House of Assembly: Vol114 - WEDNESDAY 30 MAY 1984
as Chairman, presented the Report of the Select Committee on the subject of the Labour Relations Amendment Bill [B 13—84], submitting an amended Bill [B 93—84].
Report and proceedings to be printed.
Clause 12 (standing over):
Mr Chairman, the hon member for Yeoville gave notice of his amendment yesterday. I have gone into the matter further and have considered it, and opinion has it that it should be possible to incorporate close corporations fairly cheaply and easily and that the fear that could arise about trading actually being done in close corporations is possibly not a substantial one. In company law things are different, and under the circumstances I have therefore decided to accept the hon member’s amendment.
Order! It would appear that the hon member for Yeoville has not yet formally moved the amendment. Would he please move it?
Mr Chairman, I move the amendment printed in my name on the Order Paper, as follows:
- 1. On page 13, in line 39, after “by” to insert “or on behalf of”.
Amendment 1 agreed to.
Clause, as amended, agreed to.
Clause 46 (standing over):
Mr Chairman, I move the amendment printed in my name on the Order Paper, as follows:
- 1. On page 37, in line 43, to omit “all” and to substitute “66 per cent of”.
Mr Chairman, we debated this clause in depth yesterday, and also during the Second Reading debate. We are dealing here with a variable rule, and I can tell the hon member that I feel positively disposed towards his amendment. The traditional division in regard to majorities is 50% and 75%. Generally speaking, in companies the majority is actually 75%, and if the hon member for Yeoville were willing to alter his amendment accordingly, I would be prepared to accept it. This brings it more or less into line with what happens in practice in terms of company law.
Mr Chairman, I indicated yesterday that I am not wedded to the 66⅔%. The point was that the matter was not one where we need unanimity. I shall therefore, with leave, withdraw amendment 1.
Amendment 1, with leave, withdrawn.
Mr Chairman, I now move:
- 2. On page 37, in line 43, to omit “all” and to substitute “75 per cent of”.
Amendment 2 agreed to.
Clause, as amended, agreed to.
Bill, as amended, reported.
Mr Speaker, I move, subject to Standing Order No 56:
Mr Speaker, I think it is generally agreed in the House that this legislation is going to be experimental in some respect. However, even though it is experimental, in other respects it has been the subject of very detailed study and preparation. One of the things I should like to say immediately is that the way in which this legislation has been dealt with in this House, is actually extremely satisfactory. We have been able to debate its merits reasonably well and where we have been able to convince the hon the Deputy Minister, he has accepted our amendments. The reason for it is that there is general unanimity that we have to have the best legislation we can for the purpose. I would like to thank the hon the Deputy Minister for the manner in which he has approached the subject and the manner in which he has handled the Committee Stage. I think it can serve as a good example to other Ministers as to how this kind of legislation should be dealt with.
I think there are a few words of caution which one should utter at this stage. Firstly, I think there are alternative means of doing business, alternatives which have been available and which, now that we are going to have close corporations, should not be so quickly abandoned. There are good reasons why you can carry on business in your own name; there are good reasons why people should enter into partnerships and there are good reasons why private companies should be used. All this should be borne in mind before people suddenly regard the close corporation as a panacea for all their business problems. I want to caution that before people choose a particular form in which to carry on business, they should investigate the matter, and take advice to ensure that they are using the form which is best for their purposes.
Secondly, I do not believe that we should suddenly inundate the Registrar of Companies with a mass of conversions from private companies to close corporations. People should think very carefully before they do that, bearing in mind the two different types of activity, bearing in mind the advantages and disadvantages of both and also bearing in mind that one does not want to inundate the office with a mass of conversions from one form to the other.
The further point I want to make is that if there are teething troubles in respect of this legislation, and there is no doubt that there are going to be teething troubles, one should not condemn the whole concept because of that. Let us rather identify these problems and let the advisory committee study them. Next year we can then come with amending legislation to deal with the teething troubles. I believe that we should not condemn the legislation because of particular teething troubles that are going to arise from time to time.
We have had a very full debate on the principles of the Bill, we have had a reasonably good Committee Stage and I would like to leave the matter there. We will now have a new type of corporation available, and to some extent we in South Africa are pioneers in this field. This legislation will go into the Statute Book with our good wishes and with the hope that it will help the small businessman to make the conduct of business easier for him.
Mr Speaker, we on this side welcome the strong support which the hon member for Yeoville has given the Bill. I think that this Bill is probably one of the most interesting in this field in years. I agree with the hon member for Yeoville that we probably cannot expect its implementation to be problem-free. Indeed attention will again have to be given to certain aspects of the legislation in due course.
Reference was made during the discussion to the question of accountants. I think that certain accountants in South Africa are concerned about the effect that this Bill is going to have. For example, there is the question of an audit. I think that the hon member for Yeoville also expressed the fear that if an audit does not take place, the creditors of such a close corporation could suffer. I think that the successful close corporation will in any event employ the services of an auditor, particularly when, at a later stage, it wants to expand and negotiate loans with commercial banks. I also wish to point out that the survey of private companies carried out by Prof De Jager of the University of Pretoria indicates that 74,3% of 234 private companies regarded the drawing up of financial statements as the most important function of the auditor. When it comes to auditing we must also be careful as far as the small undertakings are concerned. The most important aspect of auditing is the verification of information. One will find that in many instances, with both close corporations and private companies, the directors will also be the most important shareholders. It has been found that in South Africa, as far as private companies are concerned, 64,28% of all shareholders are also directors of the companies in question. Now the auditor has to obtain information from the director and report to the shareholder, who is precisely the same person. Thus the verification of facts and information becomes a total farce.
The criticism has also been expressed that if an audit does not take place the creditor, in particular, could suffer. However, often the annual reports of companies only come available long after the creditors have received their money. There is no legislation or regulation providing that an audit has to be carried out in order to protect a creditor. I think that, as was said at the outset, the close corporation, as it grows, will in any event make use of an auditor to audit its books. Another finding of Prof De Jager’s survey which I find interesting is that the carrying out of audit tests and the provision of an audit report is regarded as important by 35,9% of the respondents while 13,67% were of the opinion that audit checks and the provision of an audit report were of limited importance, and 50,43% of the respondents replied that the audit tests and the audit report were of little importance. Therefore I believe that the auditor or accountant need not be concerned about this development. Another aspect about which the auditor is concerned is the concept of general accounting practice, which in this Bill is being adapted to the circumstances of the close corporation. I believe that this is a very important concession. When one considers the requirements set in regard to the general accountants’ practice, I believe that poor close corporations will not get very far. I hope that this simplification may also, in due course, have an effect on the Companies Act, an Act which is enormously complex and which is becoming increasingly so.
In conclusion, I want to refer once again to the problem of taxation. When the private company was introduced as a form of undertaking, people converted their enterprises into private companies on a large scale with a view to evading taxation. This has given rise to the situation that today there are a great many private companies which are sitting with large reserves and which, now that they are closed, can no longer revert to the status of a partnership or one-man business. As was mentioned in the discussions here, before the end of this session there will have to be clarity as to how the close corporation is going to pay tax. If it is going to pay tax in accordance with normal company tax so that we have economic double taxation then this is simply going to harm the new form of undertaking. I hope that the possibility of economic double taxation will be eliminated in the proposals which are te be submitted here at a later stage. I also think that a close corporation is a form of undertaking which opens the door for the entry of the Black man into the business world. I believe that we can proudly say that our strategy for assisting the small businessman in South Africa is among the best in the world. Therefore, if at a later stage we give more attention to the coordination of all these new developments, we shall not go astray.
Mr Speaker, I said during the Second Reading that I wholeheartedly welcome this new form of undertaking. I believe it is a brilliant new idea. Moreover, it is going to eliminate a great deal of red tape. Apart from that it will facilitate matters considerably for the small businessman.
However, I wish to address the hon the Deputy Minister once again. I think I made a very positive speech during the Second Reading. I wish to quote what I said in my speech on Monday, particularly because after that, the hon the Deputy Minister launched a personal attack on me and contended that I had been very spiteful in what I had said. What did I say? I said the following (Hansard, 28 May 1984):
That, of course, is true. As long as one praises the Government from A to Z, of course, one is the hero, the so-called “blueeyed boy”. However, one may not express any criticism …
Order! I regret that the hon member’s argument has nothing whatsoever to do with the Bill at present before the House.
Mr Speaker, that is true. However, I do just want to indicate exactly what I said on Monday. Since the hon the Deputy Minister has now criticized me in this regard I want to know from him whether he has been told by the hon the Minister of Finance what the taxation on this new form of enterprise is to be. Has he ever given any thought whatsoever to taxation in this regard? Has the hon the Deputy Minister compared the situation of the close corporation with that of the private company or other forms of company? Therefore, if we intend to help the small businessman, in what respect are we going to help him? I shall exchange a few ideas a few ideas with the hon the Deputy Minister again at a later stage in connection with what the president of the AHI really said. Then we can determine to what extent he was right, while the hon the Deputy Minister, although he was not correct, did not hesitate to launch a personal attack on me. When we reach that stage he and I will have to tackle one another. [Interjections.] Yes indeed, then we shall state the true facts of the matter.
With regard to this Bill I also just wish to point out that the hon member for Heilbron argued that this form of undertaking will now help the small businessman; that it will help him in particular by protecting him against the big financial interests. Of course, I totally disagree with the hon member for Heilbron in this regard. It is not true. It simply cannot be true. Even if the membership of a close corporation is limited to ten there is still no limitation on the size and the capital strength of such a new enterprise. For the information of the hon member for Heilbron may I just mention that in the ’fifties Mr Harry Oppenheimer put all his personal possessions in a small private company. That small company had only a few members. Of course, we know that Mr Harry Oppenheimer is not the poorest man in South Africa.
Therefore this new form of undertaking is very clearly not intended to protect the smaller or poorer businessman against the financially powerful businessman. The only restriction that does exist is the one relating to the number of members of a close corporation, which may not exceed ten. For the rest there are no restrictions on this form of undertaking.
However, this new form of undertaking has one benefit, and it is in respect of that benefit that I have expressed my gratitude. I also believe that we should make this fact clear to the public. It is that this new form of undertaking is simple and works easily, and that it eliminates unnecessary formalities and red tape to a considerable extent. I want to say once again that I am not afraid that practical problems will be caused by this. Nor am I afraid that the people are not going to understand it. Nor am I afraid that it will not find favour. I have already said that this is timely legislation and as far as I am concerned, it could really have been introduced two or three years ago. However, I think it is better rather to wait a year or two for a good piece of legislation such as this one. The implementation of this Bill will be easy, and it will have a good effect in spite of the fact that Government policy is causing our economy to collapse. Nine out of ten businessmen contend that this is so, and in addition, it was mentioned on the news this morning that the people of Stellenbosch had said so very clearly. They say that the Whites are dejected and pessimistic.
Order! The hon member must now come back to the Bill before the House.
Yes, Sir. I just want to say that however good it may be, this form of undertaking will not be able to boost our economy, although it will not undermine our economy further. I thank the hon the Deputy Minister for this legislation.
Mr Speaker, it is not very often that we find the degree of consensus that we have found in respect of this legislation among the four parties represented in this House. However, I am sure that hon members will agree that this was to be expected because I firmly believe that when this legislation is enacted it will be greatly welcomed by those businesses that have a limited number of shareholders. As we know, the Bill provides that only those companies having ten or fewer shareholders will qualify to become close corporations. The reason that this measure is so to be welcomed is because it is very clear from its provisions that there will now be a great reduction in the number of administrative duties that companies have had to perform in the past. We know that this will cut out a great deal of red tape and save a great deal of time as far as the owners and managers of these companies are concerned. It will also save a great deal of money and, probably more important, managers will have more time to attend to that factor which is most important in any business, namely the managing operation.
I am particularly pleased that the hon the Deputy Minister agreed to change the term “accountant” to “accounting officer”. I sincerely hope that this will satisfy the Institute of Chartered Accountants. However, I should like to take this opportunity to stress the fact that it should be very clear to the public that an accounting officer is not a chartered accountant as such but rather a professional man. He is an officer, a professional man who looks after the accounts of the company. However, in no way must the public be under the impression that the accounting officer is in fact a chartered accountant.
In conclusion, I should like to stress what I said during the Second Reading debate, namely that I sincerely hope that the hon the Deputy Minister and his department will go through all the legislation affecting business in South Africa at the present time with a view to cutting out a number of the regulations and red tape that are bogging down a large number of businesses today. As a result of this, a great deal of time and money is being wasted which the country can ill afford. I know that the hon the Minister himself is actively looking into this matter, and I sincerely hope that he will be able to come back to this House in future with further measures to achieve the objective of streamlining the operation of business and industry in South Africa.
Mr Speaker, I want to thank the hon member for Amanzimtoti once again for his contribution to the discussion of this legislation during its previous stages and also for his contribution at this Third Reading stage. As far as the last point raised by the hon member is concerned, I can give him the assurance that we are actively looking into the question of the streamlining of the founding of business and industry, and that I also took cognizance of his remarks in this regard during the Second Reading debate. I should like to thank the hon member for his contribution towards improving the legislation, and the suggestion made by him. I also thank him for the support of his party.
I should like to thank the hon member for Yeoville for his words this afternoon and for his participation in the various debates on this measure. I appreciate his contributions towards improving the legislation. It is indeed the case that we are attempting to bring about the best possible legislation under the circumstances. I have taken cognizance of his suggestions this afternoon, and in the course of my reply I shall come back to certain aspects.
*I want to thank the hop member for Waterkloof for his contribution this afternoon and for his support of the legislation. The hon member referred once again to fears that could arise in the ranks of the accounting profession. I want to say briefly that I am convinced that this juristic form, the close corporation, will indeed entail new work for the accounting profession. I have no doubt about that.
The hon member made an interesting speech about the question of the auditor’s position with regard to the financial affairs of a close coporation. He also referred to the position we have with regard to companies. Later in my reply I shall touch on one aspect to which the hon member referred with special reference to the possibility that the position of a close corporation could have an effect on the Companies Act as far as its complexity is concerned.
Like the hon member for Sunnyside, the hon member also referred to the aspect of taxation. In my reply to the Second Reading debate I replied with regard to the aspect of taxation. I do not know whether the hon member for Sunnyside was present in this House at that moment. In the course of my reply I said that the …
He was doing very important work in Brandfort.
I am trying to reply to the hon member for Sunnyside, but his Whip is making such a noise that I cannot hear myself speak.
I said in my reply that the Standing Taxation Committee was giving urgent and in-depth consideration to the taxation system that should apply to close corporations. We trust that we shall be able to deal with this in the course of this session. As the hon member for Sunnyside also intimated, this is an aspect which does not belong here. Therefore I want to say to the hon member that some time ago we on this side brought the question of the taxation system to the attention of the bodies in question. The hon member asks whether I have considered the system of taxation. I think we said to one another from the outset that this was a cardinal aspect. Moreover, in my reply to the Second Reading I said that one could not expect the founder of the close corporation to establish such a corporation if he was unacquainted with the system of taxation that would apply. Therefore I am of the opinion that I have replied to the hon member in full.
However, the hon member is very sensitive. The other day he made a good speech, and he would do well to go and read my reply to the Second Reading debate, because in my opinion I replied to him very positively. Indeed, I said to him that as an accountant with years of experience he spoke with authority. Then the hon member deviated from the Bill and made various petty political remarks. I took him to task about that and about nothing else. I think that the hon member is probably satisfied now that he tried to tackle me again this afternoon. But I do believe he should not be so sensitive. It seems to me that too much praise goes to the hon member’s head, and then he just wants to attack me.
I thank the hon member for his and his party’s support of the legislation. The hon member made many sound and positive remarks about the close corporation. Like the hon member I am convinced that this will be a very successful form of undertaking.
Mr Speaker, could the hon the Deputy Minister give us an indication of when the Bill will come into operation? I think that the public would be extremely interested to hear what the hon the Deputy Minister envisages in this regard.
The hon member will realize that in the nature of the matter, an extensive series of regulations will have to be drawn up, and despite the fact that the Bill has not yet been finalized, work is already being done in this regard. Of course it is also part of the problem that in a certain sense one can only establish the regulations, and even the system of taxation, with absolute certainty, once the Bill has been passed through all its stages. My personal opinion is that it will be towards the end of the year or the beginning of next year. At any rate, that is our aim.
Mr Speaker, I think that I have now replied to hon members’ speeches this afternoon. In conclusion I just wish to say that the concept of a close corporation as a form of undertaking is indeed a new development and as such will undoubtedly encounter teething problems. We are fully aware of that, and the standing advisory committee will keep a watchful eye over the developments in this sphere so that timely action can be taken if problems crop up or malpractices occur. The concept of a close corporation may influence company law in two spheres in particular. The hon member for Waterkloof touched on this aspect this afternoon. In the first place there are provisions in this Bill which may in due course find a place in the Companies Act. In the second place, in future developments in company law more emphasis may be laid on the needs of the large companies and therefore provision need not necessarily be made in the same legislation for the small business undertaking.
For my part I should like to attest to the fact that I am full of confidence that this new juristic form will be a success. My best wishes accompany it. I thank hon members for their contributions, particularly those constributions which led to an improvement of the Bill. Then, too, I owe a profound debt of thanks to Prof Naudé and to the standing advisory committee for the major task they performed in this regard, and to the law adviser, Mr Flip Dwinger, for his contribution.
Question agreed to.
Bill read a Third Time.
Mr Chairman, during the Second Reading debate I raised quite a number of issues which the hon the Deputy Minister promised he would investigate and reply to. I shall not repeat them all now. I am, however, particularly concerned about the proposed new section 29C(4), in particular as to the determination of what actually is the excess of assets over liabilities. My feeling is that it should be ascertained by an auditor although I am wary of tampering with the legislation without the advisory committee having studied any amendment beforehand. But if my suggestion finds favour with the hon the Minister, an amendment to that effect may still be moved. I am in any event concerned that there should be certainty as to what the excess of assets over liability is because that determines the whole capital structure of the private company.
Mr Chairman, before I react to the proposal of the hon member for Yeoville, I first want to move the amendment printed in my name on the Order Paper, as follows:
- 1. On page 7, in lines 5 and 6, to omit “accountant” and to substitute “accounting officer”.
This amendment is consequential upon an amendment to the Close Corporations Bill, which we have just passed, namely the amendment in terms of which the word “accountant” was substituted by the words “accounting officer”. In regard to the hon member’s remarks in his Second Reading speech and those he made this afternoon, I want to give him the assurance, firstly, that this matter, and the points he raised, will be referred to the advisory committee. In my opinion the hon member touched on an aspect which should be dealt with there. Secondly I want to point out to the hon member that it would be extremely difficult to amend the provisions of the Companies Act. The hon member referred here to a possible circumvention of the penal provisions in the respective Acts because they are generally not the same. It would be difficult to do so because the Companies Act relies more on criminal law to enforce its provisions while the Close Corporations Bill relies more on self-regulation. With regard to both types of conversion there are provisions to ensure that the conversion is not abused by way of circumventing the provisions of law.
The hon member also referred to the possibility of a certificate by an auditor to indicate the precise surplus of assets over liabilities and how these are going to be used. This matter was also discussed with Prof Naudé and Mr Bob Garnet, the technical director of the Institute of Chartered Accountants. They are both of the opinion that the present wording is correct and that an audit is unnecessary. If, for example, a partnership converts its business into a company, no audit is required, though the value of the assets is nevertheless determined. I am not suggesting that this is a comprehensive reply, but this is at least an analogy I can present to the hon member. As I have already indicated to the hon member, I shall be referring this aspect to the advisory committee at once and shall obtain their recommendation in this connection.
The hon member also referred to the possibility of the proposed new section 29C(4) containing some potential for conflict and of the possibility of one person being placed in an unfavourable position when conversion takes place. This is a matter that should, in all respects, be arranged contractually by the members of close corporations. The proposed new section 29C(1) provides that all members must agree in writing and must also become members of the company. This aspect was debated at length during the discussion of the legislation on close corporations and I think that enough has therefore been said about it. If a member does not want to co-operate, there will obviously be a problem with conversion, but there is the possibility that his interests can be bought out.
I have tried to deal with all the aspects the hon member touched upon, and I trust the hon member will accept my explanation.
Mr Chairman, I am indebted to the hon the Deputy Minister for the care he has taken with the reply.
However, I am still not happy as regards the lack of auditing when conversion takes place. I do not think his analogy is valid. Experience has shown that problems arise when shares are allotted for a consideration other than for cash. I think the hon the Deputy Minister is aware of the history of this. It is virtually being done here as well. We are saying here that a company owns assets which exceed the liabilities by a certain amount and that that will be put into a particular category. However, the method of handling those assets then becomes a matter of dispute in the future. I want to give a simple example. If the accounts of a company are drawn on the basis of including goodwill, is goodwill included as an asset and how is the fair value of an asset such as this determined? Should one not follow good accounting practice and write goodwill off as soon as possible? There are all kinds of situations which can arise because of this.
My problem in this regard is that if one is to convert from a close corporation to a private company or a public company, one will need to have an auditor in the new entity. If one is going to have an auditor in the new entity, then why can one not let the auditor start off so that he is satisfied with the situation? It may well be that when he does his first audit he is going to end up having to qualify the books in regard to what the actual excess of assets over liabilities is. I accept the hon the Minister will not accept any amendments now but I nevertheless raise this matter. It is not an easy matter. I am fully aware of that. The problems in this regard are not going to arise for years to come; they are going to arise when conversions take place and eventually when audits are done. Only then will one find that the figures were wrong. I think this is a matter which between now and next year the advisory committee should give attention to.
Mr Chairman, I have taken serious note of what the hon member for Yeoville has just said. As I indicated just now I will immediately refer this matter to the standing committee. I should also like to refer this specific issue to the accounting profession for their further comment on this. They are represented on the standing committee but I will ask their specific advice on this. As the hon member is aware, we have some time available if we attend to the matter immediately. I will not hesitate to amend this provision next year if it becomes necessary.
Mr Chairman, I have appreciation for the arguments of the hon member for Yeoville. One can never be too careful with someone’s money or financial matters. This applies not only to a person but also to a company in its dealings with the community as such.
What about Die Patriot? [Interjections.]
Order! A peaceful atmosphere is prevailing in this Committee at the moment and it may as well stay that way.
Sir, small things amuse small minds. It is quite amusing to hear such petty remarks from members to my left. One simply tolerates their remarks and accepts them with a smile.
When a close corporation is converted into a company, there are certain safety valves. In the first place the banks will see to it that matters proceed correctly. The point is, however, that that company has an auditor. Up to a certain point he will have to see to it in future that the statements of the company are correct. He cannot take into consideration the statements of a close corporation which are not quite correct, in terms of which it cannot, for example, be confirmed that certain assets exist and that the correct values are reflected. In the case of goodwill, for example, he will have to ensure that this has been properly done.
In the opposite case, when a company is converted into a close corporation, I do not think the same safety valves exist. Since the accounting profession is going into certain rules and regulations, I want to ask the hon the Deputy Minister to see to it that they look into this matter as well. This should not only be done by the standing advisory committee, but also by the accounting profession. One cannot simply clear up these matters across the floor of this House. They have to be investigated thoroughly and debated point by point to overcome or eliminate any possible problems. I therefore want to ask the hon the Deputy Minister to see to it that both these professional bodies investigate the matter.
