I move—

Mr. Speaker, at this third stage the Indians Education Bill, as originally introduced, remains virtually unchanged as far as its contents and principle are concerned, and we can foresee consequences and repercussions which I described during the second-reading stage already, and which we need not repeat. No reply or unsatisfactory replies have been given to certain important questions and arguments raised by me and by other hon. members on this side, either because the Minister and his friends were unable or were not allowed to give adequate replies or simply because they deliberately wanted to evade those questions and arguments. Those are two of the reasons why hon. members apposite could not take part in the debate during the Committee Stage. I asked, for example, how this new set-up could benefit the Indian community in general and the Indian child in particular. The old hackneyed, meaningless vagueness and evasions were advanced as reasons, but not a single one of those arguments which promise the Indians a land of milk and honey cannot apply in the present circumstances existing under the provinces and under our Constitution. All the so-called benefits of which the Minister spoke so freely and so enthusiastically could be provided to the Indians at the moment if the Government would only carry out its financial obligations to the provinces, which would result in much less expenditure than will now be the case.

That is also a hackneyed argument.

The Minister and his Government have given no conclusive reply to my objections, firstly, that the new law will only result in increased expenditure; secondly, that it will result in and contribute towards increased overlapping; and, thirdly, that it will aggravate the already alarming shortage of staff, both teachers and administrative staff. The Minister and the members of his party have simply ignored these important considerations which I submitted to them, and in many cases they resorted to nonsensical and reprehensible allegations that this side of the House is bent on promoting the development of mixed schools or that we on this side are in favour of mixed schools or school integration, a parrot-cry which came from virtually every one of the hon. members opposite who took part in the debate, but which was dictated to them by the bigwigs on that side and slavishly accepted by those members.

Nonsense!

It was slavishly accepted by the dim lights and the dead wood on that side, because during the Committee Stage not a single one of them got up and said anything, except the hon. member for Vereeniging (Mr. B. Coetzee), who was later told to sit down and who did not speak again after that.

Who said that?

Instead of appropriate replies we got the old hackneyed and alarmist cry of “Look out! The United Party wants a mongrel race in South Africa!” The men on that side who have been sent here, men from whom we can expect some sense of responsibility, resort to a cry such as that in this enlightened age against this side of the House, which is as keen to preserve the White race in this country as they are, and which knows that we have segregated schools in this country ever since 1660. Those hon. members ought to know that, and I want to ask them to break away from their present narrow-minded atmosphere and outlook.

Furthermore, according to the Minister, it will be possible for Indians to be appointed to the highest posts, but may I ask my hon. friend with all due respect: Cannot that be done at present? Cannot he do that under the present system?

No, how can he?

Then the hon. the Minister asked this side, only for the purpose of making political gain, whether an Indian can become Director of Education and whether the United Party wants that. My reply to my hon. friend is a brief and definite one: How ridiculous can the Minister and his party get? Why would this side of the House want something which is contrary to the tradition of South Africa, while that side does not? Therefore, my reply is: How ridiculous can the hon. members on the opposite side get? The Minister, with all due respect, who only yesterday or the day before was so afraid of the Indian community that he wanted to repatriate them, this same Minister and his party are now only too keen to remove all discrimination and to place someone from that group in charge of the administration of education! How the winds of change have blown in the Nationalist Party! One might almost say that the winds of change have blown them off their feet. [Interjections.]

Order!

No satisfactory reply has been given in respect of our misgivings as regards the consequences and dangers of this policy of splintering up the administration of our education. All that emerged clearly from the speech made by the hon. the Minister was, firstly, that the whole issue was nothing but a political move. He stated explicitly that effect was being given to the Nationalist Party’s policy of segregation. Secondly, his replies had nothing to do with educational benefits for the Indians. This is nothing but a further development of the strange and unnational apartheid policy of the Nationalist Party, an attempt at dividing off into separate compartments all the race groups and everyone and everything connected with these race group in South Africa.

You used the same argument in connection with the Bantu Education Act.

This legislation will ensure that as far as the administration of their education is concerned the Indians will choke in the grip of the Nationalist Party with its apartheid policy, its policy of division and sub-division and fragmentation. As a result of this legislation the Asiatics will be in a stranglehold, because although they are comparatively small in numbers they have a proportionately larger number of educated persons in their ranks, and in their demarcated area they will perhaps flourish in the educational field under the most favourable of circumstances, but economically they are doomed to die. There will be an increasing number of educated persons in those areas in which the Minister wants to grant them separate educational facilities. I concede that that might happen under the most favourable circumstances, but where are they going to find employment? It is for that reason that I say that economically they will die.

I repeat that this legislation is immoral in its effects and in its introduction. The hon. the Minister’s attempt to defend the fact that he is ignoring Section 114 of the Constitution was pathetic, to say the least. Of course Parliament can amend Section 114 or Section 84 or even Section 84(c) of the Constitution, but then it must be done in terms of the Constitution. And if Section 114 is an obstacle to him, if it no longer represents a declaration of policy, if it no longer represents a promise made to the provinces, if it does not represent a solemn promise made to the provinces and to the people of South Africa by this Government in 1961, why does it remain on our Statute Book and why is it retained in the Constitution? Or is this just another piece of fraud perpetrated against the provinces?

Order! The hon. member is going too far now.

I withdraw that, Sir, I say that it represents an evasion of a promise made to the provinces in the Constitution to the effect that nothing Which affected their rights would be done except by petition of the provinces; that their rights and powers would not be abridged unless a petition to that effect was received from the provinces. This Bill contains and will perpetuate the principle of demarcation as far as the administration of the education of our Indian population is concerned, it will bring about humiliation; it contains the principle of curtailing the broader educational privileges which the Indians have always had in South Africa; it will bring about a curtailment of opportunities of employment and it amounts to a shameless disregard of our Constitution. The United Party can under no circumstances support those principles and accordingly I move the same amendment that I moved on a previous occasion—

That was the silliest speech I have ever heard.

Why don’t you reply to it?

Even if we did you would not understand what we said.

The hon. member for Hillbrow (Dr. Steenkamp) has said: “How have the winds of change not blown?”. Yes, how have the winds of change not blown in his party! They have blown to such an extent that he has been blown out of the shadow Cabinet and, after his speech today, I cannot blame the Sunday Times at all for not putting him in their shadow Cabinet.

What has that to do with education?

What had the speech of the hon. member for Hillbrow to do with education? He said that we were originally in favour of repatriation. It was not only we who were in favour of it, they were too; General Smuts was in favour of it but everyone dropped it when it appeared to be impossible. The hon. member now says that this is a terrible injustice to Natal, but he is the only person who is complaining. Natal is not complaining, the Administrator of Natal is not complaining, the Executive Committee of Natal is not complaining and the Natal Provincial Council is not complaining. Nobody is complaining about it except him, and he does not even come from Natal; he comes from Hillbrow! Mr. Speaker, these are precisely the same arguments that have been used here over and over again over the past years and that have been proved untrue throughout. It is the same type of suspicion which that side of the House has tried to sow in regard to similar steps taken in connection with Bantu education and Coloured education. Sir, is there still any person on that side of the House who wishes to contend that Bantu and Coloured education is not better off under the present set-up than it was under the old regime? Is there any hon. member on that side who would like to see Bantu education and Coloured education being placed under the old set-up once again? Are the Coloureds not far better off; are there not many more Coloured children at school? The hon. member for Kensington (Mr. Moore) also sowed this suspicion, but when the syllabus for Bantu education became known, he expressed his full satisfaction with it. I say that there are far more Bantu children and far more Coloured children at school to-day and there are far better opportunities for Bantu and Coloured teachers. They have many more opportunities than they had under the old regime Why should the same privileges not be given to the Indians as well?

It is not necessary to reply to the arguments of the hon. member for Hillbrow; they have been replied to in practice; our history has replied to them. His arguments are completely without foundation. There is an old Bible expression which states: “Preserve your riches where the moth and the rust cannot reach them”. The hon. member did not preserve his arguments there because his arguments have already been consumed by the moth and the rust. What is his chief objection? He says that there must be no differentiation in education; that education is indivisible; that is about the only cliché the hon. member has not used here to-day. He says that Bantu, Coloured, Indian and White education should all be controlled by the same authority. Differentiation is the great offence. Sir, a dramatic struggle is also taking place elsewhere in the world at present in regard to this same question of differentiation on the ground of colour. On the one hand it is contended that such differentiation on the ground of colour is inherently wrong and that it is contrary to the “international norm”. During the course of that dramatic struggle the following has been said (Translation)—

There is also the following to be said—

I want now, apropos of this Bill, to prove that an Indian teacher can only exercise his capacities, merit and God-given qualities under the policy of differentiation in the education sphere, under the policy of separate development in the education sphere. He cannot do so under the old position of no differentiation. This has been abundantly clear from the discussion during the Committee Stage of this Bill. Do “not let us quibble. The hard fact is that under the present regime an Indian teacher cannot exercise his God-given qualities. This is possible in theory but in practice it is as possible for an Indian teacher to reach the highest rung of the ladder as it is possible for me to reach up to heaven. He can become a principal, and that is about all. I was amazed to hear from the Minister that up to the present under a United Party Government in Natal not one single Indian has been appointed an inspector of schools, those Indian teachers who have been so lauded by the hon. member for Hillbrow, those Indian teachers whom the hon. member for Wynberg (Mrs. Taylor) wants us to appoint immediately as directors of education. This is hard, cruel reality, in contrast to the theory. This is the cruel reality of the so-called policy of no differentiation, of a policy of ostensibly complying with the “international norm”. I say that under the policy of no differentiation, which must ostensibly comply with the international norms, it is impossible in practice for an Indian teacher “to exercise his capacities, his merits, his God-given qualities”. In contrast to this, what will be the results of this Bill? It throws open the doors to the Indian teacher; it removes the cruel ceiling above his head which has prevented his reaching the highest rung of the ladder in Indian education; it creates new horizons for the Indian teacher; it makes it possible for the Indian teacher to become a principal, to become a school inspector, to become under director and to become director, and also to become Minister of Indian Education at a later stage when that Council is fully developed. Is that immoral? Is this the immorality of which the hon. member for Hillbrow spoke? Is this the principle of humiliation of which he spoke? The doors are being opened to the Indian teacher and he is being given the opportunity to advance to the highest rung of the ladder. Is it not the hon. member for Hillbrow’s policy which is immoral, a policy which pretends to want to do something for the Indian teacher and then says that he cannot advance beyond the position of principal? Is it not a policy of the most extreme humiliation for a capable Indian teacher to be told: “Under our policy you can in theory perhaps become Director of Education throughout Natal, but in practice we will ensure that you go no further than school principal”? No, I say that that is a policy of humiliation, it is an immoral policy, while under the policy of this Government the Indian teacher can progress eventually to Minister of Indian Education. How dare anyone speak of morality. …

May I ask a question? Where will such Minister of Indian Education be situated?

Let us see how the Indian Council develops. It is no secret that the Indian Council must take over Indian education, and, eventually Indian health matters. Where it is to be situated will be decided when that stage is reached. The fact is that we are opening these doors to them. How dare anyone oppose something of this nature and then still speak of immorality and accuse other people of a policy of humiliation? I say that I am proud to be associated with this Bill. There are no theoretical rights here which people can never enjoy simply because they are Indians. They are being given actual and practical opportunities. Mention is so often made here of human dignity. Here we have true human dignity in contrast to the theoretical, apparent human dignity which hon. members on that side promise these people. That is how I see this Bill and that is how I see the whole constellation of separate development. Here we have one facet of it—Indian education, where the Indian teacher can develop to the highest rung of the ladder. Is this not a thousand times preferable to the system of cruel discrimination against the Indian teacher? Are these actual rights not a thousand times more in conformity with what the international norm ought to be? Mr. Speaker, I shall defend this Bill before any bench in the world, before any church in the world, before any educationist in the world, and if their norms are different, then I can only say that it is tragic. But the most important thing of all is that we can defend this measure before our own Christian conscience.

I shall, of course, support the amendment moved by the hon. member for Hillbrow (Dr. Steenkamp). I want to say in reply to the hon. member for Vereeniging (Mr. B. Coetzee) that the wind of change has done something to him, apart from wafting him right across the floor of this House. It has also made him talk in a completely new language. He hardly ever voices an original thought any more. The hon. member for Vereeniging now voices simple party dicta and nothing else. He is always building up the structure of apartheid, of separate development, and justifying it in terms of his conscience. Sir, I am not interested in the reason for this, but what does interest me is that all the reasoning that the hon. member has applied to improvement of the status of Indian teachers, to improvement of the standards of Indian education, could just as well have been applied under the existing structure and administration of Indian education as it was before being taken over by the Department of Indian Education. There is nothing wrong with the structure. You do not have to tear down the structure of provincial administration of Indian Education in order to re-arrange the content in a better way. Everything that the hon. member has suggested—an Indian director of education, Indian principals, Indians holding positions of greater responsibility within the education department, could take place under the existing administration, under the Provinces.

You know it is practically impossible.

It is only a practical impossibility with people who are blinded with racial prejudice.

No, that is the position under the United Party in Natal.

Why did the United Party not do it when they had the chance?

I am not suggesting for one moment that there is not racial discrimination in the Provincial Administration, but you could have people running the Provincial Administration who did not have racial discrimination as their policy; it could be done. It does not mean that you have to tear down the structure. You may have to change the people in charge of the structure, and you can then re-arrange the content of that structure. But the hon. member adopts the attitude that everybody in South Africa in charge of Indian education must as a matter of course employ racially discriminatory measures. That need not be so if White South Africa would stop being racially discriminatory. Sir, in order to change that therefore one has to change the administration of education on a racial basis …

That is the only way in which they can reach the top positions.

The hon. member is steeped in discrimination, and the only way in which he can see this working out is on a status basis that does not put White and non-White working in juxtaposition with each other within the same structure; therefore you have to remove them and put them in separate structures, and there in their separate structures, they may move from the basement to the ground floor and from the ground floor to the first floor and, if I may quote the hon. Minister of Coloured Affairs, “the sky is the limit”. The sky is the limit inside each one’s little racial household. Well, I do not look upon the structure of South Africa as being separate racial households. I consider South Africa to be a multi-racial country, and if people are capable …

But you are a liberal.

I do not get particularly upset at being called “liberal”. You know, Sir. the liberal philosophy is pretty well honoured elsewhere in the Western world, except in South Africa. Liberalism means having an open mind and being able to adapt oneself to changes. It does not mean having a closed mind or, shall I say, a vacant mind as hon. members opposite very often seem to have.

May I put a question to you? Is it not significant that out of 160 members here you are the only member holding these views?

There was a time when there was one member representing the Nationalist Party in the Transvaal. That did not make the slightest difference to the ardent way in which hon. members on the other side pursued their course of action, to such an extent even that they eventually persuaded the hon, member for Vereeniging that his place was with them on the majority benches, and not to fight for a cause in which he used to believe at one stage. But let us leave that aside. Sir, I was distracted by the hon. member’s question; let me come back to what I was saying. There is no reason at all under the existing administration why Indians could not reach top posts in teaching in Natal. I agree with the hon. member that they did not in fact do so and that is indeed reprehensible, because, as hon. members in talking this debate have stated, there are many Indians who are highly educated and highly cultured people who can hold their own with many Whites in this country if not with the majority of Whites, and there is no reason at all why such people should not have reached the top posts …

You must remember that accusation!

Why?

It is an accusation against the Whites.

Oh yes, even against the Whites. I could introduce that hon. member to Indian teachers and Indian lawyers and Indian advocates who, I am sure, could equal him, and, I might even make so bold as to say, outstrip him in debate in this House, despite the colour of his skin.

The hon. member for Vereeniging also raised certain other points. He said that under the new system which has been introduced since this Government came into power, with separate Bantu education and separate Coloured education and now separate Indian education, the standards etc. of Bantu education and Coloured education have improved and that they are better off than they were formerly. Of course, I dispute that Bantu education is better now than it was before, except inasmuch as there are more Bantu children at school to-day. I certainly concede that immediately.

A greater percentage has passed the matriculation examination than ever before in the past.

Well, of course, one hopes that if more children get into the primary schools, ultimately some of them will get to the top standards.

A greater percentage of those who write the examination has been passing.

Very well, but things were bad before. You do not have to change the structure in order to improve the percentage of passes. Let me tell the hon. the Minister how that could have been done and in fact should have been done and that is by granting greater financial assistance to Bantu education. The present system is hopeless because of the pegged amount and that is why I am so bitterly against the system of separate education which leads to these ideas of separate financing of education.

Not necessarily.

I am glad to hear that and I will take the Minister up on that point in a moment. He gave us that assurance in the second reading. Bantu education should have been far better than it was in the old days and it should be better than it is now and it would be better if only enough money were voted for this purpose. You cannot expect to educate millions of children out of a total Bantu population of 10,000,000 on a fixed grant and then leave it to the poorest section of the community to provide the rest for their own education. I must point out again that even if there are more children in the lower schools, there is a disgracefully high percentage leaving school after Std. II or Std. III. I do not therefore have the same starry-eyed idea of Bantu education as the hon. member for Vereeniging. The same applies to Coloured education if one wants to improve education. This applies to Indian education, to Bantu education. Coloured education and White education. If you want to improve education there is only one way to do it and that is to devote more money to education, to build more schools, to train better teachers. That is the way to impiove education.

Is the hon. member aware of the fact that of the Bantu children between the age-group 7 to 14. 85 oer cent of them are at school at the moment?

Sir, that does not help me if they all leave by Std. III.

May I ask another question? Is the hon. member aware of the fact that in the age-group 7 to 20. 80 per cent of the children are at school?

I think one would have to look at these statistics very carefully, because each time, if one includes the lower age group, the percentage is naturally going to increase.

I am just asking you not to make sweeping statements here which you cannot support.

I do not think I am making a sweeping statement when I say that the vast majority of Bantu children leave school after Std. II. The figures which the hon. the Minister himself gave me in this House prove that. These are his figures, not mine. If I asked him how many children were at school between the ages of 14 and 18, I think you will find that it is a very small percentage indeed, but if you take the group from 7 to 18, the percentage will of course be bigger. Sir, I used to do a little statistics myself in the good old days and I know how one can use statistics to suit oneself. But let me come back again to the Bill immediately. My point is that you do not need to tear down the structure to change the content. That is my answer to the hon. member for Vereeniging. And I am afraid that the new horizons that he painted for us this morning do not make my eyes light up with hope.

