I move—

Mr. Speaker, the copyright law which at present applies in the Republic (Act No. 9 of 1916) was originally part of an Act which included patent, trade mark and design law in South Africa. In 1952 the part relating to patents was taken out of that old Act and an entirely separate Act on Patents (Act No. 37 of 1952) was passed. During the 1963 Session of Parliament trade marks were also excluded from the 1916 Act and an up to date Act (Act No. 62 of 1963) was passed. The Bill now before the House introduces up to date legislation in respect of copyright.

Our present copyright law is based almost entirely on the old British Copyright Act of 1911. That Act was in fact incorporated into our Act No. 9 of 1916 as the Third Schedule and, although repealed in the United Kingdom in 1956 and replaced by a modern Act, strange to relate, it still remains the law of the Republic.

The law of copyright is highly technical and is the subject of an International Convention between some 50 states. The Republic has been a member of this International Convention, the Berne Convention, since January, 1917, and is still a member.

Originally copyright was confined to literary, dramatic, musical and artistic works, and, although there was no such provision in the Berne Convention, certain rights were given to manufacturers of gramophone records as well. The Berne Convention has been subjected to revision from time to time, the last of which took place at Brussels in 1948 when it was amended to create new rights in cinematography. On this occasion the author’s copyright was also extended to broadcasting, which includes television.

Although the Berne Convention does not cater for copyright in phonograms, broadcasting or television, it provides for inter-state arrangements on subjects of this nature. In this respect a new International Convention was agreed upon at Rome in October 1961 to cater for copyright in the manufacture of gramophone records, broadcasting and performing rights. The Republic has not yet become a party to this convention, but it is intended to do so as soon as final arrangements have been made by the members concerned to ratify the convention after the introduction of the necessary legislation. A draft bill which has been drawn up by my Department in this connection has already been considered by interested bodies and will be introduced later in this Session. This bill will be applicable to performers only, because the Bill on Copyright now before this House anticipates rights to be created in broadcasting and includes rights in the manufacture of gramophone records and cinematography.

The Bill has been subjected to scrutiny and study by all interested parties and was referred to a Select Committee during the 1963 and 1964 sessions. The final report by that Committee of May 1964 No. S.C. 3-1964, is before this House.

Members will, no doubt, have read the report No. S.C. 14 of 1963 of the Select Committee which was published in June 1963. This report contains a complete list of the interested organizations which have made representations as well as the evidence by the Registrar of Copyright. It will be noted that the Registrar’s evidence includes an explanatory memorandum on the Berne Convention and also a clause-by-clause commentary on the Bill and its Schedules. The evidence by other interested bodies before the Select Committee is also now before the House.

I might add that this Bill was drafted some five years ago and was subsequently reviewed by a Committee of my Department, with the Registrar of Copyright as Chairman and the Deputy Registrar and the Legal Adviser of South African Broadcasting Corporation as members. The Corporation also arranged for the Legal Adviser of the European Broadcasting Union to visit this country. This gentleman collaborated fully with the Registrar of Copyright.

The provisions of all modern copyright law in European countries, such as Germany, Switzerland, the United Kingdom, Italy, France and Sweden, as well as Canada and the United States, India, Pakistan and Ghana, have been examined and, with the advice of experts, the provisions of those laws which could, with advantage, be adopted in our country, have been included in this Bill.

It must be appreciated that the authors of copyright are to a great extent dependant for their royalties on the publication of their works outside the Republic. It is for this reason that South Africa is a member of the International Convention of Berne, which provides for reciprocal treatment of all members in the various countries of the Berne Union. In order to be a party to this Convention it follows that South Africa’s copyright law must provide the reciprocity envisaged by the Convention. Our Bill is therefore so framed as to ensure that, while it conforms to the Convention, it does not, apart from certain rights in the manufacture of gramophone records, go beyond the requirements of the Convention.

Insofar as the manufacture of gramophone records is concerned, it will be noted that our Copyright Law of 1916 did not exclude that part of the British Act, which created copyright in gramophone records. The law reads:

The term of such copyright is 50 years from the making of the original plate and the owner of the copyright is the person who is the owner of such original plate.

It will be appreciated that the manufacturer of a gramophone record, who has engaged and paid talented artists for the performance of the recorded work, should be entitled to some protection so that others may not pirate his work, and it would seem that this was accepted in all the Commonwealth Countries at the time. It is also the law in most European Countries. This copyright encourages the manufacture of records and there is much to be said for it.

The courts of some countries have, however, interpreted this provision in the law to give the manufacturer of a gramophone record a further copyright so that a record may not be played in public places without payment of royalties to the manufacturer. A body known as the International Federation of the Phonographic Industry acts on behalf of the manufacturers. Their main source of revenue in this respect is derived from the South African Broadcasting Corporation and the owners of cinemas, hotels and tearooms, who play the records in public. The select Committee has in this respect made an amendment to the relevant clause of the Bill (Clause 13), the original sub-clause (4) of which gave the maker of a gramophone record rights to prohibit, without his consent—

1. (a) the making of a copy of his record;
2. (b) the record to be heard in public; and
3. (c) the broadcasting of the record.

The new sub-clause has not provided the maker of a record with any rights in public performance or broadcast thereof. It has been suggested that this is unfair, because they have had these rights since 1917.

Actually, the old British Act of 1911. which still applies in the Republic, did provide for those rights, but it was only in 1934 that the record manufacturers became aware of the existence of these rights and commenced to enforce them. The result was that if any person played a record in public, he would have to pay two licences—one to the author of the music contained in the record and the other to the maker of the record. I am convinced that this was never the original intention. Sub-clause (4) of Clause 13, as revised, gives the manufacturer the right to prevent anyone from copying his record and this is all the protection he needs. He makes his profits from the sale of records and, as I have said. I am convinced that it was never the intention to permit him to charge fees for the playing of his record in public.

It is true that in the Commonwealth countries the maker has those rights, but in most countries on the Continent and in the U.S.A. he does not. In the TJ.S.A. he actually pays the broadcaster, because he regards it as good advertisement.

I should also like to point out that the International Convention does not require any provision to be made for copyright in sound recordings, but the Rome Convention of 1961 specifically provides for the copyright. which sub-clause (4) now provides, and permits any country to give the additional rights only if it chooses to do so. We have, for the reasons I have given, chosen not to do so.

There is a further right which vests in the author of music, namely to authorize persons to have the music recorded. An international body, viz. the Mechanical Copyright Protection Society, purports to act on behalf of authors and, subject to payment of a royalty, allows persons to record the music. It is represented in the Republic by a local body called the South African Recording Rights Association.

Apart from the right to play a record in public and the right to record the music, there is yet another copyright which vests in the author of the music, or for that matter, the author of any literary, dramatic, musical or artistic work. This is an exclusive right to prohibit the performance in public or the broadcasting of the author’s works. Public performance of the work is, therefore, subject to the payment of royalties to the author. A non-profit association, called the Performing Rights Society, acts on behalf of practically all the authors of music. In this country it is now represented by a local company, the South African Society of Composers, Authors and Music Publishers Limited (SAFCA).

It is interesting to note in this respect that the South African Broadcasting Corporation pays annual fees to the three societies named. The average fees paid over the last four years were as follows—

Statistics in respect of fees paid by cinemas, hoteliers and tearoom proprietors are not available, but they are substantial. A large proportion of these royalties leaves the country for distribution to foreign authors, except those paid to the Phonographic Industry, i.e. the makers of gramophone records.

One may well ask oneself why, in these circumstances, do we belong to the International Convention of Berne, which involves us in these extensive commitments? The answer is, firstly, that the Berne Convention has no provision for copyright in respect of manufacturers of gramophone records, so that the payment of R72,667 to the International Federation of the Phonographic Industry is not an obligation arising out of the Convention. Secondly, our authors of literary, dramatic and musical works do benefit substantially by our membership of the Berne Convention. In the field of music alone we have some 159 persons who are members of the Performing Right Society. During the financial year ending on 30 June 1963 the majorjty of these persons shared R28,789 from royalties in the Republic and R7,600 from foreign royalty collections. If South Africa did not belong to the Convention our authors would not collect the foreign royalties, nor would our authors of popular literary works enjoy the royalties on books sold outside the Republic. There are no statistics of such royalties on books, but it is known that they are substantial and include film rights sold by our authors to foreign firms. If, therefore, we were to resile from the Berne Convention, there is little doubt that our authors would lose substantially and it would not be in the best interests of our country.

I have already mentioned that this Bill was drafted after consultation with experts and after an examination of the latest copyright laws of other countries. The select Committee has also devoted much time and study to the Bill, which is a vast improvement on our existing legislation. The rights of authors of literary, dramatic and musical works are clearly defined in sub-clause (4) of Clause 3 of the Bill, the rights in artistic works in sub clause (4) of Clause 4, and the rights in sound recordings, cinematographic films, and broadcasting in Clauses 13 to 15. A new right in published editions of works is created in Clause 16. This prohibits the making of copies of such a work by phonographic or similar process. This right subsists for 25 years and is intended to protect publishers who are not otherwise protected.

Persons who are entitled to copyright are defined as qualified persons in sub-clause (1) of Clause 1. They are South African citizens and persons residing in or domiciled in the Republic, including companies registered here. This definition accords with the Berne Convention. It will be noted that Clause 32 of the Bill permits the State President to apply its provisions to any country which is a party not a convention relating to copyright to which the Republic is also a party. In this respect the Act will be applied to those countries which are now members of the Berne Convention, inasmuch as their laws provide for reciprocity of treatment for qualified persons in the Republic.

The Bill also clarifies the general exceptions from protection of literary, dramatic, musical and artistic works, and it will be found that Clause 7 provides that fair dealing with such works does not constitute infringement of copyright. This is particularly the case in respect of research, private study, criticism, review, reporting of news, or reading in public of extracts of works. In addition special exemptions have been provided for the use of copyright material in schools, vide Clause 41.

A new provision in Clause 8 permits librarians of those libraries run on a non-profit basis to provide copies of certain works for research or private study. This provision is welcomed by all librarians and will, in the circumstances set out in Clause 8, exempt them from the possibility of an infringement action.

The Bill also provides for the preservation of recordings by the South African Broadcasting Corporation of records made by it, which are of an exceptional documentary character (vide sub-clause (5) (b) of Clause 7).

It will be noted also that the South African Broadcasting Corporation has been given certain rights, viz-à-viz the author, to broadcast works without the author’s permission, but subject to the payment by the Corporation of reasonable remuneration to the author and subject to his having already permitted the performance of his work in the Republic. In this respect the first proviso to paragraph (a) of sub-clause (5) of Clause 7 of the Bill is relevant.

A very important innovation is the creation, by Clause 24, of a Copyright Tribunal, the functions of which are set out in Clause 25. At the outset it is the intention to use the services of a Judge who performs the functions of the Commissioner of the Patents Court to carry out these functions, which are primarily to ensure that the fees charged for use of copyright material are reasonable and that the licence to use such material is not unreasonably withheld.

The Bill also clearly defines the copyright which vests in the Government, vide Clause 39. Such works as are published by or under the direction or the control of the Government, if first published in the Republic, become the copyright of the State and copyright therein subsists for 50 years. At present the Government Printer is vested with the control of State copyright and provision has been made for that control to continue.

At the Committee Stage I intend to propose two amendments. Firstly, Clause 31 as it now stands, was intended to permit an appeal from the decision of the Commissioner of Patents, who was at the time not a Judge of the Supreme Court. It will be noted that Section 24 now provides for a Judge or acting Judge to perform the functions of the tribunal and, this being so, a review of proceedings should be considered by a full bench of the Supreme Court and not a single Judge as is normally the case in review proceedings.

My amendment will therefore be—

My second amendment relates to the insertion of a new Clause 50 on page 70, the existing Clause 50 to become 51. The new Clause 50 will read—

1. “50. (1) Notwithstanding anything to the contrary in this Act contained the State President may make such regulations as he may consider necessary in regard to the circulation, presentation or exhibition of any work or production.
2. (2) Such regulations may empower any person specified therein to prohibit the circulation, presentation or exhibition of any such work or production or to authorise the circulation, presentation or exhibition thereof on such conditions as may be specified in those regulations.
3. (3) The circulation, presentation or exhibition of any work or production in pursuance of authority granted in terms of such regulations shall not constitute an infringement of copyright in such work or production, but the author shall not thereby be deprived of his right to a reasonable remuneration, which shall in default of agreement be determined by arbitration.”

The object of this provision is to ensure that authors may not on ideological or unreasonable grounds prohibit the performance of their works in the Republic. It will be noted that they will not in any circumstances be deprived of a reasonable remuneration for their works.

This principle is already embodied in subclause (3) of Clause 28 of the Bill which provides that any person may in a work not covered by a licence scheme apply to the Copyright Tribunal for a licence in a case of refusal by the author and the Tribunal may if the author has been found to act unreasonably, grant a licence.

It is felt that while this is one way of meeting the difficulty it would be expensive and might result in delays whereas the new provision will facilitate the exhibition of works with the author still assured of a reasonable remuneration.

In this respect Article 17 of the Berne Convention reads—

In these circumstances I am convinced that this amendment meets the emergency created by the unreasonable attitude of some authors who refuse to licence their works in the Republic.

My Department has already prepared most of the necessary regulations and proclamations to give effect to this Bill when it becomes law and it is intended that it should come into operation in the near future.

In conclusion, Mr. Speaker, I do not think that you will rule me out of order if I express a word of thanks and appreciation to the Chairman and members of the Select Committee, all the various instances who came forward with excellent ideas and proposals and. last but not least, the Registrar of Copyright who has put in a vast amount of hard work and study in order to present to Parliament, for its approval, an up to date piece of legislation on Copyright.

Mr. Speaker, the hon. the Minister in introducing this Bill pointed out the highly technical nature of the contents of this legislation, and let me say that I agree wholeheartedly with that observation because I am very much aware of my own limitation in dealing with a subject of this nature, which is a highly technical subject. [Interjection.] I hear some laughter from some of the hon. members of the Select Committee opposite, so I hope they will be as honest as I am in making the same admission. Having said that, I think it is also recognized, and I think the Minister appreciates this point, that there are very few recognized authorities in the world on the subject of copyright. Copyright deals with intangibles. It deals with the intellectual property of man, which the French have described as the works of the spirit. We have much legislation to protect the material property of man, but copyright protects the intellectual work of any individual. That being so, I do not think that the Minister has a full appreciation of this point when he tries to justify South Africa’s membership of the Berne Convention, because our membership of the Berne Convention is surely in the interest of protecting the intellectual property of South Africa.