Mr Chairman, I want to thank the hon member for Sunnyside for his contribution. In my reply to the hon member for Yeoville I indicated that I would refer the matter to the standing advisory committee at once and would also request the accounting profession to look into the matter. The Institute of Chartered Accountants made an important contribution to the formulation of the Bill, as I indicated during the Second Reading. They specifically assisted in the formulation of this clause, and for that reason I think it is appropriate, as the hon member also correctly indicated and as the hon member for Yeoville and I have also agreed, that the accounting profession should also be consulted in the matter. I can therefore give the hon member the assurance that I shall give the necessary attention to the matter.
Amendment 1 agreed to.
Clause, as amended, agreed to.
Mr Chairman, we come again to the question of the registered office, and I would once again like to raise with the hon the Deputy Minister the issue which I raised earlier and which he said he would look into, namely whether the best way of dealing with this is in fact not to have the change in the situation of the registered office to become effective when Registrar enters it into the register. Whoever makes inquiries after that date, knows that the situation is effective from that date, the date of entry, and there really does not have to be advance notice of it. I think the question of the advance notice is really creating the problem.
Mr Chairman, the hon member for Yeoville raised this point during the Second Reading debate and I went into it again. I appreciate the case the hon member has put, but according to the advice I have been given— and this is also my own conviction—a period of notice is actually essential. The Companies Act provides that this shall be 21 days, and I can tell the hon member that the standing advisory committee also prefers this period. Of course the Registrar has to comply with the legislation, and he has to send back a notice not submitted 21 days prior to the change. This wastes even more time. The amendment now being effected will prevent more time from being lost, because the Registrar is now authorized to “fill” the 21 days by moving forward the date of the coming into operation of the change of address. In a certain sense we are therefore in a far easier position and we are almost halfway to the mark the hon member for Yeoville advocates. After the hon member had raised the matter here, I had my officials go into this specific matter, and this is the reply I am able to give him.
Mr Chairman, from what the hon the Deputy Minister has just said, the problem now clearly arises that if somebody actually moves, it does not help one to say that the notice is going to become effective from a future date, because if one should try to effect service on him then and he has already moved, it does not help one at all. However, legally that is still the address for service even though he may no longer be there and that may no longer be his registered office. The problem of having to give advanced notice of moving a registered office should logically be correct, because one should know where he is going, therefore he should give notice of the changed address well in advance. But in practice it does not happen that way. Whereas I accept that the hon the Deputy Minister is going to leave the clause as it is now, I again ask him to look at this because I think there are still practical problems. Merely to say that one has to give 21 days’ notice and that if one does not give 21 days’ notice the Registrar can determine the date on which the change of address will take effect, means that to all intents and purposes we are saying to the public: Do not worry about it; if you do not give 21 days’ notice, the Registrar will have to deal with it. What, however, are we doing to the Registrar? We are putting another burden on him because he has to make sure that the notice is in order; he has to see from what date it is effective, and in my opinion that is merely adding another burden on the Registrar’s office.
Mr Chairman, the hon member may have missed one point in this regard, and that is that by having to give notice of the change of the registered address, one can obtain a judgment after service had been effected at the then specific registered office. According to the hon member’s thinking the situation could be that a director of a company could come to the Registrar’s office and changes the address there and then on that day and there is also a service that has to be effected on that day, one might find oneself in a position of not being able to obtain judgment. I would therefore like to point out that there are certain technical problems connected with this matter and I will request the advisory committee to go into this again. However, my advice from the Registrar, who is a very experienced officer in this field, is that this would be the preferable situation at this stage.
Clause agreed to.
Mr Chairman, I move the three amendments printed in my name on the Order Paper, as follows:
- 1. On page 11, in line 10, to omit all the words after “sent,” up to and including “may,” in line 11 and to substitute:
- (a) make good the default; or
- (b) satisfy the Registrar that, on good cause shown, a penalty ought not be imposed,
- 2. On page 11, in line 26, after “situated,” to insert:
- 3. On page 11, in lines 29 to 32, to omit subsection (2B) and to substitute:
- (2B) On application by the company on which or the officer thereof on whom a notice referred to in subsection (1) was served or to whom it was sent, the magistrate’s court in question may, notwithstanding the provisions of section 12, and before the clerk of that court has recorded the notice in terms of subsection (2A), reduce the amount of the penalty, or set aside the imposition of the penalty, and the court may, where the clerk has already recorded the notice, exempt the company or officer wholly, or to the extent determined by the court, from the effect of the notice.
- (2C) If a penalty imposed by the Registrar under this section is reduced or set aside in terms of subsection (2B), or the company or officer is so wholly or in part exempted from the effect of the notice, by the magistrate’s court in question, no costs shall be awarded against the Registrar unless it be proved that he acted in bad faith or without reasonable care or diligence.
As far as the first amendment is concerned, I should like to say that what the objection of the Association of Law Societies to the wording of the clause amounts to is that a company is not being afforded an opportunity to state its side of the case. This objection is now being resolved by specifically affording a company the opportunity to state its case and to advance reasons as to why the fine should not be imposed.
As far as the second amendment is concerned, an identical amendment was also agreed to in the legislation on close corporations. This amendment means that it is possible to determine with certainty at what stage the fine imposed by the Registrar would have the effect of a civil judgement.
The third amendment arises from the fear expressed by the Association of Law Societies that confusion and uncertainty may arise in the courts as to when they will be competent to set aside or bar the fines and in terms of which rules the courts are going to act and are going to deal with appeals. This amendment makes it clear that the magistrate’s court will be the competent court and that action will be taken and appeals will be dealt with in terms of the rules of that court because a decision of the magistrate’s court will then be at issue. The new subsection (2C) contains only consequential amendments.
Amendments 1 to 3 agreed to.
Clause, as amended, agreed to.
Mr Chairman, I move the amendment printed in my name on the Order Paper, as follows:
- 1. On page 13, in line 7, after “428(3)” to insert “or 432(2)”.
In this regard it was also pointed out that there was an incomplete reference in the clause, and the amendment rectifies this.
Amendment 1 agreed to.
Clause, as amended, agreed to.
Bill, as amended, reported.
Mr Speaker, I move, subject to Standing Order No 56:
Mr Speaker, the Bill is one of those measures we have regularly every year, except that this year it is somewhat different because of the provisions which relate to the conversion of companies and close corporations. Obviously these are consequential provisions on the measure we passed just a short while ago.
I would like to touch on just one aspect which was debated at both the Second Reading and Third Reading of the Close Corporations Bill. As far as the question of conversions is concerned, it is material, and perhaps even more material in some respects. The hon member for Sunnyside, the hon member for Amanzimtoti and myself raised the question of taxation. We have not actually debated what form of taxation should apply to a close corporation, and it will be said, correctly, that that should be debated when we deal with the Income Tax Bill. There are, however, two things to consider. The close corporation could be treated as a partnership or we could apply the apportionment system to it. One of the things to which I want to draw attention is that, if one applies either one of those two to a close corporation and the close corporation is converted into a private company, unless one actually changes the taxation system for a private company one will be creating a difficult and problematic situation. When we therefore look at changes in respect of taxation, we are going to have to look not only at changes to make provision for close corporations but we may well also have to look at changes in respect of private companies, because the problem created by conversion will be a real one not so much when we are dealing with a private company which is converted into a close corporation but particularly when we are dealing with a close corporation which is converted into a private company. On the face of it, probably all the hon members in the House—a number of them have spoken about it and it is not a party-political issue as far as I am aware— will favour treating a close corporation on a partnership basis. In other words, a similar form of taxation will apply and there will not be double forms of taxation in the sense that tax has to be paid in the company and again when dividends are paid. I do not think hon members want that.
We are then still left with the problem created by the conversion of a close corporation into a private company. If we apply a simple apportionment system, that will also create a problem. Therefore I think that the measures relating to close corporations will have to become effective at the same time as the tax law with which we still have to deal. The two will have to come into effect virtually on the same day, so that people who start close corporations will know what their tax position is. I do not think one can expect someone to start a close corporation without knowing how he is going to be taxed.
That is what I said during the Third Reading debate on the other Bill.
That is right. Therefore we must do that. Particularly in respect of the aspect of conversion—this is something new, it will be attractive and people have already started asking whether they should or should not convert—this measure should become effective at such a time that there will be certainty about the tax position.
This measure has had a very easy passage through the House and it has been debated in a very pleasant manner. I think, however, that in passing these laws we must be very careful not to create other problems of which we may not be aware at present.
Mr Speaker, to a large extent I can agree with what the hon member for Yeoville said. As far as the tax aspect is concerned, he has said most of the things I had intended to raise, also to supplement what the hon the Deputy Minister said previously. I just want to say that I think it is absolutely essential, in looking at taxation in future, for private companies and close corporations to be brought completely into line as far as that is concerned. The fact of the matter is that they are put off completely by the knowledge that in the case of a private company they would have to pay double tax, first the company having to pay, and if it is liquidated because, the company no longer needs to exist, the declared dividends also being taxed. The sooner this is looked at and the public can obtain some clarity about the matter, the more it would be appreciated. The hon the Deputy Minister said the matter was being looked into, and the hon member for Yeoville also spoke about that, and to augment what they said I also want to ask that the matter be looked into expeditiously. That would be a good thing, even if the relevant information is made known prior to a Bill covering that aspect being discussed in the House. We wish the hon the Deputy Minister everything of the best in the implementation of this Bill.
Mr Speaker, I do not want ro react in detail to those particulars of the Bill raised by the hon member for Sunnyside. The hon member for Yeoville has, in any event, already done so very competently. I therefore want to contend myself with pointing out that the philosophy underlying company legislation does indeed embody the means whereby both the largest and the smaller business undertakings can function in an orderly and methodical fashion, together with the acknowledgement of the entrepreneur’s own initiative and free enterprise, including an acknowledgement of the rights of third parties, for example those of creditors.
It goes without saying that the hon member for Yeoville pointed out that the measure under discussion is actually a regular and very normal phenomenon because we are dealing with continual development. So this measure is the result of continual development. In this atmosphere, in these circumstances, I therefore have pleasure in supporting the legislation.
Mr Speaker, we in the NRP will be supporting the third reading of this measure.
I believe it has been repeatedly stated that the benefits that will be derived from the introduction of the close corporation idea will be extensive. As the hon member for Yeoville has also mentioned this particular Bill contains a number of clauses which are consequential upon the passing of the Close Corporations Bill, which we have also supported of course. Other clauses are of a purely technical nature. After all, we have already become accustomed to the fact that the Companies Act has to be amended every year for various reasons. The hon the Deputy Minister has motivated this amending Bill and we accept the reasons for it as given by him.
As far as the question of taxation is concerned, I believe there will be certain problems arising in the future. However, I want to make our position in this regard quite clear. We believe that people form corporations or companies in order to derive the benefits from such an action. As has already been stated, the business becomes a judicial or a legal entity, which has certain advantages. There is also the limited-liability aspect which affects the shareholders in their own right. There is also the aspect of perpetual succession. All these are the main reasons why businessmen prefer to form a company and also why businessmen will in future be interested in forming close corporations.
That brings me to the aspect of taxation. In the past people used to incorporate themselves into a private company in order to enjoy the lower level of taxation. We do know, however, that since the hon the Minister of Finance has reduced the upper margin of personal taxation down to virtually that of company taxation, that advantage does, of course, no longer exist. Speaking for myself, Mr Speaker, I should like to see company tax reduced to an even lower level; also of course personal taxation. That is what we in this party should like to see.
Whether one can consider a close corporation to be a form of a partnership, however, I do not believe is a valid argument at all. In that respect I do not find myself in agreement with the hon member for Yeoville at all. I do not believe it is a form of partnership. I believe a close corporation is a company in the fullest sense of the word. It should therefore, I believe, be treated as a company. A close corporation will of course enjoy all the benefits of a reduction of red tape, and also numerous other benefits, as various hon members have stated repeatedly in the course of the discussion of this Bill. Therefore we in the NRP will be supporting this measure at Third Reading.
Mr Speaker, I should like to thank the hon member for Amanzimtoti for expressing his support as well as the support of his party for this Bill. The hon member referred to the question of taxation. I shall refer to that very matter again in my closing remarks. I do agree with hon members of course when they say that the method of taxing close corporations is indeed a very important matter. It is indeed a major consideration when people have to decide whether they should carry on their business in the form of a company or whether they should convert it into a close corporation.
*I should like to thank the hon member for Caledon for his support for the measure under discussion. It is indeed true, as the hon member said, that there is continual development and that the Companies Act is one of the Acts that is not static, but one which actually has to be adapted from year to year, as the practicality of the situation demands and as new developments take place. That is indeed what is happening here today. I thank the hon member for his contribution.
The hon member for Sunnyside likewise referred to the tax system, saying that it should be implemented expeditiously. I actually want to content myself with the answer I gave in regard to the Close Corporations Bill. I is indeed the case that this matter must be looked into as expeditiously as possible. I want to give the hon member the assurance that we are desirous of obtaining finality in this regard as quickly as is practicable. To tell the truth, we should like to see it happening no later than this session. I have no authority, however, to express an opinion about even the possibility of eliminating the dual tax pressure applicable in the case of a company. The hon member for Sunnyside and the hon member for Yeoville will understand that I have no authority to express an opinion about this. The tax structure is indeed receiving very favourable attention as far as close corporations are concerned.
†Mr Speaker, I want lastly to thank the hon member for Yeoville for his support in this matter. It is a fact that the question of taxation of the close corporation and the private company, especially in regard to the question of conversion, more specifically the conversion of a close corporation to a private company, is somewhat complicated. The hon member made a plea to the effect that the close corporation should be taxed on the basis—as I understood him correctly—of a partnership situation or apportionment. I shall convey his remarks as well as those of other hon members who have spoken to the hon the Minister of Finance for his attention. It is important that we do know where we stand as far as the taxation position is concerned because, as the hon member so rightly said, nobody will entertain this form of juristic person unless he is aware of the tax situation.
I thank members once again for their contributions in respect of this legislation.
Question agreed to.
Bill read a Third Time.
Mr Speaker, when the House adjourned on Monday evening, I had started speaking on this particular Bill. At the outset I want to indicate that I think that this measure is one that has to be handled both delicately and carefully. It is legislation that can have some rather wide repercussions in various directions and I think one needs to tread very warily in dealing with this matter.
In my opinion this legislation deals more specifically with three departments of State. Firstly, as I understood the speech of the hon the Deputy Minister, the claims have in fact been ceded to the American State Department so that a litigant will in fact be a foreign state as far as these claims are concerned. What we are in effect doing is to debar that foreign State from claiming inside South Africa. Therefore, to that extent, this is a matter that affects the Department of Foreign Affairs.
Secondly, it is a matter that changes the law as far as the enforceability of judgments is concerned inasmuch as this matter is not covered by the existing statute of 1979 or, if one may use the term, purports to change the law in that respect. To this extent, therefore, it falls under the Department of Justice.
In the third instance it has serious implications in regard to the trading activities of South African corporations particulary in so far as the export trade is concerned. To this extent it concerns the Department of Industries, Commerce and Tourism.
In respect of each one of these aspects there are delicate matters that need to be considered. As far as trading is concerned, one has generally adopted the view that if one does business in another country then one is subject to the laws of that country. We would be the first to object if people were to do business in South Africa and claim that they were not subject to South African law. As I indicated on Monday, part of the difficulty arises in regard to what is actually meant by carrying on business within a particular territory. If one does purely export business, if one purely exports from one country to another without having a place of business, without having an office, without actually doing anything beyond delivering the goods there having taken the order, then normally one does not do business there, but the moment one has any sort of office, the moment one has any sort of establishment there, then on finds oneself in the position that one will be deemed to be doing business there even if it is just related to export.
If we take the South African exporter here, he in many cases will have either a subsidiary company or an office or an agent whose office he uses or he will have other facilities in order to deal with his exports to that particular country. Let me take a simple example. We export a fair amount of fruit in various forms, whether it be in fresh form, dried form or canned form. There are boards which have offices in other countries. They will then be carrying on business there. Therefore there is a distinction in so far as where this law is going to apply. On the one hand there is the situation where one has an office and on the other hand there is the situation where one does not have an office. This distinction is one which we must bear in mind since it can give considerable concern in respect of this matter because in terms of the provisions of section 1B(2) we are providing for certain exclusionary situations. That is the one aspect.
The second aspect is that if we look at the law side of it, we find here that it is the Department of Commerce and Industries which is to a considerable extent dealing with matters which normally do not have anything to do with that department because it is not the function of the Department of Commerce and Industries to deal with the enforceability of foreign judgments. That is a function of the courts, and there are statutes which exist in respect of agreements that can be concluded. There are also common law rules in regard to the enforceability of judgments. I am more than chary of the Department of Commerce and Industries dealing with a matter which is actually a matter which to my mind falls under the Department of Justice.
The whole question of the enforceability of foreign judgments in South Africa is one which we believe should be looked at by the SA Law Commission. The SA Law Commission should consider it and should report on that matter. We should then decide what form of legislation should be enacted. We ask that the hon the Deputy Minister give us an assurance on behalf of the Government that it will refer the contents of this measure and the entire question of the enforceability of foreign judgements to the SA Law Commission for consideration and report. We ask that the Government should give us that assurance because, as I have said, this cuts right across a number of departments.
The second matter on which I touched last time is the question of this issue arising largely because of the exports of asbestos from South Africa. We are concerned about a number of things here. Firstly we believe that those persons who are engaged in the mining and handling of asbestos—in fact in respect of all products which are exported from the Republic—should be protected in so far as their health is concerned. There is legislation in respect of aspects of this matter, but South Africa has already received very substantial criticism, particularly in regard to the asbestos situation. What worries one is that this will be used not merely to deal with attacks on the exports of asbestos, not merely to deal with these particular companies, but will actually be dealt with by people who are hostile to this country in order to attack the Republic and to deal with it in a far broader fashion. We therefore also ask that the government give us an assurance that they will take further steps to ensure that in respect of the health of the persons engaged in the mining and handling of products exported from this country and in particular asbestos, that is being done. We do that because the issue of asbestos has been raised here and the issue of other exports can also be raised and we should demonstrate that the Government will see to it that the health of those people are cared for.
Thirdly, we believe that this measure would find a better home under the hon the Minister of Justice. That is no reflection on the hon the deputy Minister and I think he understands that a reflection is not intended, but from an administrative point of view this should be handled by the Department of Justice. It should be transferred so that it can be dealt with in the legal context, which is really where it belongs.
The provisions of this Bill require one major explanation right at the beginning. If one studies the Protection of Businesses Act of 1978, I would have thought that every power which is sought in this legislation is actually contained in that Act. I have read the 1978 Act again, and as I see it, everything which is sought to be done in this measure is provided for in the 1978 Act. Certain things can be prohibited, or made subject to certain conditions and one can do anything in relation to it. I tried to work out what could not be done in terms of the 1978 Act and that can now be done in terms of the new legislation. I do not see anything, and I therefore regret to say that I regard this as superfluous legislation. If one already has the power to do something, why do you need that power again? If one has the general power to do something, why do you need a specific power which you could exercise when using the general power? The hon the Deputy Minister will need to give us an explanation as regards this.
I now want to refer to this legislation specifically. It is a principle of our law that unless one removes the corporate veil—the hon the Deputy Minister will remember that we discussed that in respect of close corporations in a different context—one cannot attribute the liability of a corporate body to another corporate body. We adhere to the principle that where one entity is guilty of negligence, of a wrongful act or has a contractual commitment, it is that entity which is responsible. Unless there is some abuse of corporate personality in the sense in which courts have defined it in common law and it is necessary to remove that corporate veil, we do not believe that the liability of one corporate body should be attributed to another. To that extent, the alter ego principle as it is applied, particularly in the state of California and certain other states in America, is not an acceptable principle in law to us and we hope that principle will not be introduced in South Africa.
Secondly, I want to refer to the question of multiple damages. Multiple damages as such is a foreign concept in Roman Dutch law. It did exist at one time, but I do not think it exists in that sense in our law, and multiple damages are not really appropriate to our system of law. If a punishment has to be imposed on somebody, it should be imposed in terms of the criminal laws of the country and damages should be in respect of actual damages which are suffered. It is a question of assessing those damages.
Punitive damages, as opposed to multiple damages, even although they are akin, are in a slightly different category. One sometimes find the concept of punitive damages arising in our law, but it is again not a matter which is generally an issue in our law, either in contracts or in dealing. When we deal with these principles as being our legal principles, there will probably be very little disagreement on this. The issue is whether one, when one operates in another jurisdiction, can get a judgment in this jurisdiction and bring these principles into our law when one enforces that judgment. There again we come back to where I started: If one does business in a country one must do it subject to the laws of that country. However, when one seeks to enforce the judgment in another state then the issue arises as to whether that judgment is one that can be enforced at all, either because the court did or did not have jurisdiction, or whether the judgment is against the public policy of the country where one is seeking to enforce it, in this case, South Africa. I think our courts would not enforce an alter ego judgment in any case—I may be wrong—because I think that must be contrary to our public policy, unless there is some other reason which is involved. I do not believe our courts will enforce judgment unless they are satisfied that there was jurisdiction in the other country.
Whether the issue of punitive and multiple damages would be enforced is another matter. To some extent here we are without doubt interfering in a legal process and in something which affects long established law in South Africa, and which can affect all sorts of other matters, as I indicated a little earlier. We now have to face a position where we have to decide whether we should pass this Bill, because we have misgivings about it. If we do that we have a problem because the judgments may or may not be capable of enforcement in our courts and therefore people may well be prejudiced if eventually it is found that the measure should either be introduced in whole or in part.
If I am right that the original legislation gives one all the powers then I have no problem in saying that we should not pass the Bill. I have a feeling the hon the Deputy Minister actually agrees with me that he does have all the powers in terms of the old legislation. If that is not so, what we really want then is to get a form of interim protection for the businesses that might be adversely affected, and in the meantime that we put our house in order and deal with the matter in a manner which would give interim protection but at the same time make sure that we do not do something which can either affect a foreign relations aspect or the law of enforceability of judgment in South Africa.
In these circumstances we have decided to move the following amendment—I think the hon the Deputy Minister knows about it— to the motion for the Second Reading of the Bill:
- (1) refer the contents of the measure and the entire question of the enforceability of foreign judgments to the South African Law Commission for consideration and report;
- (2) take further steps to ensure the health of persons engaged in the mining and handling of products exported from the Republic, in particular asbestos; and
- (3) transfer the responsibility for the application of the measure to the Minister of Justice.”.
Sir, I think you will note that we say “that the House should decline to pass it unless the Government gives the assurance …”, thereby putting the ball squarely into the court of the hon the Deputy Minister. If he gives us the assurance on these three points—I think they are reasonable aspects on which to ask for an assurance—we will support the Bill. However, if he does not then we regret that we will have to oppose the Second Reading.
Mr Speaker, the hon member for Yeoville made a very good speech yesterday, and also introduced it on an interesting note. However, I must honestly say that the further he went the more he confused me.