[Inaudible.]

I think the hon. member is giving me credit for greater longevity than I anticipate. I want to say to the hon. the Minister at once that he has certainly handled this Bill much more politely than his colleague handled the Coloured Education Bill when that was under discussion here two years ago.

That is something at any rate.

Yes, it is something, and one is learning to be grateful for very small mercies these days in this House.

I think I have had to deal with a much more reasonable Opposition than he had to deal with.

Well, I do not know about that. Much the same amendments were moved and much the same arguments were advanced.

Order! That is not strictly relevant to the Bill.

I am complimenting the hon. the Minister on his courtesy in handling the Bill. But he went a lot further, too; not only was he courteous, he gave some very definite assurances to this House and via this House to the Indian community as a whole. A very heavy responsibility now rests on the hon. the Minister’s shoulders to see to it that these promises are carried out. I sincerely hope that that is what we are going to see in the future. He has reassured us on several important issues; he has assured us, for instance, that the standard of Indian education will not in any way deteriorate under the changed system; he has assured us that it is not his intention to set up any special fund for the provision of finance for Indian education on the lines of the Bantu education special account. He has told us that it is not his intention to peg Indian education to a certain amount and that the amount will come out of general revenue, for which, of course, one is extremely grateful indeed. He has also said that he intends to continue with the idea of free education which, of course, Indians do receive at the present stage, in Natal particularly.

They have no free education.

I am sorry if I misunderstood the position. I thought they did enjoy free education. Is that so at the State schools?

They have to pay for their books and everything.

I see, the Minister was including hooks. I was talking about education per se. I realize that they do not get free books. The hon. the Minister and I misunderstood each other. I was referring to school fees. I believe that they enjoy that privilege already.

Yes.

I am glad that that is continuing and that the privilege of free books is being extended to them. That is a privilege which is already enjoyed by Coloured children in the schools in Natal. This is another improvement for which I am grateful. I hope the hon. the Minister will see to it that in terms of his own disapproval of the discrepancy between the salaries of Coloured teachers and Indian teachers, he is going to raise the salaries of Indian teachers at least to those of Coloured teachers, which is 80 per cent of those of White teachers.

I have already promised that, and I have already done it in the schools which fall under my authority.

The hon. the Minister has also told us that he will recognize Indian teachers’ associations such as the Natal Indian Teachers’ Society. Those promises have been re-assuring, and it is now the hon. the Minister’s responsibility to see that these assurances are given effect to. He did say in respect of compulsory education that this was not yet an attainable ideal for the immediate future; that he was going to proceed towards that goal. I must say that I immediately thought of the American expression: “With all deliberate speed.” This is the old American expression with regard to integration and the question of improving schooling for Negro children “with all deliberate speed” and, of course, the speed is never fast enough to satisfy people who want to see the ideal of speed achieved within a reasonable time. I hope that we are not going to have further procrastination such as the Natal Administration has perpetuated since the Wilk’s Committee sat way back in 1942. I am pleased that the hon. the Minister is, indeed, going to hasten the progress towards free and compulsory education. I believe that that should be the policy in this country for all the children in South Africa. Black, White, Coloured and Indian children should all have free and compulsory education, for one very simple reason, and that is I believe that the real wealth of a country lies in its educated population, and I believe that whatever the natural resources of a country, they will never be fully exploited until the population itself has been educated to a standard that will enable proper development of those resources to take place. The real wealth of a country lies in an educated population, and therefore the faster we get to the goal of compulsory and free education for all the children of South Africa, the better White South Africa will be, as well as non-White South Africa. Hon. members opposite reproach me because they say that I do not talk up on behalf of the Whites of this country. What they do not realize is that my philosophy is that every single improvement for the non-White population rebounds to the advantage of the White population in South Africa, both in racial goodwill and in the development of economic prosperity in the country. Therefore when I plead for free and compulsory education of all the children in South Africa it is also because I believe that this will be of great benefit to White South Africa as well as to non-White South Africa.

Sir, I come back to the reason why I objected to this Bill. I object to this Bill because I do not believe in differentiation of education on a racial basis, and that, of course, is really the purpose of the transfer, to remove Indian children from the umbrella of the province under which White children are educated and to transfer them to a separate racial division. Basically, of course, that is something which I could never support, because I believe that differentiation perpetuates racial discrimination and racial differences between the groups. Although I shall watch with much optimism the progress in the light of the hon. the Minister’s assurance, basically in principle I am against this transfer, because I do not believe that a single one of the improvements which the hon. the Minister has said he is going to effect needs this transfer, be it to the salaries of teachers, be it the advance towards compulsory education, be it free education, be it free books, be it an increase in the number of school rooms which are going to be built, the maintenance of standards, the recognition of teachers’ societies. Every single one of these things could have been done under the existing administration had the administration so desired and had the Government provided sufficient finance to subsidize them. It was not only because of a lack of money, but also because of other reasons, but it could have been done. …

Does the hon. member know that the Central Government offered the Natal Provincial Administration the full amount to be paid by the Central Government if they would raise Indian salaries to the same scale applicable to Coloureds and that the Natal Provincial Administration refused it?

I say it is a disgrace if the Natal Provincial Administration refused it. [Interjections.] The hon. member seems to doubt it. I do not know the facts and I must accept what the hon. the Minister says. If the Natal Administration refused an additional subsidy to raise the salaries of Indian teachers to the level of those of Coloured teachers, as the Minister says, I think it is a disgrace. But that still does not mean the system is wrong; the people administering the system should be thrown out. That then is the answer.

There I agree with you.

I am glad the hon. the Minister agrees with me on that score.

And we are well on the way to doing it.

For all the reasons I have mentioned, I shall, of course, vote against the third reading of this Bill.

I do not want to argue with the hon. member who has just sat down, because I think it is common knowledge that the respective attitudes adopted by our party and her party on matters of principle are diametrically opposed to each other. She sees South Africa as an integrated national unit in which all the various races and groups combine to form one unit. Therefore she also wants to integrate education for all the various groups and therefore she stands by her policy. We do not see South Africa as an integrated national unit, but as one country inhabited by various races and peoples. We see each of these races and peoples as a separate unit, each with its own language, its own culture, its own traditions, its own religion in many cases and its own background. We therefore differ as far as the principle is concerned. I can appreciate her point of view, although I do not agree with it. and I think she also appreciates our point of view, although she does not agree with it. I am therefore not going to discuss her arguments in connection with the whole composition of the matter. I rather want to turn to the hon. member for Hillbrow (Dr. Steenkamp), who is supposed to be closer to us in this regard than the hon. member for Houghton, but who again adopted an attitude to-day which cannot be reconciled with the attitude which we expected from him and which he had adopted in the past.

The hon. member for Hillbrow will agree with me that the Indian community is as separate a population group as the Bantu community is. By that I do not mean that they have their own homeland, but that as a separate population group they have their own language, or languages, which do not correspond to those of the Whites, that they have brought with them from the East a culture and traditions which do not correspond to those of the Whites, and that they have even brought with them their own religion, which does not correspond to ours. In that respect the Indians are a group which is as far or even further removed from the White man’s culture, language, and so forth, as the Bantu. In other words, any arguments advanced in favour of the take-over of Bantu education will apply even more strongly in the case of Indian education, because we and the Bantu do have a common fatherland and the Bantu do stand closer to the White man in certain other respects, such as religion. The Indians have retained their language, traditions and religion. They therefore form a completely detached group in South Africa which is further removed from the White man than the Bantu are. I think the hon. member will concede that my argument is sound.

The hon. member advanced the argument to-day that this legislation is immoral, that we are introducing greater segregation, and that we are creating greater humiliation for the Indians. When a law relating to Bantu education was introduced by the United Party government in 1945 virtually the same issues were involved, and on that occasion the hon. member for Hillbrow made a speech in which he adopted the standpoint at present adopted by the National Party in regard to education.

I did not.

I shall prove that. He said on a previous occasion that that standpoint did not apply to Coloured education, and I want to prove to him to-day that it does apply to Indian education. The effect of this Bill will be precisely what the hon. member for Hillbrow advocated on that occasion. He advocated that Bantu education should be taken away from the provinces and handed over, not to the Department of Education, but to the Department of Native Affairs. When Minister Hofmevr said that he was not prepared to do that the hon. member argued as follows (Hansard, col. 4492)—

It seems to me that that time has now arrived, but now the hon. member does not want that. I want to continue with the hon. member and quote what he said in regard to Bantu education. I want to repeat, however, that the Indians are an even more independent group and are even more attached to their traditions, their language and their religion than the Bantu are. Accordingly the Indians are even more entitled to their own way of life than the hon. member for Hillbrow advocated for the Bantu at the time. I quote from the next column—

Not as far as the provinces are concerned either—

If “Indian education” is substituted for “Native education” it means that Indian education could best be served by placing it in the hands of the Minister of Indian Affairs. I want to continue. He also raised the question of finance in that debate. He said—

Then he said (col. 4493)—

I want to tell the hon. member this morning that the Department of Indian Affairs has been the Ministry of Social Welfare and a whole number of other departments to the Indians ever since its inception, and why, in his own words, cannot it also be the Ministry of Education for the Indians? I do not know what the hon. member’s reply will be to his own arguments of those days.

There is the question of policy. The hon. member for Hillbrow referred to Bantu education at the time and said that education as such was one of the best instruments in the hands of any government for moulding policy and for leading the Bantu in the right direction and bringing about goodwill between the Bantu and the White man. I want to say the same in the case of the Indian, and on the basis of the promises laid down by him in the past the hon. member must agree with that. I again want to quote from Hansard (Col. 4491)—

If I substituted “Indian education” for that the hon. member would have to agree with me—

and not by each province individually. I do not know how the hon. member’s views have changed since.

That was a good speech.

I am not concerned with the quality of the speech. The fact remains that he made a very strong plea in that debate that education for the Bantu should be adapted to fit in with their traditions, their past, their language, their tribal customs, etc. The Indians have their own language, their own religion, their own traditions, their own culture, etc. Why should their education not be adapted to fit in with that culture and those traditions? What is the difference? That is what the hon. member advocated very strongly in those days and what we are advocating to-day. We say that if the Indians can get their own education under their own department, if it can be coordinated on a national basis so that they will have a national system of education, as the Coloureds and the Bantu have, it can only be to their advantage. I repeat what I have said so often—everybody knows what my attitude in this connection is—and that is that I long for the day when I can get that for the Whites. It is essential for us to get that for the Whites as well. I am convinced that that day will dawn.

I want to come back to the merits of this Bill.

Is that the policy of the Nationalist Party?

It is my personal policy and I am advocating it everywhere and all the time. I think the hon. member ought to know that by this time.

It is our policy too.

Since 1916 various commissions which inquired into educational matters have stated their attitude. They adopted the attitude that education as such was a national matter which belonged under he Central Government in any country. That was strongly emphasized by each of those commissions. I do not want to quote them, although I could make a large number of quotations in this regard. Since 1916 that has been advocated by the Jagger Commission, then by the Roos Commission, by the De Villiers Commission, and even by the Nicol Commission. I do not even mention the Wilks Commission in Natal. All of them adopted the attitude that education as such ought to be in the hands of one body and that it should not be divided and splintered up.

That is not correct; that was not recommended by all of them.

The hon. member would do well to go and read those reports.

I have read all of them.

The hon. member will not show me one single report in which it was recommended that education should remain divided.

I shall bring the evidence.

*Dr. MULDER; I challenge her to do so. None of those commissions said that education should be divided. I am not saying that all of them said that it should be in the hands of the Government. I have not suggested that, but all of them said that education ought to be in the hands of one body. Natal says it ought to be in the hands of the provinces. …

I thought you said in the hands of the Central Government.

The hon. member should listen or should learn Afrikaans. That is not what I said. I am saying that all the commissions said that education should be in the hands of one central body. Some said that that body should be a province, and others that it should be the Government.

I just want to make one quotation from the Report of the De Villiers Commission. Recommendations Nos. 19 and 20 of that Report deal specifically with non-Whites. They read as follows—

1. 19. The non-European adolescent especially is in need of educational and social care and guidance.
2. 20. The educational and vocational training of the non-European lacks stimulus because of the absence of occupational prospects.

Those were the findings of the De Villiers Commission in 1948. It is obvious that the effect of this Bill will be that everything affecting the Indian as such will be co-ordinated under the Department of Indian Affairs. Firstly, his education, aimed at developing all his faculties and all his potentialities. At present the Department of Indian Affairs has control over all the various aspects affecting the Indian’s life. It deals with social welfare for the Indian; it deals with his labour position, and now we are adding education. It is right that that is being done, because education is the foundation-stone and cannot be divorced from the other considerations. Education forms the basis of a man’s entire personality and prepares him for his work and his future life. The Department knows where the Indian must seek his future sphere of employment, because it has to deal with the question of unemployment every day. If the Department knows what avenues of employment will be open to the Indian, it can arrange his education in such a way that he will be able to fill that vacancy. That is one of the main reasons why Indian education is being taken over.

There is a further argument. From any economic point of view it is always a good thing that the body which collects the taxes also has the say as far as the expenditure of that money is concerned. The present position is that the Government collects the taxes on a large scale and then hands over the money to the provinces in the form of subsidies. But the Government, which does the collection, has very little say as regards the way in which that money is spent. As far as Indian education is concerned, the position will now be that the Department will both collect and spend the money. It will know how to cut its coat according to its cloth, because it will know the size of the cloth. From a financial point of view that is an additional advantage.

There is another argument. The Indians cannot for all time—and everybody fully realizes that—make their living out of trade alone, as they do at present. The Indians will have to turn to other spheres of employment as well. They cannot simply remain dealers or shopkeepers permanently, and they cannot all make a living out of trade. Consequently they have to turn to other spheres as well. Once Indian education has been transferred to the Department of Indian Affairs, this whole problem of the Indians and their future will be dealt with by one Minister and one Department. They will provide the facilities for training the Indians to fill the vacancies in those spheres in which they occur. The Indians cannot remain dealers permanently. This Bill will therefore also have the effect of helping the Indians to develop in that respect.

My contention that it is segregation is therefore correct.

Order! The hon. member for Hillbrow cannot make one speech after another.

If I may reply to that I briefly want to say this: Of course we do not want to integrate the Indians fully in all respects, as the hon. member for Houghton wants to do, or does the hon. member for Hillbrow prefer to do that? Must we grant the Indians free access to everything? Must we abolish work reservation and allow them to go wherever they like? Does the hon. member want full integration? Then he must say so. We totally reject that standpoint.

As a result of this take-over it will also be possible for vocational education, as well as artisan training as such, to come into its own as far as the Indians are concerned. All those things can now come into the picture, because one will now have an independent Department which will see the matter as a whole and deal with it as such. There will be no overlapping as a result of the fact that one Department is creating vacancies in one field while another Department is training them in another field. If that should be the position the whole plan would miscarry. My argument is that the Department which creates the opportunities of employment also knows in what direction to organize the training so that those vacancies may be filled.

There is another matter that I want to touch upon before resuming my seat. The Government’s view is that we have one country but that there are four separate population groups living in it; that each of these groups, in its own sphere, should be granted the greatest possible opportunity to develop to the utmost; that each group must be granted the opportunity, in its own sphere, to develop to the limits of its capacity. Our attitude is very clear, and that is that the Bantu has his own homeland in which he is allowed to develop, in the educational field as well; that the Whites form the majority group in the rest of South Africa and therefore govern and will continue to govern; and that the Coloureds and the Indians will develop here to the limits of their capacity, also as far as education is concerned. Once the councils to be established have been established it will be possible for Coloureds and Indians to occupy the highest posts in those councils. In other words, we are opening new horizons to these people, horizons which did not exist for them before. The parents of Indian children are being given a greater say in the education of their children in that those parents will be allowed to serve on school boards and school committees and so forth. In all these spheres their interest is being aroused. A brand-new field is being opened to them, and at the same time the provinces and White education is being relieved of their responsibility in this regard, so that full attention can be paid to White education and so that full justice can be done to the Whites as well. It will now be possible to pay full attention to White education because the provinces will no longer be burdened with other problems which can be transferred to other Departments.

We have had a long discussion on this Bill which deals with Indian education. We are very grateful to you, Sir, for having allowed us at every stage to express our views freely and without any limitation whatsoever. Some people may think that the discussion in the Committee Stage was prolonged but I do not think so. In any discussion on education it is worth while to spend rather more time than on other Bills because it deals with the life of the people. As the hon. member for Randfontein (Dr. Mulder) has pointed out, education deals with the philosophy of life, the way of life.

I am grateful to the hon. member for Vereeniging (Mr. B. Coetzee) for intervening in this debate. In one respect he and I see this Bill in the same way. We regard it not only as a Bill confined to the education of Indians in South Africa but as a study in comparative education. The hon. member for Randfontein has followed that line as well as the hon. member for Houghton (Mrs. Suzman). It is not only the education of the Indians but it is the part which this whole Bill plays in the South African system of education that we are dealing with. In the olden days we were not able to expand in this way during a third reading, but you, Sir, with your generosity, have allowed us to develop the discussion in that way to-day. I think we have responded by not prolonging our speeches on this occasion.

I should like to deal with one or two points raised by hon. members opposite. The hon. member for Randfontein has emphasized the political philosophy of the party on the other side, namely, that we have four different races in South Africa, that these four races have their own languages, cultures, religions and so forth and that they should develop separately therefore. He gave, as examples, the Coloureds and the Indians. The languages of the Coloured are the language that hon. members and I speak. They have no separate language. They have the same religion; their background is the same; they work with ue; they are part of the same community here in Cape Town. So the philosophy breaks down hopelessly in their case.

Now we come to the question of the Indians. In the case of the Indians the argument has even less substance. The Indians speak neither of our languages; they do not speak English or Afrikaans; they speak Tamil and Gujarti but when they go to school they are asked, as this Bill provides, which official language the child speaks better. In other words, the child is going to be transformed into a South African; he will not be an Indian with Indian traditions from India. I must emphasize that. When we were part of the Commonwealth we had an Indian High Commissioner who said to the Indian people: “You must become South Africans: you must not be Indians living in South Africa.” As the representative of India he expressed the sentiment that they were South Africans and that they should recognize that. We ignore their religion; we ignore their language. Their religion is Hindu or Mohammedan but we ignore both because we are going to make them South Africans.