This legislation has also become necessary because it has become recognized that with the modern electronic and technological developments there has been and can be exploitation of works of the spirit and of the intellect of man, and that being so, there is a greater need to offer protection. It is very important for our country to devise full protection in this regard, because in the past we have been importers of intellectual property for the entertainment and the cultural development of our people, but we are now increasingly becoming an exporter of cultural property. We have it in the cultural treaties our country has entered into, and we have it in various other commitments. We have it in the books by South African authors that have been published in other parts of the world and in the music being created by South African composers which has been marketed in other parts of the world. We have it in the films that have been created in South Africa and which are finding a market in other parts of the world, the paintings of South African artists, the sculptures of South Africans, which are becoming internationally recognized. Therefore I think the Minister and the House will agree that when we consider legislation of this nature it is essential to protect the most important of all international obligations, the intellectual products of our country, on the basis of full reciprocity with other countries. Our intellectual products, the sale of our films, our sculpture, our music and our books, will receive the protection outside our borders only to the degree of the protection that we give to the works of the nationals of other countries within our own borders, and that is a point I think the Minister has missed when he dealt with the Berne Convention and the Brussels Convention and the Rome Convention and devoted so much of his time to what I think the Minister now recognizes is the gap in this Bill, namely the protection that should be afforded to the creators of music placed on gramophone records.

The issue before us in this Bill is that we should devise such legislation as to give the greatest protection to our own intellectuals on the basis of reciprocity that we will give to the intellectual products of the nationals of other countries, and as the Minister said, we are associated with some 50 countries in the Berne Convention.

Before I take the point further that the Minister dealt with at such length in respect of the gramophone industry, I wish to make one or two general observations about the Bill itself and the background to this Bill. The Minister has referred to the Berne Convention. I think it should be recognized that these conventions go back as far as 1887 in recognizing the intellectual property of man and that they have been amended from time to time to give protection to authors and to meet the circumstances as the years have gone by. We have entered into agreements with other countries by the ratification of the Berne Convention, thereby entering into contractual arrangements with other signatory countries to the Berne Convention to give effect to copyright protection to their nationals in order that we may get the same degree of protection for our nationals purely—and I emphasize the point—on the basis of reciprocity. We must see that in the legislation we devize that we give the maximum protection so that South African works can enjoy the maximum protection in other countries, I say again it is necessary for me to emphasize this point because I want to point out later in the course of my remarks that the Bill does not give this protection in certain respects, and deprives certain industries of long-standing vested rights, vested rights which the Minister has already indicated in his remarks, have been written into our legislation over a long period of years, ever since 1916. Therefore before going on to deal with that point, I wish to refer to a further convention which the Minister dealt with very briefly, namely the Rome Convention which was held in 1961, and which we signed as a country but the conditions of which we have not yet ratified. Many of the provisions of the Rome Convention are now being written into this legislation but, as the Minister has correctly pointed out, there are other provisions of the Rome Convention which we will ratify and which we have incorporated in legislation which is still before this House, i.e. the Performers’ Rights Bill, which is at present the subject of consideration by a Select Committee. But, Sir, such rights that we have written into this legislation before us, such as the right of a gramophone record manufacturer to prevent anybody from copying his record— Section 10 of the Rome Convention makes this perfectly clear and Section 13 (4) of the Bill writes that provision of the Convention into the legislation before us. Sir, it is necessary for me to emphasize that amongst most of the Berne Convention signatories, the Rome Convention was convened for the purpose of considering international protection for certain neighbouring rights, associated with the principle of copyright. This convention therefore recognized that alongside the protection of original works, it was necessary to protect their embodiment in the performance by performing artists, in, the protection of copyright in the processing of a gramophone record, in their broadcasting over the air of the original work of the author. I wish to make it clear that in respect of certain rights laid down in the Rome Convention, latitude is given in their application to the signatory countries, more particularly in respect of gramophone records. But then such companies, who in terms of the Rome Convention, exercise this latitude, must recognize that they run the risk of evoking reciprocal action to the loss of their own nationals and their own industry in respect of these two particular rights, namely the broadcasting rights and the performance rights. This, Sir, is the issue which I wish to raise more directly and pertinently in a few moments, but before doing so I wish to make one or two general observations about the Bill.

Sir, the Minister has covered quite a wide field and has pointed out how this Bill differs from existing legislation, but I am surprised, although I may have heard the Minister incorrectly, that the Minister did not make reference to one new very important provision of this Bill. Sir, it largely follows the pattern of existing legislation with certain modifications, and one of the important modifications is the question of the copyright tribunal which is now for the first time written into our legislation in Clauses 24 to 31 of this Bill. Our tribunal, unlike the tribunal under the British law, which the Minister says we are following in this regard, is given far wider jurisdiction over the principle of copyright, but the British tribunal, written into the British law, confines the tribunal’s activities purely to the performing rights. The South African tribunal which is set up in this Bill covers the principle of copyright upon which this tribunal may adjudicate.

Then there is another important aspect of this Bill. It brings our copyright legislation up to date in respect of the Berne Convention as it was revised at the last Brussels Convention of 1948. It also incorporates certain features of the Rome Convention of 1961. The rest of the Rome Convention, to which I made reference a few moments ago, is in the form of legislation which this House will still have to consider, but the main changes, apart from this question of the tribunal, prescribe copyright in detail, as the Minister has pointed out, in terms of Clauses 3 and 4 of the Bill and gives a far greater detailed exposition of what copyright is other than the definition presently contained in our law. It also includes the important provision that cinema films for the first time in South African law are given their own copyright as films. This is interesting to note because our old law gave copyright to films only by virtue of the fact that a photograph as such could receive copyright. It has been interpreted in the past that films had copyright merely because they were a series of photographs, but in this Bill, which is a very great step forward, it is recognized that films have their own copyright. Then, Sir, there is another important provision to which I also wish to draw attention, and that is that for the first time broadcasts by the S.A.B.C. will be protected by copyright in terms of Clause 15 of the Bill. Sir, it is very interesting to note that hand in hand with the copyright protection given to sound broadcasts, our legislation now for the first time gives protection to television broadcasts in terms of Section 15 (1) of the Bill. Sir, I am sure that authors of this House will find it of great interest that new copyright is given to publishers in the typographical arrangement and the general presentation of their books (Clause 16 of the Bill) which is quite a different copyright from the copyright of the author on the contents of a book. These, I think, are the main innovations of substance in this Bill. There are other minor ones to which the hon. the Minister has already drawn attention in his opening remarks.

Sir, from my observations so far the House will note that we have no objection to the Bill as it has been presented here. We have no objection to the general principles of the Bill and we welcome it as an advanced piece of legislation. But now I want to come to those rights which this Bill removes and if not put right in the Committee Stage will leave an unfair situation. Sir, to give substance to my contentions in this regard it is necessary for me to detail to the House the history of this legislation. I want to say immediately that this legislation in my opinion has certain very undesirable aspects in its history. You see, Sir, this is not the first Bill that we have had before us. We had Bill No. 1 presented in 1963, which was referred to a Select Committee half-way through that Session. The Select Committee on that occasion met five times, and the only evidence heard by the Select Committee in 1963 on the original Bill presented to the House by the Minister was that submitted by the Registrar of Copyright. No other evidence was given before the Committee at all. This statement was made by the Registrar of Copyright at that time (page 5) of last Report—

In the interim, after that statement had been made before the Select Committee, numbers of memoranda were received by the Select Committee which certainly indicated that there was considerable opposition to certain provisions of the Bill. However, in that year the Committee was unable to complete its deliberations and it reported accordingly to the House, asking for leave to sit again. The following year, in 1964, the Minister again tabled a Bill which was read a first time. [Interjections.] Sir, I want to remind the hon. member for Vereeniging (Mr. B. Coetzee) that there is no government copyright as far as the decisions of the electorate are concerned; they change from time to time. However, after the introduction of this first Bill in 1963 we had the introduction of a further Bill in 1964, and now I hope that the hon. the Minister will not take offence if I deal with this matter quite frankly. There was no instruction to send that Bill through the Select Committee for consideration. It was only after representations had been made to the Minister—and we were left under the impression that that Bill would be proceeded with by the House before going to a Select Committee again; there was no instruction when it was introduced that it was to be sent back to a Select Committee—it was only after I had discussed the matter with the hon. the Minister and indicated our opposition and had pointed out that a large amount of evidence had been submitted which had not been heard that the Minister agreed after several days that the matter would go back to the Select Committee. This Bill which was Tabled in 1964 differed considerably in a considerable number of instances from the Bill that was presented in 1963, submitted to the Select Committee and upon which a lot of evidence had been submitted by outside bodies, none of which at that stage had been considered by the Select Committee at all. One of the most important provisions of this new Bill which was introduced the following year was that cinema films were taken out of the jurisdiction of the copyright tribunal which meant that any film distributing company would have a free hand; in the first place it could withhold films from anybody in South Africa or it could fix its own charges for the distribution of films without anybody being able to query it in any way whatsoever, in spite of the fact that they enjoyed a copyright. But every other work would be subject to the jurisdiction of this tribunal. But, Sir, the point is that no evidence whatsoever was heard by the Select Committee on this point. This provision was summarily included in a new draft which was sent the following year to the Select Committee.

Then we had Bill No. 3. That was a Bill that emerged from the Select Committee, a Bill which except for the deletion of certain rights in respect of sound recording, which largely affected the gramophone record industry—in two respects, namely the public performance of a record and the broadcasting of a record; these were removed from this Bill, otherwise it was exactly the same as the Bill that was sent to the Select Committee, apart from one or two minor changes, for example an amendment which I introduced, namely that an appeal should not be heard within 30 days but that there should be a right of appeal against decisions of the tribunal for a period of 90 days. There were minor changes of that nature, but otherwise in substance the Bill was exactly the same, except for the deletion of the vested rights enjoyed under existing legislation by the gramophone recording industry. Sir, that was taken out of the Bill in spite of voluminous evidence to the contrary that it was an undesirable action and that there was no justification for it. There was strong opposition from all the interested parties in regard to the action suggested by the Select Committee. Sir, it is this provision, in regard to which the Minister seems to have anticipated my remarks because he dealt with it at such length in his opening speech, that I wish to deal with it a little more fully. Sir, I want to emphasize that the rights of sound recording, which are now being removed from this Bill, are rights which have existed under our law since 1916. Under this protection the phonographic society which sees to the rights of manufacturers of records, has been able in this period of 40 years since 1916 to obtain a certain income, largely by concluding agreements from time to time with the S.A.B.C., the largest public performer of gramophone records. Sir, from evidence adduced before the Select Committee by the Registrar and later confirmed by representatives of the Society who gave evidence before the Select Committee, it appears that something like R73,000 per annum, made up of payments in two different categories, accrues to the industry from the S.A.B.C. I think, the amount, in round figures, is R41,000 for the performance of records in general and something like R34,000 for the playing of records on the commercial services of the S.A.B.C. I think it is obvious to every member of this House that the S.A.B.C. could not continue to supply programmes to the people of South Africa without the aid of gramophone records. In fact, in evidence submitted to the Select Committee, it is indicated that 70 per cent of the broadcasting time of the S.A.B.C. is entirely taken up by the playing of music from records. I mention this because in the first draft Bill considered by the Select Committee —and members of the Select Committee will bear me out in this regard—there was no question whatsoever of removing the longstanding vested rights of the gramophone recording industry as far as the commercial programmes of the S.A.B.C. were concerned. The Registrar of Copyrights himself, in giving evidence before the Select Committee, stated this on page 56 of the first report, in para. 94: he said—

he was referring to the memorandum of the S.A.B.C.—

In other words, it was indicated here that we were the only country apart from Ghana that was anticipating action of this kind in terms of the Rome Convention. Sir, a subsequent memorandum submitted by the S.A.B.C. to the Select Committee also endorsed the statement of the Registrar and clearly stated that they had no objection to the protection of a long-standing vested right as far as the playing of records by the S.A.B.C. over its commercial services was concerned: and now we get the extraordinary position, stated in voluminous evidence in favour of the retention of these rights, that they must now suddenly be removed from a Bill of this nature, for no reason at all, by a government party majority decision on a Select Committee. As the Minister has said, he is going to stand by the Bill which came from the Select Committee.

Why cannot the advertisers pay for that? Why must the S.A.B.C. pay for it?

I will come to that in a moment. The hon. member for Vereeniging is quite right. The charge is levied by the phonographic society, which is representative of the gramophone manufacturers, the charge of R2 per record, is a charge levied in terms of an agreement with the S.A.B.C., but the S.A.B.C. does not pay the R2. The S.A.B.C. recovers that amount from the advertiser, the sponsor of the programme. The hon. member for Vereeniging wants to know why the manufacturers do not get it direct from the advertiser. Because they have no legal protection at all in this Bill. They can recover indirectly at the present time if they wish to do so; it is merely a matter of convenience that they recover it through the S.A.B.C. but there is nothing to prevent them from recovering it directly from any advertiser at the present time. The hon. member for Vereeniging wants to know why they do not do that in any event. The answer is obvious. If this Bill goes through as it stands they will have no legal right to lodge any such claim against an advertiser on the Springbok service of the S.A.B.C.

Why should they have?

As I said at the beginning of my speech, there are few recognized authorities on the question of copyright. There is only one recognized authority in South Africa and that is Mr. Gideon Roos. He is even consulted by outside services in respect of the principle of copyright.

He will certainly like that!

In evidence before the Select Committee he made it quite clear on page 72 of the second report what his attitude was. He said—

The following question was then put to Mr. Roos (Question Q, 327)—

His reply was “Yes”. He was then asked (Question 328)—

Again the reply of Mr. Roos was “Yes”. In both cases he gave an affirmative answer. He said that here a right was being removed which in the first instance we could embody in our legislation in terms of the Rome Convention, and in the second instance, that we were taking away a longstanding vested right enjoyed by vested interests in South Africa over a large number of years, and he regarded that as drastic action. And, of course, the S.A.B.C. endorsed the statement that the only other country which had done this was Ghana. You see, Sir, no member on the Government side who sat on that Select Committee will dispute this statement of mine that not one title of oral evidence was heard by the Select Committee objecting to these rights, which this Bill now takes away.

The people who gave the opposite evidence were torn to pieces.

Sir, the only evidence submitted before the Select Committee was evidence in favour of the retention of these rights. As far as I know the people giving that evidence did not have that evidence torn to pieces because there was no other authority to tear their evidence to pieces. I do not know whether the hon. member for Vereeniging claim an authority on this subject; I certainly do not. I sat there as an ordinary member of the Select Committee trying to adopt an objective approach to what was obviously a sincere and earnest attempt to arrive at the best answer as far as the legislative procedures of our country was concerned. My only interest in that Select Committee was to see that we fully protected the rights of South African composers and authors and the intellectual products of our South African people.

They are fully protected.