As regards the amendment which the hon member for Yeoville has just moved, I must say that had it not been for the fact that he said that if the hon the Deputy Minister gave the necessary assurances, they would support the Second Reading, one would be able to raise a major objection to his amendment. In order to assess it intrinsically, however, I should like to make a few observations.
I refer firstly to the first point of his amendment, namely the contents of the measure, the enforceability thereof and that it should be referred to the South African Law Commission for consideration and report.
I have no problems with that; on the contrary, if I understood the hon member correctly, he asked the hon the Deputy Minister, after the legislation had been placed on the Statute Book, to give his comment to the Law Commission and to request them to go into it. If that was the case, I have no material objection to it, and if the hon the Deputy Minister is prepared to comply with the request made by the hon member for Yeoville, it will be in order as far as I am concerned.
As far as the Association of Law Societies is concerned, it may interest the hon member for Yeoville to learn that some of their members were in contact with me, and in our discussion of this legislation there was no material objection on their part, except that they wanted to know why it should be with retrospective effect. After that had been explained to them, however, they were also satisfied with it.
As regards the second and third points made by the hon member for Yeoville, the statements which he made are endorsable. However, I have a problem with the second point he made, namely “to take further steps to ensure the health of persons, etc.” He will agree with me that this is a deserving matter, and he and I can also agree on the health aspect, but this is not an aspect on which the hon the Deputy Minister who is now dealing with the legislation can take a decision.
That is why I am asking the Government to do so.
If the hon member for Yeoville were to ask the hon the Deputy Minister to raise this matter in a discussion with his colleagues, I would have no objection to that. However, we must be realistic about this. If a certain Minister introduces legislation in this House, in spite of the fact that the other Minister affected by it is unable to be present here, we must be careful not to get our lines crossed. With all due respect, Sir, I think that is what the hon member for Yeoville is doing with his second point; he is getting his lines crossed a little although, basically, there is merit in his statement. I agree with him on the principle he is trying to propagate, but I cannot support the specific platform on which he chose to do so.
Mr Speaker, may I ask the hon member whether he does not agree that there is actually collective responsibility in so far as the various members of the Government are concerned? When I asked for an undertaking from the Government, one Minister can give such an undertaking, which is then binding on the whole Government.
Mr Speaker, the hon member for Yeoville has a point, and I have already conceded that as far as the health aspect is concerned, asbestos is one of the dangerous products we produce in South Africa. I acquired personal experience of this matter in the past when I occupied an executive position in another capacity. For example, problems arose on a certain stretch of road 5 km long in the Cape Province, and people suffered damages as a result. As far as collective responsibility is concerned, we all know that it is an accepted concept. The fact remains, however, that the legislation we now have before us cannot be connected with the health aspect for which the hon member for Yeoville is trying to find a platform here. One could in fact raise this matter in a discussion, but my problem is that I cannot relate these two matters. I think that the hon member’s causal relation in this respect is a little confused, although I do respect and accept his motives.
As regards the third point, namely responsibility for the application of this measure, I must point out to the hon member that it is correct that everything ought to fall under the Minister of Justice as far as the functioning of the courts is concerned. However, it is also correct that in the legislation in question we are in fact applying the principle that the functions of the courts are in fact being attributed to the Department of Justice. On the other hand, this legislation, as well as other legislation dealing in particular with the international trade aspect, must fall under the Department of Industries, Commerce and Tourism.
Although one appreciates the problem of the hon member for Yeoville concerning the sensitivity which may exist in connection with this matter on an international level, one cannot but accept that as far as international trade agreements and concepts are concerned, they must fall under the Minister of Industries, Commerce and Tourism. With reference to this matter I should like to ask the hon member whether he is aware of the fact that the 1966 Reciprocal Enforcement of Civil Judgments Act is on the Statute Book, but so far it has not been possible to put it into operation as a result of the opposition of other powers …
Under what department does that Act fall?
It does not matter under what department the legislation falls. The point I want to make is that that legislation was placed on the Statute Book as long ago as 1966. If the American Government had been in any way interested in the reciprocal enforcement of judgements, that legislation would have afforded them the opportunity to make that principle enforcable. However, they were not interested in it. One must therefore accept, in spite of the sensitivity of the matter, that one has to afford the industries and companies in South Africa protection. In this connection I have a problem with the hon member for Yeoville’s argument. He said that this Bill was a “superfluous piece of legislation”. Further on in his speech, however, he said: “We are interfering with an existing law”. To my mind these two statements of the hon member are contradictory. If the hon member wants to say that the Minister already has all the powers and authority in terms of existing legislation to prescribe any conditions, surely it is not necessary for him to oppose this measure since he already accepts such powers.
I do not like the old law either.
Whether you like it or not, is besides the point. If the old law in fact grants the hon the Minister all those powers, and the hon member says that this Bill is superfluous, I cannot see why he objects to it. Yesterday the hon member said in his speech:
I have read through this measure, I have read through the Act, I have read the hon member’s amendment and I have also listened to the hon the Deputy Minister’s Second Reading speech, and I could not find any evidence of where somebody is deprived of the right to get damages. This is precisely what the hon member for Yeoville said. He said that the alter ego principle in the American law is not acceptable in our law. He went further to say that the principle of multiple or punitive damages is not an accepted principle in our law. Punitive or multiple damages suffered by a company in America can be dealt with by their existing laws in America. Let me immediately say that I agree with the hon member that, as far as any company doing business in the United States or in any other country in the world is concerned, that company must be dealt with under the laws of the country in which it is doing business. On the other hand, any company within the borders of the Republic of South Africa must be dealt with according to the principles of Roman Dutch law which are the principles applicable in this country.
*The hon member for Yeoville and I ought therefore to agree by virtue of the fact that he also said that the alterego principle was not acceptable and that multiple or punitive damages in terms of American legislation were not acceptable in this country. If we do not accept this legislation, South African and South African-orientated companies doing business to a certain extent in the USA or in any other country, may be jeopardized. I believe that the new amendments afford protection to South African companies and trade. Let me just make it clear that it is not stated anywhere in the Bill that if the Minister grants consent thereto, it will not be possible to enforce any real damages. In his speech the hon member for Yeoville said:
Then he went on to say that the Minister could impose conditions in terms of which such damages could be enforced. In all honesty I must differ with him on this score. In my view the Minister may only give or refuse consent for the enforcement of the sentence per se in principle, but he cannot impose any conditions. The discretion of the court still remains the inherent principle in terms of which the legislation will be implemented. In respect of that discretionary power of the court the Minister has no authority or powers.
Thirdly the hon the member for Yeoville asked in his amendment that the responsibility for the implementation of this measure should be vested in the Minister of Justice. However, because the principle applies that the Minister may not impose any conditions, it is indeed the case that as far as the actual implementation of the legislation is concerned, this task will still be the responsibility of the court, and therefore of the Minister of Justice. Only the administrative side of the task will be dealt with by the Minister of Industries, Commerce and Tourism. I shall let that suffice in regard to the points raised by the hon member for Yeoville. I think that the hon the Deputy Minister will deal with the other points which he raised.
I just want to refer to one amendment in this Bill, which makes the Bill extremely necessary. If it were now possible for the principles of multiple or punitive damages to be exercised—the hon the Deputy Minister also referred to this in his second reading speech—in this sense that the State Department has ceded these claims and has already instructed various legal practitioners to recover damages from South African companies which are obviously operating in the USA, it would in the first place be able to lead to irrecoverable damages in the financial sphere. In that way, what is more, this foreign doctrine could be indirectly introduced into our legal system by the inclusion of the alter ego doctrine. The hon member for Yeoville and I both agree that it does not belong there. It should not be introduced into our law.
The other problem which we will encounter if we do not pass this legislation is that the audi alteram partem rule will be totally negated if we were indeed to allow companies operating in the USA or elsewhere outside the Republic to be compelled by South African courts to subject themselves to judgments passed on them in foreign courts without the internal representatives of the companies concerned being given the right to defend themselves against the claim instituted against that particular undertaking, and also to dispute the amount being claimed. That is why I think is is essential that we include this legislation in our Statute Book.
The final observation that I want to make in regard to the principle of this legislation applies specifically to the alter ego doctrine. This concept is of course completely alien to our legislation, but I think it is entirely necessary, particularly in regard to the present legislation. In this respect I would like to draw the attention of the hon the Deputy Minister to the proposed new section 1B(3) which reads as follows:
The operative word in the present is of course “subsidiary”. If we take note of the alter ego doctrine, which is applied by the Americans, it appears that they consider the casual relationship between companies to be far broader than merely that of a subsidiary, and that the slightest trace of a connection enables the claimant to apply a connection right through to the person he is ultimately trying to get at. For that reason I should like to request the hon the Deputy Minister to give further thought to the use of the word “subsidiary” in this connection, and to consider whether we should not attach a wider interpretation to it. If we merely use the word “subsidiary” we might find that we are interpreting the concept too narrowly in its South African context, and are in any event confirming and stabilizing the American situation, which we are now trying to prevent, by the way in which we are applying our interpretation of words.
Mr Speaker, on behalf of hon members on this side of the House I should therefore like to express my support for the measure under discussion.
Mr Speaker, the Bill we are now dealing with contains only one clause. It is therefore a very short Bill. However, after thorough reflection on this measure, it becomes apparent that it has a far wider effect, and therefore is far more important than would have thought at first glance. As the hon member for Yeoville correctly indicated, the legislation under discussion affects a diversity of departments, including the Department of Justice, the Department of Foreign Affairs, the Department of Industries, Commerce and Tourism, as well as dealers in South Africa who do business at home and abroad, and overseas dealers who do business in South Africa. Without this legislation it is just possible that international crises could arise in the long run, and that international trade could be very deterimentally affected indeed.
The hon the Deputy Minister motivated this legislation very clearly, and I accept that it is an extremely essential measure. If the allegations made by the hon member for Yeoville is correct, ie that the hon the Deputy Minister already has all the power he is now asking for again in terms of the existing Act, the hon the Deputy Minister ought to tell us why he wants even wider powers. However, if it is true that the hon the Deputy Minister does have all these powers, and he is acquiring even further powers to boot—however small they may be—and it is possible in this way to prevent enormous international claims being instituted against dealers or companies, I think it is still fit and proper and ought to be done.
Neither the hon the Deputy Minister nor I am a Solomon. One needs the wisdom of Solomon if one wishes to foresee all the problems which could arise in regard to these international dealers and industrialists and so on. We on this side support the Bill since it gives the government the necessary power to bring about a greater measure of assurance, safety and security, not only in respect of our dealers, but also in respect of international relations and international trade. There is a saying that fools rush in where angels fear to tread, and I definitely do not want to rush in if I am not quite certain that I am safe as far as all these points are concerned. I get the feeling that, with this Bill, it is after all the idea to prevent acts from being committed that can be prevented. We therefore support the Bill.
Mr Speaker, after the complicated arguments we have heard this afternoon, particularly from the hon member for Yeoville, I want to clear the air very briefly by indicating to this House the course adopted by Governments in the past to bring us to where we are today.
The problem of foreign civil judgments against South African undertakings was identified years ago. That was why the Act to which the hon member for Vasco referred was placed on the Statute Book in 1966. This is the Reciprocal Enforcement of Civil Judgments Act. This Act made provision for the reciprocal enforcement of civil judgements on an agreed basis between South Africa and any country interested in such an agreement. Nothing came of this Act, however, because owing to the international climate against South Africa not a single agreement was ever, to my knowledge, arrived at in terms of that legislation—in any event, not with any country in North America.
By the end of 1977 the problem had begun to become a real one. An investigation was instituted in the USA into a possible contravention of what they termed the anti-trust legislation, dealing specifically with members of the uranium producers club, of which South Africa was one member, and the other members were Australia, Canada and France. By that time the Westinghouse Electric Corporation had in fact requested a judgment by default against two uranium suppliers in South Africa.
Perhaps I should explain this. Judgment by default could be obtained because no defence could be recorded by the South African defendants in the American courts unless they recognized the jurisdiction of the courts. That is still our essential problem today, and consequently that is why we need this legislation today. If such a judgment is given abroad, it may, subject to the existence of certain circumstances, be enforced by means of the South African courts in the Republic through the civil procedure known as edictal citation.
The Westinghouse Electric Corporation case gave rise to the 1978 Act, and in terms of that Act the Minister, as we know, has an absolute discretion as to whether or not a foreign judgment may be enforced against a South African undertaking. In the meantime there have been new developments in America, and the hon member for Yeoville referred to one of these, namely that hostile organizations now exist in the USA which are seeking new methods to get at South Africa.
It is also a fact that very strong lobbies have arisen in that country which are antipollution and pro-health orientated, and under the compulsion of this almost activistic approach in certain circles in the USA actions for damages have now been instituted against South African asbestos producers and distributors. These actions are being instituted, the liability is being determined and the damages calculated on the basis of legal premises which are frequently completely alien to our law. In fact, they are irreconcilable with our legal principles. I am referring now to matters such as liability which is not based on a concept of guilt, and compensation which bears no relation to the damages suffered. These claims, as has been mentioned time and again in this debate, are now being ceded to the American State Department, as the hon the Deputy Minister pointed out in his speech. If the hon the Minister is now, in any case, requested by the Government of another country to exercise a discretion for damages based on principles which are rejected by our law, it would place him in an impossible and unenviable position.
The argument was used that the Minister could impose conditions when he exercised his discretion. In this connection I agree with what the hon member for Vasco said. I think it is completely irreconcileable with our legal principles that a Minister will be able to divide up such a discretion. That is why I think this legislation is necessary, even though it is sensitive. For that reason I support it, and I think that Parliament should assume responsibility in this connection.
Mr Speaker, the hon member for Stellenbosch has said that this whole subject is a very delicate one. In fact, he agreed with the hon member for Yeoville who went to some lengths to describe just how delicate it could be. The hon member for Stellenbosch also devoted most of his speech to going back somewhat into the history of what has happened in the United States and also in regard to the various lobbies that exist there. He also referred to some of the legal judgments that have been passed which could, if applied here in South Africa, cause South African companies a considerable amount of grief.
The hon member also said that the legal system and philosophy of justice in the United States is different to ours here, and we also heard from the hon member for Yeoville in this regard.
I should like to devote a few minutes to elaborating somewhat on the kind of judgments that have been handed down in the United States. We know that in industrial operations and so forth individuals do suffer certain physical harm. I think it is common cause among all hon members in this House that where a person has suffered physical harm of any kind, he should be awarded some compensation in that regard. There is no argument on this score. I do not think there is any hon member here who would feel that a person who suffers certain harm as a result of, for example, working with asbestos, should not be paid some form of compensation. That is why we have on our Statute Book in South Africa laws that are designed specifically to protect workers and the public in regard to this kind of matter. We are constantly aware of the need for this as members of this House.
However, as far as the question of punitive damages is concerned or the question of multiple damages which, as we have heard, is something that is foreign to our legal philosophy and Roman Dutch law, they are commonly awarded in the United States. Multiple damages means that the court decides to multiply a certain amount of damage by a particular figure. The damages figure could be multiplied any number of times, and this is at the discretion of the presiding judge. As far as punitive damages are concerned, the court decides the actual damages in respect of the harm done to the individual, and then considers the total assets of the defendant after which it makes an arbitrary judgment. If that defendant happens to be a mining company, an award can be made running into thousands or tens of thousands or even into millions. I believe that one award was in the sum of $156 million against a particular company. In the United States this has resulted in the bankruptcy of companies because of the philosophy of multiple and punitive damages. If we allowed this concept of law and justice to apply to many South African companies here, as has already been said many South African companies could be severely prejudiced. As the hon member for Sunnyside said, if this actually happens it could affect relationships between the South African and United States Governments. However after having listened to the debate and also after having been briefed by officials of the department, and after having read the Bill and listening to the hon the Deputy Minister, we believe that we should support this measure. As far as the proposed new section 1A is concerned, it clearly states that no multiple or punitive damages will be approved. The hon the Minister has the discretion and the power to award damages. However, it clearly states that actual damages will be awarded. The proposed new section 1B neutralizes the alter ego concept. As has already been said, we believe this is a concept which is not acceptable in South Africa. I want to stress that the proposed new section 1C does not affect the existing discretion which the hon the Minister has when deciding on these issues. He therefore still has this discretion and taking everything into consideration he can decide what should be done.
However, I have one problem in this regard. How does one evaluate actual damage? If a person suffers from asbestos poisoning and it affects his lungs, how is a value put on that damage?
The courts do it everywhere in the world.
How do the courts do it?
The courts do it according to our law.
I would like to elaborate on this. How do the courts establish the damage? They no doubt look at how much physical damage has actually been done, how much the person has suffered, his earning capacity, etc. They no doubt arrive at a figure in that way. One problem can arise when the hon the Minister starts to apply these measures. As we have heard, the laws of the states of the United States are different. What happens when a judge, because of this measure, decides to increase the value of the actual damages? Instead of deciding that the actual damage done to the person is 10 000 dollars he decides it should be 100 000 dollars and then decide that multiple damages worth 300 000 dollars should be awarded. What happens then? We know that there are certain lobbyists, activist groups, in the United States which are actively campaigning against South Africa. They may apply pressure on some states as they have done on certain state legislatures and universities to have their investments withdrawn from South Africa. What will happen if some of these groups put pressure on the judiciary and various states to have actual damages increased when it comes to South African companies in order to overcome the provisions of the Act?
You are assuming that the judges there are crooks. [Interjections.]
The hon member says that I am assuming they are crooks, but when one looks at some of the awards which judges grant…
So you think they are crooks?
No, it is a matter of what their perception is of what things are worth. I am not saying that they are crooks, but their ideas of certain physical values may be far in excess of ours, especially if they know that multiple or punitive damages will not be awarded.
Having said that, we will be supporting this measure.
Mr Speaker, I want to begin by thanking all hon members for the responsible way in which they have debated this measure. As hon members have said, this is a rather delicate matter.
†I would firstly like to deal with matters raised by the hon member for Amanzimtoti, while his arguments are still fresh. The hon member raised the question of how the actual damage is ascertained. I am almost inclined to say that luckily for the hon member for Amanzimtoti, the hon member for Yeoville and myself, it is the job of the courts to ascertain the actual damages and that it is not an administrative function. Of course the court’s function is to ascertain the actual damage suffered and proved to the satisfaction of the court by the plaintiff. As the hon member knows full well in a court hearing both sides are put and the court eventually decides on that. It is also the court’s function in this Bill to ascertain the situation when it is referred to it. If the Minister says he is prepared that the judgment can be enforced, it is still a matter for the court, in South Africa, to attend to as well. It is a most difficult matter. I have high regard for and faith in our courts and I do not think the hon member should be too much worried about it. I should like to thank the hon member for his support. It is indeed so that someone who suffered actual damages should not only be awarded those damages but he should also be placed in a position to recover or enforce the actual damages that he has suffered.
*I shall refer in the course of my reply to the various aspects mentioned by hon members. However, I now wish to refer briefly to the contribution made by every hon member who participated in the debate.
†I first want to refer to the hon member for Yeoville. It is indeed so, as the hon member has said, that this is a delicate matter. I will deal with the hon member’s amendment at the end of my speech. I will give specific replies to his questions and to the matters raised in his amendment.
The hon member for Vasco has very effectively debated certain issues which the hon member raised this afternoon. In my reply I will also refer to the problems which the hon member set out this afternoon, some of which are quite material. In principle I have no objection to referring this legislation after it has been passed by Parliament to the General Law Commission. I will come back to that.
*The hon member for Yeoville, as well as hon members on this side of the House, touched on an important aspect, namely the fact that a foreign legal principle could in fact be introduced into our law by way of the foreign judgment. The situation is not adequately covered by common law. This is one of the reasons why it has become necessary to amend the Act.
I want to thank the hon member for Vasco for pointing out the need for this measure in a very effective way this afternoon. He referred to a problem which he experienced with the wording of clause 1(3) on page 4 of the Bill. I take his point in this connection. I should appreciate it if the hon member would give further attention to the matter, since I would be willing to consider a possible amendment in this connection.
I thank the hon member for Sunnyside, who also supported the measure on behalf of his party. It is true that the Bill involves several departments. He also referred to the question raised by the hon member for Yeoville, namely that it seems to him that the Minister already has sufficient powers. I shall indicate to the hon member and to the hon member for Yeoville presently that there is some degree of uncertaintly and that our intention with this measure is to ensure that the actual damage which has been suffered can in fact be enforced, but that we would not like the foreign legal principle of multiple and punitive damages to be introduced into this country. In order to make absolutely sure, therefore, that it cannot be introduced and that only the actual damage can be claimed, we have introduced this amendment today.
I wish to thank the hon member for his contribution, and I also thank the hon member for Stellenbosch. He put this legislation in perspective. He explained how the original Act came into being, and made the important point that we should not introduce foreign legal principles into our law, and I should like to thank him for his contribution.
As regards the argument that the amendments could have a restrictive effect on our international trade, I want to point out that in terms of the Act as it reads at the moment, the position is more restrictive, because—and I believe that this is the important point which I want to put to the hon member for Yeoville as well—the Minister does not have the power to order the partial enforcement of a judgment. The Minister can only decide to prohibit it. Under the present Act, he does not have the power to prohibit it in part. This is the advice I have received. This is why we argue that the Minister would then have the task of determining which part of the judgment should be enforced, and I believe that the hon member will concede that this is a task for the court and not for the Minister. The hon member will also concede, then, that the legislation in its present form could lead to injustice. The legislation does not lay down how the judgment should be enforced; this is regulated by the court rules. The question whether a judgment should be enforced in principle is a matter which affects international trade and it belongs under the Ministry of Industries and Trade. This is in fact one of the reasons why the measure belongs under this Ministry.
The State law advisers regard the amendments as essential merely for the protection of the South African companies. So the hon member’s objection to the amending Bill is difficult to understand in this respect. I should like to put it to the hon member for Yeoville, for his consideration, that the intention with this amending Bill is certainly not to invalidate the claims of persons who have suffered damage in the past, but merely to make absolutely sure, as far as possible, that only an amount representing actual damage can be claimed from a defendant and to ensure in this way that no multiple or punitive damages can be recovered from such a defendant.
This amending Bill is a result of the uncertainty which exists at the moment about whether South African common law affords adequate protection in this respect. It is true that the Minister has the discretion at the moment, in terms of section 1(l)(a), to prohibit the enforcement of a judgment, but it could be extremely unfair under certain circumstances to prohibit the enforcement of a judgment against a South African defendant where circumstances may justify the recovery of at least the actual damage suffered.
The point made by the hon member for Yeoville, that the Minister’s discretion automatically gives him the power to consent to the enforcement of a judgment and to make such judgment subject to certain conditions, is not correct, with all due respect. In actual fact, it is not clear whether the Minister may, in fact, impose conditions in this case, and for this reason it is deemed essential that we should effect these specific amendments in this connection.
Finally, I want to refer to the amendment moved by the hon member for Yeoville. He made a copy of the amendment available to me, for which I thank him. As far as the first leg is concerned, the hon member requests that the contents of this measure and the entire question of the enforceability of foreign judgments be referred to the South African Law Commission for consideration and report. The hon member for Vasco has already reacted positively to this proposal. I am quite willing to refer it to the Law Commission and to give positive consideration to the recommendations, if any, made by that commission. I hold the SA Law Commission in very high esteem. We are agreed on this aspect, therefore.