I want to come to the hon. member for Vereeniging. I am sorry he has been called out. He referred to the fact that I had said that the curriculum for Bantu education was a good curriculum. Well, the curriculum of all schools is practically the same. It is the attention given to parts of the curriculum that shows the difference. It is a question of emphasis; it is a question of content as the hon. member for Houghton (Mrs. Suzman) has pointed out. We teach the same subjects; the syllabus may differ but the curriculum is the subjects taught. The hon. member says the Indians in Natal disagree with what has been done in the past. That is not true, Sir. I have evidence to show that as the expenditure on Bantu education has increased in Natal the expenditure on Indian education has increased six times as rapidly. The Natal people, in handling education. have been generous and sympathetic. There can be no reproach for what has been done in Natal. We are not meeting here to reproach Natal for what they have done. We should rather congratulate Natal. We should rather say to the White people of Natal: “You have carried a very great burden; you have brought practically the entire Indian population of South Africa to where they are to-day.” We said the same to the Cape Province when we took over Coloured education.

I want to read one short extract from a newspaper. It is headed “Indians Thank Wilks”. He is a M.E.C. in Natal—

He said the 3,000 member Natal Indian Teachers’ Society yesterday congratulated Mr. Wilks. M.E.C. for rejecting the Provincial Council Nationalists’ claims that Indian education was a burden on the province.”

But I don’t think it helps us in our discussions to go on quoting this type of thing, Sir.

What is the date; when did he say that?

Last year; you know it.

I do not think it helps us very much to say what the attitudes were in the past. We are now confronted with a new situation. We have to appreciate the situation as we see it to-day.

This is a study in comparative education. We have more than one system of education in this country. Hon. members opposite say this Bill is just one more coloured tile in the mozaic of separate development in South Africa. We say it is another part of the jig-saw puzzle of apartheid. It is just a matter of expression. That is how we look at it. What are the differences between the systems of education we have in South Africa for the four groups mentioned by the hon. member for Randfontein? Under the White system—I speak purely of the organization—we have a system of central control in the provinces. There is no central government policy. That is a system which was really given to South Africa by that great genius General Smuts. Shortly after the Anglo-Boer War, when the Transvaal, for the first time, got responsible government, he introduced the first Education Bill. He had to compromise in that Bill between two conceptions in education, namely, administration from the top, bureaucratic control, and local control by the parents and their representatives at a lower level. He gave us the school board system in the Transvaal. School boards are purely advisory bodies advising the Central Provincial Government. But the decisions, the control of the teaching profession, and what has to be decided in the schools, rest with the province, with the Department of Education of the province. That is the basis of White education. We have that in the Transvaal, in the Free State and in the Cape. We do not have it in Natal, but I shall come to Natal later. That is the first essential point: The policy is the central provincial policy with the parents and their representatives coming in at the lower level, purely in an advisory capacity. My hon. friends who are members of the teaching profession will agree with me that there has been great dissatisfaction even with that small element of power and control given to the school boards, with the result that the Transvaalse Onderwysersvereniging and the Transvaal Teachers Association have said that they wish to have more bureaucratic control in the appointment and promotion of teachers—what they call their own appointments board. That is the system we have for Whites. I am not going to discuss it at length and I am not going to discuss the position of the teacher, because the teacher in those provinces has great freedom in his profession. The White teacher has great freedom. As I pointed out during the Committee Stage, he has the right in the Transvaal to become a member of a political party, to be a member of any committee in the party, the head committee of the party in the Transvaal, and so on. That is the White system. Now the system of Bantu education which has been discussed at length here this morning is completely different. Under the system of Bantu education all the control is at the bottom, in the Bantu communities. They control the whole destiny of the teacher. And now we come to the education of the Coloured people and the Indian people. What is their system? The system is purely bureaucratic. There is no provision in this Bill for any school board or any other body to advise the Central Government. It is purely a bureaucratic system. And I think the hon. Minister has been inspired by the great example of his own province of Natal. Natal has had a system like that because Natal is a small province and it is possible to administer this system in a small province. For that reason Natal has over the years had a bureaucratic system. But I do not think you should have a bureaucratic system for a central government. I think you should have some measure of local control. I know that in Bantu Education we try to have advisors district controlling officers, but we do not have anything of this kind in our Coloured Education or Indian Education. I think that is a weakness. But we are going forward on the system that has been developed in Natal and on that we build our Indian education system. Is that criticism of Natal? It is a compliment to Natal to say that in Natal in the past they have conducted Indian education, as they have conducted White education, on this basis. I am sorry the hon. member for Vryheid (Mr. D. J. Potgieter) is not here. He has frequently criticized the system in his own province because there is no representation of the parents at the lower level. Now we have the Central Government taking over the Natal system holus-bolus to give us this new system of Indian education for South Africa.

Sir, I should now like to say a word or two about the broad features of this Bill. I want to mention two features. The first is the importance of the teacher in any system of education. It is the teacher who matters, not the building, not the grounds. There have been systems of education without a building, without any ground. One of our friends said during the debate that the Voortrekkers were such an example. Quite true. And the Greek philosophers haul a similar system. When they wished to draw a figure, they drew it in the sand. Well, Sir, the teacher in this Bill does not receive the recognition he should receive. I am very, very sorry that the hon. the Minister, although he was ‘prepared to accept an amendment, persisted in the original intention to control teachers’ associations. I say: Give them absolute freedom. If they abuse that freedom, then that will be the time to introduce fresh legislation. But there is no indication, there is no proof, that they will ever abuse that privilege. Therefore I say that the hon. the Minister should have been prepared to ignore that altogether, as other officers of the Government have done. I gave as an example the hon. Minister of Posts and Telegraphs. He does not say to the Post and Telegraph Employees’ Association: These are the conditions on which I will recognize your union. When they come to him and say: “We represent a certain number of employees in your Department”, he says, “I will see you”. I think that is the attitude that should be followed here.

Then I come to this question of appointment of teachers to higher posts. I do not know how the Minister will control that. I hope he will control it in a manner that is satisfactory to the teaching profession. I hope he will be able to say that he has an advisory board or some system of control; inspectors, of course, will help, but there is always a risk in that. I hope that the hon. the Minister will be able to evolve a good system of appointment. That is essential. If appointments are unsatisfactory, one gets discontent in the profession. My hon. friend, the member for Prieska (Mr. Stander), will agree with me there.

I come to the future. The Bill is about to become law. What do I suggest for the future? What suggestion can be made to the hon. Minister for improving his administration, for improving his Department? I have one suggestion to make. It is on the question of organization, and I made that suggestion when the Coloured Education Bill was going through the House. It is on this question of the administrative officer and the professional officer. Right throughout the Bill reference is made to the “Secretary”. Now that is not the Secretary for Education, it is the Secretary for Indian Affairs. But under Clause 2 provision is made for a professional officer who will be appointed to give direction to policy. My suggestion to the hon. Minister is this: that we should follow the example that we have, say, in my province, the Transvaal. We have an Administrator and an Executive Committee, we have a Provincial Secretary, and we have, as he knows, a Director of Education and an Assistant Director, a Secretary for Education, and so on. My suggestion is that he should have the following organization: A Secretary for Indian Affairs, a Director of Indian Education—but the Director should have direct access to the Minister, not through the Secretary, just as in the Transvaal the Director of Education has access to the Administrator. The Administrator sends for the Director, not through the Secretary. The Secretary should be an outstanding administrative officer.

You want an E-side and an A-side, in other words.

That is exictly what I am suggesting, the administrative side and the educational side, the professional man and the administrative man. I would put that to the hon. Minister. I do not know what his senior men will think about if. It has been discussed by me with certain representatives of the Coloured Administration. I think that is the way to organize your Department. I am not suggesting that it should go under any other Department. It conforms to the policy of the Government Party, to the policy laid down in this Bill. If that were to happen, I feel sure you would have a better Bill and better administration of Indian education. And with that, Sir, we can wish them well.

With regard to the suggestion made by the hon. member for Kensington (Mr. Moore) towards the end of his speech, I want to give him the assurance that it would be completely impossible for all the functions of the education division to be canalized through the Secretary of Indian Affairs to me in my capacity as Minister, because for practical reasons, if not for other reasons, it would be completely impossible for the work of all the various subdivisions to be canalized to me in my capacity as Minister through one person in his capacity as Secretary of a large Department, as Indian Affairs will become as it develops. But I cannot eliminate him either as far as educational matters are concerned, because one of the great advantages of legislation of this kind is that education is co-ordinated with the entire planning for the development of the community, and the Secretary is the co-ordinating officer who co-ordinates all the various divisions falling under him. In other words, as far as certain matters are concerned—and that will be worked out by the Department—all proposals or suggestions will be centralized to go through the hands of the Secretary, but as far as certain other matters are concerned, it will be a good thing if the Secretary can be spared because it would become physically impossible for him in the long run to let everything go through his own hands. We will work out a system which will work quite satisfactorily in practice.

Then I want to refer to two other arguments advanced by the hon. member, the one being that it is really not necessary to take the control over Indian education out of the hands of Natal because Natal has shown that it is willing to make the necessary provision, that it is willing to incur increased expenditure, because it appears that over the past few years the expenditure on Indian education has increased sixfold. That is true, but that fact alone more than anything else has shown that economically the burden on the Natal Provincial Administration, as a result of the increase in the number of Indians, as a result of the greater desire of the Indians to receive education, has become too great for the Provincial Administration to bear. I want to give hon. members an example to show how this has also influenced White education. As a result of the great burden placed on the Natal Administration, the Natal Administration has not been able in the past to do what it wanted to do for Whites in respect of free books. It is interesting to note that as soon as it was announced that Indian education would be taken over from the Natal Provincial Administration, the Executive Committee of Natal and the Leader of the United Party in Natal immediately promised that they would consider the issue of free books to White children in secondary schools in Natal. This was the first time that such a promise was made. This only goes to show that the fact that Natal is now being relieved of this burden will enable it in another sphere to do something that should have been done long ago.

But, in addition to that, the hon. member also referred to the attitude of the Indian community, and he quoted Mr. Pather as his authority. He described him as the chairman of the Natal Indian organization. That is correct, but I want to say immediately that I do not accept Mr. Pather’s statement as an interpretation of the feelings of the Indian community when he talks in his capacity as President of the Natal Indian Organization, because I have repeatedly asked them to let me have a constitution of the Natal Indian Organization, and they have not been able to do so, apparently because they do not have a constitution, and for many years apparently there has been no election of office-bearers. Moreover, the position is that the Indians in Natal no longer recognize Mr. Pather’s right to act on behalf of the Indian community, and there is very great opposition in Natal to the fact that Mr. Pather is described as the mouthpiece of the Indian Organization, which is supposed to represent the Indians. I cannot accept, therefore, that he speaks on behalf of the Indian community. He may speak on behalf of the Grantees Association, because he occupies a position in that Association, and I accept that in that position he does speak on behalf of his Association. As a matter of fact, as far as this Bill is concerned, I received only one objection from Mr. Pather, and that is in connection with the question of the compensation to State-aided schools when they are taken over. Now that I have accepted this amendment, that objection of his falls away, and I accepted the amendment, not because he objected, but because it was our intention in any case to act along these lines. I want to emphasize, however, that the opposition in 1962 to which the hon. member for Kensington referred, no longer exists to-day. It is true that at that time there was a certain amount of opposition from the Indian community; there was opposition from the Natal Indian Teachers’ Society in 1962.

And also in 1963.

Yes, in 1963 as well, but that was before they knew what this would mean; that was at a time when they based their opinion on what they were told by hon. members of the Opposition and Opposition newspapers with regard to Government policy. Once the Indian Teachers’ Society and the Indian community had been informed by my Department, by officials of my Department, what our intention was, and once the representatives of various Indian bodies had held discussions with me, all opposition on their part disappeared and to-day I have the fullest co-operation of the Indian community of Natal. Sir, I do not want to enlarge upon this, nor do I want to reply to the allegations made by the hon. member for Hillbrow that I failed to give proper answers to questions put to me by the Opposition. I can only say that one will never be able to convince a person who is capable of making a statement of that kind after we have been debating this matter here for days and in the light ot the answers which now form part of the record. The discussions that we have had here are on record for the Indian community to read and I leave it to them to judge whether the hon. member for Hillbrow is right or whether I am right.

I do not want to reply again to the other general objections which have been raised here, because I think the hon. member for Vereeniging (Mr. B. Coetzee) and the hon. member for Randfontein (Dr. Mulder) have replied in a masterly fashion—I repeat, in a masterly fashion—to the basic objections raised by the other side, and they have also dealt in a masterly fashion with the basic advantages that can accrue to the Indian community from this legislation. I do not think it is necessary for me to repeat what they have said here in the course of very fine speeches.

I just want to deal with one argument advanced by the hon. member for Hillbrow. I refer to the fact that the hon. member for Hillbrow, of all people, had the temerity to say in this debate that as a result of Government policy and as a result of the Bill introduced here by the Government, the Indians are doomed to economic death in their own areas. He said that that would be the consequence of this Bill and of the policy of this Government.

May I just repeat what I did say?

I wrote it down immediately when the hon. member said it.

I said that they would flourish culturally but die economically.

Precisely. That is the allegation which the hon. member had the temerity to make with regard to the Indians. Sir, if ever there was a deed which meant economic stagnation for the Indians, or which meant economic oppression for them, it was the Pegging Act which was passed by the then United Party Government, an Act in terms of which the Indians had no opportunity of development.

We did not peg them economically.

What are we doing to-day? I mention this because it links up with this Bill. We are now setting aside their own areas for the Indian communities, as a result of which they will have new opportunities in new areas where development can take place. As a result of the policy followed under this system it was recently announced that opportunities would be given to the Indians and that certain areas, including industrial areas, would be set aside for them in which they will be able to develop industries, a privilege which the Indians have never had before.

Why not?

These are opportunities which they have never had before as a result of the Pegging Acts of the United Party. In all the years during which those Acts have been on the Statute Book they have never had these opportunities. These opportunities are now being created for them. They are now being given opportunities to start industrial development and, moreover, arrangements have already been made whereby the Industrial Development Corporation, as an interim measure, will be able to grant assistance in connection with the establishment of Indian industries. And then the hon. member has the temerity to say here, in spite of the fact that they are now being offered special opportunities which they have never had before, that economically they are doomed to die. In addition to that, we now have this Department which will undertake planning in every sphere and which will turn out skilled people who will be able to take their place in this new era which will dawn for the Indian community. The planning in this regard will form part of the work of the Department as a result of this legislation. For the first time there will now be planning in every sphere. From time to time my Department receives requests to make available trained Indians for essential services to their own communities and in their own undertakings, and these people are simply not available. There will now be an opportunity for planning and for the training of the sort of people they need. For the first time there will be actual planning within one Department that deals with all these facets of development. Surely it is perfectly clear that the development of any community must be a balanced development. Surely its sociological development, its economic development, its educational development, must go hand in hand. Surely the one is dependent upon the other, the one is linked up with the other. These things must all be seen as one entity, and for the first time now an opportunity is being created for the establishment of a unitary pattern for this balanced community development of the Indian community. In other words, for the first time in the history of the Indian community, this Bill, the policy of the Government, far from meaning economic death for the Indians, opens up new horizons for them and rings in a new era for them. They have some hope for the future, some hope of achieving something in this country of which they are now regarded as permanent inhabitants.

Apart from the direct advantages that will accrue to the Indian community in the sphere of Indian education itself, as a result of this Bill, it is a Bill which will promote the total development of the entire Indian community and which will promote planning for the entire Indian community; it is a Bill which is welcomed by the Indian community, a Bill which opens up new horizons for them and ushers in a new era for them.

Question put: That the word “now” stand part of the motion.

Upon which the House divided:

Tellers: D. J. Potgieter and P. S. van der Merwe.

Tellers: N. G. Eaton and A. Hopewell.

Question affirmed and amendment dropped.

Motion accordingly agreed to and Bill read a third time.

During the second reading it became clear that there was agreement between the Deputy Minister and this side of the House as to the necessity for securing the greatest possible measure of uniformity whenever a man’s ground is expropriated as far as the procedures and the compensation payable are concerned. If there is to be uniformity in regard to the compensation payable, it is not only necessary that the basis of compensation should be clearly defined, as it is in the Bill, that it shall be the amount the property would have realized if sold on the open market at that date by a willing seller to a willing buyer, plus an amount to make good any actual financial loss or inconvenience caused by the expropriation; but it is also necessary that there shall in fact be absolute uniformity in the actual practical interpretation of the basis of compensation. To achieve this two conditions must apply, firstly, that the compensation offered in the first place should be decided by valuers drawn from the same panel in all cases. As an example of that. I want to say that under the Water Act of 1956 I understand that the initial valuations are always done by two members of the Land Board. This Bill amends some 14 other Acts dealing with compensation for the land expropriated by various State Departments, among whom are the Post Office and the Department of Bantu Administration, and it would appear from what the Deputy Minister said yesterday that in many cases the Department of Lands acts as the agents of those Departments. The question I want to put to the Deputy Minister is this: Will the same set of valuers, or valuers drawn from the same panel, in all cases decide on the compensation offered to the owner of the land, and will they in fact be appointed by the Minister of Lands; and if not, by whom will they be appointed? Secondly, if there is to be uniformity in regard to the basis of compensation, the valuer who decides what amount the property would have realized on the open market must operate according to a very definite set of rules because there have been cases, particularly in the Cape, in regard to divisional council valuations, where two adjoining portions of the same property have been valued on an entirely different basis. The portions adjoin, but they may fall in different districts and different valuers do the valuation, and they arrive at completely different figures. How is this amount which a willing buyer pays to a willing seller in fact going to be determined? Is it going to be on the basis of sales which have taken place in that area over a period of three years or five years? I hope the Deputy Minister will give us further information on these points and that he will satisfy the Committee that there will in fact be a uniform basis of compensation.

The hon. member asked some questions in regard to uniformity, particularly in those cases where we act as the agents of the various other bodies on whose behalf we have to purchase. I want to say immediately that uniformity is maintained wherever possible. The hon. member also asked whether it would always be the same valuators or the same panel of valuators. From the nature of things it cannot always be the same people or the same panel because where agricultural land has to be valued we can, as in the past, avail ourselves of the services of the members of the Land Board but where we have to expropriate in the city we cannot make use of those valuators because they are not fully au fait with urban values. Consequently we have to use sworn appraisers in those cases. I want to give another example. Even where we have to expropriate on the platteland, we cannot with the same confidence use those members of the Land Board who are au fait with farming conditions on the high veld, for instance, to value land on which sugar is grown or grape-producing farms. In other words, we use the members of the Land Board to make the valuations but the Land Board itself decides which members should do the various valuations that have to be made. When they have done their valuations they first report to the Central Board and after the board has taken all aspects into consideration they make their final recommendations to the Minister.