The hon. member for Vereeniging, judging by the attitude which he adopted there, was prepared to throw their rights overboard, as I will show in a minute. Sir, the interesting aspect is that the only body which objected to the writing in of these rights into our legislation as far as the gramophone recording industry was concerned, was the S.A.B.C. They did not object in toto. They only objected as far as sustained broadcasts were concerned, and on two occasions it was moved in the Select Committee that oral evidence should be heard from the S.A.B.C. and every single Government member voted that down. Sir, my reason for saying that there are undesirable elements attached to the history of this legislation is that the S.A.B.C., which was an interested party, was informed of discussions in the Select Committee and was even informed of evidence given before the Select Committee, but was never given the opportunity by Government members to come before the Select Committee to state their case. Sir, that is clearly indicated in the evidence given before the Select Committee.

You have omitted to say that an agreement was arrived at as to which evidence would be heard.

It was agreed that the Select Committee would hear the S.A.B.C. but Government members voted it down. There were substantive motions in that regard. Sir, this is the degree of collusion there was! Here is an interested party, the S.A.B.C., which, according to Government speakers, stands to gain something like R80,000 a year as a result of the removal of this long-standing vested right, and the S.A.B.C. was being kept informed as to what was taking place in the Select Committee; what my views were and the views of the hon. member for Vereeniging, as well as the views held by the opposing parties. Questions were put in this regard in the Select Committee; I do not want to quote that evidence in toto, but let me quote question 469—

Mr. van der Walt is the legal adviser of the S.A.B.C.—

Dr. Straschnoy is the expert to whom the Minister referred—

That is the society which protects the mechanical recording rights—

The answer was—

Sir, that is a statement which is palpably false, because the evidence of this Committee had not even been published at that time. In other words, memoranda which were placed in the hands of officials were carried out of the Select Committee and handed to an interested party before members had even had an opportunity of expressing their views with regard to those memoranda. Sir, I now quote the following questions and answers, as printed in the Select Committee’s report on page 101 (Q. 481, 482 and 483)—

In other words, here we were having discussions involving large sums of money and vested rights, and yet evidence which was being considered by the Select Committee was passed on to an interested party outside. I say that that is an undesirable state of affairs. I say again that not one title of evidence was submitted before the Select Committee, other than the memorandum submitted by the S.A.B.C., objecting to the removal of these long-standing vested rights.

Do you hold a brief for the phonographic society?

Sir, what is going to be the result? What is going to be the effect of the removal of this long-standing right upon the gramophone recording industry? Firstly, it is going to have a detrimental effect upon the enterprise shown in South Africa in the fields of culture and entertainment and the fostering of South African musical and artistic talents which, let us recognize, has been promoted largely by the gramophone-recording industry, which has created opportunities in the past for South African artists and which has helped to make them known beyond the borders of South Africa. It is clear that the artistic works of South African authors and artists, through the pressing of gramophone records, are to-day becoming recognized far beyond the borders of our country and, what is more, these works are earning foreign currency for South Africa. Sir, the other important aspect is this: As a result of the creation and the promotion of this talent, the S.A.B.C. has had ready-made talent placed at its disposal. Sir, I ask any member of this House whether the S.A.B.C. can function to-day without the assistance of a gramophone-recording industry in South Africa? Then there is another effect and that is the loss of income to performing musicians, and to the copyright owners of works who receive a share of the industry’s income from public performances and the broadcasting of records. Sir, the Minister has received a memorandum, a copy of which has been sent to me from the S.A. Musicians’ Association who in any event receive a percentage of the fees derived from the S.A.B.C. which makes these payments to the Musicians’ Association of South Africa. They are now going to be deprived of this altogether; there is no other source of income for the Musicians’ Association. Sir, I put it to the hon. the Minister, if the S.A.B.C., in order to supply all the music that is required to be able to broadcast interesting programmes and to hire all the orchestras and musicians, would it cost the S.A.B.C. the ten cents which they are now paying when they play a record or would it cost them a fantastic sum of money in order to provide the necessary enjoyment for listeners? Then there is a third aspect and that is the question of reciprocity with other countries. Sir, South African talent is finding a ready market and a ready sale overseas at the present time. These records are made from pressings made in South Africa. If we do not offer protection in regard to broadcasting and public performance in this respect we cannot expect our South African artists to receive the same degree of protection from overseas countries. Our artists will lose, on the reciprocal arrangements and the principles embodied in the Rome and the Berne Convention, the protection and the income they would normally have obtained through the pressing of these records. The exclusion of these rights from our Bill will automatically mean that South African artists recorded on records will be excluded in every one of the signatory countries. There is no doubt about that.

The exclusion of these rights will have another effect and that is the ridiculous position to think that with a Bill of this nature we can create a form of legalized theft, legalized theft in the sense that a manufacturer of any product, whether it is toothpaste or a pair of socks, who wishes to advertise his product over the S.A.B.C. will be entitled to steal as he likes the product of a gramophone manufacturer to advertise his products. As hon. members know there is not a single commercial programme on the S.A.B.C. which does not play a gramophone record in order to give emphasis to the product. We are here creating legislation in terms of which the manufacturer of any consumer product can steal the product of the gramophone manufacturer in order to sell his own product.

It is not his property.

The hon. member who was chairman of the select Committee says it is not his property. But here we have a Bill before us which entitles the S.A.B.C. to play any gramophone record without paying any fee as and how and when it likes.

Quite right.

The hon. member says “quite right”. If the S.A.B.C. couples the playing of that record with the job of advertising the products of the Minister’s border areas are they not stealing the product of the gramophone record manufacture?

Even before the Rome Convention was signed the copyright laws that were in existence granted protection to producers of records in this respect in Great Britain, Germany, Ireland, Italy, Spain, the Scandinavian countries, New Zealand, Australia and so on. All those countries recognized the protection of this particular right.

My time is running short. But there is the question of protecting by way of legislation a young industry in South Africa. There is no doubt that the rights the gramophone recording industry have enjoyed in South Africa since that industry came into being after the end of the last war have ensured the industry of a certain income. They have formed the basis, in a sense, in assisting that industry to develop. It is an industry which has to be built on intangibles; it is an industry which has to be built on the creation of men’s minds and artistic talents. Is it right therefore that, in a young country such as ours and where we are trying to make an impact on the Western world in the artistic field, we should allow the talent and ingenuity of a gramophone record manufacturer, merely because he manufactures records, to be unprotected. Why should he be deprived of a right which has existed for all these years?

Finally I wish to make this point which I hope will have some effect on the hon. the Minister. In removing the protection over the copyright of sound recordings as far as the broadcasting and the playing in public of those records we are creating an anomaly in this legislation. I think even the hon. member for Vereeniging will see this point. For the first time, as the Minister and I have already said, a film gets copyright protection in this Bill but not a record, yet both the film and the record derive their originality from the artistic and technical skills of the producer. There is no difference between producing a record and producing a film. Both require artistic skill and technical skill. But in the case of the film we give protection and in the case of the record we want to deprive it of it. Naturally one day when the S.A.B.C. embarks on a television network they are going to use films. When they show those films over their television network they will have to pay the fee that the film companies demand from them. But when it comes to the question of playing a record they will pay nothing.

I think I have said enough to show the injustice of depriving the gramophone record companies of this right. Not only is it an injustice but a potential loss to South Africa because of the kernel of this legislation, namely, the principle of reciprocity with other countries. I say it is a pity that an approach of this nature was adopted by Government members on the select Committee. I still entertain the hope that the Minister will give some consideration to the amendments we will move. In the hope that he will give further consideration to them I want to quote the statements made when these matters were considered by a special Committee in the Australian House of Parliament. In a report published by the Attorney-General of the Commonwealth of Australia as to what alterations are desirable in the Australian Copyright law this was stated—

In this case the S.A.B.C.—

I think those words sum up the attitude of this side of the House and the injustice of what is being done in this legislation. I hope that when we go into Committee the hon. the Minister will give some consideration as far as this particular issue is concerned, an issue which I. like him. in my reply to his opening address, have dealt with at some length.

The hon. member for Turffontein (Mr. Durrant) also got hot under the collar on the select Committee when we discussed gramophone records. He implied that irregularities had taken place on the Committee. That is an allegation which I. as the chairman of that Committee, reject absolutely. In the final result it is our duty, and that of the Department, to draft a very sound Act for the Republic of South Africa. That was the primary object.

Before I deal with the merits of his argument, I just want to say that in this respect he did not tell the whole truth. He raised great objection to our having taken out, in the select Committee, the provisions that also the film hire asked by distributors of films should no longer fall under the jurisdiction of the Tribunal which is being established in terms of Clauses 24 to 31 of this Bill. The fact is that we had evidence that it would be inadvisable to do so. That evidence was the following: Firstly, the provision which we took out was contrary to the terms of Section 14 (4) of the Berne Convention. We could not have placed it in the Bill without coming into conflict with that convention. Now the hon. member criticizes the Department and the Government members who served on the select Committee for having taken that provision out of the Bill.

When was it ever discussed?

Did that poor hon. member for Turffontein not read the evidence of all the film companies? Did he not read the evidence of Fife, Brink and Todd, who submitted pages and pages to us and drew our attention to it? Must I now read it over to him again?

May I put a question?

No, Sir, the hon. member had 45 minutes or an hour and I have just half-an-hour. Secondly, it was the S.A.B.C. which asked that the provision should be inserted in the Bill. Later they asked that we should take it out. It did not matter in the least to the select Committee whether they inserted it or omitted it. But after the evidence of the film companies, the Committee decided to take it out. I will tell him on whose behalf Fife, Brink and Todd were acting. They were acting on behalf of Twentieth Centry Fox and its filial African Consolidated Films, Metro Goldwyn Mayer. Warner Bros. United Artists and Empire Films. They are the undertakings which objected to this particular provision. If those undertakings were the only ones who objected to it (even though the proposed provisions were in line with the Berne Convention. and if we had the choice to omit if) I would have been in favour of omitting it. The Government members on the select Committee would also have been in favour of omitting it.

The hon. member made another allegation ("this time in respect of gramophone records) to which I shall return in a moment. It seems to me that the hon. member for Turffontein has a greater regard for these gramophone record companies than he has for arriving at a good arrangement in regard to copyright in our country.

Why?

Like the hon. member for Heilbron (Mr. Froneman), I should also like to know for what reason.

Before proceeding, I want to express my thanks firstly, to the Department of Economic Affairs and to the Government for having come along with this Bill. The film industry has been waiting for it for a long time already. What we wanted most was the Tribunal, i.e. the copyright court, which is being established. We take note of it with great appreciation.

Mr. Speaker, I am sure you will not rule me out of order if I agree with the hon. member for Turffontein when he says that this is a highly technical Bill and that experts in this regard are very scarce. We on the select Committee did not pose as people who knew everything about the subject. I do want to say this, however, about hon. members who served on the select Committee, namely that we agreed on practically all points. There was only one point on which we did not agree, and that was in regard to gramophone records and, as I have promised, I shall return to it in a moment. I want to express my appreciation to members of that Committee of both sides of the House for the assistance they rendered and the spirit in which they did so, except in connection with the question of records. I think that as a result of that we have produced a Bill in regard to which the industry will be very happy.

To revert to gramophone records, the hon. member for Turffontein has said many things to the effect that we on the select Committee derogated from “long-standing rights”, as he called it. Let us view this matter a little more closely. Sir, you will allow me, for the sake of perspective, just to sketch what really happened on this industrial front. There is copyright in this intellectual property. I like the term “intellectual products” which was used by the hon. member for Turffontein. There is copyright on these things and those holding the rights are entitled to reproduce those products for their own benefit. In the case of music, other than in the case of the art of printing books and photographs, sheet-music cannot simply be reproduced by the printing press. If sheet-music is sold the author receives a share of the selling price It so happens that in regard to music one reproduces music not only by means of the printing press but also by way of performance by an orchestra or by playing it on some public occasion. Not only that; one also has the opportunity of recording music on a gramophone record which can be played. In this development the authors have formed an association to protect their rights in respect both of reproduction by means of the printing press and reproduction in public by playing that music at a concert, or by way of making a gramophone record. That association calls itself The Performing Rights’ Society. That is how it is known in the Anglo-Saxon world. In this country it is known as the S.A. Federasie van Komponiste en Uitgewers van Musiek, or SAFKA, as the Minister has said. This Association—let us call it Mr. Gideon Roos’ association—licenses municipalities, theatres and just about everybody who control a hall where music is played. A widow living in a boarding house, a little Indian Shop where they play gramophone records—everybody must pay toll to this association, which then distributes the money.

Then there is also a second association which has been mentioned by the Minister but which I want to mention again for the sake of perspective. The composers still needed another association, one to protect them from exploitation by the record-makers. We grant copyright to those composers so that their music may not be recorded on a record without their permission. We can call that association the S.A. Recording Rights’ Society, or one can refer to it as Mr. van Dyk’s association. What these people requested of us we granted to the extent of 99 per cent. Why? Because what they asked was covered by the convention. It is covered by the Berne Convention, as amended by the Brussels Convention. Mr. Durrant has no objection to that, nor have we.

Then there is a third group, viz. the makers of gramophone records. We also grant copyright to them in this Bill, but only to the extent that nobody may copy their record; i.e. when they have made a record nobody else may copy that record. They get copyright to that extent. (Quorum.) I have pointed out that there is a third group of people who are interested in this recorded music, viz. the makers of gramophone records. They are protected because nobody is allowed to reproduce their records. Just as little as a person may reprint a book and sell it, as little may anybody re-record a gramophone record and sell it. But the makers of gramophone records allege that they still have a further right. They allege that every time that record is played in public they also have the right to be paid for that.

In the first place, the approach of the Committee was that this right, which they allege they have, was not covered by the Berne Convention, as later amended by the Brussels Convention, and that there was no reason to grant it to them. Furthermore, the Committee took note of the fact that the Rome Convention of 1961 allowed a state to grant this right or not. We therefore never came into conflict with our international obligation. Under no circumstances did the Committee ever try to do anything which would put at stake our reciprocity with other countries on this point.

The hon. member for Turffontein has a second arrow to his bow. He alleges that these makers of gramophone records have a vested right in terms of the national law of South Africa. He says they have had it for donkeys’ years already—I do not know whether those were his exact words—but he says they have had it from time immemorial. That allegation of his is not true either and the hon. member knows it is not true. The facts are these: The makers of gramophone records have copyright in terms of the 1916 Act. But it has never yet been decided in South Africa whether they have the dual copyright, i.e. a copyright to have a gramophone record reprinted here and the copyright to prevent anybody from playing that record for gain. The only occasion where the impression was created that these record-makers have that right is in an English decision of 1934, The Gramophone Company Ltd. V. Stephen. Cowardine & Co., (1934, Ch., p. 450). The hon. member can read it there. This Act had then already been on the British Statute Book for almost 30 years. Then for the first time the makers of gramophone records got the bright idea that they, just like the composers belonging to Mr. Roos’ association, had this right. They then brought that case and won it. The British court decided that they have a dual copyright, just as a composer has. But that decision is not a decision of our South African courts. Although the text which was interpreted is the same as the text of the Act applicable here, it was a British decision. It does not follow automatically that when the British court gives a certain interpretation to that section our courts will also give the same interpretation to it.

