew all about it. It was the Government attitude that the Minister was voicing, I take it, and yet the farm is cut up in defiance of the Government’s warning, and so far from repeating the warnings to the owners the Government actually goes and proclaims this ground. If this Bill is going through I wish the Minister would tell us whether he is going to show favourable discrimination towards Welverdiend, or whether he is going to cancel all these subdivisions. If not, what is the Government going to do about it? Is the Government going to allow that to go through and yet penalize the owners of other farms? Surely it would be an unprecedented state of affairs. I hope the Minister will give us some details of this Welverdiend business, because I can assure him the public is very much concerned and interested, and is looking for an explanation. The 50 portions were cut up in April, 1927, all on one day and in blank defiance of the Minister’s own fiat. They are not private owners; they are all companies. I will read you the owners.

Perhaps I can save you the trouble by saying at once what I want to say. It is perfectly clear that the hon. member misapprehends the position. If he will look at Ordinance 66 of 1903 he will find that where there is a farm and a discovery has been made and the discoverer’s certificate has been issued, one of two things happens before that discoverer, who is usually the owner, can mark off his discoverer’s or owner’s claims. Either three months must have expired from the date of the issue of the certificate, or a proclamation must have taken place whether before the expiry of the three months or just at the expiry. If the three months have expired then automatically the discoverer and owner become entitled to mark off their claims and to work them and to win diamonds whether a proclamation ensues or not, and if a proclamation has been issued then whether the three months have expired or are just on the point of expiry, they are equally entitled to mark off their discoverer’s and owner’s claims, to work them and to win diamonds. These portions of Welverdiend were proclaimed by my colleague, the Minister of Justice, who was acting for me during my absence, and they were proclaimed for the simple reason that the three months had expired on certain portions, and, naturally, the people became entitled to mark off their discoverer’s and owner’s claims. The disadvantage of not proclaiming was that you would have these discoverer’s and owner’s claims worked without any control whatsoever, sanitary or otherwise, but you could not stop them any more from working them and winning diamonds, and it has never been proposed in this Bill to revoke such rights. There is no clause in this Bill that contemplates or that makes it obligatory upon the Minister to revoke the right to prospector’s or owner’s claims where either the three months have expired or a proclamation has ensued. If the three months had not expired these portions of Welverdiend would not have been proclaimed, but the three months had expired and, therefore, automatically, the discoverers and owners became entitled to mark off and work their claims. It is not at all inconsistent with the attitude taken up by me in the House last session, and the Minister of Justice acted as only he could have acted in the circumstances.

I do not quite understand the attitude now adopted by the Minister, because Section 20 of the law, as he proposes passing it, says that if the Minister is satisfied that any sub division of a farm has taken place with the object or effect of increasing the number of discoverer’s and owner’s claims, he may cancel the whole thing. If he is going to abide by what he told the House last year, then he must adopt the attitude that the Welverdiend farm was cut up into 50 portions after due warning with the object of increasing the discoverer’s and owner’s claims. I take it that object has been achieved. What is the Minister’s attitude going to be? Having proclaimed the farm, are the Government going to tell these owners, when this law comes into operation, “although we proclaimed that farm, we are going to cancel it”?

May I say at once that I am not going to answer questions which really amount to a legal opinion on a concrete case.

Why not?

I have to deal with general principles, and I am not going to answer any question as to what the position of A, B or C will be, except in a general way. The application of 20 and 73 will be a matter of earnest consideration by the Government if these clauses become law to consider how they shall be applied.

It seems to me the Minister has a complete misconception of our function in this House. We are being asked to pass this clause, and I cannot see by what right the Minister says he is not going to answer any questions. We are responsible when this Bill becomes law. It is not the Minister’s sole responsibility; we as the representatives of the people are entitled to know where we stand. I repeat I am not making any attack on Welverdiend, but I do say that as representatives of the people we are entitled to know how comes it that in spite of this scathing denunciation of sub divisions the Government has gone and proclaimed nine portions of Welverdiend, and we are entitled to ask in view of what has happened whether the Government is going to cancel its own handiwork by confiscating all these sub-divisions. I brought the Welverdiend matter up, not in any sense of antagonism against what had happened there, but in order to show how irreconcilable the Government’s own attitude has been, and in order to show how justified we were in opposing this clause. I hope the Minister will not adopt this dictatorial attitude towards the House when we are trying to get at the facts of the matter.

The hon. member ought to know that I am not adopting a dictatorial attitude, and he ought to know that this matter has been discussed over and over again for years, not only with members, but with my colleagues. The hon. members persists in presenting his arguments as if I were the only person in the ministry that ever had to deal with this, and as if I were laying all this down at my own sweet will. It is a total misconception of the position. The point of substance in 20 is whether the Minister shall be vested with that discretion or not, and not the question of whether in the case of Mr. X, who owns a farm in a certain district, he will be dealt with in this way or that way. Surely we cannot handle things in that way in the House. If the hon. member wishes to attack this discretion being vested in the Minister, he is fully welcome to do so, and he may add his concrete cases as much as he likes, but it is not fair or reasonable of him to expect the Minister to anticipate his administrative action under a principle laid down in the Bill.

It all goes to show how wrong the principle of the clause is, then—that is all I can say. My opposition has not been against this particular administrative act. Our position on this side has been that no Minister should have the right to discriminate between one man and another. We as a nation in this country have never been used to allow our fate or fortune to depend on the wish or whim or desire of any single Minister. It is a profoundly-unhealthy principle to introduce into our law, and it is the first time in my knowledge that this principle has been introduced giving a single man—I am not making any reflection on the Minister personally—the right to be the arbiter of our fate. Here we are going to pass a law in which one Minister says to Company A, “all right, you may sub-divide,” and to Company B or individual B, “oh no, I am going to confiscate yours.” Surely the Minister must see what a far-reaching and unhealthy principle we are introducing.

Cannot a Minister do that to-day under the many discretionary clauses?

Not to the far-reaching extent that we have here. This is going to be a matter of life and death to individuals within my knowledge. We are a race of individualists in this country, and we object to having our rights and liberties dependent on the will of a single man, and the example I have brought forward of Welverdiend shows what an unhealthy principle it is. You will find the Minister cannot in common administrative decency cancel the Government’s own handiwork, and yet obviously the Minister proposes in other cases doing that very thing, cancelling and setting aside sub-divisions. Our attitude has always been that we do not approve of these subdivisions. Here is the most glaring case of all, the biggest act of defiance of any on the alluvial diggings, and yet in other cases the Minister is going to confiscate and set aside subdivisions. I hold that no citizen ought to be penalized for what the law allows him to do. I know of no similar case where the law was made retrospective for penalizing people for doing what they were entitled to do. I do not see how we can abdicate our function as representatives of the people by allowing a clause like this to go through.

I just want to point out another fallacy in the reasoning of the hon. member. Either the proclamation of these portions has benefited the people in that their rights have by that proclamation been secured, and the Minister has been precluded from exercising, under Section 20, say, his discretion against them, or that is not the case—either one or the other. If by proclaiming I have precluded myself from exercising discretion against them, I was equally precluded by the fact that the three months had expired, because their rights became vested. If it will not preclude me, what harm has the proclamation done?