The hon. member asked who appointed the valuators. Where the Land Board does it it is the members of the Land Board who are appointed by the Minister. Where we have to use sworn appraisers it is the Minister of Lands if the latter acts as the agent.

The final question asked by the hon. member was how the amount was determined which a willing buyer would pay to a willing seller and which year was taken into account. We realize only too well that because of the depreciation in the purchasing power of money, if land fetched a certain price ten years ago, it cannot be sold at the same price to-day. Our valuators take the normal tendency in the appreciation of land values into consideration. For example, a short while ago we analysed the tendency in land values in the entire Orange River area which is being acquired, based not only on the price paid by the State but the price paid by the public in general for that land. We try to find a basis along those lines.

Clause put and agreed to.

On Clause 11,

I should like to draw the attention of the hon. the Deputy Minister to sub-section (3) of this clause, which makes it obligatory in certain circumstances for the court to order the costs incurred by the State in connection with certain court proceedings to be paid by the owner or the mortgagee of land, or by them jointly. Where any application is made by the State to the court in terms of Clause 11, the court is bound to say that the owner or the mortgagee or both of them together must pay the costs of that application. We are dealing here with the case where land is expropriated from the owner at a time when it is mortgaged to someone else and the idea behind this clause is that the money shall only be paid out when it is agreed between the owner of the land and the bond-holder on how that money is to be paid. No doubt the idea is that the money which the owner will get from the State as compensation is to be used to pay off the mortgage bond.

That is, of course, a sensible idea, if I may say so, but it is conceivable that a situation might arise where the State has to go to court in order to get agreement between the mortgagee and the owner in circumstances where it is not right that either the mortgagee or the owner should pay the costs of that application. It is quite conceivable that a situation might arise where the court will say that nobody is wholly free of blame for the situation which has arisen, and that there was procrastination on the part of the State and of the owner and of the mortgagee as well, and in those circumstances the court might make no order as to costs, and therefore each party must pay its own costs. But the court would be precluded, in terms of this wording, from making such an order, because it says the court shall order the costs incurred by the State to be paid by the owner or the mortgagee. I would suggest to the Deputy Minister that he considers changing the word “shall” to “may” in the Other Place. It will mean that where the fault lies with the owner or the mortgagee the court will order either of those persons to pay the costs, but in a case where the fault does not lie entirely with those persons the court will have a discretion to order the State to pay perhaps a portion of the costs. I suggest that the Minister consult with his advisers with a view to making that change in the Other Place.

The Afrikaans text reads: “In enige geval nie in sub-artikel (2) vermeld nie beslis die hof na goeddenke oor die koste”. Perhaps the hon. member prefers that to the word “shall” in the English text. There has never yet been a case where we have had to go to court. This is a new clause. We must always realize that if the court has to give an order as to whom those court fees have to be paid then I think the court is the indicated body to decide, otherwise the Department, because it has had to go to court, will obviously think the other parties must pay.

I do not know whether the Deputy Minister was reading from the Afrikaans version of Section 11 (3), because the wording there is “die hof moet beveel”, which is the same as the English version “the court shall order”. It imposes an obligation on the court and I think that the Deputy Minister should consider recasting the Afrikaans text as well, because it has the same meaning as the English text, in order to put into effect what he himself, I believe, now accepts, namely that it should be left to the court to decide on the costs.

I am prepared to consider it and to report upon it in the Other Place.

Clause put and agreed to.

On Clause 17,

There is a point I wish to raise under this clause which the hon. the Deputy Minister, as I understood him, raised when he introduced the Bill yesterday. As I understood him, he said the Bill made provision to leave the door open to other Government Departments and to the Provincial Administrations. If that is what he said, then I agree with him in so far as the Provincial Administrations are concerned; it does leave the door open to them, but as far as other Government Departments are concerned it would seem that the door is not open to them. I say that because “Minister” is defined in the Bill as being the Minister of Lands or an Administrator. The Minister may do certain things. That means the Administrators may do certain things; the provinces can take this over holus-bolus, and we hope they will. Other Government Departments cannot take this over for the reason that the Minister responsible—if the Act says that one Minister can expropriate—is not entitled to use the powers under this Act unless the Act is changed. We find in this Bill a provision, e.g., where the Minister of Education may expropriate; whereas before the word “Minister” was used, meaning the Minister of Education, the Act is being amended so that the Minister is now defined as the Minister of Lands for purposes of the Act. So where there is an amendment to the Act, obviously the Minister of Lands can act, but if there is no such amendment to the Act giving the Minister of Lands power to expropriate in terms of an Act which gives another Minister that power, then of course the Minister of Lands cannot act. The Minister of course is entitled to buy any land for public purposes and he could, I suppose, then transfer that land he has expropriated to that Department, but this does not resolve the difficulty we are faced with here, that in fact the Minister of Lands can do that using the criteria laid down in this Bill, which are very desirable. But if the Minister does not want to use this procedure and asks the Minister of Lands to expropriate for him, then he must use some other procedure. It unfortunately involves the position that where one has one’s land expropriated for a public purpose, it is a public purpose whether it is a local auhority or the Roads Department or the National Parks, whether it is for housing or group areas, etc., and it is unfortunate that Government Departments can use different criteria and affect the rights of the individual in different ways with different methods of compensation. It is not the individual’s fault that the public purpose for which his land is required is not one of those public purposes which falls to be determined by the Lands Department as far as expropriation is concerned, which is a pity for that individual. So I wonder whether the Deputy Minister would indicate where it is provided that other Government Departments and other Ministers may in fact take over the provisions of this Bill relating to expropriation in the same way that Administrators can do.

The hon. member should realize that the only Department excluded from making use of this Act is the Department of Railways. But the Minister of Lands can delegate the power given to him under this Act to the Secretary of any other Department to make use of this Act to expropriate.

I understand that the Transvaal Provincial Administration is very keen to get this legislation on to the Statute Book, for the express purpose, I take it, of being able to expropriate and compensate. I want to draw the Minister’s attention to this old proclamation of 1813, the Cradock Proclamation, and I want to draw his attention to something which appears in it. It says—

I think that if they realized that before the proclamation of the Ordinance of 1813, surely it will give him the opportunity of being able to approach the Cape Province, at any rate, to change his ideas, where it holds the right to expropriate land without any compensation. I sincerely hope that the Minister will take the first opportunity of approaching that province with a view to overcoming this difficulty.

In reply to the hon. member, I may mention that this Act is now there for the Cape Province to use and I sincerely hope that they will forget about their own ordinance and make use of this Act and of this Act only in future.

I hope you will insist on it.

The Deputy Minister is correct and there is some provision about the delegation by the Minister of his powers to an official.

It is in Clause 14.

I hope the Deputy Minister is right, but this is something which I think deserves his attention before the Bill passes into final form in the Other Place, because one wonders, if the Act under which an expropriation can be made, e.g. as under the Education Act, the Minister of Education was given the power to expropriate for purposes under that Act—if the Minister does not have that power, if the Act in fact does not give the Minister that power, or rather, gives it only to the Minister of Education, I would regard it as being doubtful whether the Minister of Lands in terms of this would, by delegating his powers to the Secretary for Education, be able to get around the Act which provides that expropriation for the purposes of that Act shall be done by a particular person, namely the Minister of Education and in a manner as laid down in that Act. This is a matter which I would ask the Minister to consider with his law advisers. It seems to me a proposition which warrants some investigation.

I think what the hon. member for King William’s Town (Mr. Warren) suggested to the Minister is this. Here he provides a Bill allowing a Provincial Administration to take over holus-bolus the procedure relating to expropriation contained in this Bill. As we have said repeatedly, it is a magnificent form of procedure and criteria for the determination of these matters. We believe that these things must be done, as far as the provinces are concerned, by the proper constitutional process, namely by negotiation and persuasion, and having persuaded them, by a request from the provinces that this legislation should apply to them. Of course, in this case that does not have to happen. All the provinces have to do is to say that they accept it. And so all the Deputy Minister has to do is to persuade the provinces that this is a good, fair and equitable way of expropriation. I think what the hon. member for King William’s Town was telling him was that he is probably able to persuade the Provincial Administration of the Cape Province better to do it, being of the same political persuasion as the Government. We should like to know whether the Minister will make an effort to persuade the Cape Provincial Council that they should in fact adopt and take over, as they are entitled to do, all the provisions of this Bill. The difficulties that could arise if the Minister does not go ahead with it is that you will find, as in the instance quoted by the hon. member for King William’s Town, that where the Provincial Administration is in a hurry they will use this procedure, but where they are not in a hurry they will use the other procedure, which is monstrous, because it is monstrous that you can have your land expropriated without compensation.

The hon. member must come back to the clause.

This clause provides that if you are a province you may in fact apply your own law, but there is nothing to prevent you from applying this law in one particular case, so that another circumstance is introduced to make it more uncertain. Not only are you liable to be dealt with under this Bill and under the provincial legislation, but you may again be unfortunate not only in having the land required for public purposes relating to roads instead of land, but you may be subject to the circumstance that in relation to your property which is required now for public purposes, the Administration is in a hurry, whereas with your neighbour it is not in a hurry. If it is in a hurry with your property, you get compensation, but if it is not in a hurry to expropriate the property of your neighbour then he gets no compensation. This is what I think the hon. member for King William’s Town would like to hear from the hon. the Deputy Minister: What does he propose to do so far as the Cape Province is concerned with regard to the question of persuading them to accept this Bill?

I want to put a question to the hon. the Deputy Minister and in order to do so it is necessary for me to outline the background to some extent. As the hon. the Deputy Minister knows in the Transvaal a fence has been erected along a distance of 450 miles between Bechuanaland and the Transvaal to try to prevent the spread of foot-and-mouth disease. Because of the erection of this fence the Department of Agricultural Technical Services has temporarily expropriated land from the owners concerned and large pieces of their land fall on the Bechuanaland side of the fence. When that fence was erected it was thought that it would only be of a temporary nature but it has already been in existence for five years. The fence was erected in a straight line, of course, with the result that large portions of the best grazing land falls on the other side of the fence and farmers on this side of the fence have no access to the water on the other side of the fence. But on the southern side, where there has been an outbreak of foot-and-mouth disease in Swaziland, a fence is also now being erected by the Transvaal …

Order! The hon. member is covering too wide a field.

My question to the hon. the Deputy Minister is this: He said other Departments were availing them-selves of this Act to assess the compensation payable for expropriated land. Where it was not possible for the Department of Agricultural Technical Services to pay compensation in the past this clause of the Bill now makes it possible for the Department of Agricultural Technical Services to pay such compensation.

I just want to point out that no land was expropriated for the erection of that foot-and-mouth resistent fence. That fence was erected temporarily. In other words, there was no expropriation and nobody took possession of any land. It is a temporary precautionary measure to prevent the spread of foot-and-mouth disease. In fact the Department of Agricultural Technical Services does not do any expropriation. All expropriation that has to be done where the Department of Agricultural Technical Services requires land or buildings is done by the Department of Lands. It is done in terms of this Act and compensation can be paid in terms of this Act.

For the temporary use of land?

I am talking about expropriation.

I am talking about land which has already been in use for five years.

Provision is made in this Bill to pay compensation for the temporary use of land but we are not using the land in any way whatsoever.

While I am on my feet I want to say to the hon. member for Durban (North) (Mr. M. L. Mitchell) that the proof of the pudding lies in the eating thereof. We are convinced that in future, due to the way hon. members opposite are already conditioning them in their speeches, the provinces will use this Act and this Act alone. We shall also try to bring that about.

The hon. the Deputy Minister said that he could delegate his powers under this Bill to another Minister or another Department. Supposing he delegates them to an official in the Department of Water Affairs, does he envisage that once he has delegated his powers, Water Affairs will always proceed to act under the provisions of this Bill?

Order! The question of delegation of powers should have been raised before. It is not relevant under this clause.

Clause put and agreed to.

Remaining Clauses, Schedule and Title of the Bill put and agreed to.

House Resumed:

Bill reported without amendment.

With the permission of hon. members opposite I should like to move—

If other Ministers would show the same courtesy as the hon. the Deputy Minister they would also be allowed to take the following stage immediately!

Motion put and agreed to.

Bill read a third time.

I move—

At the second reading of this measure I moved an amendment that the Bill be referred to a select committee before the second reading. I then made it clear that I was doing so not because we necessarily approved of gambling but we felt that the whole question should be investigated and that the public should be given an opportunity of making representations before the select committee. Sir, most people are agreed on the rules of human conduct required for the protection of the rights of society and its interests. Except for political offences there is general agreement as to what should be criminal offences and what should not be so regarded, not only in South Africa but in most countries of the world and certainly in all countries sharing our Western civilization. Our South African criminal law is based on the Roman-Dutch Law as adapted to meet the requirements of changing circumstances. With the advance in civilization, new situations which were not contemplated by lawgivers a century ago have now risen. For instance, laws which were passed years ago have become abrogated by disuse because our ideas have changed. Some countries sharing our civilization have always allowed gambling in a controlled form, countries such as Portugal and Monte Carlo; others disapproved of it years ago but now also permit it under control. In this connection I refer to Ireland, Australia and Rhodesia; there are no doubt others as well. Sir, I mention that to show that our views as to what is moral or immoral or what laws are required for the protection of society and its interests, do change. In this Bill, however, the Minister has taken certain laws which can be said to have become abrogated by disuse and he is re-enforcing them.

Such as?

I will mention them later. Let me rather put it this way that he is re-enforcing laws which, although they have not become abrogated by disuse, have not been applied. He is taking some of the most restrictive laws which applied in the Provinces and he is applying them to the whole of the Republic. The Minister has asked me to give him examples. Although the State President or the Minister of Justice, and, in the old days the Governor, “by proclamation declare certain games to be games of chance or lotteries”, as far as I know they have never done so. It has been left to the courts to decide what is a game of chance.

Ministers have certainly done that.

Yes, but the Minister will know that the general rule has been to allow the courts to decide what is a game of chance and to decide what should be treated as an offence and what should not be treated as an offence.

Under the general definition, yes.

Yes, that is correct. The Minister by introducing a new Act but applying these old measures is now laying stress on the provision that the Minister will be able to dictate and lay down by proclamation what should be regarded as a game of chance. He has said, for instance that he intends dealing very strictly with pin-tables. I mention that as an example of his attitude towards the application of this measure. He has not applied the more liberal provisions of certain of the Ordinances which are now being repealed.

Such as?

The South West Africa Ordinance, for example. In terms of that Ordinance the Administrator had the power to allow lotteries under certain circumstances. He could give permission for lotteries to be held for non-profit-making purposes and he could lay down rules for the running of the lotteries and also in connection with the division of prizes.

He has never made use of that power.

The hon. the Minister says that the Administrator has never made use of that provision but he did have that right. Why could the Minister not have inserted a provision of that nature in this Bill to allow Administrators to allow lotteries to be conducted to benefit churches, sporting clubs and charitable organizations? That is the custom which has grown throughout the country. It is an almost universal custom, but under the provisions of this Bill it cannot be allowed. It could never be allowed in the Cape and the Transvaal legally, but people have been doing it, as the hon. the Minister will know. That is a custom which has grown up, and I want to know why the hon. the Minister could not have recognized that custom and made provision for it in this Bill, subject to adequate control. Had the hon. the Minister accepted our suggestion to refer this Bill to a select committee, evidence could have been heard from these different organizations and societies and the select committee could have dealt with them on their merits and then made recommendations to the House. Sir, this is a matter which should have been dealt with on a non-party basis. We, the Opposition, have dealt with it on a non-party basis. The Whips were taken off in the Committee Stage and members were free to move any amendment they liked. However, the principle having been accepted at the second reading we were prohibited from moving certain amendments, for instance to include a provision in line with the provision contained in the South West Africa Ordinance. I say that had the Minister allowed a select committee to go into the whole question on a non-party basis, I am certain that we would have got a measure which is more suited to present-day circumstances. Sir, we will oppose this measure again, not because we approve of gambling. We will naturally differ, just as hon. members opposite will differ and just as members of the public will differ, on the question as to whether or not gambling should be allowed. We feel that gambling, just as in the case of liquor laws, should be a matter for the conscience of each individual. We will accordingly oppose the third reading.

Business suspended at 12.45 p.m. and resumed at 2.20 p.m.

As far as the third reading of this Bill is concerned, the hon. member for Transkeian Territories (Mr. Hughes) has once again made the point that it will be much better if we referred this Bill to a Select Committee because he is convinced that the Select Committee will probably allow some form of gambling. In that connection the hon. member also asked why, seeing that this measure was in principle a consolidating measure, we had taken over precisely those provisions which were very onerous as far as this matter was concerned and why we had not taken the South West African provisions which made gambling permissive. In this connection I think one must take the provisions which are, more or less, currently in operation throughout all the provinces and in South West Africa. I do not think it is a good argument to say, as the hon. member has done, that I should have taken the South West African provisions in preference to other provisions which are still in operation. What is the position? The hon. member knows that the provisions they have in South West Africa have been in existence for many years, not only under this Government but also under the previous régime and in spite of the fact that they have been in existence there for many years, pressure has never yet been exerted on the Administration, irrespective of the party in power, or on the public to put those provisions in operation. Nor do I know of any agitation to put those provisions in operation in spite of the fact that they are permissive. In other words, I must conclude from that that, although theoretically they have had the right to do so, people did not want to avail themselves of that right because had they wanted to do so they could have. I can come to only one conclusion from the fact that there has never been an urge to exercise that right and it is this that no need has ever arisen or that the people were in principle too strenuously opposed to it. No matter from what angle we view this matter why should we insert an obsolete provision in this Bill at the expense of provisions which are daily in operation? I am convinced—and I think most hon. members opposite will agree with me—that gambling undermines the morale of any nation. We find, therefore, that, in spite of the fact that individuals, whether they are on this or that side of the house, are in favour of gambling, nobody has yet pleaded for gambling to be allowed freely. Nobody has ever yet pleaded for that because everybody knows what dangers can flow from that. But let us view the matter from another angle. The hon. member says we should have made concessions. Sir, when we look at our national life, how is it organized? We are organized in churches, political parties and social welfare societies. Those are the three main groups into which any nation is organized. Let me deal with social welfare activities. All the social organizations concerned with the welfare of our people, English as well as Afrikaans-speaking, whatever their outlook may be, are organized and eventually come together under the National Council of Welfare Organizations. That Council rightly and justifiably speaks on behalf of all welfare organizations. The hon. member has once again argued that we allow people who do welfare work to conduct lotteries on a smaller or bigger scale. I was attached to that Department for a short period and experience has taught me that there are many people who want to do welfare work provided others are prepared to pay for it. Many people want to command respect because they do welfare work but they are not prepared to work hard in that respect. However, there are—and one is very grateful for this—welfare organizations which not only want to do charitable work but which are also prepared to work hard and to make sacrifices for the sake of that work, and those are the very people, people with different outlooks in life, who are at the moment organized in the National Council which does welfare work. Those are the people who, in the long run, are best able to pass judgment in this matter and to say whether it is desirable to allow it or not. All the years during which I was associated with the National Welfare Council and even during the years when I was not associated with it I was and am not aware of the National Council, which has the final say in this connection, ever having requested any authority, whether provincial or parliamentary, to allow them to do so; and I regard that as the deciding factor. But even as we are organized in our churches —Afrikaans, English and Jewish—I am not aware of the synod of any of our churches ever having decided at a meeting to make representations to the Government to allow lotteries or to allow gambling more freely. I am simply just not aware of anything of that kind.