Regarding the second condition in the hon member’s amendment, I do want to emphasize that a great deal is being done in the field of occupational health in South Africa. We place a high premium on the health of people working in mines and factories. I shall convey the standpoints adopted by the hon member in this connection to the hon the Minister of Health and Welfare, since the question of occupational health falls under him.
The third leg of the hon member’s amendment deals with the question of the application of the measure by the Minister of Justice. I have already indicated how my department is affected by this issue in international trade, but I shall discuss the matter with the Minister of Justice. What is important in this connection is that the courts are actually the final filter, if I may so term it, when it comes to the enforcement of these measures. Even if my department were to continue dealing with the matter, therefore, the final decision would be taken by the court. The hon member will understand, however, that as far as the Department of Justice and the Department of Health and Welfare are concerned, I do not have the power to take a decision on the matters raised by the hon member which affect them.
In conclusion, I should like to thank hon members once again for their contributions.
Question put: That all the words after “That” stand part of the Question.
Question agreed to (Official Opposition dissenting).
Bill read a Second Time.
Mr Chairman, there are a number of things I want to raise under this clause. Firstly, I would like the hon the Deputy Minister to look at the proposed new section 1B(4), which reads as follows:
If we analyse all these words, what we are really doing is that we are giving a defendant the right to recover from a plaintive to whom he was made to pay punitive or multiple damages, those damages in terms of a prior subsection to this subsection. What we are doing here, is to introduce the very thing which is the antithesis of what we believe in our law. What we are saying here, is that not only can you recover the damages from somebody to whom you have paid them, but that you can actually recover them from the controlling company or from a controlled company. That, everybody is agreed, is a foreign principle in our law. We are, however, introducing it as part of a sort of “af-skrikmiddel”, to frighten people off and not have them enforce these judgements, because we are saying that, if they do that to us and apply the alter ego principle, we have an “alter alter ego” principle which we will apply in our law. I must say that I cannot go along with this. The fact that they are doing something which we think is not right and which is contrary to fundamental legal principles does not mean that we should do it too and even in greater measure. I should like to appeal to the hon the Deputy Minister to abandon the proposed section 1B(4), the provisions of which go quite far. Depending on his reply, I may move an amendment to delete the proposed subsection (4).
The other point I want to make relates to the fact that we are using the concepts of a controlled and a controlling company. Experience has shown that the relevant definitions which have been introduced into the Companies Act are not satisfactory definitions, and for a while series of reasons these concepts have been abandoned in relation to the Companies Act. For instance, the concept of a “controlled company” is hardly used. We use the term “subsidiary company” and we really do not want to use the term “controlled company” which is not a satisfactory term to use, even though the relevant definition is still contained in the Companies Act. I would ask the hon the Deputy Minister also to deal with that aspect before I respond further.
Mr Chairman, I move as amendments:
- 2. On page 5, from line 18, to omit “which is a subsidiary of the qualifying defendant” and to substitute:
- the interests of which are according to a judgment referred to in that subsection integrated with the interests of the qualifying defendant to an extent which requires that an act or omission of that company be regarded in law as an act or omission of the qualifying defendant also
- 3. On page 5, to omit lines 59 to 61.
I said in the Second Reading debate that I believe that the concept “subsidiary” in South African law is far narrower or more restrictive than the casual context as specified in American and other legal systems that we may deal with. I therefore request the hon the Deputy Minister to consider my amendment in this regard. I believe that this will also cover the alter ego principle. The present wording in this regard is perhaps too restrictive and this could mean that we should be leaving a loophole open and not affording the protection that we ought to provide in this regard.
If the hon the Deputy Minister accepts that amendment, the need for the definition of “subsidiary” in the proposed subsection (5) falls away. Therefore my second amendment is consequential and its acceptance is subject to the acceptance of my first amendment.
Mr Chairman, I thank the hon member for Yeoville and the hon member for Vasco for their contributions and for their efforts to improve the Bill. I accept the amendments moved by the hon member for Vasco. I also take it that the hon member for Yeoville will not raise any objection in this regard.
With regard to the aspect touched on by the hon member for Yeoville I just want to point out that all the envisaged new section 1B(4) really does is to button up the alter ago principle, in that the claimant company which is mutually controlled is jointly and severally liable to the defendant for the repayment of multiple or punitive damages. This is the interpretation I attach to it. The hon member may of course advance a further argument in this regard if he wishes.
Before I resume my seat, Mr Chairman, I shall just move the following amendment:
- 1. On page 3, in line 9, after “Republic” to insert:
- , irrespective of whether or not the Minister has in terms of section 1 granted his consent as contemplated in that section
I move this amendment in order to place it beyond all doubt that if the Minister gives his consent to the enforcement of a judgment it does not have the effect that multiple or punitive damages may also be recovered by way of that judgment. I think that I indicated during my Second Reading speech that I should be moving this amendment. Therefore the effect of this amendment is that in spite of the Minister’s consent, the restrictions in respect of multiple or punitive damages as embodied in the proposed section 1A(1) will continue to apply. All the amendment seeks to do, therefore, is to place this absolutely beyond all doubt. I also take it that the hon member will not have problems in this regard.
Mr Chairman, I believe there are more problems being created than are being solved during this Committee Stage.
Firstly I should like to deal with the amendment moved by the hon the Deputy Minister. I have grave difficulty with that amendment because what he is saying now is that even if the Minister gives his consent to the enforcement of a judgment without attaching any conditions to it, irrespective of what happens then, one cannot in any event recover either multiple or punitive damages in South Africa. I think that is going a little too far because we are now dealing firstly with the situation in which he has given his consent, which he did not have to give. That means that he could have applied his mind to the matter, and if he had done so he would not have given his consent. Therefore I do not understand why we should state “irrespective of whether or not the Minister has given his consent.”
The second thing which worries me is that multiple damages are admittedly not a factor in our courts.
Punitive damages, however, in certain circumstances may well become enforceable in other situations. Let me take the hypothetical case of a suit for damages for libel or slander in another country, and those damages are described as punitive damages. I say this is a hypothetical case. What the hon the Deputy Minister is now doing is making that judgment unenforceable in South Africa when there is no reason to do so at all.
Let me take another example. The hon member for Amanzimtoti was very concerned about the way in which a judge assesses damages. The hon member said he did not know. Well, Sir, one thing is sure and that is that it is highly unlikely that the hon member will ever be a judge! [Interjections.] A judge will know. Let us assume in dealing with what we call general damages that those damages under another jurisdiction are referred to as punitive damages. What is going to happen when one tries to enforce that judgment, which is a particularly normal one, in this country? I think that we are going very far indeed in trying to deal with this matter in this way, and that is why I ask that the matter be considered further. I am very concerned about it, not because I want to make a political point of it but purely from the point of view of what is desirable in the interests of justice in South Africa.
The second issue is the one I raised initially. In fact, I think that I must move my amendment now because I feel that the hon the Deputy Minister agrees with me. If one finds that a judgment has been given effect to which is given either by means of payment or as a result of an execution and which is a judgment in respect of, let us say, multiple damages, under South African law one will be able to take action in terms of this provision against that plaintiff in order to recover the damages. However, subsection (4) does not simply enable one to recover the damages from the person to whom they were paid; it also enables the damages to be recovered from the controlling company or, if the company is a controlled company, from a company which it in turn controls. If that is so, then it is clearly introducing the alter ego principle in our law. That is my interpretation of the provisions of subsection (4) and for that reason I wish to move the following amendment:
- 4. On page 5, from line 28, to omit subsection (4).
Mr Chairman, as far as the amendment of the hon member for Yeoville is concerned I understand that like all of us, his only aim is to improve our legislation. In fact, subsection (4) only deals with foreign judgments. Perhaps the hon member did not have that point in mind. Only foreign judgments are involved. The alter ego principle is not part of our judicial system, and that is why we prefer to put this matter as it is stated here. That is why I cannot accept the hon member’s amendment. However, during the Second Reading Debate I gave the assurance that after the measure has been placed on the Statute Book, the South African Law Commission will investigate the measure as a whole, and I think that that ought, in any event, to accommodate the hon member’s fear.
In regard to the point made by the hon member about my first amendment, I want to state that in some cases it is only fair—I want to emphasize this—that a judgment be enforced, but only in respect of the question of the real damage. In such a case the Minister must be able to consent, although he only does so in principle. After that it is still the court that acts as a screen and determines the real damage. It is our intention to show by way of this measure that real damage can be enforced and recovered by the claimant. It is certainly not our intention to vest extraordinary powers in the Minister. In fact, the hon member was concerned that we were limiting the Minister’s powers somewhat as far as this measure is concerned.
Mr Chairman, apparently I have been unsuccessful in persuading the hon the Deputy Minister to omit subsection (4) or to abandon his amendment in respect of whether or not the Minister has given his approval which, in fact, becomes unenforceable. What I am now convinced of more than ever is that this matter has to go to the SA Law Commission very urgently. It needs to go there, it needs to be thoroughly studied. The hon the Deputy Minister has given the undertaking that he will do so, but I ask him to do it with utmost haste because it really may introduce things into our law which should not be there. I do not pretend this is an easy matter. I do not pretend it is something about which one needs to be dogmatic, but it can have very wide repercussions. I appeal to the hon the Deputy Minister to do this as a matter of urgency. He said that he would do it. He also said that he would deal with the health aspect. He is not happy about referring this issue to the Department of Justice where this belongs.
I shall have a discussion about that.
I am pleased to hear that. I think that if the hon the Deputy Minister looks at the other Act, the one to which the hon member for Vasco referred, he will find that that Act is under the control of the Minister of Justice. We have not been able to make agreements in terms of that Act with any other people, but it relates to the enforcement of judgments and it does seem utterly undesirable that the broad picture in respect of the enforcement of judgments where one wants to make agreements with people is under the Department of Justice and this specific legislation in regard to the enforcement of judgments is under the Minister of Industries, Commerce and Tourism. To me the logic of this is that it should be under one Minister. I am not sure that the hon the Minister would mind if it went away. [Interjections.] I really must impress upon the hon the Deputy Minister the urgency of a thorough investigation of this.
Mr Chairman, I already indicated in my reply to the Second Reading debate that we would discuss this matter with the hon the Minister of Justice. I also said that I would refer the matter to the SA Law Commission. I shall ask them to give it priority. I think that should satisfy the hon member.
Amendment 1 agreed to (Official Opposition dissenting).
Amendments 2 and 3 agreed to.
Amendment 4 negatived (Official Opposition dissenting).
Clause, as amended, agreed to (Official Opposition dissenting).
Bill, as amended, reported.
Mr Speaker, I move, subject to Standing Order No 56:
Mr Speaker, we are so friendly, even though we are against the Bill, that we did not object to the Third Reading being taken at this moment.
I do not intend repeating the arguments advanced during the Second Reading because they are all fresh in his mind. I appreciate that on what we asked for in the Second Reading we sort of got two and a half out of the three points. We therefore have not done that badly. I hope this matter will go to the SA Law Commission expeditiously. I hope we will get an amending Bill dealing with this situation as a matter of urgency. I also hope that the problems regarding the public image which arises in this regard will be dealt with by the Department of Health and Welfare and that we will deal with the whole question of asbestos poisoning and the problems arising from it. It is no good for our trade if this is not done. The hon the Minister will agree that everything which we have to export from South Africa, must be a product of which we should be proud. That is the way to build up exports. But when exporting a product causes problems, it is not desirable to be in that type of business and we need to do something about it. The people who mine and handle it in South Africa also need to be protected.
Our third argument was that this legislation should resolve under the hon the Minister of Justice. We have the undertaking that it will be discussed and we look forward to seeing it go to the hon the Minister of Justice. I assume it is a general affair and not an own affair. Therefore it will fall under general affairs under the new constitution, and whoever handles the Department of Justice will handle this Bill.
We regret that we cannot support the Third Reading, but we are appreciative of the co-operative attitude of the hon the Deputy Minister in trying to meet our problems. But we hope that they will be dealt with after this Bill becomes law.
Mr Speaker, I want to thank all the hon members who participated in this debate most sincerely for their contributions. This is a fairly delicate matter and I therefore want to thank hon members for the responsible way in which they approached the Bill.
†I would like to thank the hon member for Yeoville for his contribution in the Third Reading. I have already replied at some length to the arguments which he has now again put forward in the Third Reading.
I would also like to thank hon members for their efforts to improve this legislation.
*We are at present giving serious attention to this measure and shall also be doing so in future. The question of the health of people employed in mines and works is of great importance to the Government, and we shall obviously be paying scrupulous attention to this. The Government’s record with regard to the entire question of industrial health is very good.
I should like to thank hon member for this pleasant debate and express my appreciation to the official Opposition for allowing all the various stages of this measure to be taken this afternoon, in spite of the fact that they opposed it.
Question agreed to (Official Opposition dissenting).
Bill read a Third Time.
Mr Speaker, I move:
In terms of the Housing Act, the Director-General of Community Development is required to keep an account in the name of the National Housing Fund with the SA Reserve Bank, into which all moneys received by that fund have to be paid and from which the activities of the fund have to be financed. Over the years this arrangement has worked very well. Just like other State departments, however, the Department of Community Development is bound to the implementation of a computerized financial management system for which the account of the Paymaster-General will be used. However, as long as the Housing Fund has to keep its account with the Reserve Bank, it cannot be incorporated into the computerized financial management system. Incorporation into that system would greatly facilitate matters, and the objective of clause 1 is to do away with the obligatory keeping of an account with the Reserve Bank.
In its sales campaign in respect of State-financed dwellings, the Department of Community Development has come up against the problem that many houses cannot be sold because transfer cannot be given to purchasers immediately. These residential units are mainly houses in municipal rental schemes that were erected years ago by local authorities with the assistance of loans from the National Housing Fund in townships which were never properly surveyed or where the township establishment process was never implemented because it was assumed at that stage that the houses would be let on a permanent basis.
†To make the sale of these houses possible, it will be necessary, in the first instance, to have the townships surveyed, to compile township establishment conditions, to draw up layout plans and then to proceed with the full-scale process of township establishment. However, in view of the lengthiness of such process and the fact that it may take a considerable time to finalize an application, the matter was investigated by the Commission of Inquiry into Township Establishment during 1983. Because the existence of the townships was already an accomplished fact, the commission recommended a shortened procedure which would comply with the basic requirements in regard to the establishment of a township.
These requirements mainly comprise the proper surveying of the townships and the sites in which right of ownership have to be vested, the compilation of conditions of township establishment, the drawing of a layout plan, the approval of the general plan by the Surveyor-General, the opening of a township register by the Registrar of Deeds, the proclamation of the township by the Administrator and the revision of the local authority’s town planning scheme. The above-mentioned steps are contained in the amendment Bill which is now serving before hon members and can, after completion of the survey, be finalized within a period of a few months.
Furthermore, an amendment to the Housing Act is proposed to facilitate the eviction of persons who unlawfully occupy property of the National Housing Commission or a local authority. Provision is made to grant such persons the opportunity for a period of one month to obtain the necessary written permission to occupy, failing which however, they will be evicted summarily. I wish to stress the point that we are dealing here with people who unlawfully move into property of the Housing Commission and who ignore requests to vacate such property.
Mr Speaker, as far as this Bill is concerned we see a number of difficulties in regard to the implication and administration of the process. By and large, however, the Bill deals with townships that have been laid out and serve as such as far as, especially, Coloureds and Indians and also some Whites are concerned. It does not deal with Black townships because that is dealt with under the Black Communities Act. We are therefore dealing here with Coloureds, Indians and Whites. We appreciate that what the Government is trying to do here is to make it possible for people to acquire homes and to obtain transfer of stands and homes in townships which have not yet been proclaimed but in respect of which application for proclamation has been made prior to 31 December 1983.
We appreciate too that there is a long history and time lag in the approval and development of a township to its final stage. At times these matters have been referred to something like 52 departments. In addition advertisements must be placed, various departments must consider representations, there may be delays in the Surveyor-General’s office with regard to plans, there may be delays in the deeds registries office and there may also be delays in the administration of local government. The Venter Commission, which dealt with many aspects of township planning, referred to delays in respect of some 600 townships in the Transvaal region.
Our overall view is that we are going to support the Bill to enable people to acquire homes as soon as possible and to make it possible to remove delays in the development of townships. However, we want to point out the difficulties that may arise, as well as the implications of it, and at the same time obtain certain answers from the hon the Deputy Minister.
The Bill has two main aspects. The first is the proclamation of townships. The second is a separate matter entirely and deals with persons who unlawfully occupy dwellings belonging to the commission or dwellings erected or acquired by a local authority with funds supplied by the Department of Community Development. I will deal with the second aspect at a later stage.
As far as the proclamation of a township is concerned, the main difficulties that we see are, firstly, that there is a transfer of the funds. We have no difficulty with regard to the funds from the Reserve Bank because obviously they are on computer and therefore it will not take a long time for them to write out cheques. We are all in favour of the administration being able to make payments more speedily and we have no problem with that.
However, when we come to clause 2, which deals with the proclamation, we hope—and I hope I am correct in assuming this—that this short cut which is now being proposed, has the approval of the Administrators because they are in charge of local government and in terms of provincial ordinance it is their function to approve of townships. It also affects the local authorities who in the first place have to comment on an application for a township. They have to pass on those comments to the department responsible for local government, and if necessary raise objections or point out difficulties. Normally these townships should also comply with the town-planning schemes of the local authority, and here we are cutting across the town-planning scheme, whether or not it is within the contemplation of the scheme and whether it may be amended at a later stage.
The application for a township must of course also be approved of by the Surveyor-General. It also affects a number of laws and, in fact, those laws are referred to in the Bill, for example in regard to the advertising of proposed roads the provisions of the National Roads Act and the Urban Transport Act must be complied with. As far as local authorities are concerned, we should like to know whether the United Municipal Executive—I think this is the official body recognized by the Prime Minister as representing local authorities—and also the other departments that will be involved, have approved of this Bill.
We feel that according to this concept we will be allowing townships to be approved that do not comply with town-planning schemes, in spite of it not complying with a scheme. In fact, this Bill orders that town-planning schemes could be complied with at a later stage or to be amended. This is not a very good principle, with great respect, and we hope that this is not going to be a precedent. Certainly, where it is possible to comply with a town-planning scheme and other relevant steps for a township, we agree that such a township should be approved of.
As far as the discretionary powers of the provincial administration are concerned, the Department of Community Development is in fact imposing its interests upon the provincial administrations, and it has a vested interest in it because it is its own township. Therefore, the department that has a vested interest is imposing its own conditions, etc upon the provincial administration, and that is not a very healthy situation.
As far as the remedy is concerned, we hope that future townships will be laid out by Community Development in compliance with the requirements of the relevant town-planning schemes. We readily appreciate the difficulties that local authorities have in so far as the State and the provinces are concerned where they are erecting buildings or schemes and overriding the local authorities. I think the time has come for a joint town-planning scheme which both the local authorities and the higher echelons should comply with. I think the idea is to vest more power in the local authorities. Indeed, I believe that was the thinking and the philosophy of the Venter Commission, to take a short cut and to put the approval of townships in the hands of local authorities and cut out the delays and the intereference of various departments as much as possible. It costs money because the price of land goes up, interest rates go up, etc, and it makes it very difficult for the man in the street to acquire a home at a reasonable price.
I want to refer to a few specific matters in the Bill. In the proposed new section 74A(1), inserted by clause 2, the words “which requires such approval” occur. This refers to the approval of a township or a portion of a township. It is a bit vague in law as to who decides that it requires approval. Is it the Minister who decides that approval is required or is it any person authorized by the Minister or is it upon the advice or at the request of a person that this is needed? In paragraph (a) of that subsection reference is made to the conditions of establishment of a township. It is usually the prerogative of the Administrator to impose conditions. Now the Department of Community Development will lay down its own conditions and we would like to know what happens if they are in conflict with those imposed by the Administrator. Should there not be some kind of connection between the Department and the Administrator concerned in this respect?
With regard to subsection (2)(a), (b) and (c) I would like to ask if the provisions of the Subdivision of Agricultural Land Act, No 70 of 1970, apply in this instance. The hon the Deputy Minister will appreciate that in terms of section 3(a) of this Act agricultural land may not be subdivided, and that if it is subdivided, it requires the consent of the Minister. However, this Act is not referred to in subsection (2) of the proposed new section 74A. If these provisions are in conflict with the provisions in the Subdivision of Agricultural Land Act, I would like to ask the hon the Deputy Minister how he proposes to get over this difficulty and whether he has thought about this.
In subsection (3) reference is made to “such steps as may be required or may be necessary”. Here it is a question of amending the town planning scheme. What happens to the town planning scheme if there are objections to the establishment of a township after the scheme had been amended? How are those objections going to be dealt with? How will valid objections be dealt with?
Subsection (3)(c) deals with the removing of conflicting conditions before registration takes place. Roads remain public roads and general conditions must be expunged. As far as general conditions are concerned, there could be problems. Normally, if you have to expunge general conditions there are two procedures open to you. The first is an application to the Administrator in terms of the relevant ordinance, which takes some time. The second is an application to the court. What happens in these instances is that the removal of restrictions may be necessary before a township can be proceeded with. Why is a local authority being asked to act, before a town planning scheme is amended, if the Government can proceed without the local authority having completed or complied with the procedures? This seems to be putting the cart before the horse.
With regard to subsection (7) I want to ask what happens when the conditions are in conflict with the by-laws of a local authority. What happens if that is the case? If there is a breach in law, is that breach transferred to the purchaser? In other words, does the purchaser inherit that breach which has been passed on by the Department of Community Development and which conflicts with the by-laws? I am now referring to various bylaws which have been passed by local authorities. These by-laws may concern refuse, sanitation, parking, building regulations, etc. What effect will the non-compliance with those have on the purchaser?
These are some of the difficulties we see. They are administrative difficulties and not matters of principle. I should like the hon the Deputy Minister to deal with them. As regards the principle of the Bill, as I have said, we do not want to hold up the transfer of these properties and we should like to encourage the people concerned to obtain them as soon as possible.
Then I should like to turn to clause 3 which amends section 86A of the principal Act. If a person unlawfully moves into premises which belong to the Department of Community Development or a local authority or if a person is unable within a period of one month to prove that he has the authority in writing to occupy those premises, he can be summarily ejected without having any recourse to a court of law. Hon members will recall that not so very long ago we dealt with an amendment to the Community Development Act and at that time objected very strongly to the circumvention of the rights of the individual to appear in court to prove his case. I know there were many cases of “Act-stop” in Pretoria and Johannesburg, for example. In those cases people moved into premises and the Minister could not get them out. At one stage the Minister threatened to introduce a law to get them out if they were going to delay matters by using their right to go to court. We were a bit afraid of that at the time when the Community Development Act was amended and therefore we objected very strongly to it.