It is regrettable, nay, most lamentable, that the Minister persists in this retrospective legislation. We know that the custom and law of this country regarding the sub division of rural land of farms is that every divided portion so cut up constitutes a distinct farm, and often gets a new name and number. The title deed shows it to be a new and a separate farm. Many people bought these farms according to title deed and subject to the existing law. If there are discoveries of precious stones they know they are entitled by law to discoverer’s claims. The Minister proposes to wipe that out, which is unjust and unfair, bad statesmanship and bad law. If a man has a clean title, let him get all the benefits that accrue to that title. Don’t confiscate his property rights; in plain words, don’t rob him. I will most certainly oppose this confiscatory section.

I do not wish to go into the technical side of the proclamation of Welverdiend, but I want to speak about the general principle embodied in this clause. I am convinced that the Minister, in his heart, feels he is introducing a principle into our legislation that is unsound and in conflict with our traditions. He is a son of one of our old families, and knows what respect we have in South Africa for the fundamental rights of our people. The law has permitted farms to be sub-divided. Suppose now there are no diamonds on a farm, and it is sub-divided, how will the Minister feel if, to get a better sale, he has sub-divided it into portions of 100 morgen, within the provisions of the ordinance on local authorities, and the Cabinet then declares the sub-division illegal? If this clause is passed the farmer will not be able to sub-divide his farm. He will not be able to cut up the farm in order to get more money for it. The Minister will appreciate that this is an encroachment on the rights of our people. Because he is afraid people will make money out of their diamondiferous ground, he wants the discretion of saying what sub-divisions shall be lawful, and what not. He takes the power of declaring a sub-division illegal, even when the transfer has been approved of.

How do you make that out? The clause provides that the Minister only has the discretion when the sub-division takes place with the object of giving the owner more claims.

What does the clause say? It seems to go further. The Minister has told us he has very strong views on this point. He regards the sub-division of a farm as a kind of fraud, and is opposed to people dividing their farms in this way. We can, therefore, assume that the Minister will exercise his discretion and will declare sub divisions illegal. This is a far-reaching power which is being given to the Minister. I could understand it if the law provided that all sub divisions which took place after the passing of the law should be illegal, but to make such an article retrospective for a whole year, i.e., after persons have invested money and formed syndicates, is entirely unfair. After this was done according to law, the Minister comes with the right of declaring that those acquired rights are illegal. If we pass this sort of legislation, what then is safe? What is to become of our economic life? Does such a law contribute to its stability? We cannot give this discretion to any Government, and I hope the Minister will accept the moderate amendment of the other House, so that people who have innocently invested their money will be protected. I have listened to the hon. member for Christiana (Mr. Moll). He wants the Minister to meet him in connection with Grasfontein, because his constituents will suffer if the sub-division there is declared illegal. What about the constituents of other members? What of people in other parts of the country who have invested their money in claims and in sub divisions, and who were not contravening the law? If the Minister will not yield, all we can do is to protest against principles which the Minister himself will regret later on. I know the Minister’s family history, and that he realizes that this principle does not tally with the ideas of the steady and conservative portion of the population from which he springs.

This matter, with all its pros and cons, has been frequently discussed. If the two clauses referred to are deleted, or altered as suggested, we may as well remove the future prohibition, seeing that all the diamondiferous farms in that area have already been sub-divided. The harm is done, and if the law is not retrospective there is no use in prohibition. The parties interested in the matter are not private individuals, but corporate bodies, many of which have been registered since 1st July, last year. It is remarkable that there was no such thing previously on the alluvial diggings as a corporate body. The market for the owners of diamondiferous farms was limited to small diggers. Since 1st July, corporate bodies have come into existence, and speculation in farms started from that time. It was speculation on speculation. Farms were not only sub-divided and sold, but the new companies again sub-divided and speculated further, and so it went on. In many cases the principal people concerned in the blocks of farms were so closely connected that one can easily follow the chain of developments. The subject is already so much exhausted that one can throw no further light on it. If the clause is postponed until, say, 1st April, before it comes into force, the whole virtue of the provisions will be gone, and we may as well cancel it.

I should like to make clear what the effect of this clause will be. Section 73 will work a very great hardship and will call the good faith of the Government into question. Section 20 gives the Minister a certain discretion in regard to the sub-division of private land, and, under it, it will be competent for him to come to the conclusion that a particular farm has been sub-divided with the object of increasing the number of owners’ and discoverers’ claims. If the Minister is given the powers he seeks in Sections 20 and 73, he will be able to say that he believes a certain farm was sub-divided with the object of increasing the number of owners’ claims, and if those claims have been acquired by a company they shall not be able to continue to hold them, although the Government is responsible for creating the impression that so far as a particular property was concerned it was willing to allow the law to take its ordinary course. I presume that companies have been formed, the shares of which have been sold to honest investors following on the proclamation which took place after the discussion in this House, for the investing public might well think that after the Government issued the proclamation it did not intend taking the drastic steps contemplated by the Minister in this Bill. If the Minister exercises the drastic powers given to him in the clause, then the claims will pass to the State, which can offer them to the public or lease them. This will result in the confiscation by the Government of the money of investors. It is entirely unsound, and is worse than confiscation—it is statutory robbery. Under these circumstances these so-called gamblers and speculators will have a very great complaint against the Minister. Under Section 20 the Minister will have no discretion at all in dealing with these particular cases, for I find that by a mistake (let us suppose) of the printer’s devil, the sub-section contains the words—

But every sub-division has the effect of increasing the number of claims, so the Minister will have no discretion unless he accepts the amendment of the hon. member for Port Elizabeth (Central) (Col. D. Reitz)

I do not admit anything of the kind. I do not admit that is the construction to be placed on the section.

Let us see if the rest of the committee will agree with the Minister.

They won’t.

They will do what they are told.

Section 20 is quite clear, and it speaks of land which has been divided with the object or with the effect of increasing the number of discoverers’ and owners’ claims. Every farm which has been divided must increase the number of owners’ claims.

What about the words, “if the Minister is satisfied?”

Surely the Minister is not going to take up the position that in the case of, two landowners sub-dividing their farms after June 30th, 1926, he is going to be satisfied in one case, but not satisfied in another. The Minister has not seen my point, and in the circumstances I have alluded to, he will not be able to exercise a discretion, otherwise he will put himself in the very position to which the hon. member for Port Elizabeth (Central) has called attention. How will the Minister, if he is in favour of owner A and not in favour of owner B, establish the bona fides of his department? The principle is utterly wrong. The object of my remarks is to show that the only possible way of avoiding this difficult question is to drop Section 20 and to amend section 73. The Minister also proposes to proclaim land against the owners’ consent, and if the land is a sub-division which the Minister thinks was cut up in order to increase the number of owners’ and discoverers claims, the Minister has power, without even the consent of the landowner, to declare the farm an alluvial diggings. [Time limit.]