Let me take the matter further. This association of makers of gramophone records, which calls itself The International Federation of the Phonographic Industry (they have various names but “Phonographic” is always the key word), has had plenty of opportunity to have this matter tested by the South African courts; however, they just singled out the S.A.B.C. They tried to swoop down on certain cinemas and certain municipalities. I do not know which cinema-owners paid this toll to them, but I do know that there were municipalities which said, “We are not concerned with your rights; we refuse to pay”. I also know that there were cinema-owners who refused to pay. This association then left them alone. They themselves felt that they were skating on thin ice. If they believed that they had a vested right, a “long-standing right”, why did they not sue those people and say that they were not allowed to use their gramophone records? They had the fullest opportunity to do so. When the Select Committee sat on this matter, the Committee had the facts before it that the Berne Convention did not cover it and that the English decision did not apply, and the hon. member for Turffontein also knew it. There was much evidence to the effect that that section of the British Act should not be interpreted in this way. The hon. member says here was no evidence in that regard. I shall tell him who all gave that evidence. There were many; I made a list of them. The people who objected to the makers of gramophone records also having the right to collect a toll when the records made were played in public was the S.A.B.C., the Hotel Association, all cinemas and drive-in cinemas, all restaurants and tearooms which play records while serving meals, the mining companies which play records in their compounds, all manufacturers who play music while their employees are working, etc. In the light of that evidence the Committee—the objections were directed to the Department and submitted to the Committee by the Director of Companies and Trade Marks—simply could not grant that right. Various memoranda were submitted to the Select Committee. The hon. member for Turffontein creates the impression that there was no evidence on the point. There was no oral evidence, but there was a volume of written evidence. I want to quote the words of the Chamber of Mines. I read from a letter dated 8 April 1963—

That is Mr. Roos’ association—

Those are in fact the words used by the hon. member for Turffontein—

In other words, they must make their profits in the ordinary way. I can give more examples of evidence on this point given before the Select Committee. It is so typical of the hon. member for Turffontein. He must always first, I almost want to say, raise a stink, before anybody listens to his case.

I now come to the allegation against the S.A.B.C. He says the S.A.B.C. was not heard in evidence. Sir, we heard those people who would be detrimentally affected if we were to take a decision. We did not hear all the people who asked us for something and whose requests we granted. We had an agreement that we would only hear a person if he was likely to be adversely affected. That is the agreement we arrived at. I do not know what considerations counted with him, but the consideration that counted with us was that we did not have time enough to hear everybody and that in any case it was within the discretion of a Select Committee to decide whom it did or did not want to hear.

Did we propose that or not?

It was proposed, but the majority decided that they did not want to hear it; that it would be unnecessary. We need not have heard anybody, neither Mr. van Dyk nor Mr. Roos, nor Mr. Fraser nor Mr. Webb, nor that other man from Switzerland whose name I forget for the moment. But let us just set the history right in regard to the S.A.B.C. The fact is that the S.A.B.C. was prepared to pay for the playing of records on the commercial radio. They say so in their memorandum. But do you know who objected to it? It was the record manufacturers themselves. They objected. They said: The S.A.B.C. must pay also on its English service and on its Afrikaans service and not only on the commercial service. And do you know what the advocate for this association told us when we drew his attention to this suggestion? Then he said: “Sir, I must have everything or nothing”. What was the reaction of the Committee? The Committee asked him: Give us a moral justification for this demand you are making. He floundered around for one whole morning but could not do so. And the hon. member for Heilbron (Mr. Froneman) made the nicest contribution on this point which I have ever heard. He said this—

Then the reply was: “Yes”. Then the hon. member for Heilbron asked: “Must Henry Ford, who makes Ford motor-cars, and who has embodied all the patents in that motorcar, also receive a toll for every passenger whom a taxi-driver carries?”. That is really the crux of the matter. When the record manufacturers were there we asked them to give us a moral justification for their demand, but they could not. As the result the Select Committee decided that if they asserted they must have everything or nothing, then the decision was that they would get nothing. The reasons are very simple. The reason is that that right is not covered by an international convention. That demand is regarded by the public of South Africa as an imposition. It has no moral justification, and the S.A.B.C. was perhaps prepared to throw out the baby with the bath water. If I have any criticism to voice in regard to this whole situation, I can criticize the S.A.B.C. for not having taken a firm stand like the cinema-owners and municipalities and others, who told these manufacturers to go to blazes. They should have done so as well. The hon. member for Turffontein had absolutely no case. If the manufacturers after 1934 (and that is already 30 years ago) had brought this matter to a head, I am convinced that no court in South Africa before whom the case was argued would have come to the conclusion that such a right existed. The object of copyright is surely not to protect a mechanic; it is to protect an intellectual product, spiritual goods. It is true that when the manufacturer has made his record, we protect him, to a lesser extent in regard to the intellectual product aspect, and rather more as a model or patent or the art of printing which we also protect. On that ground we could and did protect them. But it is not as if they make a contribution by improving the music, like somebody who translates a book and comments on what he is translating. Now the hon. member for Turffontein and the people for whom he pleads pretend that this had always been the law of our land. That is not so. Those people had no vested right whatever.

Then I just want to make this point, namely, that this matter can be much more conveniently discussed in the Committee Stage, and I think we will certainly hear more about it when we go into Committee. I want to point out, further, that the great argument used by the hon. member for Turffontein that we will not enjoy these privileges elsewhere now is also a half-truth, because there are more countries which do not recognize this right than there are countries that do. Therefore whatever we do, we do not do what the rest of the world does. We are doing what some countries do, and there are various countries who want us to recognize this right, whereas they are not even a member of the convention and do not even recognize that right themselves. The hon. member for Turffontein therefore has a bad case, but because he keeps silent about half of it he seeks to create the impression that he in fact has a good case. Also in this respect the hon. member for Turffontein has a case which cannot withstand the harsh light of criticism. I want to repeat that on the Select Committee we were agreed on practically everything, and therefore I will be forgiven if I do not deal with the matter further.

I unlike the hon. member who has just sat down was not a member of the Select Committee and I do not wish to attempt to traverse all that he has said, but I do want to make one remark. I regret very much that the hon. member should have dragged into this debate the honoured name of Roos in the contemptuous way that he did.

No.

I merely referred to Mr. Roos’s society and Mr. van Dyk’s society …

Order!

Sir, the reference made a very bad impression upon me, and I am sure also on other hon. members.

Every word Mr. Roos said was accepted by the Select Committee. You should be ashamed of yourself!

I am referring to the hon. member for Standerton (Dr. Coertze). Sir, that is one of the major issues. The hon. member for Turffontein has made it clear that we think legislation is necessary in respect of most of the matters which are concerned, and I believe that a great deal of the contents of the Bill will be common cause on both sides of the House.

My protest I wish to make is in regard to the method which is being adopted in dealing with private rights. The position is that there are suggestions that there are existing rights. Those rights have been recognized by many and it is admitted that in respect of those rights considerable sums of money have been paid in the past. The hon. member for Standerton said that those rights have no foundation in fact. My protest is that the proper place to test a matter of that nature is in the courts of the land.

Why did they not take the matter to court?

The person who objected to those rights had a perfectly clear right to bring a case before the courts of the land and to contend what the hon. member for Standerton has contended here that those rights do not in fact exist. Mr. Speaker, when there is a dispute on a matter of this sort affecting private rights, I say that it would be most regrettable if this Chamber came in and settled the question instead of letting it be settled in the ordinary way through the courts of this country.

Mr. Speaker, the rights have been existent. That is not denied. It is not denied that they have been respected in this country by important organizations, that considerable sums are involved, that those royalties, etc., which have been paid have played a very important part in helping to build up a very important industry in this country. I say that we must protest to those rights being swept away simply on the grounds which have been put forward by the hon. member for Standerton. I do believe that those rights are sound. The other questions are matters which I believe can be dealt with very conveniently in Committee. I would like to say in regard to this particular point that the rights, I believe, do not only affect persons in this country; they are matters which could affect the rights of persons outside. I accept the fact that these rights are not rights which are universally recognized, but it is a fact that at the present time rights have been recognized in this country to the extent that considerable sums have been paid in respect of them, and I say that it is a great pity that the hon. the Minister has presented the Bill in its present form, sweeping away these rights, which have been recognized as existing for a long period, at least by some organizations. I hope that the hon. the Minister is going to have second thoughts about this matter. I believe that it is very important in a democratic country such as South Africa and a country whose word is respected throughout the world that we should be ultra careful in interfering legislatively in connection with matters of this nature. I say that the case which has been made out up to the present certainly does not justify me to support this proposed course of action, and while in agreement with most of the provisions of this Bill, I hope that through amendments we will have an opportunity of testing this matter. I hope that when that time comes, the hon. Minister will have given very serious consideration to this matter.

The general thing in respect of rights which are being swept away, rights of this nature, is in any event not to sweep them away entirely, but to recognize the rights for a period and to provide that they will terminate after a certain period. That enables persons who are concerned to make adjustments to meet the position. I hope that the hon. the Minister will go so far as to remove this provision from the Bill at the Committee Stage, that he will take the initiative in respect of that matter, so that they can have an agreed measure, and thereafter the question can be further examined, and if it is felt that it should be removed, if it is to be removed through this House, it should be done on some such basis as I am suggesting, giving recognition for a reasonable period of time so that adjustments may be made.

It has never been recognized in the past.

Of course it has been recognized in the past in this country. That is the very case of the persons who are concerned.

They claimed the right.

The right has been recognized, and the hon. member can attempt to show this Committee that it is not so. The objections which were put to the Select Committee by interested bodies were on the basis that these are existing rights, and, Sir, that have opinions to the contrary, but the proper place, if the matter is to be tested, is before the courts of the country and not before a Select Committee of this House.

I am sorry that the previous speaker made such an unsavoury allegation against the hon. member for Standerton (Dr. Coertze). He said that the hon. member for Standerton had made an unsavoury attack on the good name of Mr. Roos. That is definitely not true. The evidence of Mr. Roos before the Select Committee was accepted practically unanimously, and the hon. member for Standerton was referring here only to the association represented by Mr. Roos, and he said. “Let me call him the Roos Committee.” There was not the slightest belittling or reflection. I do not know whether the slender majority of three votes in the constituency of Germiston (District) has upset the hon. member, but it would appear to be so.

The hon. member spoke here about rights. I am sorry that the whole of this legislation has been overshadowed by one small group of people who agitate for certain rights they are supposed to have had, but which in fact they never had but only claimed. And if any people should have tested those rights in court, it is those very ones. What did they do? They went along and claimed those so-called rights from only one body, namely the Broadcasting Corporation, but they did not claim those rights from all the other people who had made use of those records. In fact, they were afraid to take those people to court to test their so-called rights, as the hon. member for Standerton has already indicated.

This Bill is a technical measure and I should like us to approach this matter objectively, and not always just from the angle of gramophone records. Surely much more important matters than merely gramophone records are concerned here. Why the hon. member for Turffontein approaches the matter as if he holds a brief for those bodies alone and wants to treat the whole matter in the same way, I really do not know. I regret that he has done so. This is a very interesting piece of legislation, which covers a large section of our law, and I think the matter should be viewed from a broader angle. I should like to approach the matter from a more technical and broader viewpoint, and the first statement I want to make is that this copyright is part of what we would call the “immaterial property right” in scientific legal language, as contrasted with the material property right, such as for example the right to own or occupy property. What is the subject matter of this immaterial property right? It is the intellectual property of a person as contrasted with his material goods, to which that person may have rights. These intellectual properties consist of the production, or let me rather say, the creation of the spirit of man. From the nature of the matter such creations are the result of mental labour of thought, and as creations they must therefore be original. If the object of the copyright is regarded as the intellectual creation of man, it really does not matter what form such a creation takes, but it is definitely necessary that it should assume some form, because it must be recognizable before it can be protected. Because if these intellectual creations are not recognizable, i.e., if they have not assumed any form, they exist only in the mind of the creator, and then of course the law cannot protect them. Therefore, in order to grant protection to those rights in respect of those intellectual properties, they must assume form. One cannot protect the right of a person to a thought or an idea or an inspiration. That idea must assume form. I want to point out that there are people, even lawyers, who think that the aim of the copyright is to protect these ideas and thoughts which have not yet taken shape. I can refer to an article by Mr. A. J. C. Copeling in the latest issue of the Tydskrif vir Hedendaagse Romeins-Hollandse Reg, in which under the heading “Copyright in Ideas” he deals with that trend of thought. I want to say immediately that this is definitely not what is being done in the present measure. It does not seek merely to protect ideas or thoughts. There are two requirements before there can be copyright. The first is that it must be an intellectual creation: in other words, it must be original. The second is that the creation must have assumed form, and these two requirements must exist simultaneously before we can talk about copyright. In regard to art, we have long since learnt that form and content are one. Where I emphasize that we want to protect an idea which has assumed form and is original, I want to refer to the representations made to the Select Committee by the Association of the Southern African Phonographic Industry, the persons for whom the hon. member for Turffontein evidently holds a brief to regard the matter just from that angle, and I want to refer to the questions put in the Select Committee in that regard. Let me state very clearly that the gramophone people have copyright for the making of gramophone records. One may not copy them. But if the records are broadcast to the public and they want extra remuneration for that as well, in other words they want copyright for that too, that is going too far. But that is what it amounts to, and the hon. member for Standerton expressed it very neatly by reference to the example of the motor car made by Henry Ford. What were the questions we put in the Select Committee in this regard? (Translation.)—

That is the crux of the whole matter—

That is the basis on which we should approach and regard this whole matter. From the foregoing it is therefore clear that it was correctly considered that the makers of gramophone records should not be granted a greater copyright than the law at present grants them. In my opinion that would be in conflict with the conception of the immaterial property right which is at stake here. These intellectual creations may of course adopt many forms. There are, for example, many new directions in regard to these forms. Let us, e.g., take the art of painting. The art of painting no longer consists merely of applying paint to a canvas, but has become much more than that. There are, for example, works in which old broom-handles, brooms and similar articles are placed on a canvas, and they are then painted, a new trend in the art of painting.