I suppose it can be argued that this clause introduces an improvement in the sense that the people concerned will now have one month in which to prove that they have written permission. To that extent it is an improvement. However, we are still reluctant to take away from people their rights under the rule of law, their right to go to court and prove their case. We therefore intend moving an amendment to this clause in the Committee Stage, which hopefully will be taken on Monday. In certain circumstances we can sympathize with the department where a person has moved into premises unlawfully. If the department has just acquired new premises which are to be allocated to someone who has been on the waiting list for many years and someone else unlawfully moves into those premises, we have sympathy with the Minister. At the same time we have to balance that sympathy with the rights of the person concerned and we must give him the opportunity to prove his innocence and that he has written permission. If he cannot obtain that written permission within a month, he should be able if necessary to go to court and state under oath that he can obtain the necessary permission in writing which will satisfy the department. Whilst we therefore go along with the principle envisaged here, we will try to ameliorate the measures effect and we will try to balance it with justice. Under those circumstances the official Opposition will support the Second Reading of the Bill.
Mr Speaker, I want to thank the hon member for Hillbrow for indicating that the official Opposition would be supporting this measure. The hon member raised certain objections in connection with the Bill. He did not raise any objection to clause 1. He referred, amongst other things, to the abridged procedure for the establishment of townships and asked whether the administrators, the local authorities and the United Municipal Executive, which is the mouthpiece of local government in the country, went along with this procedure.
In the first place I want to point out that in regard to the Venter Commission, which investigated this matter—the matter involving the curtailment of the township development procedure—there were representatives of the respective provincial administrations, and also people representing the United Municipal Executive. The bodies about which the hon member for Hillbrow expressed his concern were therefore well represented on the Venter Commission. I also accept that the administrators of the four provinces gave their blessing to this proposed course of action. Both they and the local authorities are, after all, aware of this problem. I therefore believe that they welcome this abridged procedure for the establishment of townships.
The hon member for Hillbrow also contended that the department would now try to force the provinces to subject themselves to certain conditions. Surely this is not how things work in practice. The hon member knows, after all, that there is the necessary liaison between the respective departments and the provincial authorities and that there is also the necessary co-operation with a view to dealing with these matters judiciously. I therefore do not think that there are any serious problems in this connection. The smaller problem, which the hon member mentioned, I think the hon the Deputy Minister will, in any event, deal with further. Unfortunately time does not permit me to react to every aspect of it. The hon member also referred to clause 3 of the Bill, with which he had certain problems. He also indicated that in this regard the official Opposition would move an amendment to ensure certain of the rights of private citizens, amongst other things their right to have recourse to a court of law. At this stage I do not, of course, want to anticipate the hon the Deputy Minister’s opinion in this connection. I do believe, however, that if the official Opposition’s envisaged amendment would result in clause 3 of the Bill being amended to such an extent that either the department or the relevant local authority cannot take the necessary steps to evict, within a reasonable period, anyone who has unlawfully moved into a dwelling, thus giving rise to long drawn-out court procedures, there could be some doubt about whether it would be wise to amend this clause at all. Unless the clause can be amended without giving rise to which I have just referred to, I do not think it could be of any value at all. I think that the impression that could indeed be created is that unreasonable action was being taken against someone occupying such property. If one were to regard the matter realistically, however, I think one would have to realize that very often such a person is keeping someone else from occupying that property, someone who perhaps has a very much stronger claim to the occupation of that property. So what is actually happening is that an injustice is being done to someone whose case is much more deserving than that of the individual unlawfully occupying the relevant property.
It all sounds very nice, of course, when one creates the impression that one is allegedly pleading the cause of the aggrieved. The fact remains, however, that someone unlawfully occupying such a property does not, in truth, have any case. I am, of course, now excluding cases in which an administrative error or some other problem could possibly have cropped up. Someone who moves into a property, however, and does so unlawfully, surely has no case at all. In such a case the department should surely have the right to evict such a person. I think that must be the case, or else it would simply make it an impossible task for the relevant officers who have to do this work. That is why I do not think that the hon the Deputy Minister would very easily concede the point in this case.
The amending Bill is convincing proof of the deliberate and concerted effort being made by the Government to promote home-ownership. I do not think there is any doubt about this being the basic objective as far as this measure is concerned. I also think that for that reason all the parties in this House will support the measure. The consequences of the legislation may be greater than is possibly realized. It is therefore an important contribution to home ownership. Literally thousands of properties are involved, and although I do not have any definite figures in this connection, I know that there are numerous townships involved in this. Since the Venter Commission had an in-depth discussion on this whole matter, and also investigated this specific problem, I do not think there is any other method by which townships can more quickly be proclamated. All the interested bodies have an opportunity of putting their case in this connection.
Clause 2, which contains the most important provision in the measure, will result in an abridged procedure for the establishment of townships. I have previously referred to the Venter Commission’s recommendation that townships that have been established with the aid of funds from the National Housing Fund and the Department of Community Development should be involved and that this relates chiefly to rental schemes.
The hon the Deputy Minister explained the basic steps contained in the various clauses of this Bill. The various purchasers of houses in the relevant townships cannot be given transfer unless those townships have already been proclaimed. Since they are existing towns, consultation with all the relevant bodies is both unnecessary and time-consuming. In this connection the hon member for Hillbrow also referred to certain bodies that could be involved in this. I also want to emphasize, however, that where other services are involved, for example roads or whatever, if proclamation were to be held back until all the relevant bodies were satisfied, we might find that procedures involved in the establishment of townships could take years before the relevant towns could be proclaimed. If we are serious about selling these houses to people, we must simply take short cuts when it comes to having those towns proclaimed.
It is said that the process reflected in this clause can be completed within three months. There is even the possibility of its being done in a shorter period.
Clause 3 will have the effect of not permitting a person to move into a house without his having written permission to occupy it. So persons occupying a house unlawfully can be removed in terms of the proposed amendment. I think the period of one month, which is the period such a person is, in fact, being given to obtain the necessary written permission, is a reasonable one. In the process of negotiation it will also, in my view, become clearly apparent whether there is any doubt about the lawfulness of his occupation of a dwelling. The fact that if a single case is mentioned about someone perhaps being unreasonably affected does not, in my opinion, mean that one can designate an entire scheme, or an entire method according to which one does things, as being unreasonable. I do not think it is a reasonable standpoint to do something on the basis of one single instance. There will always be the exception. Since there are hundreds of people involved in this, people waiting for houses, etc, it is probably only right that there will be an individual case in regard to which problems are being experienced. I do not, however, think that is a fundamental problem.
I want to make a concluding remark. With the greater autonomy that will be granted to local authorities by limiting the prescriptive administrative control by higher authorities, something which will give rise to greater community government, it is important for a large percentage of the inhabitants of a town or city to be home-owners too. An electorate of property owners have a greater sense of involvement in the administration of the town. I am truly convinced that in this case too, particularly amongst people of colour who are now going to assume greater responsibility for the administration of their towns, it would contribute towards promoting greater responsibility and greater involvement amongst those inhabitants if they were to own those properties and not merely to rent them. It would also be a further factor in promoting sound and balanced local government amongst these people of colour.
That is why I wholeheartedly support the measure, in the full conviction that it can do nothing but promote the happy occupation and settlement of people in houses in our urban areas where the major percentage of the inhabitants of this country find themselves. One cannot but sing the praises of all those measures which result in the promotion of greater balance and stability in the urban areas.
Mr Speaker, we in the CP also support the Bill, because there are indeed a few provisions in the legislation with which we agree.
The promotion of home ownership is today receiving a great deal of attention, and we want to agree wholeheartedly on that aspect. People tend to take very good care of what belongs to them. Moreover, it gives one a feeling of human dignity to realize that one has something of one’s own, something that belongs to one. Providing accommodation for himself and his family is pre-eminently the responsibility of the breadwinner and the head of the house.
The people who fall into this category and live in the houses provided by these means, are people for whom it would mean a great deal to be able to enhance their human dignity. This applies particularly to the Government villages, and I am now referring to the one in my constituency. There it would indeed mean a great deal to the people to own such a little house. I do not want to be the one to have to go and do the surveying, however, nor do I want to be the one to have to get all those things done, because the one house virtually borders on the next, and how exactly they will know what comes where and how everything must be divided up is something I would like to see. The Bill nevertheless has the support of this side of the House.
The houses being provided by way of the National Housing Fund are now being offered to tenants for sale. There are, however, certain stumbling blocks, in regard to this project, which prevent such houses being made available to the people quickly enough. Owing to an urgent need for housing that previously existed, certain requirements were not met. The properties were not surveyed, for example, nor were they confined to proclaimed townships. They were sometimes indicated on maps merely as units and not as separate erven or dwelling units. Prospective buyers can therefore not obtain transfer or register mortgage bonds on these properties if they want to buy them. These procedures are very time-consuming and extensive and must now be dealt with more quickly. The procedure for the establishment of townships and surveying must be expedited quite considerably in order to meet this need.
A further provision, which we also support, relates to the unlawful occupation of such houses. The National Housing Commission owns such houses, and the local authorities also have such areas that belong to them. Written permission for the occupation of such a house must be presented within a month, or at the very outset. The onus for presenting such written proof lies with the person occupying such a house or property and no longer with the owner, in this case the department or a local authority. Sometimes it takes a great length of time to prove that these people are not permitted to live there.
After the commencement of this legislation, the Director-General, or someone authorized by him can, without obtaining a court order, or waiting for a sentence to be passed, now summarily enter such a dwelling and take possession of it. He can also remove such a person, his dependants and his possessions from those premises.
These days too many people are getting away with the claim that some or other official granted them permission to move into such a house. Then one has a long series of investigations in order to refute this claim, and that is why we feel that it would be proper to have the onus placed on the tenant to prove that he has written permission to occupy that dwelling.
We therefore gladly support this legislation.
Mr Speaker, we will also be supporting this measure.
The most important aspect of this measure is the speeding up of approval required for the finalization of the development of new townships. This is something which is long overdue because each province has its own history of long, drawn-out and nerve-racking processes before the stage arrives where townships may be developed. We all know the tremendous problems which exist as a result of the shortage of housing. However, I think that other speakers have more than adequately covered this point; so I would like to raise some issues of my own with the hon the Deputy Minister.
I have no difficulty with clause 1, but have we come to the stage where the computer age is a blessing in disguise? Does it now mean that the Department of Community Development will be able to invest its funds in institutions other than the South African Reserve Bank? In that case I would suggest that it can certainly do a lot better than what it has done with that noble institution. If this will in fact be the case, I hope we can look forward to a situation where the department can show a marked improvement on the returns on their investments. So I would like to hear from the hon the Deputy Minister in this regard.
Everybody has spoken at great length on clause 2. I am interested in the fact that it inserts a new section into the Act to establish beyond doubt that any township or part of a township which is either financed wholly or partially from the funds of the department shall, upon request from the hon the Minister, be deemed to be approved by the Administrator of that province in terms of the relevant town-planning scheme. Furthermore, it states that the Administrator shall—this is mandatory—immediately this happens inform the Surveyor-General and the Registrar accordingly. This is a complete departure from what we have had in the past. It certainly is a very meaningful part of the accelerating process that I was talking of earlier. Am I also correct in assuming that it also makes it mandatory for the local authority concerned to amend its town-planning scheme in order to accommodate the new township, together with the conditions laid down by the Department of Community Development? This opens a whole new field that we have not trodden before. It has always been accepted that higher tiers of Government have the right to override planning regulations of a lower tier of Government. This has always been done with great circumspection and with compliance of all reasonable and practical requests that come from such local authorities. At provincial level one thinks of schools that are developed in new areas, of police stations, etc, and all these sort of things that the provincial Government or central Government constructs within a local authority. This new requirement that each township’s town-planning scheme be amended puts us into an entirely new area. It is a path we must tread with a certain measure of caution.
As far as clause 3 is concerned, we have no serious reservations about it. I have heard what the hon member for Hillbrow said, but obviously we have a situation where the department has extreme difficulty with people who are rather insistent on occupying premises which they are not rightfully entitled to occupy. As regards the property now owned by the commission, the occupier will have to have a written authority from the Director-General or any person authorized by him.
We are supporting this Bill because we believe sincerely that all housing development should proceed with the minimum disruption and red tape. I think there has been far too much of this in the past. Some local authorities are quite unrealistic in their demands. I, as a person who was for some 17 years involved in local authority affairs, know that smaller local authorities sometimes with regard to standards in respect of buildings, sizes of stands, servitudes they require, requirements in areas that are not served by sewerage, and requirements in respect of septic tanks, etc, go beyond the pale. They set standards that make building costs almost impossible, particularly in today’s market.
In conclusion, we feel it is a pity in some respects that this Bill does not go further. It is regrettable to me that we do not have before us, incorporated in this measure, a compulsion for the acceptance of minimum building standards which could be laid down by the department. I think that is probably something for a debate another day in the House. I think the day must come inevitably when local authorities are going to have to seriously look at the standards that they lay down and that they are going to have to seriously rethink some of the little idiosyncrasies—I do not say that unkindly—that they have written into their building by-laws. This will make the provision of housing a lot easier for those who earnestly and sincerely are trying to serve a community that is in great need at this time. We support the measure.
The hon member for Umhlanga spoke about unreasonable conditions laid down by certain local authorities. He is undoubtedly very knowledgeable about these matters having been a councillor and the Mayor of Umhlanga for a period of 17 years.
I beg your pardon, Glenashley. However, I do not share the hon member’s fear that we in the higher tier of government will now overrule a lower tier of government. I think township development and township proclamations will always be done in the closest conjunction with local authorities. I do not believe that, as the hon member for Hillbrow sees it, there is going to be a conflict; that we will be in conflict with the by-laws of local authorities. Of course, we will take cognizance of those by-laws and we will take cognizance of the ordinances when these townships are proclaimed. These townships are not our townships; they are not townships of the Department of Community Development. They are the townships of the local authorities, and it will therefore be done in collaboration with those local authorities.
The hon member said it was high time that we speeded up the whole process of township development and of proclamations. It is true that there is a lengthy report by the Venter Commission on this point. But this Bill does not deal with that aspect. This Bill merely deals with townships developed before 31 December 1983. However, I believe that what the hon member has proposed in this regard will be done. There has been discussions with the provincial administrations and I think the whole process will and can be streamlined.
The hon member wanted to know whether we will not be banking with the Reserve Bank but with other financial institutions. He did not say so but I presume he was referring to the Public Debt Commissioners. Yes, Sir, that can be done. However, while we are deleting the relevant provision we are not precluded in future—although I do not think this will happen because we have a much more sophisticated system—from investing also with the Reserve Bank.
The hon member for Hillbrow stated that Blacks are excluded, but that is not quite correct, Sir. It is not quite correct to say that Black townships are excluded. The principal Act and the amendments have no colour connotation whatsoever and in terms of this Act, it is possible to deal with Black townships as we propose to deal with White, Coloured and Indian townships. However, it is true, as the hon member stated, that the Black Community Development Act and specifically section 35 of that Act, lays down a certain procedure whereby the Minister of Co-operation and Development can deal with the proclamation of a township.
The hon member further asked whether we had the approval of the Administrators. Yes, Sir, we consulted very widely. We consulted the provincial administrations, the Surveyor-General and the Registrar of Deeds and they are all very happy with these amendments we are now proposing. The hon member said he was afraid that we might be creating a precedent and that this very shortened procedure in future would be adopted. No, that cannot happen, Sir. This does not apply to future township development; it merely applies to certain townships financed wholly or partly by this department up to 31 December 1983. The hon member then referred to clause 3 and said that he would be moving an amendment to this clause. With great respect, I think the hon member was arguing on the basis of the principal Act and not with regard to the proposed amendments. What we are now proposing in this Bill is merely that where as up to now permission had to be given, the word “permission” is now replaced by the words “written authority”. The whole question of access to the courts is not something which applies here, but to the principal Act. However, the hon member said that this is an improvement, and I thank him for that.
*The hon member for Welkom replied to many of the questions put by the hon member for Hillbrow. I feel that the matters raised by the hon member for Hillbrow are matters which could just as well be discussed in the Committee Stage, and because the hon member is going to be unfriendly and is not going to allow us to take the Committee Stage today, we shall deal with those matters in detail later. I thank the hon member for Welkom for his support. He is an authority in this field and was not only a member of the Venter Commission, but has for a large part of his working life been acquiring an intimate knowledge of local management and provincial administration.
The hon member for Germiston District spoke feelingly about home ownership and I thank her for that. She gave her approval to the other clauses, and particularly to clause 3. There is, however, a practical problem in this connection. One frequently comes across a person who tells one that someone gave him permission. He then describes that person as a tallish fellow with glasses and blonde hair, and then one wonders whether it could have been the hon member for Rissik. Usually he cannot remember that man’s name. We are now making it easier for people. We are not summarily evicting them from a house. There has to be written authorization, and we give them a month to obtain that written authorization.
I again thank hon members who participated in the debate for their support.
The hon the Deputy Minister has just thanked everyone who contributed to the debate so nicely that I want to ask him whether he does not also want to thank those of us who sat here listening all the time.
Question agreed to.
Bill read a Second Time.
Mr Speaker, I move:
Business suspended at 18h23 and resumed at 20h00.
Mr Speaker, I move:
As hon members are aware, paragraph 2 of Schedule 1 to the Constitution of the Republic of South Africa—Act No 110 of 1983— provides that education is an own affair at all levels, but is subject to any general law in relation to certain specific aspects of education, viz, in the first place, the norms and standards for the financing of running and capital costs of education, and, in the second place, salaries and conditions of employment of staff and professional registration of teachers, and, in the third place, norms and standards for syllabuses and examination and for certification of qualifications.
Therefore general laws can be passed in respect of those three aspects of education, laws that will be binding on the separate own education systems. This, of course, does not derogate from the power of the own houses for each population group to pass own legislation about these defined aspects of education as well, as long as such legislation does not conflict with the provisions of any general law in that regard.
By way of clause 2, the present Bill gives effect to the possibility thus created by the constitution; the possibility of general legislation in respect of these aspects of education. Clause 2 vests in the Minister of the State Department for General Affairs, to whom responsibility for general education affairs has been entrusted, the power to determine the general policy to be applied with regard to the mentioned aspects of education, subject to certain provisos, by way of notice in the Gazette. In clause 2(4) it is provided that such a general policy must be carried out by the Ministers of own education. The provisos to which I refer with regard to the provisions of this general education policy determined by the Minister are that this must be done, firstly, subject to the provisions of any law regarding the financing of education; secondly, after consultation with all other ministers of education; thirdly, after consultation with the new SA Council for Education with regard to education at school level as well as teacher training; fourthly, after consultation with the Universities and Technikons Advisory Council in respect of matters in regard to which the advisory council has jurisdiction; and fifthly, with the concurrence of the Minister of Finance in regard to the norms and standards for the financing of education and as regards the salaries and conditions of service of staff.
Moreover statutory effect is given in clause 2(1) to the principles of the provision of education recommended in the report of the HSRC on the provision of education and accepted by the Government in its interim memorandum on the report of October 1981 and in its White Paper on the provision of education of November 1983. To be specific, the Minister must determine each aspect of the general education policy within the framework of the 11 principles mentioned. The original proposed wording of the principles in the Bill had to be adjusted in certain respects to comply with the requirements of legal formulation.
I should like to remind hon members that another four aspects of education, in paragraphs (d) to (g) on page 5 of the White Paper, are also given as general education affairs. However, these four additional aspects are not included in this Bill because the aspect mentioned in paragraph (d) relating to the basis for the deviation of own education in separate educational institutions is already sufficiently regulated by paragraph 14 of Schedule 1 to the constitution and because the matter mentioned in paragraph (e), viz the assembly of data, is deemed to be implicitly included in the specified spheres for general legislation and because what is stated in paragraph (f) of the White Paper in connection with co-operative supporting services is dependent on specific authorization and reciprocal arrangements by their own education authorities and is therefore, strictly speaking, not really a general affair, and also because paragraph (g), which deals with inter-state agreements and matters, is dealt with by the executive in terms of the constitution. It is therefore clear that by means of this legislation and otherwise, essentially all the so-called “macro policy functions”—to use the terminology of the HSRC report and the report of the interim task group—in regard to which the HSRC report on the provision of education (pages 196-197) recommended that they be entrusted to a central education ministry, are covered.
The Bill further provides for the establishment of three important advisory bodies.
In the first place, in terms of clause 2(3) the Minister may establish a committee and a research committee to advise him specifically about salaries and conditions of employment of staff. In this way a statutory basis is being laid for the two advisory committees that are already wellknown, CES (Committee on Education Structures) and RECES (Research Committee on Education Structures) which have existed since 1979 and which were expanded, in May 1983, to represent the education systems of all population groups.
Secondly, an SA Council for Education is being established, as recommended by the HSRC report, with the power to advise the Minister on the abovementioned general education affairs and to advise all education ministers on any aspect relating to co-operation among education departments.
Thirdly, a Committee of Heads of Education Departments is being established with functions similar to those of the SACE. This committee will also, of course—like White education’s Committee of Heads of Education, which has functioned for many years now—be an important factor in th promotion of interdepartmental consultation and co-operation. Of special importance is the fact that representation for the organized teaching profession is prescribed by statute in respect of each of the above bodies or their subcommittees.
An important facet of this Bill is the say in the determination of general education policy acquired by all the education Ministers responsible for education as an own affair. This aspect is given further effect in the provisions of clause 2(5), in terms of which no law on a general education affair may be introduced in Parliament except after consultation among all the education Ministers. Therefore, apart from having sole responsibility for education as an own affair, the own education Ministers also have considerable influence on general education affairs.
Finally, the Bill contains provisions regulating meetings of the SA Council for Education and the Committee of Heads of Education as regards allowances and remuneration of members of these bodies and the administration of the functions of the bodies.
In previous debates on the matters dealt with in this Bill, the criticism was advanced that the possibility of general legislation and the determining of general policy in respect of certain aspects of education would amount to a reduction of the importance of education as an own affair. I want to refute this approach in the strongest possible terms. Even though the own education department is subject to general financial norms, it retains its unrestricted power to determine for itself on what, and how, it will spend its available finance, what its financial priorities are, to what services it wants to give priority and what it wants to limit, etcetera. For example, it will not, of course, be able to provide buildings or premises that exceed any general norms in respect of size as far as capital financing is concerned. In the same way the own education department has full power to act with total autonomy, in spite of general norms on salaries and conditions of employment, with regard to decisions as to how to train teachers, how to select teachers and whom to appoint, what assignments teachers have to carry out, etcetera; in other words, the own education authority has full control of its own staff. In spite of general standards in respect of syllabuses and examinations, every own education department will have full self-determination in respect of its education programmes and the total functioning of all aspects of its education services in order to comply with the standards set. The essential co-ordinated handling of the few limited, but important, aspects of general education do not, therefore, detract in any way from significant self-determination in respect of education as an own affair. The co-ordinated general education policy is in the interests of the maintenance of standards in all education departments and is therefore in the interests of all population groups as well.
Finally, I should like to indicate that I intend moving amendments to certain clauses during the Committee Stage with a view to greater clarity. These amendments will appear on the Order Paper for Monday.
Mr Speaker, we listened very attentively to the exposition provided by the hon the Minister. In the first place, however, I want to apologize for the absence of our primary spokesman on national education, the hon member for Bryanston, who, due to unavoidable circumstances, could not be present this evening. He asked me to convey his apologies in this regard to the hon the Minister.
As the hon the Minister indicated, the Bill gives effect to the fundamental principles in respect of education as embodied in the constitution. In that sense this is the first time we have had the opportunity to see how co-ordination and synchronization is achieved in respect of a specific matter involving both own and general affairs.