They all conduct raffles.

That is correct. I know some churches allow it; others do not but that is because after all it is only a minor digression which is allowed in certain circumstances. The fact that people are allowed to conduct a small raffle at some fête or other does not mean that you are in favour of opening the door wider. It is true that it causes some excitement and that it is pleasant to take part in it; all of us know only too well that everything that is bad for you is pleasant to do. That does not mean that one must encourage it. On the contrary, the mere fact that it is pleasant to do it makes it all the more necessary in many respects to take action against it.

What about the question of changing the drinking habits.

We are doing our best as far as that is concerned and the hon. member knows it. I do not always get the co-operation I should like to get in this connection, but I leave it at that.

Sir, we are also organized in political parties. It is true that this side of the House has consistently taken a stand at its congresses. It is true, as hon. members opposite have said, that this is a matter for the individual member. But the fact remains that no political party, whether it be the party in power or in Opposition, has ever made a formal request to a Government or a local authority to open the door wider as far as this matter is concerned. That being the case what necessity is there to appoint a Select Committee? All we are doing is to retain the existing position. We are not embodying obsolete provisions in this legislation. The provisions embodied in this legislation are alive; they are being applied from day to day. In other words, I make bold to say that this Bill gives expression to the feeling of the majority of the people irrespective of their political affiliations and their outlook on life. The majority of the people are of the opinion that, as far as it is practically possible without interfering with the individual person in his home, in other words, as far as it is done in public, we should combat the evil of gambling. In those circumstances, Sir, I can confidently recommend this Bill to the House.

Motion put and the House divided:

Tellers: W. H. Faurie and P. S. van der Merwe.

Tellers: N. G. Eaton and A. Hopewell.

Motion accordingly agreed to.

Bill read a third time.

I move the amendment standing in my name—

There is also an amendment by the hon. the Minister to this clause. I shall be very happy indeed, Sir, if the hon. the Minister accepted my amendment. We would be delighted to accept his because the two amendments dovetail. I just want to give you the reasons why I have moved my amendment, Sir. This clause is mainly a repetition of Sections 34, 37 and 65. Sub-section (3) provides that if the value of the estate does not exceed R600, the Master, may, notwithstanding the terms of the will, dispense with the notice, the appointment of an executor and with directions as to the manner in which the estate should be liquidated. I believe we should not interfere with any directions in a will even though the amount is small. The existing Act makes provision in regard to small estates but it does not give the Master the powers which are given to him under this clause. The existing Act says that where the estate does not exceed £300 but exceeds £100 (provision in respect of an estate of less than £100 already being made in subsection (1)) the Master may, in the case of an intestate estate or in the case of a testate estate in which the executor testamentary may be unable or unwilling to act appoint an executor dative to administer the estate of that deceased person. In the present clause we give him the power, not only to appoint an executor, but at the same time to give directions as to the manner in which the estate should be administered. I do not think the Master should have the right to override the directions of a will if he thinks it would be in the interests of the estate, as provided here. If this clause were suitably amended, as I suggest, it would read—

I think that if the hon. the Minister accepted both amendments, the clause would be satisfactory. There would then be no interference with the wishes of the testator and it would shorten the proceedings because the amount is so small.

There is substance in what the hon. member for Florida (Mr. Miller) has said. It is because I have taken note of his amendment that I have asked the law advisers to go into the matter. They tell me that the point the hon. member for Florida has made will be met if my amendment wage accepted. All we would then be doing would be to restore the status quo. We cannot accept both amendments. I can give the hon. member the assurance that my amendment has come about as a result of his amendment and I now move my amendment—

Amendment proposed by Mr. Miller withdrawn, with the leave of the Committee.

Amendment proposed by the hon. the Minister of Justice put and agreed to.

Clause, as amended, put and agreed to.

On Clause 23,

This clause provides for the appointment of an executor dative with the proviso that security should be furnished. I suggest that parents or children of the deceased be exempt from the necessity of furnishing security except where the Master deems it essential and specifically asks for it. I really think it is obvious, and consequently not necessary for me to say much in this regard, that where the relationship is as close as that of parent or child it should not be necessary to furnish security. That is definitely the accepted position when an executor testamentary is appointed. Where there is no will and an executor has to be appointed why should a burden be placed on the shoulders of the parents or the children whereas no burden is placed on the executor if his appointment is a testamentary appointment? I therefore wish to move the following amendment—

I also have in mind—I did not mention this a moment ago—that the surviving spouse should also be included. In other words, the parent, or a child or the surviving spouse will not be obliged to furnish security except where the Master specifically calls for it.

I think the hon. member for Ceres (Mr. S. L. Muller) has raised a matter of general interest in this connection. Where the intention is not to make the position more difficult but easier, and in view of the relationship between the persons as put by the hon. member I have no objection to accepting this amendment.

Amendment put and agreed to.

Clause, as amended, put and agreed to.

On Clause 25,

I do not think subsection (1) of this clause goes far enough because it only refers to “shares”. I think we should enlarge upon that and to cut a long story short I want to move the following amendment—

I have no objection to accepting this amendment.

Amendment put and agreed to.

Clause, as amended, put and agreed to.

On Clause 28,

I move the amendment standing in my name—

I just want to say that we think the provision giving permission to an executor or administrator to open a savings account with a building society is a very sound one. We do feel, however, that whereas some large estates take much longer than a few months to be wound up, the Minister should also allow the executor or administrator, subject to the approval of the Master, of course, to put money on fixed deposit with the same institution. Interest rates have been fluctuating greatly of recent months but, in the case of the S.A. Permanent Building Society, the position today is that they pay 3 per cent on savings account and 5 per cent on fixed deposit for 12 months or more. While the Master retains control and while the administrator has to satisfy him that the money will be idle for a period longer than 12 months I think it would be sound to grant him that permission.

I am sorry I cannot accept the amendment moved by the hon. member for Benoni (Mr. Ross). I have discussed the issue raised by the hon. member with the various Masters and they told me that such an amendment should not be accepted. The reason, I am told, why it cannot be accepted is “that the amendment, if accepted, would enable executors to invest on fixed deposit with a building society extra funds which are not immediately required for the payment of any claim against the estate. Section 28 (9) of the Building Societies Act, 1965, provides, inter alia, that a building society shall repay a fixed deposit on due date and not earlier but may, in its discretion, repay a fixed deposit before due date where the deposit forms part of the assets in a deceased estate. It would appear that the shortest term of the investment of money on fixed deposit with a building society is 12 months”. I am told that it cannot be accepted for that reason. I am sure the hon. member will agree with me that whereas we are now, for the first time, giving executors the right to invest, it is advisable that we go slowly. It may in future be advisable or possible for us to go further than we are going at the moment. I am not suggesting for one moment that it is out of the question for all time. There is substance in the amendment of the hon. member but as this is the first time that we are going so far, I think we must leave well alone in view of the attitude adopted by the Masters based on the experience they have gained in this matter over the years.

I do not want to argue with the hon. the Minister. This amendment of mine comes from the Joint Council of the Society of Chartered Accountants. I want to make it quite clear that the power must remain in the hands of the Master, as it does anyway now. He would have to be satisfied by the executor or the administrator that those funds would not be required within a period of 12 months. I am assured by the Society of Chartered Accountants that it often happens that large and involved estates involve large amounts of money which lie idle for years. The provision in the Bill meets the position to a certain extent but I do feel there is merit in the chartered accountants’ contention in this regard. They have practical experience of it.

As I have already told the hon. member I myself think there is a great deal of merit in the suggestion. Hon. members must, however, realize that we are moving on a new road, so to speak, in this matter and that we are putting an onus, and a very heavy onus, on the Master. I do not think it is fair, in view of the attitude adopted by the various Masters, which I think is a reasonable attitude, to increase that onus which we will be doing if we accepted this amendment. As far as this is concerned I am perfectly open for discussion. But let us first give this a chance. The hon. member has rightly said that as far as big estates are concerned better interest can perhaps be earned that way. I agree that is the position but the position up to the present has been that no interest whatsoever could be earned. We are now at least giving them an opportunity of earning some interest. In view of the Masters’ objection—after all, they are the persons who have to carry the burden in this respect—I do not think we should go further than we are in fact going now.

I want to move the amendment of which I have given notice—

I move this amendment as a result of the new Banking Act which was passed by Parliament earlier this year.

Amendment proposed by Mr. Ross put and negatived.

Amendment proposed by the Minister of Justice put and agreed to.

Clause, as amended, put and agreed to.

On Clause 31,

This clause deals with late claims and it provides for certain penalties in the case of persons who fail to lodge their claims within the period stated in the advertisement calling upon debtors and creditors to settle or file their accounts. Sub-section (b) contains certain restrictions against the right of the creditor to claim restitution from other claimants who have had their accounts paid by the executor in the estate. The purpose of my amendment which I now move—

is to avoid penalizing the creditor unless the account has been duly advertised. Stricly speaking no payment should be made to any creditor until the account has been duly advertised, has lain for inspection and the executor advised by the master that no objections have been lodged. The creditor may be out of the country; he may be on holiday, or he may be a retired person who has not got the staff to look after his interests. On the other hand the notice might well have escaped his notice. There is, of course, a saving sentence in (a), which says that he has the right to satisfy the Master that he had a reasonable excuse for the delay in presenting his account.

Is that not enough?

Sir, I think if you take (b) into account, the fact that these penalties should not arise if he takes any steps before the accounts have been advertised and lain for inspection would I think meet the contingency that could arise under (b). Where it deals with the fact of creditors having been paid I maintain they should not be paid until the account has been advertised and lain for inspection. If the creditor comes along after that, the executor in any event, under the present Act, is free of any liability to the creditor, and similarly are the other creditors who may have gained an advantage by the fact that that claim has not been made and accepted and formed part and parcel of the distribution, account and the payment of the expenses in the estate. I think it is not untoward to ask for that, because strictly speaking an executor should himself take cognizance of a claim (and I think that is the position in practice at present), a claim which he knows exists even though that claim has not been presented. I think from experience as an executor over many years, I can say that we have always regarded it as an obligation to ensure that we know of no other claims against the estate. Because if we did. Sir, then my contention is that under present legislation it is our duty and our obligation to the estate and to the office that we hold to deal with that particular claim even though no claim has been put forward. So I think if we make these penalties apply only after the account has been advertised and lain for inspection, then there can be no criticism and no question of any possible injustice in the matter. I think that is a matter which the hon. the Minister should give a little more thought to, because (b) makes it quite evident as to how the amendment would operate.

I hope the hon. the Minister will not accept the amendment moved by the hon. member for Florida (Mr. Miller) the reason why he should not being a very simple one. In practice executors act as laid down in Section 29: They advertise for claims. The law says they can specify any period not exceeding three months. The fact that somebody has died is already known. It is also known that, at some time or other, probably after three months (it can also be before three months have elapsed), but in any case after the occurrence which is known, the executor advertises for claims. If a creditor neglects to file his claim thereby delaying the winding up of the estate, the estate or the heirs or the other creditors cannot be held responsible. It is the fault of that creditor in the first instance. What the hon. member for Florida now asks us is to place a premium on those people who cause such a delay.

No.

Yes, that is precisely what he is asking for because he asks that he should not be penalized before a certain period of time has elapsed. He says he is not penalized until such time as the account has lain for inspection. I think it is a very unreasonable amendment because the hon. member wants the winding-up of the estate to be delayed and in addition the claim of the creditor is accepted and not refused. If any costs have to be incurred because of such a delay for which the estate is not responsible, but the creditor himself, the creditor should pay those costs and not the estate. But in this case the hon. member for Florida wants the estate to pay those costs. That is why this clause has been worded like this; we want to penalize the person who is responsible for the delay. Does the hon. member for Florida want to reverse the position and place a premium on the person responsible for the delay? In any case he only wants to penalize him at the stage where heavy costs have already been incurred.

What costs are you referring to?

I am talking about the costs referred to in the clause.

What can those costs be?

It says “any costs payable out of the estate in connection with the reframing of any account or otherwise”. Supposing the executor has already drawn up the estate account but he has not yet advertised it. A claim is lodged and he has to redraw the account. Executors do not work for the sake of their health. I am certain the hon. member for Florida does not draw up an estate account for the sake of his health. He brings into account the costs he has had in that connection, whatever they may be; he may have to advertise; he may have to conduct investigations. Those costs must be paid by the creditor. I think this is a fair and reasonable amendment of the Minister’s. I repeat that what the hon. member for Florida suggests places a premium on the person responsible for the delay. The Bill before us provides for a penalty to be imposed on that person. These two things are irreconcilable and as far as I am concerned I am in favour of everything provided for in this clause and against everything suggested by the hon. member for Florida.

If the hon. member for Standerton had been a practising attorney or a practising administrator of estates and if he had experience of the practice, I do not think he would have made the speech which he has just made. I sincerely hope that the Minister will consider this amendment very seriously and that he will accept it. The practical position in respect of the administration of estates, particularly of small ones, is that executors and persons acting for them like to dispose of claims and pay them as early as possible. Strictly of course they can wait until there is an account which has been advertised and approved. Now as the hon. Minister knows, there have been times when due to shortage of staff in the Master’s offices, the examination of accounts has taken a considerable time. I think there has been a very great improvement in that regard. But there are many occasions when through a rush of work, very big and involved accounts cannot be dealt with by particular examiners. The result is that it has been the practice, and I believe is a sensible practice, that where there is a relatively small estate where there appears not to be the slightest fear of insolvency, that very often, even before there has been an advertisement for claims, an executor wishes to effect payment of claims, and certainly after the advertisement to creditors has expired, it has been my personal experience that you do not expect to get all the claims—frequently claims come in later, but the practice very often is, in order to avoid unnecessary correspondence, in order not to hold up small traders and others who have claims, to effect payment of claims as soon as is reasonably possible. Now very, very occasionally, particularly in the case of small estates, it is found afterwards that the estate may be insolvent. The whole balance of convenience is in favour of not making it almost obligatory upon an executor to hold up the payment of any claims, even small ones, until the account has been duly approved and advertised.

That is exactly what we are trying to do here.

Sir, this section provides—

and then paragraph (b) goes further. Sir, Clause 29 deals with the “notice by executors to lodge claims”. Now that is done immediately after letters of executorship have been granted. Immediately that is done a notice to lodge claims is given. But in practice, and in my own personal experience a very big proportion of claims are in fact lodged after the period which is legally provided for them to be lodged. And, as I have said, in order not to keep small traders and others waiting, the practice is also to effect payment. Sir, the provision is safeguarded entirely by the fact that the final liquidation and distribution account must be advertised. I am convinced that the present practice is a sound one, it is in the interests of the small creditors. Very occasionally there may be a case where an adjustment is necessary. I believe it would be advisable and in the general interest of, particularly small traders and other small creditors, and particularly for the sake of the executors in small estates, that there should be a provision along the lines of the amendment moved by the hon. member for Florida.

I have listened to the hon. member for Florida (Mr. Miller) and the hon. member for Germiston (District) (Mr. Tucker), and I am sorry that I cannot agree with them. Our whole object here is to speed up the administration of estates. Both hon. gentlemen will agree with me there. For that purpose a date is specified before which claims must be filed. Now the hon. member for Germiston (District) tells us that very, very often claims come in late, and that is exactly what we want to prevent.

May I put this to the hon. the Minister: An advertisement appears. Now very frequently indeed claims come in after the period of 30 days. But the fact of the matter is that very, very frequently the death of a person does not come to the attention of the creditor in those initial stages and only comes to his attention later. To try and meet those circumstances, I hope the hon. Minister will consider the amendment.

If I may just continue my argument: I am on all fours with the hon. member for Germiston (District) and I agree with him. So let us start off again. A person dies and it is quite conceivable that all creditors might not hear of his death. I can readily understand that. Then a notice is inserted that all claims must be filed before a certain day, after 30 days. It is quite conceivable that all creditors might not know of that, and I will agree with hon. members that one cannot and one must not penalize such creditors who do not know. Therefore let us look at the clause again. If he lodges his claim thereafter (that is what (a) says) “and does not satisfy the Master that he has had a reasonable excuse for the delay” … Naturally the most reasonable excuse in the world is “I did not know of the death of the deceased”. Once you advance that reason to the Master, I cannot visualize for one moment that the Master will penalize a man and tell him “in spite of the fact that you did not know of the death, in spite of the fact that you did not see the advertisement in the newspapers, I am going to hold you liable”. I want to put that very clearly. It is not a question of penalizing those who do not know, but it is a question of bringing those who do know to account if they did not file their claims in time and only came in afterwards. It is not only to the advantage of the executor, but it is to everybody’s advantage to do that, and in view of the fact that they are not penalized but only run a risk that under certain circumstances you may be called upon to pay certain wasted costs, I do not see that this provision is not sufficient. After all, that is in accord with the principle of justice that the man who is responsible for wasted costs, be it a civil action or anything else, must pay those wasted costs. That is all it amounts to. If in fact there are wasted costs, the person responsible must pay and not the estate. As far as the other point raised by the hon. member for Germiston (District) is concerned, the executor can still pay out. The hon. member advanced the case of a small trader. The small trader’s interest or his account is not affected by this clause, at all, as I see it. He can still pay, as he is doing today, at his own risk naturally, until such time as the account has been laid for inspection. I discussed this with the Department’s officials and they gave me the assurance that if we want to speed up the administration of estates—we have had many complaints about delays—then this is one of the ways of doing so.