If criticism can be voiced in regard to this Bill, this is where I should like to express a little criticism. We are a member of the Berne Convention and Section 2 of that convention defines “literary and artistic works”. Literary works are mentioned separately, actually as the result of the fact that copyright, in our legal history, was first granted to literary works, and copyright in respect of other forms of art only followed later. It is therefore really an anachronism that it is still mentioned separately. But I say that just in passing. On page 3 of the First Select Committee’s evidence I just want to refer to what Mr. Keeton said in this regard (translation)—

Now what is the importance of this legislation at the moment? It is that we are now granting further protection to this long list of new art forms. This measure is based on the British Act, and the British Act goes a little further than the Convention does because its first chapter relates to literary, dramatic, musical and artistic works, but in the new chapter we are now adding we refer to sound recording, films, broadcasts and published works. From this one gains the impression that the Bill seeks to protect only specific forms of intellectual property. In fact, it runs through the whole legislation like a golden thread that only various forms should be protected. That is the only criticism I have of this legislation, that it creates the impression that we want to protect only certain forms of art and not all the forms assumed by intellectual creations. I want to point out that this really results in two shortcomings. The first is that it does not afford enough protection to the spoken word as a form of intellectual property. I am just mentioning the anomaly which is now being created by this legislation. It would be an infringement of copyright if a recording was made of an ex tempore speech made over the radio to which, say, 5,000 people listened, but it is no infringement of copyright to make a recording of an ex tempore speech made to 50,000 people over a loudspeaker. The second shortcoming is that performing artistes are not given their due. They are given no protection, although I should like to point out that there is presently legislation before this House which has now been referred to a Select Committee and which we therefore do not have to discuss now. My only criticism therefore is that this Bill creates the impression that we want to protect only certain forms, and therefore I want to associate myself with what was, inter alia, stated in this article in the Tydskrif vir Hedendaagse Romeins-Hollandse Reg recently, which reads as follows—

That is my whole criticism but, as I have said, the matter was considered by a Select Committee and it has taken three years to draft this legislation. It was circulated not only here but also overseas, and finding a new approach at this stage to protect all the forms that intellectual property can assume would take too much time and would defeat the whole object of the Bill at the moment. Although legally it would have been much more correct to accept it like this, it would now have been an impossible task.

But viewed from the standpoint which I have tried to state here, the makers of gramophone records on whose behalf we heard pleas here to-day have no case at all, and I hope and trust that hon. members will see it in the correct light, not for the sake of those people, because we are not here to protect certain interests or certain persons, but to build up our country’s immaterial property rights as such and to put a piece of legislation on the Statute Book of which not only the present generation but also future generations may be proud.

I do not think it is necessary to detain the House very long. Hon. members opposite have informed the House that they agree with the greatest portion of the Bill and that they will therefore not oppose it. The main difference of opinion concerns the rights of the manufacturers of gramophone records as far as the broadcasting or the public playing of such records is concerned. In that regard too I think the answer has already been given by two previous speakers on this side, the hon. members for Standerton (Dr. Coertze) and Heilbron (Mr. Froneman). I think they dealt with all the aspects referred to here by hon. members opposite.

I just want to say a few words in connection with the observations made by the hon. member for Turffontein (Mr. Durrant) in connection with the rights of the manufacturers of gramophone records. I am convinced, in spite of the complaint made here by the hon. member, that the Select Committee, over the period of two years during which it sat, thoroughly considered this question of the rights of the manufacturers of gramophone records. Having read the report of the discussions which took place and of the evidence given before the Select Committee, I do not think there is a single point mentioned here to-day by the hon. member which was not raised before the Select Committee at some time or other and upon which the Select Committee did not come to a decision after due consideration. Moreover, the hon. member will agree that I discussed this matter with him personally; that I met a deputation from the Association and that I gave them every opportunity to put their case to me. In these circumstances I do not think that the Association of Manufacturers can have any complaint that they did not have an opportunity to state their case and that it was not properly considered. In these circumstances we have no alternative but to reject the views expressed here by hon. members opposite. This measure was drafted in accordance with the Berne Convention, and in that Convention there is no reference to this sort of copyright or the sort of right for which hon. members opposite are now pleading for the manufacturers of gramophone records.

And the Rome Convention?

The Rome Convention followed subsequently, and Article 12 of that Convention reads as follows—

In terms of the Rome Convention we have the right to decide whether or not we are prepared to grant this privilege to the manufacturers of gramophone records, and I stated perfectly clearly in my opening speech that we preferred not to grant them such rights. In this respect we are following the example of many other countries. We are not the only country to adopt this attitude, The hon. member tried to create the impression that we were isolated in this regard in the world, but in fact the position is that even in a country like America this right is not given to gramophone record manufacturers. The objection was also raised by the manufacturers of gramophone records —the hon. member also referred to this—that the S.A.B.C. would play these records over and over again with the result that their value would diminish. But I think we can rely on the fact that the S.A.B.C. as a sensible body will know that if it follows such a practice it will only harm itself. I do not think the S.A.B.C. would be so stupid as to play a record until it is ruined, because then the reputation of the S.A.B.C. would suffer. The record manufacturers, as far as the financial aspect is concerned—and I think this is what the hon. member for Germiston (District) (Mr. Tucker) had in mind—referred in a memorandum to the harm that they would suffer in this connection; hon. members will recall that they expressed the opinion that if they were deprived of this right they would suffer damages to the tune of R 106,000 per annum. Well, that is a very small amount when one bears in mind the fact that 5,000,000 records are being manufactured in this country.

The 1916 Copyright Act does confer certain rights in respect of the public playing of records. This matter has also been mentioned here, but as I said in my opening speech we do not believe that it was the intention originally to grant those rights in South Africa. It was only in 1934, when the matter was taken to court in England, that the manufacturers of gramophone records claimed these rights, but in South Africa there has never been a test case in the courts in this regard. The hon. member for Turffontein referred to the rights of our authors, entertainers and artists which are now allegedly being jeopardized. I cannot agree with him. As far as entertainers are concerned, he knows that there is legislation before the House which will be dealt with in the near future, and protection is in fact being given to the true author in this measure, protection is being given to everybody in this measure, and even the manufacturer of records is being given protection as far as the production of his records is concerned. The only people who are not being protected are the manufacturers of records in so far as the public playing of records is concerned. But I really cannot see what right record manufacturers, who sell records to people, have to ask for further payment for the playing of such records.

The hon. member mentioned the example of films and he wanted to know why films were being treated differently from records, but, Sir, there is a tremendous difference between a film and a record. A record is made for the purpose of sale and the manufacturer earns his money through the sale of the record. A film, however, is not manufactured for the purpose of sale; it is manufactured to be exhibited, and that is how it earns its money. The two things are not comparable. Apart from that, there is also the fact that as far as films are concerned, the Berne Convention gives us protection of a kind which differs entirely from the protection given in respect of records.

Will you deal with the principle of reciprocal rights?

If the hon. member wants to go into that principle as far as the financial aspect is concerned, it does not concern me very much because I am not much concerned with the financial aspect. It is simply a question as to whether the manufacturers of gramophone records are really entitled to that right. Whether we in South Africa will gain or lose as a result of the fact that this reciprocity will perhaps disappear is a matter which does not concern me because the issue here is whether these people are entitled to those privileges.

As far as our artists are concerned, their copyright is still protected in any event. The hon. member must not overlook the fact that the protection of copyright is not affected; it remains protected. This only deals with the public playing of records. If there is reciprocity our records may be played publicly in other countries, and other countries will have the same right here. We have the right under this measure to grant the same reciprocity to others that we give to our own people.

Finally, the hon. member referred to films. I think another example that one can also mention is that of a book. A book does not differ much from a record. The intellectual wealth of man is also contained in books. As far as books are concerned the author’s copyright is protected. I am not at liberty to reprint a book, just as I am not at liberty to reproduce a record. But there is no single case, as far as books are concerned, where I have to pay if I read out a book in public. The circumstances are precisely the same. If we are to pay a fee to the manufacturer of records from whom we buy records when those records are played in public—the composer of music already enjoys protection—then we must also pay a fee to the printer or publisher of a book every time that book is read out in public. The artist is protected in any event, and under this new legislation which is before the House, the entertainer will be protected. The question is whether, once having bought a record, I should again pay a fee when I play it in public. I think that is an injustice that we should not introduce into our law.

Motion put and agreed to.

Bill read a second time.

I move—

1. (a) the definition of “local authority” shall include a management board established in terms of the Bantu (Urban Areas) Consolidation Act, 1945; and
2. (b) the profits derived from the sale of land acquired by a local authority by means of an advance out of the National Housing Fund shall not be utilized until an approved scheme as a whole has been carried out.

Agreed to.

House in Committee:

Instruction stated to Committee.

On Clause 1,

I move—

1. (c) any management board established under sub-section (1) of Section 40bis of the Bantu (Urban Areas) Consolidation Act, 1945 (Act No. 25 of 1945); and;

On Clause 1,

As I have already explained in my second-reading speech, this is to enable the Minister of Bantu Administration to follow the same course that we determine in the first part of this clause, viz. that in certain areas such management boards may be established with these powers.

Amendment put and agreed to.

Clause, as amended, put and agreed to.

On Clause 5,

I move as an amendment—

“or regulation”; and to omit sub-section (2) of the proposed Section 44 and to substitute the following new sub-section:

1. (2) The Commission shall also, to the extent determined by the Minister by notice in the Gazette after consultation with the Administrator concerned, be exempt from any provision of the town-planning scheme of a local authority or of an Ordinance in terms of which the approval of a local authority is to be obtained for the subdivision of any land.

This is in terms of the agreement arrived at between the United Municipal Executive and myself. The position has always been accepted that what we are proposing here will in fact happen in practice, but as the result of legal advice we received last year it now appears that where such a scheme is implemented and land has been acquired through a loan from the National Housing Commission, decisions have to be taken from time to time in regard to the profits. This creates tremendous difficulties for the local authorities. The U.M.E. asked me whether we could not amend it in such a way that it would now be beyond all doubt that only when everything is completed will a calculation of the profits be made and the Commission can then decide how those profits should be utilized. I feel that this is a very reasonable request and I am moving this amendment now just to have it clear in the law and beyond all doubt.

I move the amendment standing in my name—

1. (3) In exercising any of the rights or powers conferred upon it by this section, the Commission shall not act except after consultation with the local authority concerned.

I do not think one is asking a great deal. My objective is to enable the local authority to be fully in the picture according to statute. In other words, there is no limitation on the actions of the Minister, but it enables the local authority to be aware of what the Minister intends to do, just in case it may be advisable for the Minister to know of certain thinking and plans of the local authority and perhaps to be made aware of any snags which might result from the attitude of the Commission, etc. A consultation in this particular instance is more a matter of courtesy than anything else, but I do believe that one should ensure that the local authority is made aware of what is being done in regard to these various changes for which powers are sought. We have made it clear that we will not deny the Minister these powers simply because we believe that it is in the interest of the enormous housing programmes that face us, and that he should have the necessary powers which will enable him to cut across any red tape or any obstacles in order to bring about as speedily as possible the necessary schemes that the Commission has in mind. But I think it should be provided in the statute that it should only be after consultation with the local authority. As I say, it does not hinder in any way the work of the Commission, but I do think that the spirit in which the Minister introduced this Bill, namely that there should be the utmost goodwill and co-operation between him and the Commission and the local authorities, will be given effect to if this amendment is accepted.

As I understand the hon. member he wants me to insert the words “After consultation with the local authority”. Sir, I discussed this matter very thoroughly with the United Municipal Executive and they all agreed that we must have this safety valve; they agreed that there should be consultation with an authority which is able to speak on behalf of the local authorities. They were quite satisfied with the proposition that we should consult the Administrator, who is acquainted with the circumstances of every local authority, so that there will be the minimum waste of time. If the hon. member is aware of local difficulties, he can point them out to us. Consultation takes place in practice, and these steps are only taken after negotiations have taken place. But the United Municipal Executive informed me that they agreed that we should eliminate loss of time as far as possible, and they are quite satisfied that we should only consult the Administrator. It seems to me that we must adhere to this; this is an agreement that I entered into with them. If the Administrator has any difficulties they can be ironed out. But what happens in practice is that long before we start with a scheme the Department takes preparatory steps and negotiates with the local authorities, and by that time we have already passed that stage.

I agree with much that the hon. the Minister has said, but I think he does not clearly follow my objective. I do not think it is even necessary, if one follows the terms of the amendment, that the Administrator or the local Government Department of the Provincial Administration should enter into the picture at all. I have had some practical experience myself of discussions with the National Housing Commission in years gone by on other matters affecting large housing schemes in a city like Johannesburg and we have been able, in consultation with the Housing Commission, to achieve a great deal without it having to go through any specific procedure which would waste time. My objective is that the local authority should know what is taking place. It also gives a very useful avenue to the local authority for easy discussions with the Housing Commission. I can assure the Minister that there is no other purpose or motive underlying my amendment.

From practical experience I can say that we once had a situation where there was a complete hiatus. The problem could not be solved simply because the parties could not get together, but when there was an opportunity for the city engineer plus a representative of the council who was the chairman of that particular department to meet at a conference and discuss the matter very fully with a senior representative of the Housing Commission, it did not take more than a few weeks before the Gordian knot was cut and the entire picture changed. I accept the assurance that the Minister has spoken to the U.M.E. and that the local authorities are happy to be put into the picture, but I say that it is a useful safeguard to put into the Act because the Minister cannot be present at every detailed discussion. Where this machinery exists for discussions with local authorities, it does not bind the commission at all. It is not subject to consultation with the local authorities, but after consultation, which merely means that they have to be apprised of what is taking place. I believe with the utmost sincerity that the Minister would be making a very fine gesture and he would also open the door to local authorities which would make them completely at home with the work and the machinery of the Housing Commission. I can give him my assurance from practical experience that he will find this very helpful. It will save criticism and delays and difficulties arising through individuals who see a snag which does not really exist. But through this amendment the officials of the council could have a discussion and recommend that having discussed the matter with the commission they are perfectly satisfied. I believe it will go a long way to ease the burden of the commission and to accelerate the time in bringing about these tremendous projects on which the commission will embark.

I should like to say further that the Minister did say that he had the utmost co-operation in a number of schemes which have already seen the light of day and I have no doubt whatever that all that has brought about better goodwill and understanding. But I believe there should be machinery which would give the local authority a sense of responsibility, and that its officials can deal with the commission without necessarily seeking any authority from individuals or special Committees or without there being any necessity for discussing a matter with the Administrator, because the discussions with the local authority and then with the Administrator will in my opinion create the very delays which the Minister wishes to evade. I believe that this will be machinery which will be to the greatest advantage both of the commission and the local authorities, and it will serve this particular clause with a great deal of success and it will accelerate the plans.