It is not relevant here, and accordingly I do not want to spend a great deal of time on it, but in the nature of the matter the hon the Minister is acquainted with the primary premise adopted by this side in respect of education, because we have stated it here on several occasions. There is our belief in the absence of any form of discrimination or enforced separation, and the desirability of a single Ministry of Education. However, we must be realistic and accept that the constitution exists and that the constitution provides for education as an own affair, together with the general principles specifying that in certain respects it can also be dealt with as a general affair. In view of the circumstance that we have to accept the factual situation, it is our task as an Opposition to ensure that the implementation of the constitution and of these things is effected in the best possible way and in such a way as to satisfy the largest number of people in South Africa. Basically, then, that is our constructive point of view with regard to this matter and also with regard to this specific Bill.
As far as this side of the House is concerned, we wish to intimate hereby that we support the Second Reading of the Bill, because, taking into account the principles I have stated, we find that the Bill contains much that is positive in the implementation of the principles embodied in the constitution.
As the hon the Minister explained, and as is evident from the Bill, effect is given in clause 2 to those general affairs that are specified in the constitution, in other words, the general principles to which the provision of education as an own affair is also subject. It is cause for special gratitude that in the framework of principles stated in clause 2(l)(d)(i) to (xi), what is in fact an ideal position is stated, and one could even, perhaps, call it an idealistic position. For the first time broad premises are embodied in legislation, in this case clause 2(l)(d). One can say without fear of contradiction that these broad premises ought to be acceptable to all the population groups in South Africa and that they ought to be supported by every thinking person in South Africa who is interested in the education of our people.
In this regard I wish to convey my special appreciation for the work done in this regard by the De Lange Committee and other committees, investigations whose recommendations have been embodied in this Bill. The clear framework of principles in clause 2 is certainly not often encountered elsewhere in the world. The principles clearly provide what our education must aim at and what ought to serve as points of departure in our educational system. We are sincerely grateful that this has now been given statutory form.
I took cognizance of the hon the Minister’s reference to the other four points embodied in the report of the De Lange Committee which were not included in the Bill. I shall come back to one of these points later, particularly the provision of bases for distinctions in own education. In the Committee Stage we shall ask whether it is not desirable—in spite of the hon the Minister’s explanation—to make provision for this, too, in this Bill. However, this is a point we can deal with in greater detail at a later stage.
The hon the Minister referred to the creation of various bodies such as the replacement of CES and RECES by other bodies, and liaison machinery which is to be established, and this is indeed an important development. This holds out the prospect that it will be possible to establish a system of education in South Africa that could certainly be compared with the best in the world. In addition, the hon the Minister has to consult with a large number of people with regard to the exercise of his macro-economic and educational function in this regard, inter alia with the professional people and others. This is a very important principle that is being incorporated here, and one that we wholeheartedly welcome.
During the Committee Stage we shall propose various amendments after having made a study of the hon the Minister’s amendments which will appear on the Order Paper on Monday. We should like to ensure beyond all doubt that Blacks, too, are to be included. It is evident from the Bill that this is so, but there are a few points in this regard which are not clear and which we should like to have cleared up.
We should also like to see the bodies to be created—more specifically the Council for Education—being fully autonomous and having the right to nominate their own chairman and executive officers. As regards the performance by the council of its functions, we feel that it is important that the impression should not be created that it is merely a minion or tool of the Minister. It must be capable in its own right of contributing to the system of education.
We shall also propose in the Committee Stage that consideration be given to providing that these bodies have to report to Parliament on their activities every year. Nowadays this is the situation in respect of various bodies operating in the field of education.
We are also particularly interested to know how this can be applied in the national states. The situation, as hon members are fully aware, is that education is one of the functions entrusted to the legislative assemblies of the national states, and that technically speaking, this Parliament does not have the right to pass legislation applying to the sphere of education in the national states. It seems to me that it is imperative that steps be taken in the broad framework of this legislation to bring the education policy of the national states into line, in one way or another, with the policy stated in this Bill. We should very much like to hear from the hon the Minister what possibilities exist in this regard and whether it is possible for him to come to some agreement with the governments of the various national states in this regard.
As far as the four independent states are concerned the position is, as the hon the Minister indicated, that for the most part matters can be arranged by way of interstate agreements. However, that is beyond the scope of our discussion of this Bill.
By way of these introductory remarks we on this side of the House wish to say that in certain respects we find the Bill quite acceptable. We want to congratulate the hon the Minister on introducing this Bill and on the clarity with which all aspects have been stated. We are particularly grateful that liaison is assured with all the education departments in South Africa, including the Department of National Education—the macro education department—the other three departments for the various population groups for which provision is made in the constitution, as well as the Department of Education and Training. [Interjections.] We are particularly grateful that the Department of Education and Training is also being actively involved here and that no legislation will be introduced without consultation with the ministries of the various education departments. We take pleasure in supporting the legislation.
Mr Speaker, I want to thank the Hon member Prof Olivier sincerely for the support the official Opposition is giving to this legislation. Of course we are aware, as the hon member also indicated, that the official Opposition has a specific standpoint in respect of education, namely that they want integration in education and advocate one ministry.
I want to praise the hon member for accepting the reality of the existing Constitution and that this education policy has to be confirmed within the reality of the existing Constitution. This is of course the only sound assessment that one can make in the factual situation in which we find ourselves. I agree with the hon member that we should try to confirm this education policy within the existing Constitution in the interests of all the groups that have to receive education.
I also appreciate the hon member accepting the 11 principles contained in the De Lange Report, in the White Paper and also in the legislation. I am also grateful that he said that they form an ideal position in the framework and that they ought to be acceptable to every population group and every right-minded person. I want to agree with him, for it is of course true that if one assesses these principles from an educational point of view, one inevitably concludes that the principles, seen from such an angle, are very definitely and thoroughly based on providing everyone in the country with education. If I understood the hon member correctly, he was making a mistake, I think, if he thought that the other body, the South Africa Council for Education and also the Committee of Heads of Education Departments, were replacing CES and RECES. CES and RECES will continue to play an extremely important function. But perhaps it was a slip of the tongue on the hon member’s part.
Mr Speaker, I have no doubt that this evening is for us an extremely important moment in regard to the future of education in this country. To me, this is an historic occasion because after this education will never be the same again. It is essential that we should, once and for all, regard education for all population groups, regardless of race or sex, as important interconnected components. Education is a general affair in respect of many important aspects. As is also indicated in the Constitution, however, education is an own affair in respect of certain other components which are also very important. Let me say at once to the CP that it will not avail us to reflect once again during this Second Reading debate on how many things in education are own affairs and how many are general affairs. [Interjections.] It will not avail us to try to ascertain this. The fact of the matter is that it depends on the weight of each of those components.
All the products of these four educational systems find themselves within the same labour market and it is quite simply practical for us to ensure that we give the four important aspects, to which the hon the Minister also referred and which are general affairs, the necessary attention in the interests of everyone living in this country. As the hon the Minister indicated, however, it is also true that that general legislation does not affect the distinctiveness of each separate educational system. The new Constitution provides that all education on all levels is an own affair, but subject to any general law pertaining to the four matters, as the hon the Minister also indicated. It is also true that the Government has pledged itself to the provision of equal educational opportunities, including equal educational standards for each inhabitant, regardless of race, colour, creed or sex.
This Bill grants the Minister responsible for general education affairs the right to determine the general policy in regard to all education—formal, non-formal as well as informal—in the Republic of South Africa. However, it is subject and liable to very important provisions, as the hon the Minister also indicated. If we want to understand this entire matter properly, it is necessary for us to examine these matters as well.
The Minister responsible for general education matters may only determine the general policy in respect of the four matters specified in the Constitution, namely the norms and standards for the financing of the running and capital costs of education; salaries and conditions of employment of staff; the professional registration of teachers and the norms and standards for syllabuses and examination and for certification of qualifications. This policy applies to all population groups, in other words, to Whites, Coloureds, Indians as well as Blacks, as the hon member Prof Olivier also indicated.
However, there is a second very important provision, and that is that the general policy should be prescribed within the framework of the 11 principles for the provision of education as contained in the White Paper and also in this legislation. Then, too, there is a third important component, and that consists of the conditions laid down for the Minister responsible for general education affairs when he determines the policy. This policy, as regards the financial aspect, that is to say (a) and (b)—the norms and standards for the financing, running and capital costs of education and the salaries and conditions of employment of staff—can only be laid down with the consent of the Minister of Finance, for in the nature of things these have an important financial outcome.
However, there is in addition a fourth matter to which attention is being given, namely that the policy determined by the Minister is determined after consultation with the four other Ministers—White, Coloured, Indian and Black—consequently, for each of the separate population groups. Furthermore, it is also determined after consultation with the South African Council for Education with regard to education at school level and, which is also important, the training of teachers. In addition it can only be determined after consultation with the Advisory Council for Universities and Technikons in respect of training and related matters at these institutions. In addition the Minister may also make use of the extremely important advice which he may receive from the Committee on Education Structures, and its research arm, the so-called CES and RECES.
Since this policy affects all education in our country, it is logical that every Minister of a department of State responsible for education will operate within the specified policy as far as matters applicable to the population group in question are concerned. As the hon the Minister also said, however, the relevant Minister of Education of a specific population group may introduce legislation for his own education as long as it is in accordance with the general policy laid down by the Minister responsible for general education affairs. To ensure the necessary liaison and order, clause 2(5) makes it impossible to introduce any legislation on policy, as provided in clause 2(1), including education at a university or technikon, in Parliament except after consultation between the Minister responsible for general education affairs and every Minister of a department of State responsible for education.
With the appearance of the White Paper on the provision of education the Government stated its standpoints in principle, which served as points of departure for the provision of education, and did so very clearly. These standpoints in principle are consequently stated as a framework for the Minister in clause 2, a framework within which he shall determine his policy in future.
I should now like to refer briefly to a few of these standpoints in principle, because I consider them to be exceptionally important. The first is that equal education opportunities and education standards do not necessarily imply equal quality of education. We so often make the mistake of thinking that when we speak about equal education opportunities and educational standards, these inevitably imply an equal quality of education as well. The quality of education is determined by a diversity of factors. It is determined inter alia by the qualifications of the teachers, the interest and teaching ability of teachers, the teaching aids at their disposal, the planning and quality of the administration from the highest controlling body down to each individual school, the discipline that is maintained in a specific school, the interest and involvement of the parents of the pupils in the progress of their children as well as in the activities of the school, etc. Apart from that, the need for finance in the education of each particular population group may be supplemented by the levy which each population group may impose in accordance with paragraph 11(3) in Schedule 1 of the Constitution Act.
We must strive for equal quality.
The hon member is correct that we should strive for equal quality, but we are being absolutely practical and realistic when we say at this juncture that the quality of education is not the same, for the specific reasons which I have already indicated. Equal education opportunities and equal education standards are not synonymous with equal quality of education.
The future therefore offers a challenge to the teachers of each population group, as well as to the relevant community itself to seek only the best for its own education. It is important to point out that the quality of education is at present not the same among the various population groups. However, it is important that the quality that has already been achieved by a specific population group can be developed further, despite the fact that the quality of the education of another population is lower, although the ultimate endeavour is that we should establish the same quality of education for all the various population groups. In addition it means that money made available for the Whites, for example, will not be reduced because the quality of education of another population group is lower, and so that the education of that population group can be placed on a par with that of the Whites, at the expense of the quality of the education of the Whites.
In addition clause 2(l)(d)(iii) accords recognition—this is another important principle—to the freedom of choice of the individual in respect of the attendance of a school. However, I want to issue a warning that there are people who go no further than this and who depict this as meaning that in future every parent will himself be able to determine to what school his child may go. But that is not the whole story. It is very clearly set out in the White Paper that, while the freedom of choice of the individual in respect of the attendance of a school is recognized, it is only recognized subject to the provisions of other laws pertaining to the attendance of a school. Now we know that we have other laws in respect of the establishment of schools for the Whites, the Coloureds, the Indians and the Blacks. These entail inter alia that the department in question shall administer, maintain, control and subsidize education in respect of a specific population group. Consequently there is the freedom of choice of the individual in respect of the attendance of a school, but this is subordinated to existing laws in respect of separate schools for the separate population groups. Consequently there is no question of mixed schools, as hon members of the CP so frequently allege.
What about the private schools?
I am coming to that in a moment. Just listen. To elevate the exceptions in respect of the admission of people of colour to certain schools, which has for years now been the general practice, to a principle is quite absurd. The hon member who made the interjection was in the House when consent was granted, under certain conditions, for Coloured pupils to be admitted to private church schools. This is the policy that has been applied for a long time now, and at the time all the hon members of the CP who are now sitting over there, supported it unanimously. That includes the hon the leader of the CP.
You leave me alone.
The hon member for Waterberg need only tell me whether it is true or not.
It is also of cardinal importance that the provision of education should take the manpower needs of the Republic of South Africa into account. By giving pupils and students academic training only, without linking such training to the labour requirements of this country, we are wasting manpower, and we simply cannot afford that any more. The same applies to all the population groups— White, Coloured, Indian and Black. When a person has been trained and is subsequently unable to find employment in his field of training, it creates frustration which will lead to labour unrest and insurrection. The misconception that technical training is inferior can no longer be tolerated.
A further principle is that the State accepts responsibility for the provision of formal education. The individual, the parents and the community, however, definitely have a responsibility which also leads to a say. Involvement of the community in the provision of education can only lead to a higher quality of education. If the community and the parents make a financial contribution, it is in my opinion only fair to give them a say, within limits, in specific spheres in the provision of education.
The final principle to which I want to draw attention—and this is important—is that it is essential that the professional status of the teacher and the lecturer should be recognized. Everyone in this House and outside will realize the importance of the teacher, but I am afraid that not everyone accords the professional character of the teaching profession the necessary recognition. Now it is indeed true that, as the former hon Prime Minister said, the status of a teacher lies with the teacher himself.
I want to add, however, that it is very definitely essential, too, that the community in general should recognize the status of the teacher. The community should see him as a professional person, as a member of a professional body, as a person who finds himself on a professionsl body on the grounds of professional qualifications, and who also acts accordingly. I think the time has now arrived for us to accord ever greater recognition in the Republic of South Africa to that professional character of the teacher.
Clause 3 and clause 4 of the Bill make provision for the establishment of an SA Council for Education, which will have to advise the Minister of general education affairs on matters affecting general affairs in education, as already formulated, and furthermore to advise him in regard to matters pertaining to co-operation. Now it is important that that council should also be composed of four representatives from the organized teaching profession. 1 therefore want to point out that in accordance with the definition in clause 1, the teaching profession also includes the professional bodies. Of course it also includes the professional bodies and teachers’ association of all four separate population groups. I want to express my thanks for provision having been made in the Bill under discussion for the organized profession to obtain representation on all the important bodies and committees that are being established. There was a time when the teaching profession felt that they were not being accorded recognition, as far as the determination of policy was concerned, in regard to certain matters that affected them. For that reason I should like to thank the hon the Minister for the fact that we now find provision being made in this legislation for the organized teaching profession to receive representation on the separate bodies that are being established.
Clauses 5 and 6 make provision for the establishment of a Committee of Heads of Education Departments with the object of advising the Minister responsible for general education affairs on policy matters, and also of effecting co-operation between the respective departments of State responsible for education.
In conclusion I want to express my conviction that this Bill, when it has been passed, will establish the necessary machinery and the necessary co-ordination between the respective departments of State responsible for education and the Department of General Education Affairs. In addition—and this is very important; in fact, I want to emphasize this—every population group still retains the right to manage its own education in accordance with its own wishes and desires, within the general policy established by the Minister of General Education Affairs, after consultation with each of these specific Ministers. Inherent in the new dispensation, therefore, is the possibility of eventually offering equal education opportunities to all the population groups, and of ultimately, it is to be hoped, ensuring all the various population groups of education of an equal quality. The quality of the education offered lies in the hands of each population group itself, and that is the challenge facing each specific population group.
Consequently I should very much like to support the measure under discussion.
Mr Speaker, I should like to link up with what the hon member for Virginia said by indicating that I fully agree with him when he says that hereafter education will never again be the same as it was previously. That is the case, because for the first time in this country’s existence, the first time in the Republic of South Africa’s existence, the Whites of this country will not have an exclusive say in their own education. [Interjections.]
Mr Speaker, one can compare this whole Bill to a dog tied to a pole by a chain. That dog can bark and bite and carry on as much as it wants to, but it cannot go any further than the chain, which binds it, will permit. [Interjections.]
Order! Hon members must please afford the hon member for Koedoespoort the opportunity to go on with his speech.
Mr Speaker, I find it simply incomprehensible that the hon member for Virginia can argue that one can divorce the quality of education from norms and standards. The norms and standards of education do, after all, determine the quality of the education that is furnished. If the norms and standards are determined, the quality of education cannot but accord with those norms and standards; nothing more. [Interjections.] It has already been stated what this Bill aims to achieve …
Is that really the best you people can do in this debate?
No, I am still coming to many things with which to edify the hon the Minister. [Interjections.] Before I come to them, I just want to say that I can fully understand the PFP’s standpoint. This evening they find themselves in a joyful situation. In the old days, at weddings, a telegram was always sent that read: “Oh bones rejoice, for the lost rib has been found!” The official Opposition is rejoicing at this Bill, because this evening the policy they have been advocating throughout the years is being presented to them on a platter. The lost rib has been found!
This legislation is a direct result of the new constitution, in particular Schedule 1 of the constitution. It is intended for the new dispensation and is in every respect aimed at the new constitutional dispensation. Some time last week an hon member opposite told the House that 3 September was actually going to be the spring heralding the new dispensation. I want to tell you, however, that 3 September, when the new constitution comes into operation as far as education is concerned, will be the longest, the darkest and the most sombre northern polar night that White education has ever experienced in this country. [Interjections.]
Firstly, this legislation is giving substance to an education department that will serve as an umbrella department for general education affairs, and that is of fundamental importance, not only to the Whites, but also to the Coloureds, the Indians and the Black people, because they are also involved in this legislation. [Interjections.]
Mr Speaker, it seems to me there are many Speakers in this House this evening. I hear somebody telling me to sit down. [Interjections.] Fortunately you have not yet told me to do so.
Order! I do not want to put a damper on the spirit on the debate unnecessarily by prohibiting interjections, but if hon members go on in this fashion, they will leave me no choice. I ask hon members for their co-operation as far as this is concerned.
They think White education is a joke. [Interjections.]
Order! I am asking this of every hon member in the House. Those who do not want to co-operate are welcome to leave the Chamber. The hon member may proceed.
What I have just said can be compared with what is contained in clauses 2(5), 3(c) and 4(b). Hon members do not, however, know what this is all about, because they were not listening. They would do well, however, to consult my Hansard speech. As on comparison use must also be made of the legislation in connection with the Universities Advisory Council, the legislation dealing with the Committee of Education Heads and the legislation dealing with the Committee of Technikon Principals. The White Paper must also be used as a comparison. In that White Paper it is stated very clearly that such a central department would be instituted, a department that would have to exercise certain functions that would be binding on other education departments—the so-called departments for own affairs. Having this department makes it inevitable that there will have to be a Minister for this department who will have to serve in the racially mixed coalition Cabinet and who will be entrusted with general education affairs, as set out in this legislation. This legislation grants that umbrella Minister special powers on which I shall focus attention at a later stage.
Secondly, the Bill gives substance to totally integrated education for Whites, Coloureds and Indians on a national basis.
That is a figment of your imagination.
It is not a figment of my imagination; it is the truth embodied in the Bill. This is a fact the hon the Minister and hon members are, in a roundabout way, trying to gloss over and explain away as if it is not the case, as if with own affairs there will still be an independent education department for each of these population groups, as if this general department, which will be binding on the others, does not exist and will not exist.
In terms of clause 2 the Minister of general education affairs determines the general policy in regard to formal, informal and non-formal education, in other words the total spectrum of education in the Republic in regard to those matters that are called the norms and standards for the financing of running and capital costs of education, salaries, conditions of employment of staff and the professional registration of the teachers, and then the norms and standards for syllabuses, examination and the certification of qualifications.
I know that the hon the Minister is going to argue that here it is merely a question of attention having to be given to the norms and standards that are set, but these norms and standards do, after all, aim at introducing parity into the education of Whites, Coloureds and Indians, at bringing about some form of equality. So these norms and standards that are laid down are surely of fundamental importance. It is not, after all, merely something that is being given, something the own affairs’ education departments can simply ignore. They must take this into consideration—they are bound by this and compelled to adhere to those standards and norms.
I want to remind the hon the Minister of the fact that on 24 February of this year— see Hansard, column 1717 and the columns that follow—he placed strong emphasis on the necessity for the co-ordination of standards—examination standards, standards for certification, standards for conditions of employment—in order to ensure qualification certificates of equal value with a view to the competition in the labour market and so that in the labour market there will not be different qualifications for the same standard because people find themselves with certificates of a lower or higher standard when competing for the same labour.
I therefore want to say this evening that if it were possible for each own affairs’ education department, regardless of the norms and standards laid down, to surpass these and establish higher norms and standards, whilst the others do not reach this level, and merely stick to the norms and standards laid down, this would in any event mean that one would not have certificates of equal value at the labour market level. [Interjections.]
I have no doubt that the norms and standards that are going to be laid down will be completely binding and because if that were not so, we would not have certificates of equal value that could be used in the labour market.
Clause 2(1) provides that this must be so, that this must be maintained at all times to ensure parity and equality. It is completely comprehensive. It covers formal, informal and non-formal education and relates to the vitally necessary finances. It relates to the salaries of teaching staff, conditions of employment and qualifications. It is all very well the hon the Minister saying, in his Second Reading speech, that teacher training and so on is an own affair, but those teachers must register with the general department. The general department determines the registration requirements of those teachers. So a teacher can be trained, but it is then a general department that makes that teacher available for employment in accordance with conditions and on a salary scale laid down by that general department. Own education departments cannot lay down their own conditions of employment, nor can they determine their own salary scales.
Mr Speaker, on a point of order: Is the hon member not dealing with a Bill other than the one before the House. [Interjections.] Is it permissible for an hon member to speak about an Act that only he knows anything about? [Interjections.]
Order! The hon member for Koedoespoort may proceed.
In the light of all this, it is clear that the own affairs’ departments are going to be nothing more than functionaries of the general department, in accordance with precepts imposed from above. They are merely going to function instrumentally and will have to implement whatever is prescribed to them from above. Moreover, in the new dispensation own education will only be a subdepartment in a single administration. The administration will be equal to a Government department.
Today we are still in the fortunate position of having the Department of National Education as a full-fledged Government department and not merely a subdepartment as, in the new dispensation, White education will be in terms of this Bill. [Interjections.]
Thirdly this Bill, with its integrated educational policy, is diametrically opposed to separate development and self-determination, even though the hon the Minister pretends that the various education departments will retain these qualities. The integrated education to be allocated to this department is opposed to the tried-and-tested standpoint of ethnic-oriented education in which a specific population group lays down its own policy, norms and standards, syllabuses, etc, according to its own wishes, and not as prescribed to it from above by an umbrella department.
Only old Bessie believes you. [Interjections.]
Mr Speaker, on a point of order: May the hon member for Vryheid refer to another member of this House as “old Bessie”?