The Minister says he is satisfied that no case has been made out, but what would be the position if some third individual were to take the matter to court? As the law stands, Clause 20 will come into operation automatically, for it is clear you cannot sub-divide ground without automatically increasing the number of owners’ and discoverers’ claims. The Minister has left himself no option in the matter, and if the matter were taken into court the Minister would probably find that the court agrees with the view we adopt. The concluding paragraph of Section 20 gives the Minister the right to proclaim ground against the wishes of the owner, but that is in contradiction to Clause 5, under which the owner is given the right to refuse his consent to the proclamation. We are thereby introducing a principle dead against our time honoured land laws, that no Minister shall interfere with land tenure. I now wish to refer to Welverdiend. Ordinance No. 66 of 1903 (Transvaal) states that the owner shall be entitled, after the expiration of six months, to beacon off his claims. Welverdiend was subdivided on the 16th April, this year. The owners could not have made a declaration of discovery before they actually owned the farm, and that was on the 16th April, and, within considerably less than six months, the Government proclaimed the farm.

You are wrong about the six months. Will you refer to Section 45?

Well, I don’t hold myself infallible about the mineral laws, they are so complicated. I am told the Minister is right, it does refer to 45, so this point falls away.

As the hon. member has pointed out, sub-division can take place against the will of one of the joint owners. Supposing such a thing took place in respect of which Section 20 applied, the effect of the division, while increasing the owner’s claims, would be that a dissenting owner might get a subdivided portion which he desires to farm. It might have gravel upon it but he may desire to farm his portion. The effect of proclaiming it as an alluvial digging is to destroy it as a farm. Under Section 20 such a dissenting owner, compelled to submit to sub-division against his consent, is placed in such a position that the Minister can, of his own will, convert it into an alluvial digging. That seems to be an intolerable hardship upon such a person, and I ask the Minister if he means to make provision for such a case.

This discussion shows the thorny path one has to tread in attempting retrospective legislation. We have attempted to do this sort of thing in the past, and it has usually been a failure and unfair. In this case I am satisfied, knowing the difficulties with which the Minister is faced, that the remedy sought here is worse than the disease itself. I know the circumstances leading up to the insertion of this clause. Grasfontein was subdivided and sold to syndicates in portions. Now I ask the Minister to consider the effect on the ordinary investor in the country. Let me tell him what happened to me. A purchaser acquired a portion of Grasfontein, and he went to his friends and they went to their friends and said—

I was unwise enough to put £100 in this venture. I as a lawyer looked at the Jaw and saw the owner of the farm was entitled to so many claims, and I looked at his title deeds, and I found that it was a farm. Twelve months later the Minister says—

I do not think anything can justify spoliation of that character, and it will have a very bad effect on South Africa. Its repercussion will be felt further afield because there must be investors overseas who have put money into these things. The original purchaser of shares probably sold the shares, and the man who is going to be hit will, in no case at all, be the original offender, that is if you can call him an offender, which is doubtful. The mischief the Minister aims at abolishing will not be abolished, but a sense of insecurity to other investors will be created. It is bound to react against the mineral development of this country, and whatever immediate good he hopes to do by the clause I am certain in the long run, more evil will result. Coming to the clause itself, I agree with the hon. member for Cape Town (Gardens) (Mr. Coulter) if, in effect, the subdivision of a farm is to increase the number of claims, then the words “the Minister is satisfied” are perfectly unnecessary in this clause. The clause is just as operative if these words were taken out. No Minister can stick his head in the sand like an ostrich and say that it was true the effect of sub-division was to increase the number of claims, but that he, as Minister, was not satisfied. It is like saying on going outside this building: “It is true the sun is shining, but I am satisfied it is not shining.” Once it becomes a question of cold fact, then these words become unnecessary.

Another misapprehension that continually prevails is that sub-division is prohibited. The hon. member for Caledon (Mr. Krige) has made that mistake several times. He made it this afternoon, and he made it last session. Of course, the owner, whether a corporate body or a person, can cut up a farm into as many pieces or strips as he likes. There is no cancellation of title, and the only evil aimed at is the right of the owner to dig for diamonds. With regard to this legal point, the legislature, by enacting Section 20, deliberately leaves it to the Minister to say whether the division of a farm has been with the object of increasing the number of discoverers’ or owners’ claims, but the condition precedent is that the Minister must be satisfied. Supposing all the circumstances are laid before the Minister, and he is satisfied that the farm is not cut up with the object of sub-division, with the object of benefiting by the sub-division. You might say, obviously, every sub-division must have the result of increasing claims, and, therefore, it must be presumed of having had the object of increasing them.

interjected a remark.

I hope my hon. friend, the member for Yeoville (Mr. Duncan), is a judge one day, and I hope to see him very high up, but I hope he will not anticipate counsel’s argument. What court is going to interfere with the Minister’s discretion if he is not satisfied that the object was to increase the discoverers’ claims? The same thing applies to the word “effect.” Read on. If the Minister is satisfied that a farm has been divided with the object or effect of increasing the number of discoverers’ or owners’ claims, does it say “He shall refuse” to recognize sub-division? Of course not. It says: “He may.” Where is the imperative nature of this clause compelling me, even if I am satisfied that it has been cut up with the intention of this benefit, where will it compel me to interfere?

That is just the mischief.

But hon. members are saying I shall have no discretion. They say I must repudiate sub-division, but it says, “I may.” You may attack the discretion that I may make fish of one or flesh of the other, but don’t say a court of law can interfere with the exercising of my discretion. To interfere would require complete proof of what is an absolute fraud on my part, absolute bad faith, and how can you assume that?

As the Minister is assuming such plenary powers under Section 20, I would like to move an amendment. The Minister says his decision shall be final. It seems to me the country and the House would like to have the final word, and not leave it to the Minister. Assuming the Minister has sorted out these sub-divisions and has issued his final verdict, we want to know something more about it. I am not directing this at the Minister personally, but at any Minister. Very large interests are at stake. I know in connection with my business in Johannesburg very large financial and personal interests are at stake. It seems to me that this House should not be left in the dark as to what has happened. I am accordingly moving an amendment that the Minister shall lay on the table a list of cases in which he has given directions in the matter of these sub-divisions. I would commend my amendment to the Minister for his favourable consideration and also to the favourable consideration of the House. I think the Minister and the House and the people of this country will agree that if the Minister is not prepared to waive this clause, then at any rate we are not only entitled, but it is our duty to know what has been going on, and it seems to me eminently fair and eminently reasonable that, having given this plenary power to a Minister, the House should keep over it control so that we should know what has happened. I have just been informed that I have not yet formally moved the other amendment standing in my name on the order paper, and I therefore move—

I do not want to deal with the Minister’s arguments from the judicial point of view. I trust that the fates have not that in store for me when I shall sit in judgment upon his arguments. I prefer to answer them across the floor. The point seems to me to be this, which the Minister did not bring out, that the effect of putting in the words “or with the effect of increasing the number of the discoverers’ and owners’ claims” is that it gives him in every instance the right to interfere whether he is satisfied that the sub-division was made with the object of increasing the claims or not. I think you might just as well in that case take out these words altogether and say that in every case of sub-division the Minister will have the right to interfere. That is the effect of it. He would have the discretion in every case of sub-division irrespective of whether it was made with the object or with the effect of increasing the number of claims.