I accept what the hon. Minister says with regard to the procedure of speeding up the administration of estates. That is one of the sound features of this legislation that a number of difficult matters are being ironed out in view of the experience over a number of years. But if the hon. Minister would verify what I said a little earlier in regard to the present position under the present Section 49, where an executor not only deals with claims but also with such debts “known to him when he makes the distribution”, he will find that that substantiates what I have said in regard to the present practice, and if he will also look at the present Section 68 (10), he will find it says there that when an account has been open to inspection and no objection has been lodged, or if an objection had been lodged and not sustained, then the executor shall proceed to pay out the creditors … Now sub-section (b) does contemplate the possibility of a creditor being paid prior to the account being lodged, advertised and before it has lain for inspection.

That is common practice.

That is my point, that that is common practice. But there is the protection provided by the law that an account has got to be advertised and has to lie for inspection. The public has got the right to see it and objections can be raised to either the inclusion or the omission of an item in the account, and despite the practice that exists, my point is that we should not penalize anyone, except strictly in accordance with the law. That is to say that he should not have the right to claim a redistribution if the account has been advertised and lain for inspection, because then everything that the executor has been obliged to do, has been done. But when you advertise for claims, you are allowed to advertise for claims to be submitted within a period not being less than 30 days and not more than three months, and the usual practice is to advertise for claims to be lodged within 30 days. I would imagine that if an executor dealing with an estate is aware of claims existing perhaps in other countries of the world, or if the man’s affairs are of a very wide and far-flung nature, the executor would provide for a longer period within which claims should be rendered. But whilst (a) does not seem to have the harshness which one might assume in the light of my suggested amendment, (b), I think, certainly puts a presumption there which should really not exist, despite the fact that amounts had been paid, because no executor in any event would pay unless he was satisfied (a) as to the solvency of the estate, and (b) as to the soundness of the claim. That is why the practice has arisen. It has helped the Master to deal with estates more rapidly and it has helped the executor to wind up an estate more rapidly. For that reason this practice has grown up. I can well believe that the penalties provided are there to assist in the speeding-up process, but (b) contains the presumption which I think is unhealthy in the affairs of the winding up of estates. There is one thing that one must remember when dealing with deceased estates, and the multifarious obligations and liabilities that exist and the care that must be taken to protect the heirs, creditors and others, and that is that whilst one wishes to speed up the procedure and the time within which an estate is wound up, one must still nevertheless exercise the most conservative care (that is the entire atmosphere of the winding up of deceased estates) to avoid any injustice being done to anyone. Therefore I do feel that (b) seems to go a little too quickly; it is making haste a little too fast, “(a)” I can well understand. If the man gives a reasonable explanation to the Master, the Master will obviously accept any reasonable explanation. But (b) contains a presumption. May I just add that the amendment which I have proposed has really resulted from certain representations made to me. In principle we are very pleased about this Bill, but I do think that (b) should receive reconsideration.

The hon. member has now conceded that (a) must remain as it is. Then the hon. member has advanced certain further arguments in regard to (b). If I have got to decide at the moment, I am afraid I must decide against the hon. member. The hon. member has to a certain extent thrown new light on (b), and I would like to consider that and discuss it with the officials of my Department; the hon. member can also take the liberty to discuss it with the Department and with myself after this, and if it appears that something must be done about (b) in the light of the hon. member’s argument, I will be prepared to do so in the Other Place.

In those circumstances, I withdraw my amendment.

With leave, the amendment proposed by Mr. Miller was withdrawn.

Clause, as printed, put and agreed to.

On Clause 32,

I move the amendment standing in my name—

The clause deals with disputed claims and sub-section (2) provides for an examination if a claim is disputed. It says “the person concerned may be questioned by the magistrate or Master before whom the examination takes place, and by the executor and any heir or the agent of the executor or any heir”. Now I move to omit the word “agent” and to substitute “attorney or advocate”. I submit that this is almost a quasi-judicial to attorneys and barristers, and it is only right that a person so represented should be represented by an expert in examination. I know the Minister may say that he has got powers under Section 16 of Act 63 of 1964.

I am saying nothing, except that I accept your amendment.

Then I will not say anything further.

Amendment put and agreed to.

Clause, as amended, put and agreed to.

On Clause 33,

I move the amendment standing in my name—

1. (2) If any executor has rejected a claim as provided in sub-section (1) no Court shall entertain an action by any person in respect of such claim unless the proceedings are commenced within three calendar months from the date of such rejection: Provided that any Court having jurisdiction may, if it is satisfied that a failure to institute such proceedings within such period is not due to the fault of the claimant, or that it is in the interests of justice so to do, extend such period in the manner and upon the conditions (whether as to costs or otherwise) as such Court may think fit.

The whole object of this amendment is to place some limitation on the time of contesting claims. This only applies when a claim has been rejected by an administrator. There are certain types of individuals who delay answering claims, with the result that the drawing up of final accounts of the estate is delayed, and if in any estate there are two or three claims such as this, where claims are contested, the winding-up of the estate might be held up many months to the detriment of creditors and the detriment of legatees. The whole purpose of this amendment is to ensure that there is a time limit, and at the same time there is the provision that if reasonable grounds are shown, the court can give an extension. I suggest that this is a practical way of meeting a difficulty which obtains in some estates, and I suggest it is an improvement on what the clause provides.

I fully agree with the basis of the argument of the hon. member, that is that we want to expedite estate matters as much as possible. But I am told that we cannot accept this amendment because we will run foul of the provisions of the Prescription Act, and I am also told that a creditor who does not prosecute his claim expeditiously, might find that he is too late to share in the distribution of the assets of the estate and that his only remedy would be a claim based on condictio in debiti against the heirs or legatees, and I am told that no further encouragement to prosecute his claim expeditiously would accordingly appear to be necessary under the circumstances. I may say that this last part of the argument does not appeal to me very much, but my difficulty in accepting the hon. member’s amendment is that we will run foul of the provisions of the Prescription Act. I am going further into this and if it is at all possible to incorporate the hon. member’s amendment, I will gladly do so, because I agree with the basis of his argument. But the position being as it is at the moment, I am sorry that I just cannot accept the amendment as it stands now at this stage.

In view of the assurance of the hon. Minister, I want to withdraw my amendment.

With leave, the amendment proposed by Mr. Hopewell was withdrawn.

Clause, as printed, put and agreed to.

On Clause 35,

Sub-section (5) says the executor shall give notice that the account will be so open for inspection by advertisement in the Gazette and in one or more newspapers circulating in the district in which the deceased was ordinarily resident at the time of his death. The existing Act provides that such an advertisement should only be inserted in one newspaper and I have never yet come across a case in all my years of experience in handling estates where I have had to advertise in more than one newspaper. I do not know why we should now advertise in two newspapers.

It says one or more.

For over 50 years it has only been one newspaper but the position may easily now arise where you can be asked to advertise in two newspapers. I am not in favour of having to advertise in more than one newspaper. I should like to move—

It would then read that the executor shall advertise in the Government Gazette and in one newspaper.

I should like to move the amendment standing in my name—

All I am asking for here is that there should be a further allowance of time by providing that the executor shall within 14 days or within such further period as the Master may allow, do certain things. This is merely to meet the convenience of the executor because there may be certain considerations he has to take into account. When he receives an objection, he may have to check certain information and he may have to go back to the creditor to get certain information. The matter is just left purely in the discretion of the Master. I think this is a helpful suggestion, and that is why I have moved it.

I first want to deal with the amendment moved by the hon. member for Prinshof. I do not know exactly what objection there is to the words “in one or more newspapers”. It is not an obligation which is being placed on the executor. It is entirely within his discretion to advertise in more than one newspaper. If the hon. member would tell me exactly what objection he has to the executor having the right to advertise in two newspapers I shall go into the matter.

The Master usually issues a directive that the account may be advertised. As the sub-section is worded the Master can direct the executor to advertise in this or that newspaper. I think we should leave the position as it was in the past so that it is within the discretion of the executor to advertise in a newspaper circulating in the district in which the deceased was normally resident. He inserts one advertisement and these additional words are unnecessary.

Do I understand the hon. member also to object to the advertisement in the newspaper circulating in the district in which the deceased was normally resident.

I also object to that. Such an advertisement involves unnecessary expenditure and I do not think it is necessary particularly in view of the fact that newspapers have a wide circulation these days. We even read the Transvaal newspapers here in the Cape.

I cannot associate myself with the amendment moved by the hon. member for Prinshof because the deceased’s creditors may precisely be living in the district in which he normally lived. Many of these advertisements appear in a newspaper which only circulates in a specific district and not beyond it. If we make it “one” the executor will no longer have a discretion in spite of the fact that he may regard it as essential to advertise in both an English and an Afrikaans newspaper. If he advertises in two newspapers the estate can only be debited with the costs in regard to one advertisement. He himself has to pay for the costs connected with the second advertisement.

The interjection made by the Minister that many people run away from their creditors strengthens my argument. In that event you will only incur additional costs, costs which have to be paid by the person who has already run away and then the creditors will receive even less.

Hon. members will remember that I have already told them that I had no personal experience of the administration of estates, but my problem in this respect, and I am told that is a real problem in practice, is the fact that a person moves from one province to another. He may have lived in Cape Town but dies in Pretoria. The people in Pretoria read the Transvaler or the Star and people in Cape Town read the Burger or the Cape Argus. It is precisely to meet such cases that you have to advertise in a newspaper circulating in the district in which the person has lived previously. I do not think the small amount involved in advertising costs outweighs the fact that it is quite possible that creditors may suffer considerable loss because they do not know that the person concerned has died. Where we are dealing with a measure which seeks to protect creditors I think we should leave the provision as it appears here for the reasons given by me and for the reasons advanced by the hon. member for Heilbron with which I agree.

As far as the amendment moved by the hon. member for Florida is concerned I am told that Section (8) simply gives effect to what is happening in practice to-day. Hon. members can tell me whether that is so or not. If it only gives effect to what is happening in practice we should leave it at that because I am definitely assured that in all cases where there is sound reason for it the Master grants the necessary extension of time. It will not be a law of the Medes and Persians because it simply gives effect to what is happening in practice and because it is also a means of exerting some pressure in order to expedite the winding up of the estate.

I accept that and wish to withdraw my amendment.

With leave, amendment proposed by Mr. Miller withdrawn.

I move the amendment of which I have given notice—

The reason why I move this amendment is because the banks no longer desire cheques to be endorsed.

I wish to withdraw the amendment moved by me and want to speak to the amendment moved by the hon. the Minister.

No, the hon. member has already spoken three times and I cannot see him again.

On a point of order, am I not allowed to speak to the amendment moved by the hon. the Minister because it is something new?

No, the hon. member is only allowed to speak three times on any one clause.

With leave, amendment proposed by Mr. Visse withdrawn.

Amendment proposed by the Minister of Justice, withdrawn.

Clause as amended, put and agreed to.

On Clause 38,

I move the amendment standing in my name—

1. (c) the major heirs and any claimants against the estate consent;

In Clause 38 (1) (c) it says that the Master may, if the necessary arrangements have been made with any major heirs, authorize the executor to do certain things. I think the words “necessary arrangements” are rather vague. One does not know whether it will require the written consent of the heirs or what evidence will have to be submitted in order to satisfy the requirements of the law when we talk of “necessary arrangements”. I think it would be better if we talked of the consent of major heirs and claimants against the estate, because then it would be completely clear. The objective here is to allow the executor to do certain things in order to assist the surviving spouse in regard to the property of the estate and therefore I think the persons who would really play their part in a matter of this nature would be the major heirs and the people who have claims against the estate, because they will require payment. I may say that I have gone thoroughly into this point and I have also consulted others in order to satisfy myself that this amendment is necessary, and I am told that it would be much more satisfactory if the sub-section were more clearly defined.

I do not think there is any dispute between the hon. member for Florida and myself. I think actually we mean the same thing. I want to concede that I think the hon. member’s amendment makes it more clear and under those circumstances I have no objection to accepting his amendment.

I would like the Minister to consider in the Other Place the matter of the claimants against the estate whose claims have not been settled. Very often there is a first, second or third account. As it stands now, it appears to me that it is capable of the interpretation that if there is a person who has a claim against the estate his written consent is required. I do not think that is intended. I think what is intended is to have the consent of the person who has a real interest in the estate. A claimant’s interest ceases when his claim has been settled. But the point has only just occurred to me and I shall be glad if the Minister would go into it, because I believe the wording is capable of further improvement.

I will consider it.

Amendment put and agreed to.

Clause, as amended, put and agreed to.

On Clause 39,

This clause substitutes Section 58 which provides for deeds of transfers to be endorsed in those cases where the heirs are certain or uncertain. The proviso to the old Section 58 reads as follows—

The words to which I want to draw attention are “a usufructuary interest or other like limited interest”. Clause 39 (2) provides that if a fiduciary, usufructuary or other like limited interest in any immovable property has been bequeathed to any person with a direction that after the expiry of such interest the property shall devolve upon some person uncertain, etc., the deed of transfer must be endorsed and proof of such endorsement must be furnished to the Master by the conveyancer. I do not object to the deed having to be endorsed, but I object to the words “a fiduciary interest”. I do not know whether it is the intention of the Minister to eliminate a transfer which has never been eliminated in the past. If that is the case I should like to suggest that the words “a fiduciary interest” be deleted because in the case of a fiduciary interest it has always been the practice to pass transfer to the fiduciary heir subject to the terms of the bequest. It makes no difference whether the bequest is made to a certain or uncertain person but it is transferred to the fiduciary heir and from him it is transferred to the person who follows him. I have drafted an amendment to delete these words. If I could get some more information why these words have been inserted I shall be pleased but it is clear from sub-section (2) that also in the case of a fiduciary interest it is only necessary to endorse the title deed. I think it is unsound principle and if that is the intention it should not be allowed.

I am sorry but I cannot agree with the hon. member for Ceres to-day. In terms of our law it is usual for the property to be transferred to the fiduciarius and that is done subject to the rights and privileges of the fidei-commissarius. That is the scientific concept of the whole thing. If we were to delete those words the fiduciarius and his rights would be left in mid-air. The usual thing therefore is to transfer to the fiduciarius and if he is not yet in existence he is in any case indicated and the rights of the fidei-commissarius, are subject to his.

I agree with the hon. member for Ceres. Sub-section (2) as it reads at the moment only provides for an endorsement and it has been the practice all the years to pass transfer subject to the terms of the will. It is only where the heirs are not certain that an endorsement is effected. I hope the hon. the Minister will accept the amendment of the hon. member for Ceres.

I am sorry but I cannot agree with the two gentlemen because the fiduciary interest is not only the interest of the fiduciarius but also the interest of the fidei-commissarius who can be an uncertain person. That is why these words have been inserted. That is how I see the matter and that is why I think these words are necessary.

What hon. members are suggesting has never been the practice in the past. It has always been the practice that where a fiduciary interest is created the deed of transfer is registered without being endorsed. The property is actually transferred and whether the subsequent heirs are certain or not, the terms of the will are set out in the deed of transfer and the property is subsequently transferred. What is envisaged here is to eliminate the first deed of transfer.

No, the intention is only to encumber the property which is encumbered in the will.

But why? You do so for only one reason and that is because you do not want to transfer it to the person who must get it. The fiduciary heir, the first of the two heirs, must in some way or other have that property registered in his name, either by way of endorsement or by way of transfer. It is now suggested that he should be given title to that property by way of endorsement on the deed of transfer, whereas he has always been given transfer in the past and the property subsequently retransferred. I think it is an unsound principle to eliminate the registration of a deed of transfer. For that reason I move formally—

That will mean that only in the case of a usufructuary or other similar interest, perhaps the right of occupation or something of that nature, the deed of transfer will be endorsed, but that in the case of the creation of a fiduciary interest proper transfer will take place.

I think the hon. member for Ceres should be supported here. There is one thing which always worries us in this type of work and that is not to interfere with our recognized and accepted forms of maintaining sound and correct registration of title, and any diminution of that may well start a crumbling effect in regard to what I think is one of the main pillars of the whole of our law in regard to the registration of title. This registration of title is a thing which has taken centuries in the older countries of Europe to eventually be established on a sound and proper footing. Some of these records go back nearly 1,000 years in Britain, and in the older countries on the Continent of Europe they go back for many centuries. It is something which has been evolved over the years, and where the privileges have been jealously guarded because one finds it is so important in the life of a nation which is constantly evolving. Therefore I think one must protest at any inroad that is made whereby the conveyance of title is shortened by any method of simplification because that simplification may well lead to a crumbling of the vested and established rights and traditions and principles on which we have developed the registration of title through the ages.

Unfortunately I was not given notice of this amendment and could in consequence not consider it. Superficially it would, however, appear to me that there is substance in the argument advanced by the hon. member for Ceres but I cannot give a decision in the matter because I shall first have to consider and discuss it. I therefore want to ask the hon. member to withdraw his amendment. I shall then consider it and, if necessary, move an amendment in the Other Place. If I were to accept it now I would not know to what extent other provisions of the law were affected by it. Nor can I determine the logical consequences of such an amendment at this stage.

With leave, amendment withdrawn.

Clause, as printed, put and agreed to.

On Clause 40,

I would just like to ask the hon. the Minister—and I think I am correct in my assumption—whether he has virtually met me by the amendment which appears on the Order Paper in his own name.

I accept the substance of the hon. member’s amendment, but that is how the law advisers have worded it, and under those circumstances I ask the hon. member not to move his amendment because I accept the substance of his amendment in mine. I move—

Agreed to.

Clause, as amended, put and agreed to.