Order! Hon members must not refer to other hon members by name. Hon members know what the provisions of the Standing Rules and Orders are.
This Bill now places us in a situation in which the school will merely be a knowledge factory, without having any task of educating, shaping and building up the character of individuals within the ethnic milieu.
Order! I am afraid the hon member is not discussing the provisions of the Bill now.
Let me explain why I am saying this.
Order! The hon member may address me, but I must point out to him that schools and their functions are not dealt with in this Bill.
Sir, that was merely an introductory sentence to indicate what is happening here.
Order! The hon member may proceed if he can convince me that he is still discussing the provisions of the Bill.
The educational principles, as set out in the White Paper, are not being incorporated in this Bill. Christian national education and mother-tongue education are not being embodied in this Bill. What is, in fact, embodied in the Bill are what are called “principles for the provision of education” in the White Paper, but rather what are merely called “principles” in the legislation. The words “for the provision of education” have been omitted. So the educational principles included in the present national education legislation, which we had the courage and conviction to incorporate in that legislation, is not being incorporated in this legislation. It is lacking in this legislation. It could be argued that this could be read into the “principles for the provision of education”, but these principles for the provision of education incorporated in the legislation are neutral principles. They are actually guidelines which are totally neutral and which apply to the education of any society, population group or group of people.
Mr Speaker, may I ask the hon member a question?
I do not want to answer any questions now.
Thirdly, there is another aspect also included in this Bill, and here I am referring to the whole question of co-operation, as reflected in clause 2(4) and (5). The emphasis falls on the advice on co-operation, and in this connection co-operation can only take place by way of consensus. Surely that is a consensus dispensation. Consensus is the search for agreement. To obtain co-operation on educational matters, the various population groups and education departments would have to obtain consensus. This would mean that concessions would have to be made and that compromises on educational matters would have to be reached, something which would have to take place to the detriment of the own education of each specific population group. This is embodied in a neutral education Bill from which education principles are purposely being omitted. It is still included in the White Paper, that is true, but it has been left out of the legislation.
The hon the Minister will try to circumvent these education principles that have been omitted by saying that the Whites own education department can lay down these principles for itself.
They have already been laid down. They are embodied in the legislation.
They are not. The Bill is a neutral Bill. [Interjections.] Mother-tongue education is, according to this Bill, merely a practical method of instruction, but not a principle. It is merely a learning-aid matter. What is being incorporated in the legislation? Merely these neutral principles.
I can quite understand educational principles having to be omitted, because Christian national education is going to be a problem if it has to be incorporated, in this umbrella legislation, as an educational principle in the Republic of South Africa. [Interjections.] Education without educational principles, with an integrated policy bound by general laws which are consensus-seeking, interferes with the self-determination of the education of Whites and with that of each of the other population groups.
Mr Speaker, may I ask the hon member a question?
I do not want to reply to any questions. [Interjections.] For the first time in the country’s history White education is going to lose its self-determination. Up to now it alone had a say in its own policy, finances, standards and norms, syllabuses, examinations, teaching qualifications, teacher training, registration, etc. It alone had any control of that, with no other population group having a joint say as that was concerned. Let any hon member deny that if he wants to. In this legislation provision is not being made for those things that are important to us in education, nor are they being reserved for us in this legislation. What is not embodied in this legislation, the hon the Minister will find it difficult to have embodied in the racially mixed dispensation in future. The SA Council for Education is going to be a consensus institution, and in terms of this legislation its prime function will be to achieve co-operation amongst the respective population groups. It is a racially mixed council that is going to function in terms of neutral legislation and can therefore not prescribe anything but neutral education.
If this Government still wants to maintain separate development as a policy in education, too, proclaiming to the outside world that that is its policy, that education is still based on separateness, this legislation is a complete denial of that, and consequently, on behalf of the CP, I move the following amendment:
Mr Speaker, in the first place I want to react to what the hon member for Koedoespoort said about the norms and standards for syllabuses and examinations and also about the certification of qualifications. The hon member makes the statement that as far as certification and examinations are concerned, a population group can achieve greater heights and as a result may be in a better position that the other population groups. In this entire process the Government has committed itself to a policy of equal education as far as possible. Just as we wish the Whites to have an educational system in terms of which we want to, and shall, negotiate only the best for them, in the same way we believe that the same should be done in respect of the other population groups.
The hon member speaks about this Bill as if it gives effect to integrated education in South Africa. If this is integrated education, then surely that means that we are going to have a system in which everyone must be accommodated in the same schools and the same universities at all levels of education. That is how the hon member argued. I want to ask him whether he is aware that at certain universities, students have already been accepted who do not belong to the colour groups for whom those universities were originally established. I also want to know from him whether his party accept that principle.
Mr Speaker, the hon member says he does not accept it. I just want to refer him to a letter written by the department in which permission is requested to allow a certain person to attend a White university. At the bottom of this letter is written the following recommendation by the then Minister: “Aanbeveling goedgekeur. As dit ordentlik is, is daar myns insiens geen rede waarom hierdie Minister se seun nie daar sal tuisgaan nie.” This concerns the residence of one L W Matanzima.
Order! What principle of the Bill is the hon member dealing with now?
Mr Speaker, I am merely replying to the hon member’s statement that this Bill will lead to an integrated education system. I am simply trying to prove that in the past they implicitly agreed to an integrated system by virtue of the signature of the hon member for Water-berg on this letter. The date is 25 April 1979.
Order! Have the hon member for Koedoespoort and the hon member for Umfolozi finished their dialogue now?
Mr Speaker, on a point of order: The hon member just attacked me …
Order! I asked the hon member whether he and the hon member for Umfolozi had finished their dialogue now.
I am finished with him, Sir.
And the hon member for Umfolozi?
For the moment, yes, Mr Speaker. We shall pursue it later.
The hon member for Gezina may proceed.
By means of this Bill we have at last reached an important milestone in education in South Africa which was a long-cherished ideal. Many man-hours have gone into the struggle to reach this milestone. A great deal of spadework, in the form of investigations and research, preceded this measure. Here we have in mind, for example, the HSRC report and the work of the special task group in this regard. In this regard it was shown once again that education is not static, but is constantly seeking, in a revolutionary fashion, new approaches and modernization. In the second place, effect is being given to the principle that the Government has committed itself to, viz equal education for all population groups. There is an endeavour to bring about equal education opportunities for every inhabitant of the Republic, irrespective of race, colour, belief or sex. I am of the opinion that this point of departure is the foundationstone on which this measure is based. Equal education opportunities can now ultimately only become a reality if co-ordinated attention is given to certain matters. In order eventually to achieve equal education opportunities, there must be a co-ordinated policy with regard to norms and standards for the financing of current and capital costs of education. I wish to dwell on this for a moment.
The financial demands that education is going to set the Treasury in future will increase phenomenally. This is something we must accept. We certainly cannot evade this or run away from it. Therefore I recognize that increasing demands are going to be made for funds for education. Clause 2(l)(a) sanctions a broad framework within which funding for each education department will have to be done. This is not integrated education. If one bears in mind the fact that education has a built-in annual growth potential that it will be difficult to cope with this overall policy for the financing of the current and capital costs of education, it will become increasingly necessary in future for the involvement of the parent and the community to play a role. In my opinion, formal education is primarily a function of the State. It is certainly the duty of every state to ensure that education is done full justice to in the state economy. This is also spelt out in the 11 principles. In the same way, the parents and the community are also involved. The parents cannot dissociate themselves from the education of their children. They, too, have a responsibility they must accept. This includes a financial responsibility. These financial obligations or responsibilities will increase in future. The parents will have to recognize this fact.
There is a community involvement as well. Because education is community-oriented, even though the members of the CP seek to deny and disparage this as if nothing of the kind existed in this legislation, an appeal will be made to the community in question, too, to accept more responsibility and obligations in respect of financial contributions. The community in question cannot dissociate itself from its children’s education. I really want to plead that the various communities accept this involvement. Therefore it is as well that education be dealt with as an own affair in the new dispensation. We must not try at this point to harm education by disparaging and casting suspicion on separate education for every population group and by contending that own affairs are irrelevant in this new dispensation, and by disparaging that idea. For the Whites, their education is of considerable importance and it must be cherished accordingly. In the same way I believe that education is important to the other population groups, and they will jealously watch over their own education and how it is dealt with in future.
Moreover, this Bill provides, in clauses 3 and 5, for advisory bodies, viz the SA Council for Education and the Committee of Heads of Education Departments. These bodies, together with CES and RECES, must advise the Minister in charge of general education affairs and/or the various Ministers of the various education departments. Discussions take place here. Negotiations take place here. In the new dispensation we are entering, the importance of discussion and deliberation should not be under-estimated. On the contrary, I think it should be encouraged. The opportunities for that discussion to take place must be created. The degree of success eventually achieved will depend on the mutual co-operation and the willingness to co-operate of everyone involved in education. Education is the most precious treasure of a people or population group. It must be cherished and treated with care. This Bill creates the opportunity to regulate the education of each group accordingly, to achieve co-ordinated uniformity and to incorporate equality so as to afford everyone in South Africa the opportunity to receive maximum educational benefits. However, recognition is also accorded the built-in diversity of education of the various population groups and that will be taken into account in accordance with the concept of own affairs as far as it applies to education.
We are very pleased with this fine Bill which is now at last giving effect to all the hard work done by people outside this House, but also by the department and the Minister himself. We therefore express our thanks for the fact that we have reached this milestone in the history of education and we also wish to argue that we ought not to use the fine principles embodied in this Bill to make petty political capital and by so doing, do education as a whole incalculable harm. We take pleasure in supporting this Bill.
Mr Speaker, I follow very gladly on the hon member for Gezina. I should also like to add a few words to what the hon member has said regarding the financing of education. As I have said previously elsewhere it is important to spell out a lot more clearly how the financing of education within the parameters of an own affair, particularly since it is community based and parent based, will be achieved. I believe we do accept fully the achievement of common norms in respect of the financing of running and capital costs. What interests us in this party is of course the fact that the more one allows a community and parents to contribute towards education, the greater is the possibility of expanding the gap in the expenditure of education, rather than lessening it, which, we in this party believe, is all important.
I think, Mr Speaker, it behoves me to say a few words about what is, I believe, a fairly extraordinary speech delivered by the hon member for Koedoespoort. I agree wholeheartedly with the query raised by the hon member for Virginia because there were times when I personally wondered what Bill the hon member for Koedoespoort was indeed discussing. It is quite clear that what he was saying—and I shall deal with that a little later again—and also what he was ascribing to this Bill can certainly not be seen as representative of the point of view of hon members in these benches. I certainly do not believe that this Bill fully sets out what is in fact PFP policy and I will elaborate on this point somewhat later in my speech. I also certainly do not believe that the White Paper makes mention at all of a central department of education. It is nowhere referred to in that White Paper. The reality of fully integrated education, in spite of what the hon member for Koedoespoort says, is not possible in terms of this Bill. It is simply not possible because reference is made in the Bill of the separate population groups in South Africa. One finds that reference throughout the Bill.
That brings me now to the very telling question in educational circles. That is the whole question—and one can only appropriately describe it by using the Afrikaans term because it does not translate meaningfully into English—of “volksgebonde” education. Here, I believe, we have the key to one of the problem areas which is going to exist under the new dispensation, particularly in the field of education. That problem is going to affect the relationship within particular population groups in the event of clashing views on education and on educational philosophy. Finally in connection with the speech delivered by the hon member for Koedoespoort, I should like to refer to his remarks regarding the so-called neutral principles contained in this Bill. As far as I am concerned, there are no neutral principles in this Bill. The principles set out by the original committee of the HSRC, and then in the White Paper, and afterwards in this Bill are framed to fit into the context of the situation in which we find ourselves in South Africa. That was done by the group that worked on it, and subsequently by the party that drafted the White Paper.
Having said this, Mr Speaker, I should like to turn to the Bill itself and to make several remarks regarding the PFP’s attitude, already stated by the hon member Prof Olivier. We accept the Bill. We do, however, question several aspects of the Bill, and we will be moving amendments in respect of those aspects when we reach the Committee Stage.
First of all, I think we need to make quite certain that when we are talking about a Bill that sets out national policy for general education affairs we must ensure that we know what education policy is and who formulates it. Education policy is not only formulated in this House. It is also formulated by the officials who have to carry out the policy, the teachers who have to participate in the carrying out of that policy and also the students and pupils who have to experience that policy. There is therefore no doubt that policy can be adapted all along the line. Whatever we set out in this Bill will be adapted all along the line. It is set out within a certain context, and the context of this Bill is the separate development policy of the governing party. That is quite clear. It sets out an apartheid policy in which the divisions of the departments of education in this country are based on skin colour.
You have just accepted that policy.
Mr Speaker, I am afraid that the hon member for Durban North possibly did not hear me clearly. What I said was that the policy of the NP is the policy of this Bill. We in the PFP say that we must recognize the reality of the constitution within which we have to work. That has been set out previously. The feelings of the people who have to carry out the provisions of this Bill when it is enacted are very important and must be taken into account. This context of general policy is important. We need to look at the numbers of people whom we are affecting. If we exclude—and I find this very unfortunate and we have an amendment which we will move in this regard—the Blacks in the National States, this Bill will directly affect 4 million pupils or students and approximately 170 000 teachers or lecturers. In the National States there are another 2,2 million pupils and 50 000 teachers. This means that over six million people in all will be affected by this Bill in one way or the other. Therefore, we have to look at national policy as it is being applied in terms of those figures.
I also think it is unfortunate that there is no reference in this Bill to any level of contact between the ministries of State of the Republic of South Africa in its central Parliament and the ministries in the National States. I should like to have seen that included somewhere in this Bill.
Looking at the principles in respect of the provisions of education I think it is important to point out that there is a variation between the principles accepted in the White Paper, the principles recommended in the report of the HSRC and the principles as embodied in this Bill. I refer particularly to principle No 3 which includes the words:
This was quite deliberately not in the original White Paper. However, I can understand the reason why it is included here because what the hon the Minister has done is to collapse into the principles the policy of the NP. We in the PFP object to this and we shall be moving an amendment in this regard. In the second instance, principle No 1 states:
I feel that it was put far more strongly in the original phraseology. It was put as being “the purposeful endeavour of the State”, and I think that we in this party are looking for that strength of enunciation. The hon the Minister also referred to the other general principles set out in the White Paper. The hon the Minister referred specifically to principles (d) to (g) on page 6 of the White Paper, and I should like to refer to one of these which we believe should be written into this Bill. There is reference to Schedule 1, clause 14 as possibly being a way out, but we believe that the following general area should be written into this Bill, namely:
This is the principle that is accepted by that party, and we would hope that that would be written into this Bill.
Very briefly on the establishment of the advisory committees, KOS and NAKOS—I use the Afrikaans because the English equivalents sound so much worse; CES and RECES do not have the same beauty of expression—I want to make one point and I think it is an important one. The hon the Minister should make quite clear the acceptability of multi-departmental groupings of teachers’ organizations. Non-racial teachers’ organizations should be acceptable on those committees because it is a quite clear trend that the teachers’ organizations are moving in that direction.
In so far as the South African Council of Education is concerned we believe quite clearly that the appointments and the numbers on that body need to be re-examined and the whole question of who are experts and the spread of people within that council we need to examine very closely. We need to ensure that all population groups in South Africa are represented and certainly I believe that if the National States are going to be participants within the general policy of education in South Africa, there needs to be some representation here. I believe that the South African Council of Education and the De Lange Committee recommended that it should be a powerful body, should have its own secretariat. I do not think it should be linked to the ministry of general affairs because at times the South African Council of Education is going to take issue with that general ministry.
Lastly I should like just to make mention of the Committee of Heads of Education established under clause 5 of the Bill to ensure that the representation that takes place on that Committee of Heads of Education is as broad as possible and that the Committee of Heads of Education and the South African Council of Education should be required to report to Parliament annually. These are further amendments that will be moved.
As I have made mention there are a considerable number of amendments which this party will move to this Bill, but we believe that in principle we have here the kernel, the possibility, of an umbrella ministry of education. The hon the Minister obviously is not going to see it that way but we in these benches see it as a step in the right direction albeit a very small step.
Mr Speaker, the hon member for Pinetown made certain statements and allegations in respect of connections between our education system and those in the national states. We agree that it will be necessary and that ways will have to be found of effecting a kind of liaison between education in the Republic and education in the national states and if need be, too, education in the independent Black states because they in their turn produce people who come and work here and will possess certificates which will or will not be recognized here. That is why it is important, and we cannot dispute it.
I should like to refer to the speech by the hon member for Koedoespoort. What an interesting speech it was! What an interesting introduction? He said that now, for the first time, Whites would no longer have a complete say over their own education. The hon member cannot count all that well. [Interjections.] What is the actual position? Who determines what the syllabuses in our White schools should be? Who determines what requirements should be laid down for university admission? Who determines what requirements should be laid down in respect of certification? The Joint Matriculation Board determines all these things, and the Joint Matriculation Board, for the edification of the hon member for Kuruman as well, does not consist of Whites only. I do not think the hon member counted correctly, I do not think he took the actual facts into consideration. The hon member said, moreover, that the Whites would not longer have a say of their own because Whites would no longer have full control over the funds that would be allocated. Does White education, which is controlled by provincial councils, at present have a full say over the money which they are able to spend in regard to education, or are they dependent on the central Government in respect of certain allocations or grants in the interests of education?
Is the central Government a White Government?
In any case, the fact remains that the Whites are not totally independent when it comes to the financing of education. The hon member had a great deal to say bout the “so-called” neutral education principles which were allegedly being laid down now in this Bill. He insinuated that these neutral education principles were the starting point for completely integrated education. What are the true facts, however? As long ago as October 1981 the HSRC tabled a report in regard to the provision of education. Immediately afterwards the Government tabled an interim memorandum in which 11 principles were accepted, principles that had been spelt out in the HSRC report. It is amazing how flexible the consciences of some people can be. From October 1981 to February 1982 those hon members accepted these neutral education principles, together with us, as if they were something wonderful. Now, however, they are no longer good enough. That is very interesting.
Since we are talking about integrated education and integration here, the hon member for Kuruman remarked casually across the floor of this House that this was total integration. I now wish to ask the hon member for Kuruman again—as I have already done previously—to explain to the House what he understands integration to mean. Is it integration in the sphere of education if every population group has its own Minister of Education controlling its own affairs in its own schools? Would the hon member be so kind as to clear the air once and for all by explaining what he means by integration, because then the hon member for Koedoespoort may perhaps come to realize what the integrated education to which he is referring is.
The hon member for Koedoespoort also made a few other very interesting statements. He alleged that the decisions of this Minister would be binding in respect of all education. Obviously the hon member has not read the Bill. [Interjections.] I say the hon member has not read the Bill. I wish to quote clause 2(1) to the hon member:
- (a) norms and standards for the financing of running and capital costs of education;
Sir, you must pardon me for quoting this in full because the hon member apparently did not read it. I quote further:
- (b) salaries and conditions of employment of staff;
- (c) the professional registration of teachers;
- (d) norms and standards for syllabuses and examination, and for certification of qualifications …
If it is indicated in the legislation on what matters the Minister may introduce legislation, how can the hon member now want to allege that everything which the Minister decides will be binding on all education? How childishly naïve a person can sometimes be!
There is also the complaint that the various education departments will now have to react according to what is dictated to them form above. That is also what the present position is.
Did the hon member not know that? [Interjections.] I should like the next hon member on that side who participates in the debate to tell us whether they concede that it will be possible that in the dispensation which they advocate, namely a Coloured homeland with its own education system, independent Black states with their own education systems as well as in independent Indian state with its own education system, that people from these states will come to seek work in White South Africa? Do they concede that here in White South Africa certain requirements are laid down in respect of certificates? How are they going to ensure, in their dispensation, that if a Coloured person from the Coloured homeland submits a matriculation certificate in White South Africa, it will be equivalent to the certificate which applies in White South Africa? How is control going to be exercised? How is that hon member going to try to ensure equality? I would appreciate it very much if only we could receive a reply to this question, because it is so essential. If they were to say that each could simply carry on according to his own standards and norms, they would also have to tell us what value they are going to attach to the certificates which are submitted by those who want to come and work here. If they are not going to do that, they must tell us what objection they are going to have to the idea that there should at least be a co-ordinating ministry which will ensure that the standards and norms are what they think they ought to be?
On this occasion I should like to express my thanks to the Minister for having come forward with this legislation in terms of which the principles are being laid down in legislation. I want to refer in particular to clause 2 (1) (v), which reads as follows:
Consequently the important principle is that education is not only what is communicated at school, at college or at university; it is more than that. Education embraces the formal, the non-formal as well as the informal, but the entire principle gives expression to the great pedagogic truth that education and training begins at the cradle and ends at the grave.
Mr Speaker, the hon member for Kimberley North asked whether the matric certificate of a Coloured from a homeland would be equal to the matric certificate for the rest of South Africa.
No, that is not what I asked. I asked how you were going to arrange it.
The hon member is asking me how we are going to arrange it. I want to know from him how they arrange it that the matric certificates of Bophuthatswana, Transkei, Ciskei and Venda are the same as that in the Republic of South Africa. Are they the same? [Interjections.] That hon member implements a homeland policy in respect of the Black peoples, but as far as the Coloureds are concerned it is wrong if they too, can lay down their own standards for their education.
No one said that it was wrong.
Apparently the hon member has not yet finished his speech. He wanted to know from us what integration was. The whole new dispensation from which this legislation arises is an integrationist dispensation.
Just listen to that! [Interjections.]
The hon the Minister of Health and Welfare says “Just listen to that!”, but let me quote what his bench-mate said. [Interjections.] The Minister of Law and Order said on occasion: “We are supposed to be introducing integration now”, whereupon Dr Hartzenberg replied “Yes, of course.” Then the Minister of Law and Order said: “Mr Speaker, I do not deny that. I by no means deny that there is a form of integration in this. Nor do I deny that there is a form of power sharing”. [Interjections.] I would therefore suggest that the hon member ask the Minister of Law and Order what integration means if at his advanced age he has not yet ascertained what it means.
No, you tell us!
Mr Speaker, the two education bodies being created by this legislation are integrated bodies. They can decide and advise. [Interjections.]
The hon member for Gezina referred positively to ethnically-linked education. The hon member for Pinetown disagreed with him on that score. Here we have the final legislation on education that will be piloted by a White Parliament. [Interjections.] I know how the hon member for Kimberley North and I fought for this Parliament to be a White institution, but we have now reached the point where this legislation on education will be the final legislation to be approved by a White Parliament.
Mr Speaker, may I please put a question?
No, Mr Speaker, I regret that I am not prepared to reply to questions.
When this legislation is amended on the advice of a multiracial council for education or on the advice of a multiracial Cabinet, in a multiracial tricameral Parliament and in multiracial standing committees. [Interjections.]
The hon member for Bloemfontein North recently said that consensus means agreement, wonderful agreement. I now want to ask the hon member for Kimberley North whether he is going to reach consensus in a multiracial standing committee between the standpoints of the PFP and those of the Labour Party of the Coloureds and the Indian parties. Is he going to reach consensus on ethnically-linked education in co-operation with all these parties? [Interjections.] I want to tell the hon member that once one is on the path of integration one can never turn back.