You may have the innocent inheritance of a farm by six sons who may never have seen the law. Who is going to object to that sort of sub-division?

I do not object to it, but the Minister has the right to come along and say that the farm has been sub-divided, but this sub-division shall not carry with it any advantage in regard to discoverers’ claims if diamonds are found on the property.

I have listened to the Minister’s reply to “Mr. Justice Duncan,” and I must say that the first part of his argument was unconvincing, because he endeavoured to fasten entirely upon the words “with the object” and ignored the words “with the effect.” I put him this question, that in all cases, if in point of fact the number of claims has been increased, he is bound to be satisfied that that was so. He cannot, in other words, put his blind eye to the telescope. He is forced to take refuge at last, as he did in his speech, on the word “may.” Let me say this, that I would not like to stand in the Minister’s shoes and have to decide that in one case I am not going to despoil a company or a set of individuals of their rights, and in another case that I am going to do so. The Minister may be the most perfect example of uprightness and good intentions, but he will incur not only odium, not only hatred, but he will incur suspicion in exercising his discretion.

Have I not already incurred these things?

He will incur them in a tenfold measure if he decides that owner A is going to get all his rights or the shareholders of company A are going to get all their rights and that shareholders of company B or owner B shall not get their rights. I have heard a good many times of members on the other side and even members of the Cabinet, being interested in these diggings up there. I say that if the Minister is forced to exercise a discretion of this sort between one set of individuals and another, and one set of shareholders and another, he is taking upon his shoulders a burden that neither he nor any other Minister should be called upon to bear. Where there has been retrospective legislation we have given no power to a Minister or anybody else to say that some persons shall be affected by retrospective legislation and another set of persons shall not be affected. That seems to me to be the most amazing thing this House has ever been asked to do. Has the Minister considered whether he is so absolutely sheltered in the position that he takes up on that word “may”? He knows that the courts have held over and over again that the word “may” in a statute must be taken as having the meaning of “must.” I just put this for the consideration of the Minister. If it is shown that as between company “A” and company “B” the circumstances are precisely the same, I very much doubt whether the Minister will even on this reading of the section have the power to act as he thinks he has the power. The Minister knows as well as I do that again and again the courts have held in cases of this sort, that the Minister must do a certain thing. It is a bad clause in principle, it is bad in its application, and it is bad in its wording.

For the last hour we have had an explanation of the clause by lawyers, and also a defence of the rights of landowners. I have considerable sympathy with the rights of landowners, but when we are concerned with the rights of the State as such, and as the community does not only consist of speculators, shareholders and landowners, I think it my duty to urge the Minister not to depart from the principle. I am glad that he has hitherto remained firm. The matter turns on the fact that the sub-division of farms was a complete negation of the law which provided that the mineral rights belonged to the Crown, the object of which was to give the poor man a share in alluvial diamonds. That has been the law in the Cape Province for 100 years, but people have rendered that principle, and that law, futile by sub division, so that the small man who cannot speculate and buy shares is deprived of his chance of having a share in the assets of the State. When that principle is negatived, and the rights of the poor man are stultified, it is no more than right to make the provision retrospective, and so to protect the poor man. The advocates of the protection of the rights of shareholders in companies are not consistent. The hon. member for Caledon (Mr. Krige) argues on principle, and then departs a long way from the Bill, and supposes that it will apply to the ordinary sub division of ground, though other hon. members did not go so far. The amendment of the hon. member for Port Elizabeth (Central) (Col. D. Reitz) is clear. He not only wants to defend the principle, but he wants the period of retrospectivity to be shortened. His amendment sacrifices the principle which the hon. member for Caledon defends. We must conclude that hon. members who advocate reduction of the period are thinking of special interests, and want to protect certain interested parties, namely, those who acquired rights between 1st July, 1926, and 1st April, 1927. I hope, therefore, that the Minister will not abandon the principle in the Bill for the sake of interested parties. We are not only entitled to give retrospective force to the Bill, but are morally compelled so to do when a fundamental principle of our law has been evaded.

I just wanted to clear up another point. I think reference was made to sub-clause 3 of Clause 20, and especially to the words “and the Governor-General may proclaim such land under Chapter 4 as if such division had not been affected.” That does not for a moment give the Governor-General the right to proclaim ground where the owner does not do anything on a particular piece of ground. You can proclaim where the owner has himself prospected or allowed others to prospect and that remains under sub-clause 3 of Clause 20 still a condition preceding.

It is not very clear.

Oh yes. I go further by saying that all sub-clause 3 aims at is this: We will take this slip of paper as representing the original farm. The owner has cut up about half the farm into these little portions and he has obtained discoverers’ and owners’ rights in respect of each of these portions. Then all that it means is this: That the Governor-General may then proclaim the rest of the farm. If he has put himself in that position, even if it were to mean that the Governor-General has the general right without his consent to proclaim the rest of the ground, then why should it not be done? He has put himself in that plight.

They may be all different owners. You are only taking a case where one man has sub-divided.

If he cuts up this portion no other discoverers’ or owners’ rights shall be granted with respect to the rest, and it does not matter whether the rest remains in the name of the original person or has in the meantime been transferred. The mischief aimed at is irrespective of whether the original person remains the owner or whether he has transferred.

In the very case the Minister has put to us, the pressure that may be put upon the Minister by diggers or others might be very great. I do say, notwithstanding the Minister’s explanation, that a construction might be placed upon Section 20 which will enable him to do that, and, as a matter of fact, as the natural effect of the language used. There is no qualification “subject to the owner himself having prospected.” Just imagine the case the Minister has put. The owner has prospected half the farm. A large body of diggers may go to the Minister and say: “We wish you to proclaim this land as if division had not been effected.” Why not add some qualifying words to make the point quite clear, if it is as the Minister says?

Is the Minister prepared to accept my last amendment?

That information can at any time be obtained. Either a question can be put to the Minister during any session or a motion can be brought before the House. It is a sort of point which would obviously be answered if a question was put. I would like to point out that this is the second time the Bill is before the House, and I cannot do anything that will imperil its passage.

I do not see how a reasoned request like this would imperil the passage of the Bill. If the Minister of Lands gets rid of a square rood of land he has to table a report. The House is entitled to know, as of right, what has been going on in public matters of this sort. I hope the Minister will meet us in this, and surely there can be no objection to the Minister tabling this information. What objection can there be?

With reference to sub-clause (3), the words “Chapter 4” can mean only in terms of Chapter 4. The whole thing is subject to that clause, and in any case the point aimed at there is that the Governor-General may proclaim that piece as if there had been no sub-division.

Question put: “That the word “thirtieth” in line 49 proposed to be omitted stand part of the clause.

Upon which the Committee divided:

Ayes—59.

Allen, J.

Badenhorst, A. L.

Barlow, A. G.