I should like to raise with the Minister the powers he asks for on page 6, in regard to the number of dwellings which might be constructed on any one piece of land. I want to ask the Minister to explain why he wants these powers. There has been a very determined effort by municipalities, particularly the Cape Town Municipality, to prevent terraces of houses or the erection of more than one house on a small plot, because they felt that the minimum acreage on which a house should be erected should be at least 50 by 50, and they have refused in the past to agree to subdivision of houses in the form of a terrace for sale to various people. The fact that the Minister wants this power seems to indicate to me that the Minister wants to erect terraces or two houses on a small plot. I do not want to oppose it, because apparently it will be a scheme where a number of houses have to be built and it is not possible to put one house on one plot. But I can tell the Minister that it is much better to have one house on one plot because if you have terraces it tends to overcrowding and to create slums much faster than if you have one house on one plot, even if the plot is small. I just want to know why the Minister wants this power.

I quite appreciate the attitude of the hon. member for Florida (Mr. Miller). But he must remember that since the days when he had anything to do with the commission, there has been an entire reorganization. The machinery which existed at that time has changed entirely. To-day we have seven regions in the country. In every region there is a regional office with a local Committee, with a member of the housing Committee as chairman; the province is represented on this Committee as well as the local regional representative of the Department, and a great deal of this work is disposed of locally. In other words, before the commission takes these steps, consultation has already taken place. I discussed this matter with the United Municipal Executive and at no time did they insist that I should also accept this proposal put forward by the hon. member. They told me that the only thing that they did not want was that the commission should have this power unless it was also given to them. I then asked them whether we could not fix a certain period, because in dealing with these matters one has to act expeditiously. I pointed out that I want to dispose of these matters as quickly as possible. We tried to formulate the legislation in such a way that it laid down a fixed period, because unless some period is fixed these negotiations and consultations can go on ad infinitum. They then said that the hest way would be for me to go to the Administrator and that if I made that concession, namely that the Administrator must be consulted, they agreed that there would be sufficient safeguards. In those circumstances I feel that I should rather adhere to that agreement, and I hope that the hon. member will not insist on this amendment. I should like to adhere to the agreement that I entered into with them.

As far as the hon. member for Boland (Mr. Barnett) is concerned, I am informed that there are numerous places in the platteland where the plots are so large that the rural authorities in question in fact want us to assume this power, and this provision relates more specifically to those areas. It is not the intention to take these steps in areas which have already developed to a large extent but to do so only in areas where the plots are still very large.

Amendments proposed by the Minister of Community Development put and agreed to.

Amendment proposed by Mr. Miller put and negatived.

Clause, as amended, put and agreed to.

On new clause to follow Clause 5,

I move—

1. 6. Section 63 of the principal Act is hereby amended by the addition of the following sub-section, the existing section becoming sub-section (1):
   1. “(2) The provisions of sub-section (1) shall not apply in the case of any land in respect of which an approved scheme is being or has been carried out until the scheme as a whole has been carried out.”

I explained the purpose of this new clause a moment ago.

Sir, I want to be clear on this.

I have an amendment to Clause 6 which I think now goes to Clause 7 because Clause 6 will now become Clause 7. I shall therefore move my amendment under that clause in due course, but I do want to pass one or two comments on this proposed new clause. I saw the hon. the Minister’s Department about this amendment. I felt that the position could be rectified in a much simpler way by just inserting in the existing clause, after the words “local authority” the words “when and for such housing purposes as the commission may determine”. The hon. the Minister’s Department, however, was not very keen on that. I felt that it might be a much easier way of perhaps achieving what the hon. the Minister is trying to achieve with his new clause. The new Clause 6 is apparently designed to ensure that any moneys derived from the sale of business stands and properties in an area shall be kept till the whole scheme is developed, and then after that has been done, it can be used for other purposes.

Only the sale of land.

Only the sale of land. Yes, it refers to the sale of land but it still must be kept, as it says here, until the scheme as a whole has been carried out. To my way of thinking that might take some considerable time and the Minister might find himself in a position where he might have quite large sums of money frozen until a scheme has been carried out. I do not know how long it takes on an average to carry out a scheme, but it might be quite a long period. Sir, my thoughts ran along the line of saying that when the Commission decided that they wanted to use that money, they would then have the power and they could use the money for purposes laid down by the Commission. The only difference between my amendment and that of the hon. the Minister, of course, is that I give the Commission the power to say when that money can be used and not the Department; I realize that, but I still think that that is not a bad point. If the Minister just inserted these words in the existing Section 63, it would then read this way—

In other words, I think my suggestion has this benefit that it does not freeze housing funds for what might be long periods. I want to put that suggestion to the hon. the Minister to see what he thinks about it. It might be more practical than the one suggested by him.

May I just explain to the hon. member that this has nothing to do with the ordinary funds of the Housing Commission. It only applies to the profit made on land acquired with money obtained from the National Housing Fund.

I realize that.

The position is therefore not quite as stated by the hon. member.

Sir, I accept what the hon. the Minister says. I realize that it refers to the profit. When a scheme is started there are certain stands which obviously become quite valuable. For example, when an area is zoned as a business area some of the stands, which might be purchased by the local authority at quite low prices, become very valuable, and by the time a big scheme has been developed the amount of profit from the sale of those business stands, for example, might constitute quite a large sum of money which could well be applied to developing that very scheme during the process of development. But if this goes through, as the hon. the Minister has put it, those funds cannot even be applied to that particular scheme during the course of its development, and I think that that is a disadvantage. I would like to see the profits made on the sale of those business stands, applied to the development of the very scheme from which they were made, so that they can be reapplied without having to wait until the whole scheme has been carried out. Once the scheme has been carried out one no longer needs it; one would probably not need those profits for that scheme and they would be transferred to another scheme. Surely it is good policy to know that the profits made from the development of a scheme can be applied to the development of that very scheme; that is my point.

I must say that I was impressed by some of the arguments advanced by the hon. member, but I do not think I can give a decision in this regard at this stage.

I want to suggest to the hon. member that we accept the clause as it stands and what we then discuss this matter privately. I also want to get in touch with those local authorities at whose request this amendment is being brought about. If it can be shown that the hon. member has a case, then I am prepared to bring about an amendment in the Other Place, but let us first consider the implications of this.

I think the hon. the Minister should reconsider his attitude in this matter. I think instead of this being beneficial to local authorities it might put a brake on development. Sir, I want to raise the question of certain slum properties which have been acquired. I know that development in that slum area has not proceeded because the money which the local authority will receive from the sale of any land in the area where the slums are being demolished cannot be used until the scheme has been carried out. It therefore puts a brake on development and I think the point raised by the hon. member for Umlazi (Mr. Lewis) is a good one. I agree that the hon. the Minister should make it easier for local authorities to use the profits derived from the sale of land. In the City of Cape Town if my memory serves me correctly, there are large areas where slum properties still exist, where the houses should have been broken down and the area cleared. A certain amount of land could then be sold for business purposes, and that money should be used for the rebuilding of decent properties. If the hon. the Minister’s amendment goes through it will mean that any profits made on the sale of land in that area will be frozen until the whole scheme has been completed. I say that far from encouraging a local authority to go on with a scheme it will retard progress. I think the Minister would be wise to reconsider the matter; I am prepared to leave it to him.

I just want to tell the hon. member for Boland (Mr. Barnett) that provision is already made in Section 95bis of the principal Act for what he advocated here. We have already brought about the following amendments to the Housing Act—

We already have this power therefore. Proposed new clause put and agreed to. On Clause 6,

I move—

The object of this amendment is quite simple; I explained it in the second-reading debate. In 1945 when we introduced the Housing Act, when this side of the House was on the Government Benches, we took powers, one of which was similar to this, to sub-divide land without any regard to ordinances or other schemes. We believed that this is a power which should be limited in duration. We also feel that if the hon. the Minister accepts my amendment it will mean that in three years’ time he will report back to this House on the housing position and on the progress that has been made. We feel very strongly on those two points, first of all. that the life of this Bill should be limited unless Parliament extends it after that period and, secondly, that it will in fact act as an automatic report-back on the housing scheme. We want to help in developing housing schemes and we have accepted this Bill. I therefore move this amendment in good faith, because I believe that if those two objectives can be achieved by this amendment, it will be a good thing, and it will help to keep this House better informed. It will mean that if and when these powers are no longer necessary, they can be dropped.

I am sorry that I cannot assist the hon. member in this connection. This Parliament can force the Minister concerned, whoever he may be, to make a progress report. In the second place, South Africa, as far as we can see, having regard to the development that is taking place in this country, will never again reach the stage where we will not have to make use of certain powers in order to provide our urban population with housing.

It is accepted throughout the whole of the civilized world to-day that housing problems always arise in a developing country. In the third place, the powers for which we are asking here differ in no may from the powers which exist at the present time in all modern Western countries. As a matter of fact, in many respects those countries have powers which are much more far-reaching than ours. In these circumstances I feel that it is really not necessary to accept the hon. member’s amendment. This Parliament is sovereign; if it sees fit to do so it can amend the Act again next year or the following year, but I do not think it will ever do so again, because these powers are necessary so as to be able to make provision for housing in a developing country.

Amendment put and negatived.

Clause, as printed, put and agreed to.

Title of the Bill put and agreed to.

House Resumed:

Bill reported with amendments.

When the House adjourned last evening the Committee was dealing with the added powers which are to be conferred on the Minister in terms of Clause 14 to make regulations. We on this side of the House expressed our concern and our doubts about the need to enlarge the powers as now proposed, and we specifically asked the hon. the Minister to show that the powers as they exist at present were insufficient for his purposes or prevented him in any way from making regulations in terms of the existing Section 92. I understood the hon. the Minister to say, in replying to the request to give us such examples, that the powers were insufficient to deal with children’s courts. I think it is necessary therefore to place on record that the existing provisions of Section 92, paragraph (i) give the power to the hon. the Minister to make regulations or to prescribe rules in connection with proceedings in children’s courts. It seems to me therefore that either the hon. the Minister misunderstood his brief or was not given the correct information in this regard. Moreover in view of the provisions which I have now quoted from the existing section, I think our concern and our fears are justified that there is really no need to extend the powers as now proposed. I raise this matter to give the hon. the Minister an opportunity to deal with it.

The hon. member has referred to Section 92. In terms of Section 92 (1) the Minister may promulgate regulations prescribing the rules of procedure to be followed at any proceedings before children’s courts and magistrate’s courts in terms of Chapter IV of the Act. I am informed that there is constant liaison between the Department and these courts. It is very difficult to confine the regulations to the court proceedings only. That is why the prescribed regulations also impose certain duties upon and entrust certain functions to the Minister and the Secretary in connection with the orders of such courts. One example of that is the question of nominating an institution to which a child is to be sent after a commissioner has ordered that a child in need of care must be referred to an institution. A second example is the discharge of the child under the provisions of the Act. Hon. members who look up the regulations which prescribe the rules of procedure of children’s courts will notice that the Minister and the Secretary constantly come into the picture. There are numerous examples that I could mention but it is unnecessary to do so here. A certain amount of doubt has now arisen in the minds of the law advisers as to whether the duties and powers of the Minister and the Secretary can in fact be regarded as forming part of the procedure and the proceedings at children’s courts and magistrate’s counts. or whether the Minister in fact has the necessary powers in this connection in terms of the provisions of the Act to promulgate regulations with reference to their functions and duties. The law advisers, after having considered this matter very thoroughly, are of the opinion that this doubt will be removed if the wording of Section 92 (1) (o) is amended to agree with the wording which is at present used in the Bill which makes provision for the promulgation of regulations. Another example that I want to mention is the Air Pollution Bill which has been passed this Session and which contains a similar provision. We argued this matter very fully yesterday evening.

I am glad that the hon. the Minister has given this explanation. I think most of what he has indicated could have been rectified by suitable amendments to sub-section (1) of Section 92. The powers for which the Minister is asking now are blanket powers which go far beyond the items which he has mentioned here. I do not think that he has allayed our fear that far more power is being asked for than the circumstances warrant.

Clause put and agreed to. (Official Opposition dissenting.)

Remaining Clause and Title of the Bill put and agreed to.

House Resumed:

I move—

Broadly speaking the objects of this Bill are briefly—

1. (1) to re-enact only those provisions which relate to the establishment of the various funds for which provision is made in the existing Act as well as certain other general provisions which inter alia affect all civil pensions; and
2. (2) to empower the Minister of Social Welfare and Pensions in future to administer by way of regulation that portion of the existing Act which deals mainly with the administration of the various funds and the calculation of benefits.

The provisions of the existing Act, that is the Government Service Pensions Act of 1955, can be divided into two categories, namely—

1. (a) Those provisions which relate to
   1. (i) the establishment of the various pension funds and other schemes administered in terms of the Act;
   2. (ii) the prescribed retiring ages; and
   3. (iii) the calculating of the benefits payable to officials in the Public Service and other employees in Government service; and
2. (b) those provisions which relate exclusively to the administration of the funds.

The following pension funds and other schemes are administered in terms of this Act (i) the Public Service Pension Fund, (ii) Permanent Force Pension Fund; (iii) The South African Police and Prison Service Pension Fund; (iv) the Government Service Widows Pension Funds; (v) the Additional Benefits Account; and (vi) the Government Employees Provident Fund. The moment you change the conditions of service the pension funds are affected. It has consequently been necessary since 1959 to change the law practically every year.

Because the provisions relating to the control over the various funds are integrated in the Act, as it were, it has, because of all these amendments, become increasingly more difficult for the Departments concerned to understand and to apply the provisions as amended. It has consequently been decided to repeal the existing Act, as amended from time to time, and to substitute it by a measure which provides for the promulgation of regulations in connection with (a) the administration of existing funds and schemes and (b) calculating the benefits payable to and in respect of public servants and other employees of the Government when they retire, when they are dismissed, when they resign or die. The intention is to formulate a separate set of regulations for each fund.

I want to emphasize that the provisions in the existing Act which it was necessary to incorporate in this Bill have been so incorporated without amendment, with one exception to which I shall refer later. In Clauses 9 to 22 the existing provisions have practically been reenacted word for word. I do not think it is necessary at this stage to deal with each clause separately. I have issued an explanatory memorandum which is already in possession of hon. members and the provisions of the Bill are clearly set out there. However, I want to refer briefly to some of the most important provisions.

Clause 5. which is probably one of the most important clauses, sets out in detail those matters in connection with which regulations may be promulgated. In this regard I want to assure hon. members that the regulations will not adversely affect any existing right or privilege. The benefits which will be provided for by way of regulation will be the same as those payable in terms of the existing provisions of the 1955 Act.

It will be noticed from sub-section (4) of Clause 5 that the regulations have to be promulgated in consultation with various Ministers and on the recommendation of the Public Service Commission.