The hon member for Virginia said that after this education in South Africa would never be the same again. Funnily enough, that hon member and I have agreed on many things in the past, and we agree on this statement of his again tonight. This Bill is throwing the motley blanket of education over the corpses of own White, own Coloured and own Indian education. Hon members say that this umbrella Bill is a fine measure, but I want to reiterate that it is throwing a motley blanket of education over the corpses of own White, own Coloured and own Indian education.
The Zulus are coming!
I shall put a question about the Zulus in a moment. If someone had told me three years ago that the hon member for Virginia would assist in throwing over this motley blanket, I would have said that it was impossible. The new constitutional dispensation involves Whites, Coloureds and Indians. This Bill arises out of the new constitutional dispensation, but it makes provision for Whites, Coloureds, Indians and Blacks. This takes place in terms of clause 5. By far the majority of children at school in South Africa are Black children. The hon the Minister of Education and Training told the hon member for Koedoespoort a moment ago that his teacher’s certificate was awarded by a Black. [Interjections.] In terms of the new dispensation the Coloureds have their own Minister. The Whites and Indians each have their own Minister, too. I now ask the hon the Minister of Education and Training, if the Coloureds and the Indians have a Coloured and an Indian Minister respectively, whether it is right that he as a White can be the Minister of Black Education.
You are still going to be consumed with frustration.
No, I am pertinently asking the hon the Minister. Is it right that he as a White is the Minister of Education for the Blacks? If the principle is laid down in this Bill that the Coloureds must have their own Minister, and that he can be a Coloured …
But there are no Blacks in this Parliament.
The principle is being laid down in this Bill that there can be a Minister of Education for Coloureds and a Minister of Education for Indians. I am asking the hon the Minister whether the principle is wrong in the case of Black people.
Do you object to that?
I shall tell that hon member later precisely what the CP’s policy is. The principle being laid down in this Bill is that there will be a White Minister of Education for own affairs. There can also be a Coloured Minister of Education for own affairs and Indian Minister of Education for own affairs. Is the NP going to extend this principle to the Blacks as well? I am not being given a reply.
The hon member for Gezina asked whether the CP was in favour of people of colour being able to study at White universities. The CP does not begrudge the Coloureds qualifying themselves for the highest academic post in every field of study. The CP does not begrudge the Indians and the Black people qualifying themselves for the highest academic posts they can reach. The CP says that Coloureds, Indians and Blacks should be given the opportunity to qualify themselves for the highest posts at their own universities, colleges or technikons. Is that the NP’s policy as well? The CP says that what is necessary must be provided at the ethnic universities. The CP also says that if a Coloured is a student at a university, he must be a fully-fledged student of that university. He must be able to live where he wishes; he must be able to play where and how he wishes, and he must be able to dance with and marry a fellow student. If he can do that, one’s policy is honest and genuine. [Interjections.]
The CP says that a Coloured can only be a fully-fledged student at the University of the Western Cape. He can only be a fully-fledged student at the University of the Western Cape in respect of all the matters I have mentioned. He would be a second-class student at the University of Stellenbosch.
Mr Speaker, may I put a question to the hon member?
No, Sir. The CP says that a Coloured can only be a fully-fledged student at the Univerity of the Western Cape. Now the students’ council of the University of Stellenbosch has said that the Group Areas Act is in their way and they want to hold a referendum among the Matie hostels to ascertain whether the students concerned can live in those hostels.
Mr Speaker, on a point of order: I should just like to know which Bill the hon member for Kuruman is discussing now. [Interjections.]
Order! I think the hon member did digress a little when he referred to what the Maties have decided about the Group Areas Act. The hon member must come a little closer to the Bill.
Very well, Sir.
The Maties cannot even play rugby, man.
Order! The Free State may have won, but we are not dealing with that now. [Interjections.] The hon member for Kuruman may proceed.
Sir, I can understand very well why that hon Minister, who is the NP leader in the Free State, is so nervous. Perhaps very few of the people in his party who are from the Free State will remain behind in this House in the next election. [Interjections.]
Order! That has got nothing to do with the Bill.
Furthermore, I want to say …
Mr Speaker, may I put a question to the hon member?
Order! The hon member has already indicated that he does not wish to reply to questions.
Not even my question, Sir?
Order! The hon member has indicated that he does not wish to reply to questions.
That hon Minister does not wish to admit the Indians to the Free State, but the Bill makes provision for Indians in the South African Council for Education and the Committee of Heads of Education Departments to have a say in education in the Free State. [Interjections.] Because we say that a Coloured can only be a fully-fledged student at the University of the Western Cape, the CP will phase out multiracialism in South African universities.
I would like us to look at the Bill. I want to confine myself to the definition of “Minister” in the Bill. In terms of that definition, the Minister can be a White, a Coloured or an Indian. The Minister who can be a White, a Coloured or an Indian because it has a bearing on the general department, will be a member of a multiracial Cabinet and a Cabinet decision with regard to general education affairs will also be binding on the Minister in charge of own education affairs. [Interjections.] Am I wrong? I am not. Now I should like to quote what Deputy Minister Piet Badenhorst had to say in this regard (Hansard, 4 May 1984, col 5818):
He went on to say:
The Minister of this department can therefore also be a Coloured or an Indian—in fact, it could be argued that Prof Van der Ross, who, after all, is a rector of a university himself, will most probably be able to do this work just as well as the present hon Minister of National Education is. [Interjections.] The principle laid down in this particular definition—this is what the hon member for Kimberley North cannot understand, of course—means that a Coloured or an Indian can become Minister of this department, and it will be possible for this to happen in terms of the present legislation.
The hon member for Hillbrow says: “So what?” of course, I assume that the PFP will praise the governing party for this Bill this evening. I know that the PFP advocate total integration in education in South Africa. They say this openly. However, they support the hon the Minister this evening because he is confirming and perpetuating integration by way of this legislation. Meanwhile, the hon the Minister denies that this is the case, of course. The hon member for Kimberley North also denies this, of course.
What about the Joint Matriculation Board?
The hon member and his party have a kind of “You want it, we have it” policy. When he moves about in his constituency, he tells people that this legislation is only making provision for own education. However, when he negotiates with Rev Hendrickse and the liberalists, he admits that there is just a little integration present in this legislation. It is a typical “You want it, we have it” policy. [Interjections.] The Council for Education, which will be established in terms of clause 3, will have a chairman, who will be appointed by the Minister. Twenty members of that council will also be appointed by the Minister, whilst a public servant will be appointed as the executive officer of the council. The SA Council for Education, as envisaged in clause 3, is a fully-fledged multiracial body. [Interjections.]
Yes, just like the Joint Matriculation Board.
Mr Speaker, the hon member is referring to the Joint Matriculation Board. I find it somewhat odd that hon members have not yet referred to the Council for the Environment this evening. After all, it is a council of which I as chairman recommended at that time that the Government …
Order! I will not permit the hon member to speak about the Council for the Environment now.
Mr Speaker, I do just want to refer to it in order to round off my argument with regard to a multiracial council. However, I do not wish to disregard your ruling. [Interjections.]
Order! The hon member for Kuruman is trying to convince me that he may, in fact, speak about the Council for the Environment.
Mr Speaker, during the Committee Stage of a Bill we discussed here earlier today—legislation with regard to business undertakings—the hon the Deputy Chairman of Committees permitted the hon the Deputy Minister of Industries, Commerce and Tourism to attack me because as chairman I recommended at that time that people of colour could also be considered for appointment to the Council for the Environment. However, I want to point out …
Order! I am not going to permit any hon member to attack the hon member for Kuruman on that aspect this evening, since it is completely irrelevant. The hon member can therefore rest assured on that score.
Mr Speaker, as regards the Joint Matriculation Board as well …
Explain what the case is with regard to the Joint Matriculation Board, then. [Interjections.]
Mr Speaker, I politely request that you please ask this bunch of members to afford me the opportunity of completing my speech. They are making such a noise that one cannot even hear oneself. [Interjections.]
Mr Chairman, on a point of order: As far as I know, there is no “bunch” of members in this House.
Order! The hon member for Kuruman may proceed. I ask hon members to afford the hon member for Kuruman the opportunity to make his speech now.
Mr Speaker, if it is multiracial, the Joint Matriculation Board has reported to, and been in the service of, a White Parliament in the past. This is the Parliament that introduced the legislation. In future that council, as well as all the new councils that are going to be created now, will fall under a multiracial Government in South Africa. That is the big difference; the very big difference. The Committee of Heads of Education, of which the head will represent a State department for general affairs—general education affairs—also consists of the heads of other State departments, Whites, Coloureds and Indians, as well as Black people, of course. The chief public servant for Coloured Education is a Brown man. We believe that is right that he should be a Brown man. The same applies with regard to the Indians. Now I want to know from the hon the Minister this evening whether he will see to it that the head of Black education will also be a Black man.
When your two hon leaders were in the Ministry of Black Education, there was no restriction on the progress of a Black man in that department, man. Do not pretend that this is something completely new now.
In terms of the policy of the NP, to which my leaders and I belonged, that was not possible.
That is untrue.
Mr Speaker, I want to put a question to that hon Minister. Can a Black man become the head of the Black education department in this country?
That has never been prohibited.
Very well. There we have the reply from the hon the Minister. [Interjections.]
Clause 10 makes provision for a general department to administer this Bill. It will also be responsible for general education affairs. It is therefore a multiracial State department, the head of which can be a Coloured or an Indian on merit, according to what the hon the Minister of Internal Affairs said the other day. He can also be a Black man. [Interjections.] The multiracial constitutional policy of the Government party is being consistently extended to education in South Africa. I can therefore understand why it is stated in the election manifesto of the NP that they advocate own schools. That is because they have thrown their own education on the rubbish heap. [Interjections.]
The CP cannot support this motley blanket of education which is being thrown over the corpses of the Whites, Coloureds and Indians. [Interjections.]
Mr Speaker, the hon member for Kuruman and the hon member for Koedoespoort were guilty of boundless deception here this evening. It is boundless deception which clearly shows their misconception of this legislation.
Tell me where I deceived anyone.
I shall give the hon member an example. The hon member for Kuruman spoke of councils and committees which can make decisions. I ask the hon member where it appears in this legislation that a council can make a decision?
They decide and they advise.
Let us read the present provision for the sake of the hon member. Firstly, there are committees that can be established in terms of the provisions of clause 2(3). This clause provides that the Minister can establish a committee to advise him on any matter relating to the salaries and conditions of employment of staff. Where are decisions mentioned?
Read clause 5.
What I have just quoted has a bearing on the committee for salaries and conditions of employment.
The second body being established by this legislation is the SA Council for Education. What are its functions? I do not wish to read the entire clause, but inter alia, clause 4 provides that this council shall advise the Minister on certain matters. Where does the hon member read about decisions in this? [Interjections.] If the hon member would only give me a chance, I should like to read clause 6 as well. It deals with the Committee of Heads of Education Departments which is being established. In terms of clause 6, the function of that committee is to advise the Minister on certain matters. Where does the hon member read about decisions in that?
It must first decide in order to be able to advise.
Mr Speaker, I really cannot argue with an hon member who quarrels with himself and contradicts himself and says one thing now and another later. I would say that that hon member has most probably not read the Bill. [Interjections.] The hon member for Kuruman—he is leaving the Chamber now—spoke of a multiracial department which is being created in terms of the Bill. I challenge him …
Mr Speaker, on a point of order: Is the hon member for Kuruman permitted to threaten another hon member in the House?
Order! The hon member for Kuruman must remain standing exactly where he is so that I can hear what is going on. Does the hon member for Kuruman have any business with the hon member for Stilfontein over there?
Mr Speaker, I asked the hon member for Stilfontein whether he would not just walk out with me. I would like to ascertain something he said here.
Order! Would the hon member for Stilfontein tell me what he said?
Mr Speaker, I was just talking here when the hon member for Kuruman approached me.
Order! What does the hon member for Kuruman want to speak to the hon member for Stilfontein about?
Sir, I do not know, he is speaking so aggressively that one could almost become quite afraid of him. [Interjections.]
Order! What does the hon member for Kuruman want to clear up with the hon member for Stilfontein? I cannot permit hon members to threaten one another or to invite one another outside. What does the hon member for Kuruman have to discuss with the hon member for Stilfontein?
Sir, I told you that I asked the hon member for Stilfontein whether he wanted to go outside with me.
Was it friendly or threatening?
It was friendly.
Mr Speaker, on a further point of order …
Order! I shall listen to the point of order of the hon member for Maitland later. I first want to ask the hon member for Stilfontein whether he feels threatened.
Mr Speaker, he most certainly did not invite me outside for a cup of coffee. [Interjections.]
Order! The hon member for Kuruman says that he asked the hon member for Stilfontein in a friendly manner to go outside. I accept his word, and I think the hon member for Stilfontein is quite safe if he goes with the hon member for Kuruman. I ask the hon member for Maitland what point of order he wanted to raise.
Mr Speaker, I heard what the hon member for Kuruman said to the hon member for Stilfontein.
Order! The hon member for Kuruman must not leave yet.
The hon member for Kuruman definitely adopted a threatening attitude.
Order! I accept the word of the hon member for Kuruman that he invited the hon member for Stilfontein outside in a friendly manner so that he could tell him something. The matter must be left at that now; it has been settled. There is no further dispute between the two hon members. The hon member for Johannesburg West may proceed.
Mr Speaker, before the interruption I was saying that the hon member for Kuruman had stated that a multiracial department was being created in terms of the Bill. This is completely devoid of all truth. Where in this Bill is a department being created? Since the hon member for Kuruman is not here now, I want to put this question to the hon member for Koedoespoort.
Who is going to administer these things?
Where in this Bill is a department being created? There is no question of that.
Are the little angels going to do it?
I shall come back to the hon member for Koedoespoort in a moment. I want to say that this is the kind of blatant untruth that has been told by both the hon member for Kuruman and the hon member for Koedoespoort here this evening. I do not want to dwell on the hon member for Kuruman any longer, but I do just want to tell him this: He speaks of a motley blanket, he speaks of a motley blanket of education. I would not say that if I were he. Look at the motley blanket they emerge from together with the AWB, the Kappiekommando and the like.
All White! [Interjections.]
I should like to point out that the hon member for Sunnyside said earlier by way of an interjection that we were making a joke of White education. This is what he charged the Government side with, but I want to reject it as a disgraceful remark, since it is not true. It is completely devoid of all truth, and I will prove why I say this later. I merely want to place it on record at this stage that it is completely untrue.
The hon member for Koedoespoort made a number of misrepresentations here. If he were to make this kind of statement outside, it would be possible to charge him with a crime on the basis of the misrepresentations he made, and, I would almost say, the fraud he committed, judging by the statements he made.
Order! The hon member must withdraw the statement that the hon member for Koedoespoort would have committed fraud, even if it is just a little.
I withdraw it, Sir.
The hon member indulged in a number of deceptions and misrepresentations in his speech. In fact, that is what his entire speech consisted of. Let me point them out to him. It seems to me that the hon member is not aware of the existence of an Act such as the National Education Policy Act. Does the hon member know that that Act exists? It is Act 39 of 1967.
Of course I know about it: I quoted from it.
Does the hon member know that that Act still exists today and that it will continue to exist in the new dispensation?
Subject to this.
It does not look as if the hon member knows what appears in that Act. I shall have to place it on record this evening for the sake of completeness. The hon member made a speech this evening which he will go and show people tomorrow or the next day in by-elections and elsewhere to show what he said in this House. It seems to me that this is what he is doing. This is the kind of deception he has been guilty of and with which he also wants to mislead the public at large.
The hon member claimed that in future nothing would come of a Christian character, mother-tongue education, etc, in respect of White education. I want to test this statement on the basis of the National Education Policy Act, No 39 of 1967. The first principle is, and I quote:
Subject to this Bill.
That does not appear anywhere in this Bill. This is simply another deception by the hon member. It seems to me that the hon member does not know what this Bill before the House at present deals with.
I now want to refer to another provision of that Act:
Has the hon member paid any attention at all to the fact that this Act appears on the Statute Book and that it will still be on the Statute Book in the new dispensation? What does it determine but that these provisions apply to White education? Thus in the new dispensation each of the Houses will have the right and be able to make their own laws on education similar to this Act, with their own content and their own character and culture. This affords each of those Houses the opportunity to pass a similar Act. It is obvious that the Indian Chamber would not pass an Act which refers to Christian education. I do not think any hon member would want them to do that. However, the point is that each House will have the opportunity to pass its own Act with regard to its own education policy for its particular population group. The hon member did not tell this House that, however. He does not want to place it on record, since it does not suit him. This corresponds with the deception his leader indulged in last evening. It is a disgrace that his leader claimed at a public meeting last evening that the hon the Prime Minister was going to Europe to give away the sovereignty of the Whites in South Africa on a platter. That is a disgraceful statement. [Interjection.] That is similar to the deception of which hon members in the CP were guilty this evening. [Interjections.]
I want to refer to other arguments of hon members. What does this Bill before the house at present deal with? It deals with four principles, and hon members have repeatedly referred to them this evening. It is concerned with, and I quote:
- (a) norms and standards for the financing of running and capital costs of education;
- (b) salaries and conditions of employment of staff;
- (c) the professional registration of teachers;
- (d) norms and standards for syllabuses and examination, and for certification of qualifications.
Those are the four matters that this legislation deals with. The hon member made a ridiculous allegation by claiming that the principles of the National Education Policy Act with regard to Whites is subject to these four norms and standards. These four points have nothing to do with the principles of that Act regarding the own Christian character, own mother tongue and own education for Whites, however.
I want to ask once again whether the hon member has read this Bill at all. It does not seem so to me. To me it does as not seem though the hon member understands what this Bill provides.
Once again I come to these four principles. The first is the norms and standards for the financing of running and capital costs of education. It would be absurd to think that we should apply different standards for different population groups with regard to this particular aspect. Surely we cannot give one person a luxury three-storey or four-storey school building and expect another to be satisfied with a hovel. If we were to allow that, it would clearly create room for incitement and unrest in South Africa. I think the hon member agrees with that, although he does not want to say so now. He need only say “yes” or “no”. However, I shall give him the benefit of the doubt and assume that he concedes this point. If he replies “yes”—I am prepared to accept that—why make misrepresentations here in respect of this legislation?
I now come to the second point, viz salaries and conditions of employment of staff. The position here is the same. If we did not apply equal salaries and conditions of employment in respect of the same qualifications, it is obvious that this would be a factor for incitement and discord among the various population groups. What applies with regard to the previous aspect also applies here. Does the hon member for Koedoespoort agree that it is necesary that equal standards should apply? He does not wish to reply. However, once again I assume that he does not disagree.
The third aspect is the professional registration of teachers. I do not think it is necessary to argue this point any further. The same argument that applied to the previous two points apply here as well.
The fourth aspect is norms and standards for syllabuses and examination, and for certification of qualifications. Does the hon member for Koedoespoort want us to issue different matric certificates for members of different population groups? [Interjections.] Now he is dead quiet because he wants to go and blazon abroad the absurdities and nonsense he indulged in here this evening. [Interjections.]
I am not a member of the NP.
One could really summarize this legislation in these four points. This is really what this legislation is aimed at, viz to make provision for the regulations which can be issued by the Minister by way of notice with regard to these four aspects. If we do not disagree with one another on that score, why come and make allegations that this legislation places education under a motley blanket, as the hon member for Kuruman said? That is completely untrue. Does the hon member for Kuruman deny that there will still be an own department for White education? Does he deny the fact that that education department will have the right to determine the content and policy of its own education? [Interjections.] It seems to me that I must unfortunately leave the hon member for Kuruman at that now, since it would seem that he does not want to, or cannot, understand. [Interjections.] Apparently he cannot understand that this legislation deals mainly with the four above-mentioned aspects. He has already made up his mind and he wants to go and gossip about it. [Interjections.]
Mr Speaker, I …
Go for it Ron!
We will certainly be going for it. I can assure the hon member for Johannesburg North that we will be going for it.
We have in this Bill the materialization of what we have been expecting and have been advocating in South Africa for many years. Hon members will not be surprised to know that this Bill is consistent with NRP policy, as we have enunciated since 1977, the foundation of which is found in this Bill. [Interjections.] We are talking specifically about policies. Any party which is genuinely concerned about education for all population groups will ultimately reach the point that we have reached today. When one looks at the needs of education, not the needs of political parties, then one can only come to one conclusion, namely that in our plural society with evolutionary development in the political field this is the structure within which education can best be satisfied for those groups that will participate in the new dispensation. This structure has been drawn up in conformity with the appropriate schedule of the constitution of South Africa, and so it should be, because every part of a jigsaw puzzle must fit precisely into its particular niche.
I should also like to say how much we welcome the attitude of the PFP, the official Opposition, in this respect. We respect the fact that they may have certain reservations regarding the detail of the structure and the functionings in terms of this Bill, but what we do appreciate is the fact that they have seen their way clear to accepting the principles contained in this Bill as a starting point from which to move in the right direction. Somewhere in the future it may be possible to achieve what they want, namely the full incorporation on an equal status of Blacks in this Bill. I think by accepting this principle, they have not only done themselves a favour but they have done the cause of education a tremendous service by adopting the attitude they have. The PFP may consider that as a kiss of death from me but in all the years that I have been in this house, we have been advocating consistently that in an evolutionary developmental fashion in South Africa this must be the starting point for a new educational policy. The De Lange Committee in its recommendations and also the Government in its White Paper have recognized the need for a new educational structure.
Let me say immediately, Mr Speaker, that the NRP has also always recognized that education is one of those intimate domestic concerns of each ethnic group over which they do not want to lose control. Despite the objections of the CP, this Bill also satisfies the need for control by each group over its own educational affairs. However, in the society in which we live in which education is so important because it is the golden key to fife and quality of life in South Africa, and also to peace and stability as the hon member for Johannesburg-West said, the quality of education is of paramount importance. It is also the one vehicle in regard to which each group would like to control its cultural identity.
It is interesting that the hon member should say that “racial identity”, because in that expression of his there is a total lack of concern and actually a disrespect for cultural identity which is such an important factor in the stability of any society. It is only when on lacks respect for one’s own culture that one can actually adopt such an attitude. [Interjections.] Despite his remark, that hon member is going to be voting for this Bill because his caucus has made a wise decision.
Mr Speaker, I should like to ask the hon member whether he would allow a cultural group such as the Jews not to allow the English to attend their schools.
Not in state schools. There are macro and micro divisions in culture, and the hon member should know that that is so in every society. We are talking here about fundamental macro cultural deviations in South Africa which, whether we like it or not, is the reality of our society in South Africa. [Interjections.]
The control of education is a fundamental aspect of the propagation of one’s own culture and those values which one believes in. We may be able to argue that one trait of a culture may not be acceptable to other people or may be able to be improved or may not be desirable, but we cannot deny that culture is the very stability of any society wherever one goes in the world and that education as a medium for expressing that cultural interest and of propagating that culture is a very important component of any educational policy.
Order! I regret to interrupt the hon member. Before I adjourn the House, I should like to wish hon members a very peaceful and safe week-end. Drive carefully if you are going anywhere, and may Western Province win the first test against the English for us.
In accordance with the Resolution adopted on 10 February, the House adjourned at