Basson, P. N.

Bergh, P. A.

Beyers, F. W.

Brink, G. F.

Brits, G. P.

Brown, G.

Christie, J.

Cilliers, A. A.

Conradie, D. G.

Conroy, E. A.

Creswell, F. H. P.

De Villiers, W. B.

De Wet, S. D.

Du Toit, F. J.

Fick, M. L.

Havenga, N. C.

Hertzog, J. B. M.

Heyns, J. D.

Hugo, D.

Kemp, J. C. G.

Kentridge, M.

Keyter, J. G.

Le Roux, S. P.

Malan, C. W.

Malan, M. L.

McMenamin, J. J.

Mostert, J. P.

Mullineux, J.

Naudé, A. S.

Oost, H.

Pearce, C.

Pienaar, J. J.

Pretorius, J. S. F.

Reyburn, G.

Rood, W. H.

Roos, T. J.

de V. Roux, J. W. J. W.

Snow, W. J.

Stals, A. J.

Strachan, T. G.

Swart, C. R.

Terreblanche, P. J.

Te Water, C. T.

Van Broekhuizen, H. D.

Van der Merwe, N. J.

Van Heerden, I. P.

Van Niekerk. P. W. le R.

Van Rensburg, J. J.

Van Zyl, J. J. M.

Vermooten, O. S.

Visser, T. C.

Vosloo, L. J.

Waterston, R. B.

Wessels, J. B.

Tellers: Pienaar, B. J.; Sampson, H. W.

Noes—41.

Anderson, H. E. K.

Ballantine, R.

Bates, F. T.

Brown, D. M.

Byron, J. J.

Chaplin, F. D. P.

Coulter, C. W. A.

Deane, W. A.

Duncan, P.

Gilson, L. D.

Giovanetti, C. W.

Grobler, H. S.

Jagger, J. W.

Louw, G. A.

Louw, J. P.

Macintosh, W.

Marwick, J. S.

Miller, A. M.

Moffat, L.

Nathan, E.

Nel, O. R.

Nicholls, G. H.

Nieuwenhuize, J.

O’Brein, W. J.

Oppenheimer, E.

Papenfus, H. B.

Payn, A. O. B.

Pretorius, N. J.

Reitz, D.

Richards, G. R.

Rider, W. W.

Robinson, C. P.

Sephton, C. A. A.

Smartt, T. W.

Struben, R. H.

Stuttaford, R.

Van Heerden, G. C.

Van Zyl, G. B.

Watt, T.

Tellers: Collins, W. R.; De Jager, A. L.

Question accordingly affirmed and the first part of the amendment, proposed by Col. Reitz, dropped.

Amendment proposed by Col. Reitz to omit “June 1926’” in line 49 then put and negatived.

Question put: That the word “or”, in line 50, proposed to be omitted, stand part of the clause,

Upon which the Committee divided:

Ayes-64.

Allen, J.

Badenhorst, A. L.

Basson, P. N.

Bergh, P. A.

Beyers, F. W.

Boshoff, L. J.

Boydell, T.

Brink, G. F.

Brits, G. P.

Christie, J.

Cilliers, A. A.

Conradie, D. G.

Conroy, E. A.

Creswell, F. H. P.

De Villiers, P. C.

De Villiers, W. B.

De Wet, S. D.

Du Toit, F. J.

Fick, M. L.

Fordham, A. C.

Grobler, P. G. W.

Havenga, N. C.

Hertzog, J. B. M.

Heyns, J. D.

Hugo, D.

Kemp, J. C. G.

Kentridge, M.

Keyter, J. G.

Le Roux, S. P.

Malan, D. F.

Malan, M. L.

McMenamin, J. J.

Mostert, J. P.

Mullineux, J.

Naudé, A. S.

Oost, H.

Pearce, C.

Pienaar, J. J.

Pretorius, J. S. F.

Raubenheimer, I. van W.

Reyburn, G.

Rood, W. H.

Roos, T. J.

de V. Roux, J. W. J. W.

Snow, W. J.

Stals, A. J.

Steytler, L. J.

Strachan, T. G.

Swart, C. R.

Terreblanche, P. J.

Te Water, C. T.

Van Broekhuizen, H. D.

Van der Merwe. N. J.

Van Heerden, I. P.

Van Niekerk, P. W. le R.

Van Rensburg, I. J.

Van Zyl, J. J. M.

Vermooten, O. S.

Visser, T. C.

Vosloo, L. J.

Waterston, R. B.

Wessels, J. B.

Tellers: Pienaar, B. J.; Sampson, H. W.

Noes—42.

Anderson, H. E. K.

Ballantine, R.

Bates, F. T.

Brown, D. M.

Buirski, E.

Byron, J. J.

Chaplin, F. D. P.

Coulter, C. W. A.

Deane, W. A.

Duncan, P.

Gilson, L. D.

Giovanetti, C. W.

Grobler, H. S.

Jagger, J. W.

Krige, C. J.

Louw, G. A.

Louw, J. P.

Macintosh, W.

Marwick, J. S.

Miller, A. M.

Moffat, L.

Nathan, E.

Nel, O. R.

Nicholls, G. H.

Nieuwenhuize, J.

O’Brein, W. J.

Oppenheimer, E.

Papenfus, H. B.

Payn, A. O. B.

Pretorius, N. J.

Reitz, D.

Richards, G. R.

Rider, W. W.

Robinson, C. P.

Sephton, C. A. A.

Smartt, T. W.

Struben, R. H.

Stuttaford, R.

Van Heerden, G. C.

Van Zyl, G. B.

Tellers: Collins, W. R.; De Jager, A. L.

Question accordingly affirmed and the third part of the amendment proposed by Col. Reitz negatived.

Question put: That all the words after “divided”, on page 20, proposed to be omitted, stand part of the clause,

Upon which the Committee divided:

Ayes—64.

Allen, J.

Badenhorst, A. L.

Basson, P. N.

Bergh, P. A.

Beyers, F. W.

Boshoff, L. J.

Boydell, T.

Brink, G. F.

Brits, G.P.

Brown, G.

Christie, J.

Cilliers, A. A.

Conradie, D. G.

Conroy, E. A.

Creswell, F. H. P.

De Villiers, P. C

De Villiers, W. B.

De Wet, S. D.

Du Toit, F. J.

Fick, M. L.

Fordham, A. C.

Grobler, P. G. W.

Havenga, N. C.

Hertzog, J. B. M.

Heyns, J. D.

Hugo, D.

Kemp, J. C. G.

Kentridge, M.

Keyter, J. G.

Le Roux, S. P.

Malan, M. L.

McMenamin, J. J.

Mostert, J. P.

Mullineux, J.

Naudé, A. S.

Oost, H.

Pearce, C.

Pienaar, B. J.

Pienaar, J. J.

Pretorius, J. S. F.

Raubenheimer, I. van W.

Reyburn, G.

Rood, W. H.

Roos, T. J. de V.

Roux, J. W. J. W.

Snow, W. J.

Stals, A. J.

Steytler, L. J.

Strachan, T. G.