The existing provisions regarding the pensionable age of members of the Public Service and Defence Force Pension Funds are reenacted in Clauses 6 and 8 respectively. It is not envisaged to change these ages. As far as Clause 7 is concerned, which is the exception to which I have already referred, it has been decided to raise the compulsory retiring age of all members of the South African Police and Prison Service Pension Funds from 58 to 60. As hon. members will notice from sub-section (3) of this clause members of those funds who joined the Police Force or the prison service before this Bill came into operation will retain the right to retire at the age of 58 if they wish to do so. Similarly, those members who entered the service prior to 24 June 1955 retains the right to retire when they reach the age of 55 years. The procedure of controlling pension funds by way of regulation is nothing new nor is it anything new in the administration. It is really more a modern tendency. Various pension and railway funds administered by my Department are already controlled on this basis such as, for example, the provident fund and pensions scheme for university institutions, the provident fund and pension scheme for technical colleges, the pension scheme governing employees who were transferred to the Government of the Republic in terms of the Employees’ Transfer Act, 1956 —Simonstown Naval Base and the Associated Institutions Pension Fund. The above-mentioned funds and schemes are naturally not affected by this Bill but the experience in that connection has been that only good can come of it if pension funds or schemes are established or controlled by way of regulation.

As far as those pension funds are concerned which are to-day administered in terms of the Government Service Pensions Act the following benefits will expressly accrue to them: Firstly, each fund and scheme will be controlled by a separate set of regulations. It will not be necessary for an official in the Department of Defence, for example, to search through an entire comprehensive Act for a general provision which refers to all the three funds under the existing law. Secondly, it will be possible to change one set of regulations without affecting another fund or scheme controlled by another set of regulations. Thirdly, when changed circumstances or conditions of employment make it necessary to amend a regulation it will be possible to do so almost immediately without having to wait for parliamentary sanction which often takes longer than a year and sometimes has to be made of retrospective effect. As far as this change is concerned we have consulted all organizations concerned in the matter. The suggestion that every fund or scheme must be administered by a complete set of regulations has the support and approval of the Treasury, the Public Service Commission, the Public Service Joint Advisory Council and the Departments of Defence, Police and Prisons. It is welcomed by the Public Servants’ Association and was given strong support in the editorial columns of Live Wire, the official organ of the South African Tele-communication Society.

I want to point out that all regulations and all amendments thereto will be made in consultation with the Minister of Finance and the Public Service Commission.

I listened very carefully to the Minister’s introduction of this measure and I can assure him that we on this side of the House recognize that this measure is an important part of the statutory charter of the Public Service. I also accept the assurances the hon. the Minister has given that, as long as he administers the Act. when this Bill becomes law, he will abide by those assurances.

The fact of the matter is, however, that this Bill, as presented to the House to-day, introduces an innovation in legislation of this kind. It changes the legislative practice generally in matters of this kind. These changes I find quite startling, I must say. The Bill could and, I think, should have been introduced as a consolidated measure. In the ordinary way it would then have been free from any controversy as a Bill which confers benefits on the permanent service of the Government should be. But instead of dealing with the matter in that way, instead of dealing with it in that straightforward way, the Government now chooses to introduce into this Bill a new pattern of vesting in a single Minister what I regard as excessive powers to make rules and regulations. It is this change in practice that obliges the Opposition to look into the matter critically and to protest against the manner in which executive authority is being extended by this legislation.

I accept what the hon. the Minister has said that there are, in a few cases, other instances where some funds are administered by regulation. But we are here dealing with a situation in which the legislation goes back to the founding of Union. I think we must face the fact that this Bill, important as it is to the public servant and to Public Service pensioners, has been stripped of many of the major provisions which are essential to pension code; provisions which, as I have said, have always been enshrined in the legislation itself and not in rules and regulations as is now proposed to be done. As the Minister has rightly pointed out Clause 5 becomes virtually the main feature of this Bill. Clause 5 provides for the delegation of powers to the Minister of Social Welfare and Pensions to make regulations in regard to a vast number of matters essential for safeguarding of rights and benefits of pensioners, both present and future. For instance, the basis of the determination of annuities and the type of service that should count for pension purposes, to mention only two salient features of a pension scheme, will in future be variable factors instead of being defined by Statute. The substitution brings about an element of uncertainty where there has thus far been certainty.

There are a number of others involved on which I shall not enlarge because time does not permit me to do so. But it is obvious that the delegation of power contained in Clause 5 assumes proportions much wider than have ever been granted to a Minister before in this Parliament possibly with one exception. That exception is the War Measures Act of 1940. There is, however, this significant difference to be taken into account in that regard: This Bill is to become a permanent feature on the Statute Book whereas the War Measures Act was a war-time emergency measure which Parliament had been very careful to give a strictly limited life. Moreover, in that case Parliament divested itself only temporarily of certain of its legislative powers, but here Parliament is being asked to divest itself of certain of its legislative powers on a permanent basis.

It is also obvious that the conventional legislative practice of restricting the powers of executive government to make regulations to such matters as relate purely to administrative detail or regulatory procedure to facilitate the carrying out of the law is now being departed from. And it is being departed from in no small measure if you have regard to the following circumstances: The Bill before us is a comparatively short one, it contains 29 clauses; but it replaces the whole of the Government Service Pension Act. No. 58 of 1955, which itself was made up of 116 sections. It also replaces the major portions of the number of amending Acts which contained in the aggregate as large a number again of sections.

It may be fair to say that at first glance this sweeping change in the process of codifying rights, obligations and benefits to members of the public service may appear to have an advantage from the purely legislative point of view. That may be so, but is certainly the least of the considerations that should be taken into account in dealing with legislation of this kind. It is more realistic to say that a distinct disadvantage of this new process of legislating for present and prospective pensioners is that the certainty and stability of the pension code and much of the security of the beneficiaries are now in danger of being swept away as well. Instead of public servants looking to Parliament as the supreme legislature to define and to determine the rights, the obligations and the benefits which shall accrue to pensioners, they now have to look at regulations made by executive government.

To judge from what the hon. the Minister has told us it is inevitable that this vast mass of legal provisions will still be there but most of them are now going to take the form of regulations which, as we all know, find their birth or their death in Government Gazettes. We also all know that some 200 or more Gazettes are published each year. Thus far this stability and certainty was there because the requirements of this code appeared on the Statute Book which at least is more concise, more easily found and mercifully it also appears only once a year.

It is true that the White Paper sets out to explain why these changes are being made. The Minister dealt with it in the same brief way by indicating merely that it had administrative advantages. But if those are the circumstances which justify substituting a minister for Parliament as the lawmaker in respect of the pension laws what assurance have we as a House that this process of changing the legislative practice is going to stop here? If it is a sound argument which the hon. the Minister advanced then, of course, the same argument could be used in the case of the Constitution Act of 1961 because that Act has already been amended six times in three years. The argument, obviously is untenable unless it is to indicate that coming to Parliament is now being regarded by the Government as a waste of time. When one looks at the facts it is quite clear that the Legislature has not been over-burdened in respect of pension laws in the past. Major changes were made in the 1912 Act, in the 1936 Act and in the present 1955 Act. I think that compares very favourably with much of the legislation of this Government; it compares very favourably with much of its ideological laws which call for changes year by year. Whatever the claims may be. Sir. why it is necessary, from an administrative point of view, to widen the scope of delegated legislation so extensively as in this case, I don’t agree. I can only say that I personally view it with alarm. I say that no legislative practice of this sort should have been embarked upon without referring the matter for examination and comment to a Select Committee appointed by this House. Had that been done then the Select Committee might have devised a method of putting most of the detail in the form of a Schedule and determining how that Schedule could be altered more easily than by dealing with the matter in the House. We are making a major change here which, as I say, I regard as an alarming precedent. I say that no such change should have been made without referring the matter to a Select Committee for inquiry.

I hope nobody is going to argue that the matters I have raised are academic or technical because they have a very practical side. In the first place, I must draw attention to the fact that the rights, obligations and pension benefit of members of the Railway Service are still enshrined in legislation. I would advise them to keep it so. Why then should members of the public service and public service pensioners be treated differently? Why should they be subject to a change which may incorporate within it doubt as to certainty, stability and security?

In the second place Government spokesmen have recently emphasized repeatedly in this House that the Government cannot compete with private enterprise when it comes to employing staff and when it comes to trying to equate the service conditions of personnel in the public service with service conditions outside the public service. One of the main reasons for that difference, of course, is that in the private sector the conditions of service are contractual, straight forward and certainly are not cluttered up, as is now going to happen in the case of the public service, by all sorts of rules and regulations which may be published in the Gazette from time to time. So why make conditions in the public service still more unfavourable? Why remove what is today certainty and stability from the Statute Book and leave such matters to be fixed or unfixed by regulations from time to time? I say that in spite of the fact that the hon. the Minister has told us that the various Departments concerned will be consulted and that regulations will be subject to the recommendations of the Public Service Commission. Surely the criterion is not whether it is more convenient from an administrative point of view to make this change from statutory determination to regulatory determination, but whether Parliament is now going to make employment in the public service more attractive or less attractive than it has been in the past. I must say I have no doubt at all which way the decision is likely to go.

I have dealt with the matter largely from the legislative point of view because that is still. I believe, the long-sighted point of view. The Minister has told us that there has been consultation with the Public Service Advisory Council and the various associations in regard to the matter and that they have agreed to this practice of providing a pension code in the form of regulations and leaving it to the Minister to do so. I obviously leave it to them. Sir; it is their concern. But I must say I regard it as a short-sighted point of view. You see, Sir, there are many pensioners who are not in the councils of these bodies the hon. the Minister has mentioned; they have not been consulted. I am quite sure that when I voice the views I do I speak on behalf of a substantial number if not the great bulk of that class of person who is going to be affected by the legislation we are dealing with to-day.

I have dealt with the matter generally, but I would like to deal with a few of the provisions specifically. Clause 4 (1) as it now reads, really makes a travesty of the law. To say, as it does, that existing annuities to pensioners “shall not be reduced”, when the sub-section itself commences with these words “Subject to the provisions of the Act …” is deceptive, to say the least of it. The effect of those words “subject to the provisions of this Act” makes the whole Bill applicable to existing annuities just as much as to future annuities. The White Paper says this about Clause 4—

But that is not what the clause itself says. It may purport to protect the interests of present pensioners but it does nothing of the sort. It is really no safeguard at all. That is something which. I am sure, neither the Public Service Commission or the Government or these bodies which have been consulted intend should happen. I hope the intention is the one set out in the White Paper. I hope this is one of the clauses which the hon. the Minister will reconsider and, if necessary, adjust in order to give effect to what the White Paper says.

I then come to Clause 5 (6). Again I cannot accept that regulations made in terms of that clause should without any further ado simply override the provisions of any other Act of Parliament so long as that Act happens to be in conflict with the edict of the Minister. That seems to me to be a completely intolerable position if the sub-section is to remain in the Bill. I think it is really an insult to Parliament to place the edict of the Minister above the edict of Parliament.

There is one other clause to which I want to refer in which provision is made by which money in a pension fund—it is a particular one —can be withdrawn and paid over to the Consolidated Revenue Fund merely on the say-so of the Minister and the Treasury. A pension fund, by its very nature, is the property of present and prospective beneficiaries. Their contributions make up a considerable portion of the fund and that fund is their property. Obviously the Government has an interest as well. As I see it, the Government’s interest is really of a twofold nature. The Government has fiduciary interests in a fund to see that it is properly managed. It also has practical interests in a fund to see that it is kept solvent. I am quite aware that the provision to which I am referring in Clause 11 is in the existing legislation, but why perpetuate a wrong, Sir? I know it has been taken over from the existing Section 98 of the 1955 Act but I say why perpetuate a wrong? Because it is obviously wrong to transfer money from one statutory fund to another without the sanction of Parliament. That is the safeguard to both the Government and the beneficiaries, namely that the transfer of moneys from a fund should take place with the sanction of Parliament. I know it has been done before but I also know what a shock it has been to the beneficiaries when they have heard that it happened. It happened in April 1959 when R1,000,000 from the join pre-uinon Fund, which is really the old Cape Civil Service Fund, was paid into the Consolidated Revenue Fund. I can assure the House that most of the beneficiaries never knew about it until in February 1963 when a question was put in this House and it became public for the first time as far as the beneficiaries themselves were concerned. If a good case can be made out for such a transfer—T know it only takes place when a favourable but possibly a temporary actuarial assessment shows that there is a surplus in the fund—then I say that case should be made to Parliament and that there should be no transfer of money from a fund of this nature except with the approval of Parliament which is after all the final arbiter in all matters of administration.

Here, too, I hope the hon. the Minister will be prepared to give favourable consideration to this suggestion. It is in the interests of good financial administration; it is in the interests of good government: it is in the interest of the beneficiaries that there should be the widest possible publicity about this and that it should be ventilated in Parliament, and a case made for it and approval obtained. I shall come back to this matter in the Committee Stage but I mention it now in the hope that the hon. the Minister will give consideration to the matter in the meanwhile.

I think I have made it clear that the Opposition is not opposed to providing a pension code for the existing Public Service pensioners and for public servants generally. There will accordingly be no opposition to the second reading of this Bill. But we are very much opposed to the form the legislation takes and we are opposed to the manner in which this wide executive authority is to be granted to regulate rights and obligations and benefits for pensioners. My own feeling is that this change places these matters in jeopardy. It places them in jeopardy and it forfeits the security which there has been solely, as far as I can see, in the interests of administrative convenience. As I have said that is the least of the considerations which should apply in a matter of this kind. It is against these aspects of the Bill that the Opposition ventilates its objection.