On Clause 42,

Clause 42 substitutes the existing Section 62 (3) which is well known to practising attorneys. That has always been the section in terms whereof the Minister has given consent to the sale of any property ex an estate. This clause now replaces the existing section and it provides that the Master may give the necessary consent to the sale. Sub-section (2) reads—

I particularly draw attention to the last few words “a certificate by the Master that no objection to such transfer exists”. That is really what I want to address you on, Sir. It happens sometimes that an insignificant objection to the sale of a property ex an estate is lodged with the Master and I think we should give the Master a certain amount of discretion in this clause. It can so easily happen that somebody lodges an insignificant objection with the Master in which case the Master cannot certify that no objection exists. In other words, in such a case the Master has to admit that an objection has been lodged, no matter how minor or insignificant it may be. For that reason I want to move that after the word “no” in line 9 to insert the word “well-founded”; I do not think that is a major amendment; that will leave the Master with a certain amount of discretion.

Are we not giving the Master an impossible discretion?

I do not think so. On the contrary I think we are placing the Master in an embarrassing position because the objection may perhaps be totally ill-founded and insignificant but because of that totally ill-founded objection the Master may not say that no objection exists. In other words, I think we should place the Master in a position in which he can exercise a measure of discretion and determine whether an objection is valid or not. That is why I feel it is desirable for us to insert the word “well-founded” so that where totally ill-founded objections are lodged with the Master the Master will nevertheless be able to issue the necessary certificate authorizing the transfer of the property concerned. As hon. members know this section provides that where property has been sold the Master must issue a certificate before transfer can be registered. In the absence of such a certificate the Deeds Office will simply not register it. I, therefore, wish to insert the word “well-founded” in line 9 after the word “no”. In other words, the latter portion of that paragraph will then read—

The English word “well-founded” is perhaps better than the Afrikaans word “grondige”.

May I ask the hon. member a question? Did any difficulties arise under the existing section in the old Act?

Yes.

What were they?

Difficulty arose where ill-founded objections to sales were lodged and that placed the Master and everybody concerned in a very embarrassing position.

Is an ill-founded objection an objection?

That is the very reason why I want to open the door. If the hon. gentleman is right in what he has just indicated why does he not insert that word? We are going to make it much more difficult for the Master to reject an objection if we do not open the door to him than it would be for the Master if we did open the door by saying it must be a well-founded objection. The hon. member for Standerton (Dr. Coertze) suggests that an objection not well-founded is no objection at all and that the Master, no matter how ill-founded the objection may be, can nevertheless give his consent in spite of the fact that an objection has been lodged. I think my amendment brings about a good improvement. We have in fact experienced this kind of difficulty and that is my reason for suggesting this amendment. I should like to learn what other hon. members think about it before I formally move my amendment.

I appreciate the difficulty in which the hon. member for Ceres (Mr. S. L. Muller) finds himself but I want to point out that he will be placing the Master in a very difficult position because the Master will in future have to decide whether or not an objection is well-founded. In other words, the Master will have to play the role of a court of law in this particular matter. Supposing he decides that an objection is not well-founded and a court case follows. In such a case the Master will be the second respondent. The Master will therefore be involved in a law-suit in which he should not in fact be involved in.

I just want to point out that the provision, as it stands here, is similar to the existing provision. I do not know to what difficulties it has given rise in practice but I just want to read what Meyerowitz says in his “Law and Practice of Administration of Estates”—

We must remember that that also applies in respect of the case we are now discussing—

That being the position as interpreted by the court I do not think it is necessary to insert these words. I shall consider it again but I do not think we must be too hasty in inserting the words. What the hon. member for Ceres desires to do is to give the Master a judicial discretion and our courts have already decided that he has that judicial discretion. We may therefore merely be complicating the issue by inserting these words; I do not know; it is difficult to decide in a hurry. It does seem to me, however, that where we are dealing with the existing provision, that we should leave it as it is.

I must say that personally I have no difficulty under this section. I have always understood, when I get the certificate from the Master, that the Master has no objection to the transfer. I know others have had different experiences, but I myself have always understood, until I was told that others had had difficulties, that the fact that the Master gives a certificate means that he has no objection, not that no objection has been lodged.

I think you are right there.

I suggest that the hon. the Minister should reconsider this clause in Another Place and consider whether we should not perhaps make it quite clear by amending the clause to say “a certificate by the Master to say that he has no objection”. It is probably not correct to say that no objection to such transfer exists because some objection may have been lodged with the Master. Although an objection is ill-founded, there may still be an objection. The point may be covered if we change the wording to read “a certificate by the Master to say that he has no objection to such transfer”.

I do not agree with the hon. member for Transkeian Territories (Mr. Hughes) as far as the amendment is concerned. What has been the procedure when the consent of the Master was sought in terms of the existing section 62 (3)? You hand him your power of attorney to pass transfer. The Master then wants to know whether there is any objection on the part of the heirs or the creditors to the sale of the property. If the heirs have consented the Master gives his consent in terms of the existing Section 62 (3) which will now become 42 (2). I think the hon. the Minister would act wisely if he left this clause unaltered. I agree with the hon. member for Heilbron (Mr. Froneman) that it is wrong in principle to place the onus on the Master to decide whether or not an objection is well-founded. In practice the existing provision has operated well in having to comply with the Master’s requirements. It does not lie with the Master to decide whether an objection is well-founded or not. Where all the parties concerned have given their consent the Master has given his consent and where one has refused to consent he has refused to issue his certificate.

The present provision has stood for a period of 50 years and I know of no case where it has been necessary to seek the aid of the courts in respect of the exercise by the Master of the discretion that is vested in him. I must say that purely from the point of view of conveyance there is a great deal to be said for the proposal put forward by the hon. member for Ceres (Mr. S. L. Muller). I only hope that if there is a change, the hon. the Minister will put it in a form which is not capable of more than one interpretation. Whether an objection is a valid objection is a matter of fact on which opinions may vary. The Master may have one opinion and somebody who objects might have a different opinion. Sir, I am very chary about amending a clause which has worked well in practice for half a century, and I only plead with the hon. the Minister that if he does think an amendment is necessary, he should go further than the hon. member for Ceres has suggested and insert wording which puts the matter completely beyond any doubt, because if you use the words “no valid objection” then the question arises as to who is to be the arbiter as to whether it is a valid objection or not. Is it to be the Master or must the Master refer the matter to the Courts. I can only hope that the hon. the Minister will be able to find a solution which puts the matter beyond all doubt. I believe he should be very careful about changing the wording of the clause, unless he is absolutely satisfied that the wording proposed by him puts the question beyond all doubt.

I am inclined to agree with the hon. member for Germiston (District) (Mr. Tucker). I wonder whether this is not a case where we must leave well alone. But in any case I will consider the matter in the light of what the hon. member for Ceres (Mr. S. L. Muller) and others have said but I do want to give hon. members the assurance that I will not introduce any amendment unless I have consulted with justice groups on both sides in this matter.

Clause put and agreed to.

On Clause 44,

I move the amendment as printed in my name—

We are introducing a new principle here because we do not wish to penalize people who have already made their wills without knowing about this change. We want to respect their wishes as contained in their wills as they are at the moment.

Amendment put and agreed to.

Clause, as amended, put and agreed to.

On Clause 50,

I would like to move the amendment standing in my name on the Order Paper—

This clause should be studied in conjunction with Clause 31. Liability under paragraph (a) of this particular clause is confined to cases of claims lodged before the expiry of the notice calling for claims, that is to say, within a period of not less than 30 days and not more than three months. But Clause 31 provides for late claims, and these should also be covered. The clause, as amended, if the amendment is accepted would then read—

1. (a) be personally liable to make good to any heir and to any claimant whose claim was lodged before the distribution …

It would then incorporate any late claims that may be made.

Order! I cannot accept this amendment. A similar amendment that was proposed to Clause 31 has already been rejected.

Sir, there is no relationship. This is a question of an executor being liable. Clause 31, with respect, dealt with the penalisation of a late claimant.

The hon. member is correct; he may proceed.

This clause provides a penalty for an executor who makes a distribution otherwise than in accordance with the procedure laid down in the earlier sections. He is personally liable to a claimant who lodged a claim, if he, the executor, failed to make his distribution in accordance with the relevant provisions. As I have pointed out, there are sometimes late claimants, and even if they are penalised their claims are nevertheless admitted. I feel therefore that we should substitute the words “before the distribution” for the words which I suggest in the amendment should be deleted.

I am sorry but I cannot accept the amendment, the reason being that, as the hon. member for Germiston (District) (Mr. Tucker) has said earlier in the debate, it is customary to pay certain claims of which you are reasonably sure even before the expiration of the period. If you do not give the protection given in Clause 50 nobody will ever dare pay claims beforehand; they will simply wait until all the formalities have been complied with before they pay the claims otherwise they will be running a risk in their personal capacity. That being the position I think we should leave the clause unaltered.

I merely wanted to put the matter in its right perspective but in view of what the hon. the Minister has said I shall withdraw my amendment with the leave of the Committee.

Amendment proposed by Mr. Miller withdrawn with leave.

Clause, as printed, put and agreed to.

On Clause 54,

This clause provides for the removal of an executor from his office. Sub-paragraph (1) (a) sets out the conditions under which an executor can be removed from his office by the court and in sub-paragraph (1) (b) the conditions are set out under which he may be removed by the Master. Sir, if you look at sub-paragraph (b) (v) you will see that the Master may remove an executor from his office if he fails to perform satisfactorily any duty imposed upon him by or under this Act or to comply with any lawful request of the Master. I think it is unsound to create circumstances of this nature because we are creating a position in which the Master assumes the role of both complainant and judge. The Master is the person who imposes the duty and he can subsequently say to the Executor: “You have not done what I asked you to do and I therefore remove you from our office.” I think it is necessary to have this clause but that the court should be vested with the power of removing an executor from his office.

But he may apply to Court in terms of sub-section (2).

Does the hon. member for Standerton (Dr. Coertze) think the Master will apply to court …

No, it is the executor who has to apply to court. Look at sub-section (2).

He is protected in this regard under Clause 95.

That is true; I agree with that, but the principle remains as wrong as it was at the beginning. In this case if an executor does not perform the duties imposed upon him and where the Master has a complaint against him because he has failed to do what the Master has ordered him to do, why cannot the court be vested with the power to remove him from his office? I think therefore that paragraph (b) (v) rightly belongs under sub-paragraph (a). I suggest that paragraph (b) (v) be inserted after (a) (iv) and that the present (a) (v) becomes (a) (vi), so that where an executor does not comply with the duties imposed upon him by the Master he can then, at the request of the Master, be removed from his office by the Master.

I am afraid I again cannot agree with the hon. member for Ceres (Mr. S. L. Muller). I do not think he regards the duty of an executor in the right light, without criticizing him in any way. I think he regards it in the wrong light. The estate gets administered under the supervision of the Master; that is an obvious truth. Supposing there is an executor who is not performing his duty properly and has been giving the Master trouble for a long time. The Master will then say: “Look here, I am now asking for this and that and if you do not comply with my request I shall remove you from your office”. That is quite right because the executor administers the estate but he does so under the supervision of the Master. That has always been how the Estates Act has been interpreted. But provision is now made in sub-section (2) that before the Master can remove an executor from his office, in terms of those sub-sections, the Master must forward to the Executor by registered post a notice setting forth reasons for such removal and informing him that he may apply to the court within 14 days from the date of such notice for an order restraining the Master from removing him from his office. The onus to prove why he should not be removed from his office rests on the executor. The Master’s approach is this: “You have refused to do those things which I, as supervisory officer, have asked you to do”. But the executor may now apply to court for an order restraining the Master from removing him from his office. He is the cause why the Master has taken this drastic step. I think he must lie on his bed as he had made it. What the hon. Member for Ceres is suggesting is simply to reverse the position but it is not the duty of the Master to administer estates. That is the duty of the executor and the Master has to see to it that he does so properly. That is why the executor and not the Master is the person who has to make the excuses.

In the first place I just want to say to the hon. member for Standerton (Dr. Coertze) that I have not sucked this amendment, as well as the other one, out of my thumb. It has cost the Law Society weeks and weeks of hard work. The hon. member naturally has all the right in the world to differ from the amendment but I just want to tell him that he should not differ from it so lightly because it is the profession, the people who are in practice, the people who come up against these difficulties day after day, who have raised these objections. That also applies in the case of the objection I raised a few moments ago in regard to the consent to a sale. In all circumstances it is an unsound position for somebody to be both complainant and judge. You cannot be both complainant and judge. Why cannot it be done differently as I have suggested? The hon. member says the Master can say to an executor in certain circumstances that he is removing him from his office but that the executor still has the right to go to court. But the Master is the person who demands those things from the executor. The hon. member has put the position very neatly but the duties imposed by the Master may be of such a nature that nobody can comply with them and what happens in such a case? Is the Master not the guilty person if a dispute should arise between him and the executor? I only feel that the principle is wrong. I say that where the Master lays down certain requirements and he is of the opinion that those requirements of his have not been met—that is his opinion— he should not have the power to remove the person from his office; the court should have that power. For those reasons I think sub-paragraph belongs better under (a) than under (b).

I agree with the hon. member for Ceres (Mr. S. L. Muller) and I also want to move an amendment, but now I am wondering whether we should not ask for sub-paragraph (b) (i) to be deleted entirely, because under the present (a) (v) it is provided that an executor may be removed from his office by the Court “if for any other reason the Court is satisfied that it is undesirable that he should act as executor of the estate concerned”. The Master still has the right to go to court and to have an executor removed from office if he does not carry out his obligations. I want to ask the hon. member for Ceres whether he has looked at Clause 54 (1) (a) (v) as contained in the present Bill. It meets the whole argument as well as the objection, and if we then ask for the deletion of (b) (v), there is no objection.

I must say that I agree with the hon. member for Ceres that if the Master is dissatisfied with the executor, the Master should take him to Court. He should give notice that he is going to take him to Court and then ask him to appear before the Court and to justify his actions. The Master may be quite unreasonable, as the hon. member for Ceres has suggested. We often disagree with the Master and that is why the Master is taken to Court. The Master might be quite unreasonable in his requirements. If the hon. the Minister cannot agree to an amendment now, I should like him to give us an undertaking that he will give this his further consideration when the Bill comes before the Other Place.

I can quite understand the argument advanced by the hon. member for Ceres (Mr. S. L. Muller) and by other hon. members who feel as he does, the hon. members for Transkeian Territories (Mr. Hughes) and Prinshof (Mr. Visse). I can quite appreciate their point of view, but I nevertheless think that if one analyses this matter the weight of the argument lies with the hon. member for Standerton (Dr. Coertze) and with the clause as it stands. Let us consider it from this point of view: The Master is a very responsible official, most certainly as responsible as the Attorney-General or the Registrar of the Supreme Court: his status is more or less equal to theirs. The main argument advanced by the hon. members amounted to this, that a Master may lay down such unfair requirements that no person is able to satisfy them, and may, after laying down such unfair requirements, dismiss the executor. I consider it highly improbable that the Master, who has no interest in the matter, will lay down such impossible requirements. Supposing he does do so, is the hon. member aware that in terms of Clause 95 the aggrieved executor can go to court and object to his dismissal? He need not accept his dismissal by the Master. Hon. members know—I think that for the moment they have lost sight of the importance of this argument—that any person who acts as the Master has to act in his official capacity, fears one thing more than any other, and that is that he will be ordered to pay the costs in such a law-suit. If the Master laid down unreasonable requirements and the executor satisfied the Court that unreasonable requirements which he could not satisfy had been imposed upon him by the Master and that the Master had acted precipitately in removing him from his office, I do not doubt for one moment that the Court would hesitate to say that the Master had abused his official position in order to enforce an obviously unreasonable requirement. It is my opinion that in those circumstances the Court would order him to pay the costs out of his own pocket. I repeat, Mr. Chairman, that there is one thing which an official fears more than anything else and that is that having exercised his official discretion in doing something, the Court will order him to pay the costs out of his own pocket, because in the nature of things the costs will be considerable.

Not only officials are afraid of that!

Yes, everybody is afraid of that. It therefore acts as a check upon the Master not to impose any unreasonable requirement.

I am convinced that every hon. member who has been in practice will know of cases in which a great deal of harm was caused to an estate because the Master did not have this power. It takes some considerable time to have a person dismissed by means of an order of court. If anything comes to the notice of the Master which obviously indicates that an executor is stripping an estate, and the Master first has to go through the process of going to court in order to obtain an order of dismissal, the estate may be prejudiced. As the hon. member for Prinshof (Mr. Visse) said, the executor is not prevented from going to court in terms of the first part of this clause if he is aggrieved. A wise Master would go to court if he had any doubt as to whether or not he should dismiss a person. But in cases where it is perfectly obvious to him that he should dismiss any particular person to protect the assets in the estate, I think we should give him the power to do so. I am not judging on the basis of experience gained in practice, Mr. Chairman, because I have no practical experience of this matter, but I am judging on the basis of the complaints which come to my office from heirs and interested parties. Upon investigating these matters one finds that the Master repeatedly asks the executor to satisfy his requirements, but that the executor simply pays no heed. The Master then finds himself in a rather difficult position. He does not like to take an executor to court, but the estate is being prejudiced.

I wonder whether hon. members will not be prepared to leave it at that. We can discuss it again. At the moment it does not seem to me to be an unfair provision. On the contrary, it seems to me to be an essential provision if it is our policy to expedite the settlement of estates. I cannot imagine that the Master would dismiss a man unreasonably. What I can imagine is that the Master would remove an executor from office if it becomes absolutely essential in the interests of the estate. The Master has no personal interest in the matter. He has no axe to grind in this regard. He merely has to consider the interests of the heirs and the expeditious winding up of the estate. In spite of the weight of the argument to the contrary, I wonder whether we should not leave it at that for the time being, discuss it again, and then see whether it is necessary to pass any amendment.

All of us have the highest respect for the various Masters of the Supreme Court and the efficient way in which they carry out their duties. I hope that on reflection the hon. the Minister will reach the conclusion that it is inadvisable, in addition to their other administrative responsibilities, which are very great, to vest them with a judicial responsibility as we are unquestionably doing in the sub-section to which the hon. member for Ceres (Mr. S. L. Muller) has referred. On balance, I believe that there are very few cases where there will be further damage to the estate. An urgent application can always be made to court. In general, where Masters of the Supreme Court have had to deal with matters of this sort, I think it can be said that they have done so with discretion and patience. I believe the proper body to be vested with the responsibility of removing an executor, who may have been appointed by the deceased for very special reasons, is far more fittingly the court than the Master. I hope the hon. the Minister, on reflection, will also come to that conclusion.