Swart, C. R.

Terreblanche, P. J.

Te Water, C. T.

Van Broekhuizen, H. D.

Van der Merwe, N. J.

Van Heerden, I. P.

Van Niekerk, P. W. le R.

Van Rensburg, J. J.

Van Zyl, J. J. M.

Visser, T. C.

Vosloo, L. J.

Waterston, R. B.

Wessels, J. B.

Tellers: Sampson, H. W.; Vermooten, O. S.

Noes—44.

Anderson, H. E. K.

Ballantine, R.

Bates, F. T.

Brown, D. M.

Buirski, E.

Byron, J. J.

Chaplin, F. D. P.

Coulter, C. W. A.

Deane, W. A.

Duncan, P.

Gilson, L. D.

Giovanetti, C. W.

Grobler, H. S.

Henderson, J.

Jagger, J. W.

Krige, C. J.

Louw, G. A.

Louw, J. P.

Macintosh, W.

Marwick, J. S.

Miller, A. M.

Moffat, L.

Nathan, E.

Nel, O. R.

Nicholls, G. H.

Nieuwenhuize, J.

O’Brien, W. J.

Oppenheimer, E.

Papenfus, H. B.

Payn, A. O. B.

Pretorius, N. J.

Reitz, D.

Richards, G. R.

Rider, W. W.

Robinson, C. P.

Sephton, C. A. A.

Smartt, T. W.

Smuts, J. C.

Struben, R. H.

Stuttaford, R.

Van Heerden, G. C.

Van Zyl, G. B.

Tellers: Collins, W. R.; De Jager, A. L.

Question accordingly affirmed and the fourth part of the amendment proposed by Col. Reitz, negatived.

Remaining amendment proposed by Col. Reitz put and negatived.

Clause, as printed, put and agreed to.

On Clause 63,

I want briefly to refer to the fact that under this section the Minister makes provision that people holding diggers’ licences may work together in partnership. Unfortunately, Section 73 takes away that right again, since it lays down that no two people can work in partnership. I would like to know whether some words should not be inserted so as to make it clear that Section 73 does not apply to persons who hold diggers’ licences.

The Minister of Mines and Industries is temporarily absent, but will be in the House again very shortly. In reply to the hon. member, I may say that I take it that the Minister has discretion in certain cases to allow people to work in association.

Only in cases where the Minister is satisfied that the work cannot be conveniently carried out by an individual digger. It may not be a question of conveniently carrying out the work. It may be that one digger by himself cannot work a claim because he has not got sufficient money.

The hon. member may move an amendment when we come to Section 73. The hon. member, I take it, does not wish to move any amendment here.

As the Minister is not present, I move—

Agreed to.

On Clause 73,

This section is a limitation of the rights of the individual. It lays down that a man who has a claim will not be able to work it with a corporate body or association. This clause is really a restriction on private property, and is an interference with the liberty of the individual and his rights to his property. One notices in sub-section (4) that provision is made whereby the Minister may, under such conditions as he thinks fit, give a certificate by which others than the owner of the claim can have rights in regard to it. Here again, as in almost every clause in the Bill, the Minister is the sole arbiter. I put it to the Minister that he is undertaking a very invidious task.

I am fully conscious of that.

Yes, I know the Minister shrinks from nothing.

But you don’t mean to say I welcome it.

I do not think you do. I am trying to save you from yourself. I do not know what the conditions can possibly be, but that makes it more objectionable still. These conditions may put an end to the whole business. They may mean delay and procrastination. One knows how long it takes for any “conditions” to emerge from any Government department. One knows how State interference hampers business of any sort. I can speak from bitter experience. I have received a communication signed by Colonel James Donaldson from Johannesburg. I want the House to hear the contents of this letter so that they can see that the diggers do not get, as is alleged, the worst end of the stick.

Then it is curious that the bulk of them are for this Bill. I had a meeting of six or eight thousand.

Yes. But many of these people do not know where their interests lie and have not the full facts and the actual experience before them. This is a very striking case. Mr. Donaldson writes—

There are 5½ closely-typed foolscap pages of these names running, I should say, into between three and four hundred names—

The digger brought his labour and small or no capital, and the result is that whereas the companies concerned received only £14,000, the diggers received £75,000. The principle is the same, viz., whether the digger puts in the land and gets the money from a third person or whether others provide the claim and the digger puts in his labour. This clause would interfere with the diggers getting claims from a company or individual and working them jointly, and as here receiving the bulk of the profits. Mr. Donaldson proceeds—

A man has a claim which he holds by licence under the law. Why cannot he do what he likes with it? Why cannot a digger go to other people for assistance, pecuniary or otherwise, to work a claim? The information Col. Donaldson supplies clearly establishes that diggers in this case have got very generous treatment. The figures are very striking. This interference with private rights by the State is abhorrent to me. The Minister will bitterly regret the gratuitous responsibility he has imposed upon himself, a bitterness which unhappily I am afraid will be only exceeded by that of the unhappy victims of State autocracy and interference.

I should like to move the amendment standing in my name. I do say that the whole clause is one which would be a blot on our legislation if we pass it. The reasons for that have been given on other occasions. I want to confine myself to my specific amendment. I first move—

The Minister was compelled, under pressure from another place, to acknowledge the reasonableness of a provision that persons who had acquired these rights, bona-fide, should be given reasonable time in which to dispose of them. If the answer to the argument is that the fact the Rill was under discussion last June is sufficient warning, I would point out that since that date other rights have been acquired. Clearly, the Minister must concede that the date should be extended. I now come to sub-paragraph (a) of Section 3 of the clause, and I move—

That would mean that where companies and associations have acquired claims before the 1st of April, 1927, we would not pass a law which would retrospectively take away their rights. Everything that was said in another place in support of my amendment still stands. I want to draw attention to an anomaly which arises under sub-section (b) on page 48. I have already pointed out that this sub-section will take away all rights of companies formed in good faith on the strength of that proclamation. A company is penalised to losing even the minimum number of claims which, in the case of an owner, would have accrued to them. That is a most unwarrantable differentiation between the case of a company and an individual. It was put by the hon. member for Delarey (Mr. van Hees) that in the case of Lichtenburg that particular section would not enable him to make that distinction, so the proper object the hon. member had in view cannot be achieved by that sub-section, though the Minister indicated on the second reading that that might be done. By the alteration of this clause the rights of the owner are very seriously restricted. This clause was drawn up with the intention of excluding corporate bodies from alluvial diggings, but the Minister has gone much further. If hon. members opposite think they are benefiting the owner, it must be perfectly obvious that they are not. I move, as a further amendment, the following paragraph (d) to follow (c) in sub-section (3)—

I should like to know from the Minister whether he is going to do anything to give effect to this amendment, if not here, then in another place. The date was put in when the Bill was last before the House with the idea to allow a corporate body which held these claims some time to dispose of them, which seems equitable, and not to have their rights cancelled without any possible time to dispose of them. Is the Minister not inclined to continue that principle, or accept an amendment of that sort?