My hon. colleague from Port Elizabeth (South) (Mr. Plewman) has, I think, put very clearly to the hon. the Minister and to the House the legal objections which this side has, and which I think a large number of beneficiaries will also feel should be published as widely as possible. I want to suggest briefly that the Government by bringing in this Bill, making executive action take the place of statutes, is going to seriously affect the recruiting possibilities of the Public Service. One of the motives, which cause people to enter the Civil Service, is that they feel that it offers them security, they feel that they have certain ability which they can offer to the State and which will serve the State well, but they wish to avoid the hurly-burly of life outside and would rather go where they know they will receive their regular salary, perhaps increased from time to time as the inflation or non-inflation of the country proceeds, at the same time knowing that they will receive a living wage and when they have reached the time when they can no longer work, their services will be rewarded by a pension. Sir, a pension is really deferred wages. The man when he works, works not only for the immediate salary which he receives, but he works also to provide for his future, and that is an aspect which is frequently forgotten. The wages are his own. Part of the payment is deferred, cared for, looked after, and above all kept securely and administered safely. It was one of the great attractions of State service. People enter the State service, some because they are dedicated and because they feel that they would like to serve their people and State, and it is a convenient way of placing their services at the disposal of the country as a whole. But even those who are dedicated reach the middle-age time of life when they become to wonder about what will happen when they can no longer work and what will happen to their dependants. I know that the average young man does not really think very much about the day when he won’t be able to work any longer. He always feels that that day will never come, but as we reach middle-age, we find failing powers, and we realize the truth that we cannot go on working for ever. The day will come, no matter how skilled or how knowledgeable we may be, when one’s powers for certain manual work and executive work tend to diminish, and what might have been a valuable commodity in middle life or in early life is now unsaleable. A man reaches the age when he can no longer obtain any suitable work, and at that point, and before that point, he begins to realize that the State has offered him a reward which he will receive. I wonder if the hon. the Minister realizes what a shake this is going to give to the confidence of the civil servant, what a psychological disturbance is coming to this man and to his family and what it is going to do to the recruiting for the Public Service, when this becomes generally known. As my hon. colleague has said, he doubts if the individual in the service and individual recipients of benefits have yet realized what this legislation means? Perhaps the heads of their associations have agreed to it, but whether the individual participants will sleep at night as comfortably now, after this Bill, as they did before, is extremely doubtful. Because, Sir, they have no redress. And in this country particularly, the competition with the State in offering employment, is very severe. We have great financial houses who offer favourable employment. I remember when those houses gave evidence before a commission which sat to inquire into the Coalbrook disaster and discussed the employment of the Government mining engineer and his salary and his pension, those mining houses made the statement that the State had no security for pensions or other benefits greater than theirs. They said that the pensions given by them were as secure and as certain as those of the State. With the present increase of industries and the boom in the country, there can be no doubt that these houses are getting stronger and stronger, that their pension funds will be equally liberal, probably greater and certainly more secure than those of the State, because theirs are secured by their own people who control those funds. In this Act, however, the hon. Minister can by regulation reduce a man’s pension. I don’t say that he is going to do it, but times change, conditions may become difficult. We are to-day on the crest, or rising up to the crest of a tide of prosperity, but all waves have a crest and a trough, and we will one day inevitably move into the trough. Then the temptation will come, when financial difficulties arise, when it becomes difficult to get money and the funds no longer exist in the control of the people who are to benefit from them—the temptation must come, sooner or later, to the hon. Minister in charge of these funds to cut his cloth to make his suit, and he has the power in this Act to reduce pensions, or to increase pensions. Times change. The psychological effect upon the present pensioners, and upon the recruiting of new candidates into the service is going to be disastrous. I hope the hon. the Minister will give serious thought to the suggestions put forward by my colleague from Port Elizabeth (South).

The hon. member for Port Elizabeth (South) (Mr. Plewman) and the hon. member for Durban (Central) (Dr. Radford) have raised various matters concerning this Bill, and although there are certain details which one can perhaps better discuss in the Committee Stage. I would like to pass a few remarks of a general nature affecting the principles involved in this Bill. As indicated, this side of the House supports the principle of this Bill and therefore the second reading, but there are one or two aspects concerning the principle which I think deserve some comment and some assurance from the hon. the Minister. One of the most important aspects—the Minister dealt with the matter when he introduced the Bill—concerns the rights of those persons who are members of these funds. It is of the utmost importance that their existing rights are not interfered with in any way. I think it is of the utmost importance that that particular aspect should be clarified and an assurance given to the members of the funds. The question of the security of a fund, I believe, is the very essence of the security which is provided for people in the Public Service. Now, the various aspects involved in this Bill have already been mentioned, but if one reads the White Paper. I think one particular paragraph is of some significance where it deals with the question of the difficulties of amending legislation to the principal Act of 1955, and if you look at the Schedule at the back you will see that this Act has been amended since 1955 by various pension laws amendment Acts almost every year—I think it is on eight occasions that it has been subject to amendment. However, those are eight occasions where this House has had the opportunity to discuss in detail any amendment and alterations that are made, and the House has been given the opportunity to put points of view, to make certain suggestions and to also propose other amendments which might be incorporated in the furtherance of the aims of the principal Act. Now. Sir, the White Paper, after mentioning the fact that the legislation has been amended practically every year, goes on to say this-—

If it has become extremely difficult for the Departments and the people who are dealing with these funds to be able to clearly interpret the provisions and to find certain items concerning this fund, one can imagine how difficult it is for the ordinary member of the fund and the ordinary public servant who endeavours to find out exactly what his rights are in terms of his membership of the various funds. This particular aspect is one which, I believe, should receive further consideration and some effort should be made so that the members of these funds, and remember there are many thousands of members who are involved in this instance, should be kept aware of the alterations that are being made and should be fully aware of the rights and privileges to which they are entitled. However, it is clear from the White Paper that it has been difficult to carry out some of the provisions and the vast number of amendments that have come about over the past few years. Therefore, I would like to suggest that the hon. Minister should consider, in collaboration with the Public Service Commission, to issue some form of booklet that sets out in simplified form the rights and the privileges of the members of these funds, indicating at the same time that where alterations should occur publicity will be given to those alterations. These particulars could perhaps be published in the official organ, The Public Servant, so that members of these funds are kept fully aware of the various alterations which do occur from time to time. I think it is often due to the fact that certain public servants who are members of the funds that were established in terms of the principal Act, find that they made wrong elections when there has been an amendment to the Act, which has been detrimental to them at a later stage. We find then that the only means they have is to petition Parliament, and the Select Committee on Pensions every year has to deal with many cases of public servants who have, perhaps through a fault of their own, and sometimes through merely a lack of knowledge of the provisions that do exist, made a wrong decision and have had to petition Parliament, and in many instances, of course, they have been successful in their petition. However, it is a cumbersome way to deal with the matter and if it could be obviated in any way, I think it should be done, and the possibility should be explored of finding ways and means of keeping the members of these funds fully aware and conversant of what their rights and privileges are by virtue of their membership of these funds. When other pension funds, such as the Government Service Widows’ Pension Fund, were established, there were always those persons who had long service but who were unable to contribute and thus had lost all the benefits under the funds.

There is the other question of the Committee of inquiry appointed by the Minister of Finance to make an investigation into matters concerning pension funds. I should like the hon._ the Minister of Social Welfare and Pensions, who is responsible for Government pension funds, to tell us whether the terms of reference of that inquiry include the investigation of the Government Service Pension Fund, the Permanent Force Pension Fund, the S.A. Police and Prisons Service Pension Fund, the Government Service Widows’ Pension Fund and the Government Employees Provident Fund. etc. Is it included in the terms of reference of this Committee of inquiry to inquire also into these funds? I know one of its terms of reference is the desirability of transferring funds and membership to other funds. This is an important matter, one which has caused a good deal of concern in the minds of those members of the public who are members of these funds. They fear that their existing rights might possibly be interfered with in some way or another. But I am not sure whether these funds also fall within the ambit of the investigation of this Committee of inquiry. But if they do, I submit that the Minister was perhaps a little bit too hasty by introducing this Bill now. The Committee of inquiry will make certain recommendations and he should, therefore, have delayed the introduction of this Bill in order to take into consideration any recommendations this Committee might make.

There is another aspect of this Bill, an aspect which has already been touched upon by previous speakers. That relates to the effect of this Bill upon the security of the public servant. This is an aspect which cannot be overstressed, because it is of vital importance when one considers the manpower shortage in South Africa to-day. It is of course advantageous when recruiting additional staff when one can offer security. I mentioned earlier that it might be desirable to issue a small booklet setting out the rights and privileges of members of these pension funds. By making this information available, it will assist in the recruitment of new staff to the public service because they will then know what privileges attach to being members of any of those pension funds which are established in terms of this Bill.

This Bill as well as the White Paper on it stresses the additional powers by regulation which this Bill grants. This is an important factor, one which has already been referred to by other speakers on this side of the House. We view it with a certain degree of trepidation because these powers are wide. There is one aspect in this connection which has not yet been stressed, i.e. sub-section (3) of Clause 5. This sub-section lays down—

This is an aspect which we note with a degree of interest in view of the fact that in the latest report of the Department of Social Welfare and Pensions it is mentioned that an investigation into pension matters of non-White Government employees is being undertaken and that an interdepartmental Committee was appointed by the Minister to report on these matters. In view of the fact that provision is made in this Bill for different regulations for the different races, classes and categories, it is perhaps opportune for the Minister now to indicate whether the Government has any intentions of proceeding along these lines. We on this side are always in favour of ensuring that as many people as possible should be covered by some form of pension provision. It is a cornerstone of security in old age to have the certainty of a pension at a stage where workers have reached a stage where they cannot earn for themselves any longer. At that stage they should be ensured of adequate compensation for services they have rendered. Now. this is what this Bill intends doing, subject of course to our reservations about the wide powers by regulation in terms of Clause 5.

Mr. Speaker, when I explained the objects of this Bill I said very clearly that no existing rights or privileges would be taken away. But I understand from the speeches of hon. members opposite that they nevertheless still suspect that the intention is to interfere with some rights and privileges. I also pointed out that a large number of the clauses of this Bill, Clause 9 to Clause 22, were merely re-enactments of the existing sections. I gave the assurance that there was no reason whatsoever to believe that any right or privilege would be taken away. Yet hon. members are still a little worried. The hon. member for Umbilo (Mr. Oldfield) suggested that I was taking dictatorial powers and that I would arbitrarily decrease or increase salaries and pension rights. But surely that is something which falls within the jurisdiction of the Public Service Commission. He also asked me whether the Public Service Commission would have any say in these matters. My reply to that is in the affirmative. The regulations which will be issued will be drawn up in consultation with the Public Service Commission and the Department of Finance. The position will therefore be controlled.

The hon. member referred to the non-White schemes. As far as this is concerned I have to inform him that this matter is still under consideration. We are attending to it at the moment. He spoke about a commission which had been appointed by the Minister of Finance to inquire into private pension schemes and so forth but that commission will not deal with this matter. I have already in a previous debate given hon. members the names of the members of the commission and its terms of reference. The measure we are dealing with at the moment, however, falls outside the scope of those terms of reference.

The hon. member also said that if we left the scheme as it was Parliament would have approximately eight occasions during the course of such a period of taking the matter into review if amendments had to be effected year after year. But it is not necessary to amend the Act in order to give Parliament the opportunity of taking matters into review. Hon. members are at liberty to raise these matters at any time, either by way of private motions or when the Government introduces measures. Apart from that the regulations are Tabled and can be discussed here. It is not necessary therefore. to amend the Act in order to have a discussion on the matter.

The hon. member for Umbilo also wanted to know whether it would not be desirable to make information regarding these pension funds available by way of brochures. That is something which can be considered but I still think that if each department concerned has its own set of regulations in this connection officials can be kept fully informed. That has also been the experience.

The hon. member for Durban (Central) (Dr. Radford) also raised a few general objections. He is concerned about the security of officials. He wants them to have security. He wants officials who enter the Public Service to have the prospect of security as far as their service and pensions rights are concerned and that they can then advance on that basis of security. But this measure does not change that position at all. What right has any hon. member to say that now that separate sets of regulations are to be promulgated that security will be interfered with? Surely that is a ridiculous statement. Why do the schemes which are to-day administered in this way not interfere with it? So far we have not had any complaints and yet the people concerned are people who want that same measure of security.

*The hon. member for Port Elizabeth (South) (Mr. Plewman) said this was an “innovation”. He obviously adopts the attitude that because this is an “innovation” it should not be introduced. But it happens year after year that the Government comes to Parliament with something new. The Opposition do so too. As a matter of fact they come forward with “innovations” more often than we do because they come forward with something new every day.

A new policy.

Yes. This is suddenly an “innovation”. What the hon. member is trying to suggest, of course, is that this is a sinister “innovation” which will have an adverse effect on public servants. I want to remind him that this is not the first prophecy he has made. This prophecy, like the others, is a prophecy of a false prophet! As a former public servant he pretends to be jealous of the rights and privileges of public servants. I readily grant him that; I appreciate the fact that a former public servant who sits in this House to-day is jealous of those rights and privileges.

I said clearly in my introductory speech that public servants had been consulted and I said clearly how they had been consulted. They were consulted through their associations; they were consulted through the Public Service Joint Advisory Council on which all staff associations are represented. Is the hon. member suggesting that now that he has left the service and is in this Parliament he knows better what is in the interests of the public servants than they themselves? If they asked for this and if they are satisfied that they want it, what right has the Opposition, particularly the hon. member for Port Elizabeth (South), to create suspicion? The hon. member indicated that he wanted nothing to do with this because he had reason to believe that it would adversely affect the officials. That is what his argument amounts to. Would the Public Service Commission have recommended it had it not been in the interests of the officials? Surely the Public Service Commission is the body which has for years looked after the interests of the public servants. Does he want to move a motion of no-confidence in the Public Service Commission and in the departments concerned? This is not the first time the officials have asked for this “innovation”. Here I have a letter dated 3 October 1963 from the office of the Public Service Commission in which they say the following—

On that date this body, on which all Public Service associations are represented, unanimously passed a resolution on this matter. This is. therefore, not just an “innovation” as the hon. member has tried to suggest. It is merely an attempt on his part to sow a few wild seeds in the hope that a few officials will become dissatisfied. There is an old French proverb which says, “Je sème å tout vent”—“I sow in all winds”! Hon. members should by now have had sufficient experience of that. What resolution was passed at the aforementioned meeting? The following—

This resolution was passed as far back as August 1963. I take it, therefore, that this cannot just be described as an “innovation”. While I appreciate the spirit in which this measure has been discussed I, nevertheless, feel I should refer to the remarks made by the hon. member for Port Elizabeth (South) suggesting that this measure is simply a whim of the Department, that it is something of which the officials are totally unaware. I am quite satisfied to leave the interests of the officials in the hands of their own staff associations and in the hands of those bodies which are most closely associated with them.

The hon. member tried to suggest something else. He even went so far as to suggest that officials would now leave the service.

I did not say that.

The hon. member implied it.

I said this would not make the service more attractive.

The hon. member talked about competition between the Public Service and the private sector. What did he try to suggest by that? By saying that he tried to suggest that if this measure were accepted the Public Service would not be satisfied with it. But if that is not so, if he did not say that, I accept his word.

I said I left it to them.

If he said he left it to them then he can take it that this is a measure they want.

I wish to express my appreciation of the fact that the whole House supports the principle underlying this measure, which is a measure which has emanated from the persons directly concerned. This Bill will not in the least affect the interests of those people; it will not in the least detract from their rights and privileges; it will not cause the slightest disruption. I appreciate the fact that the hon. member for Umbilo supports this measure in principle. Certain suggestions have been made and if, in the Committee Stage, certain improvements are suggested I will be the last person to turn those suggestions down provided they will be in the interests of those persons on whose behalf this measure has been introduced. I always welcome suggestions which are calculated to improve measures I introduce and I have again in this instance proved that that is so.

I think I have dealt with all the points raised. Sir. and it is now my privilege to move the second reading of this Bill.

Motion put and agreed to.

Bill read a second time.