When this question was raised in another place, and I consented ultimately to insert the 15th day of October, 1927, the argument of the “other side” in the other place as I may call it, was confined to giving corporate bodies that had already acquired claims before the 1st of April, 1927, the opportunity of disposing of them; but ultimately it was moved in another place that in sub-clause 3 (a) the date should be altered to the 1st of April, 1927, which materially altered the complexion of the whole thing. The effect of these two alterations would be that all the sub divisions that had been effected would stand good for ever, and that only those who had acquired any claims by sub-division or otherwise since the 1st of April, 1927, should have time up to the 15th of October, and under these circumstances I certainly opposed, and would never have consented, even, to the words 15th of October, 1927. My answer is simply this: These corporate bodies have been working their claims intensively ever since last session and there is no need for granting them any further extension. By the time this Bill becomes law and these clauses are applied they will have all this time that has undoubtedly expired to save themselves from a “wrong” which they think has been done. I cannot accept any amendment on the clause.

Question put: That the words “October, 1927” proposed to be omitted stand part of the clause,

Upon which the Committee divided:

Ayes—64.

Allen, J.

Badenhorst, A. L.

Barlow, A. G.

Basson, B. N.

Bergh, P. A.

Beyers, F. W.

Boshoff, L. J.

Brink, G. F.

Brits, G. P.

Brown, G.

Christie, J.

Cilliers, A. A.

Conradie, D. G.

Conroy, E. A.

De Villiers, P. C.

De Villiers, W. B.

De Wet, S. D.

Du Toit, F. J.

Fick, M. L.

Fordham, A. C.

Grobler, P. G. W.

Havenga, N. C.

Hertzog, J. B. M.

Heyns, J. D.

Hugo, D.

Kemp, J. C. G.

Kentridge, M.

Keyter, J. G.

Le Roux, S. P.

Malan, M. L.

McMenamin, J. J.

Mostert, J. P.

Mullineux, J.

Munnik, J. H.

Naudé, A. S.

Naudé, J. F. T.

Oost, H.

Pearce, C.

Pienaar, J. J.

Pretorius, J. S. F.

Raubenheimer, I. van W.

Reyburn, G.

Rood, W. H.

Roos, T. J. de V.

Roux, J. W. J. W.

Snow, W. J.

Stals, A. J.

Steytler, L. J.

Strachan, T. G.

Swart, C. R.

Terreblanche, P. J.

Te Water, C. T.

Van Broekhuizen, H. D.

Van Heerden, I P.

Van Niekerk, P. W. le R.

Van Rensburg, J. J.

Van Zyl, J. J. M.

Vermooten, O. S.

Visser, T. C.

Vosloo, L. J.

Waterston, R. B.

Wessels, J. B.

Tellers: Pienaar, B. J.; Sampson, H. W.

Noes—38.

Anderson, H. E. K.

Arnott, W.

Ballantine, R.

Brown, D. M.

Buirski, E.

Byron, J. J.

Coulter, C. W. A.

Deane, W. A.

Duncan, P.

Gilson. L. D.

Giovanetti, C. W.

Grobler, H. S.

Henderson, J.

Jagger, J. W.

Louw, G. A.

Louw, J. P.

Macintosh, W.

Marwick, J. S.

Miller, A. M.

Moffat, L.

Nathan, E.

Nel, O. R.

O’Brien, W. J.

Oppenheimer, E.

Papenfus, H. B.

Payn, A. O. B.

Pretorius, N. J.

Rider, W. W.

Robinson, C. P.

Sephton, C. A. A.

Smartt, T. W.

Smuts, J. C.

Struben, R. H.

Stuttaford, R.

Van Heerden, G. C.

Van Zyl, G. B.

Tellers: Collins, W. R.; De Jager, A. L.

Question accordingly affirmed and the first amendment proposed by Mr. Coulter dropped.

As the clause is worded now it would appear that the Minister can at any time say he considers the ground in respect of which these claims are held were given out with the object of increasing the number of owners’ and discoverers’ claims and then the rights of the particular companies concerned will be taken away. I do think there should be some sort of time limit otherwise no companies with claims of this kind will know if they have the right to them or not. The Minister may come along years afterwards and say he considers the farm was cut up for the purpose of increasing discoverers claims and nobody will buy them until they know they have a good title and they will not know definitely until the Minister gives a decision. If he does not he will create chaos amongst companies holding claims. I am afraid it will be so in any case. He will have to do something in that direction. I know the profession I belong to will bless the Minister for having passed this Bill into law.

That is a new point which has never been raised before and I am surprised the hon. member was not vigilant enough to raise it under section 20. The fact that it has never been raise before shows the unlikelihood of such conduct. Proper administrative steps will be taken to clear up the whole position.

Remaining amendments by Mr. Coulter put and negatived.

I must point out that the Governor-General’s consent is necessary for the amendment of the hon. member for South Peninsula (Sir Drummond Chaplin), and no such consent has been obtained.

That amendment has already been ruled out.

Do you rule that the Governor-General’s consent is necessary, Mr. Chairman? It seems to me that it is not a question of taking away the rights of the Crown, but it is a question of the different distribution of the rights as between the discoverer and other persons who might claim. The rights of the Crown on proclamation take the form of rights of persons to come and peg, and whether these particular claims are given out to the general public to come and page, or whether they are divided between the discoverer and the general public, does not seem to me to effect the rights of the Crown at all.

I may point out that the Deputy-Chairman has already ruled upon this point. An appeal could have been made from his decision to the Speaker.

I understood that the clause stood over, and that the ruling was not given.

It was distinctly stated that although it stood over the ruling had already been given.

If the ruling was given there was no point in allowing the clause to stand over.

The Deputy-Chairman stated that this amendment, if carried, would increase the discoverers’ rights, and he regretted he was unable to put it to the Committee without the consent of the Governor-General in terms of Standing Order 119.

But surely I am in order in asking if it is your ruling that this amendment which is now moved means a diminution in the rights of the Crown?

I cannot reverse any decision already given.

Does the ruling of the Deputy-Chairman extend to private land in which the Crown has no interest whatever? I should like to ask you whether, in these circumstances, in the case of private land where the Crown has no interest whatever you hold it impossible for hon. members to propose an amendment to increase discoverers’ claims in respect of that private land.

The hon. member will understand that the ruling can only apply to that portion in which the Crown has an interest.

The hon. member cannot split up his amendment now. It is one amendment. If one portion refers to the Crown’s rights and the Governor-General’s consent is necessary then he cannot split it up at this stage. I did not intend this to apply to the amendment the hon. member for Cape Town (Gardens) (Mr. Coulter) has on the paper as to the definition of land on page 14. It is only the amendment of the hon. member for South Peninsula (Sir Drummond Chaplin) I am dealing with at this moment.

I move—

As this Bill stands at present it is rendered almost impractical by the fact that under this definition of land read in conjunction with section 26, the only class of land that can be proclaimed under the Bill is private land as defined in this section. Crown land, whether unalienated or alienated, can only be dealt with under section 75. It is quite obvious that a mistake has occurred. The Minister has announced he is unable to accept any amendments, and I can only draw attention to this again as I did last session. Then the Minister rejected the amendment; now he may be able to see there is something in it. In any case, as the Bill stands at present, it makes it impossible for the Minister to deal with anything but private land. That makes the Bill wholly unworkable and impracticable. I formally move the amendment.

I am afraid the hon. member’s construction of this is just as much at fault as it was this afternoon on Clause 20. The hon. member last session pointed out that there was no such thing as registered unalienated Crown land, and to meet his objection, the words “in relation to private land” were inserted. Now he comes along with an amendment at the last moment which he realizes is quite out of place, and he wants to substitute “on any area of ground which is unalienated Crown land,” which is diametrically opposed to his criticism of last session, on which criticism I acted. Now he proposes to put these words in at the end of sub-clause (1). Well, I will consider that, but I am not going to accept the amendment here. I will consider the matter now with a view to another place, and I hope the hon. member will not press his amendment here, but I want to point out to him that, although the wording, owing to his suggested amendment, has become, perhaps, a little obscure, there is not, to my mind, the slightest doubt as to the ability of the Government, under Clause 26 and subsequent clauses in Chapter 4, to proclaim unalienated Crown land, even if it is not proclaimed an alluvial digging. Hon. members will see, for instance, in Clause 28, sub-clause (2), it says—

The whole spirit of Clause 26, taken with the rest of the clauses in Chapter 4, is in favour of a proclamation on unalienated Crown land, even although the proclamation does not purport to be a proclamation of a State alluvial diggings. Look at Clause 77 (2), which says—

An alluvial digging can only be on proclaimed ground in terms of the Bill. I will be glad if the hon. member does not press the matter here.

The Minister has a very short memory. He actually suggests to the House that these words “in relation to private land” were inserted by me in the clause. That is absolutely incorrect.

I have not suggested that. I said I had inserted them to give effect to your criticism.

Unfortunately the Minister did not listen to my criticism. The reply I got from the Minister was that I was not to come here to present him with conundrums. After he had rejected the advice I tendered him, the Minister, when I was not here, inserted an amendment consisting of these words, “in relation to private land,” and he has given the impression to the Committee that it was in response to a suggestion from me. I repeat that his memory is defective. The position as it exists now is not obscure, as suggested by the Minister. It is this, that the only land that can be proclaimed under Section 26 is land as defined in Section 13. Sub-section (1) of Section 13 defines land as land in relation to private land. So far from its being obscure, the position at the moment is that the Bill is unworkable and impracticable, and it does not achieve the object the Minister set out to achieve and which he suggests that I am responsible for it then I can only admire his audacity.

I won’t accept the amendment, and I will take the risk. We will see who is right.

Question put: That the words “in relation to private land”, proposed to be omitted, stand part of the clause,

Upon which the Committee divided:

Ayes—57.

Alexander, M.

Allen, J.

Badenhorst, A. L.

Barlow, A. G.

Basson, P. N.

Bergh, P. A.

Beyers, F. W.

Boshoft, L. J.

Brink, G. F.

Brits, G. P.

Brown, G.

Christie, J.

Cilliers, A. A.

Conradie, D. G.

Conroy, E. A.

Creswell, F. H. P.

De Villiers, P. C.

De Villiers, W. B.

De Wet, S. D.

Du Toit, F. J.

Fordham. A. C.

Grobler, P. G. W.

Havenga, N. C.

Hertzog, J. B. M.

Heyns, J. D.

Hugo, D.

Kemp, J. C. G.

Kentridge, M.

Malan, M. L.

Mostert, J. P.

Mullineux, J.

Munnik, J. H.

Naudé, A. S.

Oost, H.

Pienaar, J. J.

Pretorius, J. S. F.

Raubenheimer I. v. W.

Reyburn, G.

Roos, T. J. de V.

Roux, J. W. J. W.

Snow, W. J.

Stals, A. J.

Steytler, L. J.

Strachan, T. G.

Terreblanche, P. J.

Te Water, C. T

Van Broekhuizen, H. D.

Van Heerden, I. P.

Van Niekerk, P. W. le R.

Van Rensburg, J. J.

Van Zyl, J. J. M.

Vermooten, O. S.

Vosloo, L. J.

Waterston, R. B.

Wessels, J. B.

Tellers: Pienaar, B. J.; Sampson, H. W.

Noes—30.

Arnott, W.

Ballantine, R.

Buirski, E.

Close, R. W.

Coulter, C. W. A.

Deane, W. A.

Duncan, P.

Giovanetti, C. W.

Grobler, H. S.

Jagger, J. W.

Krige, C. J.

Louw, J. P.

Marwick, J. S.

Moffat, L.

Nel, O. R.

Nicholls, G. H.

Nieuwenhuize, J.

O’Brien, W. J.

Oppenheimer, E.

Payn, A. O. B.

Pretorius, N. J.

Richards, G. R.

Sephton, C. A. A.

Smartt, T. W.

Smuts, J. C.

Struben, R. H.

Stuttaford, R.

Van Heerden, G. C.

Tellers: A. L. de Jager; C. P. Robinson.

Question accordingly affirmed and the amendment proposed by Mr. Coulter, dropped.

Clause, as printed, put and agreed to.

On Clause 63,

I would like to draw the Minister’s attention to the fact that the clause provides that licensed diggers can work in partnership. The Minister has explained that it is the principle of the Bill to protect diggers. Unfortunately under Section 73 the right is taken away, because he has limited his powers. Two diggers may not have enough money to work their claims individually, and it ought to be the intention of the Minister to enable them to work together. I would suggest to the Minister that he should introduce some words to the effect that notwithstanding anything contained in Clause 73 people who hold diggers’ licences can work in partnership. That provision should be inserted, as from the debate it appears that it is our intention to protect the digger. If no amendment can be accepted it is no use my proposing one.

Section 73 gives the Minister discretion. You should confine the diggings to natural persons and individual diggers. Partnerships formed since July 1st, 1926, may continue if the ground is such as to make it convenient and desirable that it should be worked by such partnerships.

That does not apply at all. The law says if one does form a working partnership, they must go to the Minister, and he may give two diggers permission to work together if the ground cannot be worked conveniently by one digger. I do not raise this point for any purpose of obstruction but in the best interests of the individual digger—not to assist any company at all. The Minister has made it clear that the basic principle of the Bill is to assist individual diggers and to protect the diggings for them.

Clause, as printed, put and agreed to.

Schedules and Title having been agreed to,

House Resumed:

Bill reported without amendment; third reading to-morrow.

Had not the debate better be adjourned until to-morrow? Our proceeding with this Bill to-night will not make the slightest difference to the date of the closing of the session unless the Minister of Justice wants to bring in his Liquor Bill.

No.

You think you will finish the Committee stage of this Bill to-morrow.

Absolutely.

Will you undertake to finish it to-morrow?

As far as I am concerned.

Then I have no objection to the adjournment.

On the motion of Mr. Jagger it was agreed to report progress and ask leave to sit again.

House Resumed:

Progress reported; House to resume in Committee to-morrow.