I just want to reply to the hon. member for Germiston (District) (Mr. Tucker). It is possible to carry the argument further. As far as I can recall—hon. members can tell me whether or not I am correct—very few of the applications submitted to court by the Master in order to secure the removal from office of an executor have not succeeded. Most of them have succeeded. I think that for the sake of argument we can take it that all of them have succeeded. In every case in which the Master has gone to court it has resulted in costs for the estate, frequently very heavy costs. Let us now look at this matter from the other angle. If we omit this sub-section the Master will still, as in the past, have to go to court to remove an executor from office. That must necessarily result in costs for the estate. If the Master himself had had the power in the past to remove an executor from office, he would not have done anybody an injustice and the estate would have been saved these costs. All we are doing now is to say that the court is still the arbiter, but whereas in the past the onus of going to court rested on the Master, either of the two can now go to court—either the Master can go to court, as in the past, or the aggrieved executor can go to court.

Based on past practice my contention is that in cases where the court decided in favour of the Master the executor would not have gone to court if the Master had had this power. The executor would simply have accepted it if the Master had removed him from office, and that would have been the end of the matter. The estate would have been saved the cost. All we want to do now is to prevent any injustice. We are doing that by providing that if an executor is aggrieved by the fact that he has been removed from office by the Master, he is at liberty to go to court.

There are many arguments for and against the case in this matter. I think the best course to follow is for us to discuss it again, as I have suggested, and to bring about an amendment at a later stage if it appears to be necessary.

I am glad that the hon. the Minister will do that. In considering this matter further I should like to ask him to consider this other point: It seems to me that if the Master is not quite sure as to whether he should act under paragraph (v) he would be placed in a very difficult position. If he does act there may be an application to court. I suggest that consideration should be given at least to include the provisions laid down in (v) in (a) as well as in (b). In an appropriate case the Master would then have an election at the very least. If the hon. the Minister is not prepared to transfer it wholly to (a) put the provision in both and the Master can then decide whether …

It is in (v).

I have been looking at it, Sir, but (a) (v) appears to me to mean something different from (b) (v). It seems to me that if the Master does not take action in terms of (b) (v) where he is entitled to do so difficulties may arise from it. I suggest that the Minister should at least go into it. It is possible that the Master may not apply to court, if the circumstances are such as he can deal with under (a) (v) or (b) (v) and I think the right should be given explicitly to the court so that if the Master sees fit to apply to court he can do so or if the facts are abundantly clear he can act under the authority given to him in (b) (v).

I move the amendment standing in my name—

It is a formal amendment which I am sure the hon. the Minister will find reasonable and accept. Before an executor is removed from office the Master must forward him a notice by registered post in terms of (2) informing him that he may apply to Court within 14 days for an order restraining the Master from removing him from office. All I am asking for is that “provided the court may, on good cause shown, allow such further period for the application for the order as it thinks fit”. I think that is a reasonable request.

There is substance in the hon. member’s argument. The difficulty is that it is impossible for the Master to know when the person received the notification. I have gone into that and it is just impossible. In view of what the hon. member has said I realize that 14 days may be too short. For that reason I wish to move—

In other words I want to give the hon. member 30 days instead of 14. If he prefers 90 I can also give him that!

I appreciate the alternative offered to me by the Minister but the precedents prevent me from thanking him for it.

The only problem is this that the notice might well not reach the executor. One does not know what circumstances may prevail. That was the only reason why I suggested the amendment. If it reaches the executor—the period of 14 days applies from the date of receipt of the notification—then, of course, the whole situation is met. My difficulty is if he does not receive it. That could well happen. For that reason I thought that some latitude should be permitted, namely, that he could go to court, explain the circumstances and. on good cause shown, get an extension of time. I think that will be very much better in practice than the additional period of time suggested by the hon. Minister. Once he has received the notification the time factor is not so very vital.

The difficulty is to know when he received it.

Perhaps we could make it 30 days and still give him the right to apply to court because we do not create any harm thereby.

He has in any case got that right to apply to court.

Has he?

Yes.

I do not think the hon. the Minister was quite right when he said there was no way of knowing whether the executor had indeed received the notice or not. You can send it by acknowledged registered post. A card accompanies the letter. Before the letter is handed over to the addressee he has to sign the card which is returned to the addressor. If the words “acknowledged registered post” were inserted the Master would then definitely know that the executor had received it.

I discussed that matter with the postal authorities and I was given the assurance that that would not help us out. There are so many practical difficulties in the way that that will not help us out at all. So I am told. There is also the additional difficulty that somebody else may very well take delivery of the letter without it coming to the attention of the executor. I think the position will be met by increasing the number of days from 14 to 30.

Amendment proposed by Mr. Miller put and negatived.

Amendment moved by the Minister of Justice put and agreed to.

Clause, as amended, put and agreed to.

On Clause 58,

I move the amendment standing in my name—

This is really just a consequential amendment to the amendment passed by this Committee to the definition clause. I am sure the Minister will accept it.

I do.

Amendment put and agreed to.

Clause, as amended, put and agreed to.

On Clause 61,

I move the amendment standing in my name—

This is a rather wide provision. It provides that where more than one person is nominated for recommendation to the Master for the office of Administrator he shall, in making the appointment, prefer the nominee of a more immediate beneficiary to the nominee of a more remote beneficiary. This is a very reasonable provision and follows the spirit of the Act. But then the Master has certain discretions, one of which is to join these two nominees, and the other—this is the one which I think is too wide—is that if there is any good reason therefore the Master may pass by any or all of such nominees. I believe this is much too wide because the nominee of the beneficiary, whether immediate or remote, has a direct relationship to the estate and its assets. The Master may have good reason not to nominate any of them, for example, if he is aware that the person nominated is a wastrel or a person who cannot be trusted. Then there is the question of security which the Master is entitled to demand. If the Master is furnished with security he would be covered and if the person cannot furnish security the Master need not appoint him in any case. So I think this discretion is far too wide. I think the obligation should always be to appoint persons who are nominated an immediate beneficiary. As the Master will be covered against any wastage of the assets by the security furnished as provided for. I feel very strongly that that protection should be provided to the nominees of the various beneficiaries.

I want to make an appeal to the Minister not to accept this amendment. This chapter deals mainly with the “trust” concept in law, a concept which is actually rather neglected in our law. This concept is a relatively new one in our law and has been imported from England, but that does not mean that we must try to introduce into this country all the disadvantages associated with the trust concept in English law. The trust, as a legal concept, is in actual fact the Cinderella in our law literature. In the English law of trust we have the maxim that “a trust will not fail for want of a trustee”. In England the court appoints a trustee if there is none. This clause provides, quite rightly, that if there are several cestuis que trust the Master has a choice. If he has a choice between the nominee of the cestui que trust, whose relationship with the settlor of the trust is the closer one, and the nominee of the cestui que trust who is further removed, he must give preference to the nominee of the more immediate cestui que trust. He may also join them. Why then go to court in a case where the Master decides that he wants neither of the two and appoints a third? In any case, we do provide here “if there is any good reason therefor”. As the hon. Minister has said, the Master occupies a high office in our country. Surely he has a judicial approach to this matter? If he has to go to court every time, who is to pay the costs? If there are people opposing him they will have to pay the costs if they should lose, but in this case the obvious entity to pay the costs is the trust property. If the amendment moved by the hon. member is accepted it will only place an unnecessary encumbrance on the trust property. For the sake of protecting the trust property and while that property is managed under the supervision of the Master the reasonable thing to do is to protect trust property in the way proposed in this clause, which is that the Master has a discretion to appoint the nominee of a more immediate cestui que trust or the nominee of a less immediate cestui que trust or both of them or some other person. In my opinion that is a reasonable course to adopt and the other is unreasonable.

I think we should leave this clause as it is. The hon. member for Florida (Mr. Miller) has lost sight of the fact that we have already adopted precisely the same principle in Clause 19. That clause has precisely the same wording. Clause 19 deals with the office of executor and provides how an executor is to be appointed, and the proviso reads—

That is based on experience, Mr. Chairman. What we envisage is that after being nominated a person may leave the country, he may land in goal or may become insolvent. So many things can happen and if in such a case we have to go to court to remove him from office, it will only result in unnecessary costs being incurred, while an aggrieved person can always go to court. If his case is a sound one the costs have to be paid out of the estate. He. therefore, need have no fears as far as the question of costs is concerned, whereas the official, for his part, acts under the fear that if he is unreasonable he may be ordered to pay the costs. After having consulted with the people who have practical experience in this connection I am of the opinion that it is better that we should adopt that principle here, just as we have already adopted it in Clause 19. We would be illogical if we rejected the principle here after having adopted it in Clause 19.

Amendment proposed by Mr. Miller put and negatived.

Clause, as printed, put and agreed to.

On Clause 63,

This clause deals with the security to be lodged by administrators. I want to move the following amendment to sub-section (5)—

Sub-section (5) reads—

I cannot see the reason for this provision. When the beneficiaries are resident in the Republic and can look after their assets then the administrator has to furnish security but when they are all resident outside the Republic and unable to keep a watchful eye no security is necessary, unless, of course, the Master otherwise directs. I wonder whether the Minister would explain this.

I am inclined to agree with you.

Then the hon. the Minister may perhaps also agree that the word “sekerheid” in the Afrikaans text is quite wrong and that it should be “sekuriteit”.

The word “sekerheid” is used throughout the Bill. That is the customary Afrikaans word. The hon. member can accept that from me; it is my home language.

Amendment put and agreed to.

Clause, as amended, put and agreed to.

On Clause 65,

I do not intend moving the amendment standing in my name because we have already dealt with a portion of it previously. I want to tie this clause up with Clause 58 and move the following amendment—

1. (2) An administrator shall, if the Master so orders, allow an accountant to examine the books of account and other records required for the purpose of compiling a report in terms of the provisions of paragraph (b) of sub-section (1) of Section 58.

If you look at Clause 58, Sir, you will see that a report from an accountant can be called for. But there is no teeth in this clause, Sir. There is not much use in calling for a report by an accountant unless the accountant has an opportunity of examining the books and records so that he can make a proper report.

I hope the Minister will accept this amendment.

I move as an amendment—

As the hon. Minister will see this is to provide for those cases where there is insufficient income to discharge the expenses of the estate. When there is insufficient income to discharge the expenses of the State, then the estate assets will have to provide for those expenses, and the object of this amendment is to give a discretion to the Master to distribute the expenses as between capital and income.

I should like to discuss the amendment moved by the hon. member for Pinetown (Mr. Hopewell), and I want to put it to you, Sir, that according to the rules of the law of trust the trust property has to bear all the costs. And there is a very good reason for that, because it makes absolutely no difference if the cestuis que trust are entitled to the corpus of the trust in varying proportions—it makes absolutely no difference whether we word the clause as proposed by the hon. member for Pinetown or as we have before us. We would only make it more complicated if we accepted the proposal by the hon. member for Pinetown. You can make sums if you like, but if the corpus of the trust has to pay part of the costs a part of the corpus is absorbed in the same proportions as those in which the various cestuis que trust are entitled to the corpus. In other words, if the cestuis que trust are entitled to the corpus of the trust in proportions of one-tenth and nine-tenths, then, if the corpus is reduced by the costs, the share of each is automatically reduced in the same proportion. It cannot be otherwise. The hon. member for Pinetown, who is an accountant, may make his calculations if he wishes. If there is sufficient income, the cestuis que trust will pay according to the proportion to which they are entitled. If there is not sufficient income, and the corpus of the trust has to pay, they will pay according to the proportion to which they are entitled. Whether the Minister accepts or rejects this amendment, the effect will be precisely the same, and because the effect will be precisely the same and it will probably only make the matter more complicated if we formulate something which already exists, I want to ask the hon. the Minister not to complicate the matter, and I beg the hon. member for Pinetown (Mr. Hopewell) to work out a little sum in regard to this matter.

I have very carefully considered the amendment of the hon. member for Pinetown, and the information at my disposal at the moment tends to be exactly what the hon. member for Standerton has just said, that it will not make any difference whatsoever, but it might perhaps complicate matters instead of making it clearer, as is the intention of the hon. member for Pinetown. I will go into it again, but that is the information at my disposal. In regard to the amendment of the hon. member for Parktown (Mr. Emdin), the position is here, candidly, that the Masters are not very anxious and the Department is not very anxious to bring in the old trusts. The hon. member knows that there are certain trusts more than 100 years old, very complicated trusts, and whilst we are making provision for new trusts in terms of this Bill, we are not very anxious to bring in most of the old trusts within the ambit of this legislation. It is for that reason that we are not anxious to accept the hon. member’s amendment. But as in the other cases, I will give further consideration to the amendment, and if necessary bring in an amendment in the Other Place. But at this stage I cannot accept it.

I accept the Minister’s assurance that he will give this matter further consideration, but there are occasions when it is not just a question of taking from the income and if the income is not sufficient taking it from the capital assets. There are occasions where consideration must be given, particularly where it affects legatees, as to which portion the capital has to bear—whether the capital has to bear a portion of the expenses or whether the revenue has to bear a portion of the expenses, particularly in those cases where there is insufficient revenue to discharge all the expenses, and where a further allocation may have to be made. For example, you may have expenses in an estate and part of the expenses concern one of the capital assets. This amendment gives the Master power to differentiate between the allocation of the income. The administration of the estate might include various expenses, including the maintenance of property. Now the Master may decide that out of the income of the estate may be paid the administrative expenses, but in view of the fact that a portion of the administration expenses include the maintenance of property, those maintenance expenses shall be paid out of the property—in other words, the property shall be mortgaged, or a loan shall be raised on the property for the purpose of paying those administrative expenses for the maintenance of that asset, so as to enable the rest of the expenses of the estate to be paid out of the ordinary income of the estate. In cases such as that, I think a discretion should be given to the Master. It is not such a simple question that the expenses exceed the income and that it is only a question of pro rata division of the capital assets of the estate. This gives the Master the discretion to a portion, having regard to the special circumstances of the estate. The matter is not quite so easy as the hon. member for Standerton suggests, and under those circumstances. I hope the hon. Minister will give it further consideration.

I will have further discussions about the matter.

I want to raise a new consideration under this clause. This clause provides that an administrator shall at least once in every year lodge with the Master a statement of account, and if one looks at subsection (1) (a) one finds that an audit certificate has to be submitted together with the statement of account. Now, it is our experience that in our many cases the account is in respect of a very small amount. It may be a few thousand rand, or even a few hundred rand, and one glance at the account shows one that it is obviously correct. Then one wonders whether it is really necessary that an audit certificate should be submitted in all cases, irrespective of the circumstances. I therefore feel that we might perhaps consider inserting the words “if the Master so orders” after the word “and” in line 4, the effect of which will be that an audit certificate will have to be submitted together with the account in all cases where it is justified by the circumstances and where the Master says that he wants it to be done, but that negligible statements of account might then be exempted from the necessity of incurring the cost of an audit certificate.

The principle mentioned here by the hon. member is an acceptable one. but in my opinion the hon. member should rather use the word “unless”— “unless the Master …”. Then we would place the onus on the other party, and not on the party on which the hon. member now wants to place it. If he is satisfied with that. I can accept such an amendment.

In other words, “unless the Master is prepared to accept it without such certificate”?

Yes. That would greatly facilitate the work of the Master. If one did it the other way about one would place a tremendous burden of work on his shoulders.

I am perfectly satisfied with that, but I would find it difficult to draft such an amendment immediately. If, however, the Minister is prepared to move such an amendment in the Other Place, it will solve my difficulty.

Amendment put and negatived.

Clause, as printed, put and agreed to.

On Clause 68:

Mr. Chairman, I move the amendment standing in my name on page 335 of the Order Paper, namely—

As the clause now reads the administrator would be—

Now, this provision has given cause for concern among a number of people, and in this connection I should like to refer to an example which was brought to my notice by a certain Durban attorney. He told me about a certain case in which he had been consulted regarding a distribution which had to be made. It was a rather tricky matter and he took the trouble of obtaining senior counsel’s opinion. His client had also taken the trouble to obtain senior counsel’s opinion in Johannesburg. The opinion of two senior counsel’s were therefore obtained at considerable expense, and they both agreed that the distribution could be made in a certain way. Having obtained the opinion of two senior counsel in two different provinces, the administrator then proceeded to distribute in accordance with that opinion. In due course an objection against the Account was lodged, and the matter went to the Supreme Court. The judge disagreed with the opinion of the two senior counsel and gave judgment against the client.

I am sure the hon. the Minister will agree with me that in this particular case the administrator had done all he could to obtain the very best advice available to him, namely the advice of two senior counsel. In such a case, Mr. Chairman, I submit that it would be unfair to apply this provision as it now stands in the Bill. The object of my amendment is to exculpate the administrator, to absolve him from personal liability where a distribution has been wrongly made through no fault of his own.

The hon. the Minister may not approve of the wording of my amendment, but if he agrees with the principle enunciated in my amendment but prefers to find some other words in the place of those in which the amendment is phrased, then I would be quite happy to withdraw my amendment provided he gives us some assurance that he will embody the principle inherent in my amendment in this clause in the Other Place.

Mr. Chairman, the chapter of the Administration of Estates Bill we are concerned with here deals with trusts and trustees of estates which are not insolvent. I am using the English words “trusts” and “trustees” deliberately. The difficulty with a trust is that it is a trust, and onerous duties are imposed upon trustees, because they are owners of their own property, but not for themselves; they are owners of the property, but for some other person. In the case mentioned by the hon. member for Durban (North) we have to deal with a person who has been appointed as a trustee. He must carry out his trust. He knows what the terms of the deed of trust are; he knows who the cestuis que trust in terms of that deed are. He is the person in charge of the trust. Then he is faced with a problem. He has to make a distribution in accordance with the terms of the deed of trust drawn up by the settlor, or in accordance with the will in which a trust is created by the testator, and he has difficulties in respect of the distribution he has to make. The hon. member for Durban (North) told us that his client did everything in his power but nevertheless made a wrong distribution. But in my opinion, Mr. Chairman, that person did not do everything in his power to find out what the true position was. His duty is to obtain clarity in regard to the deed of trust. If he does not have that clarity he is not allowed to make a distribution, because a trustee is in a worse position than a guarantor. He is in fact the owner of property and can dispose of it in various ways, just as an owner can, but he is nevertheless subject to the burden which he has voluntarily accepted. If the deed of trust has been drafted in such vague terms by the settlor that even the trustee, a person who was probably specially selected by the settlor, cannot interpret it, then it is no more than right to expect the trust to pay in order to make sure that clarity is obtained in regard to the work of the settlor. The trustee should go to court and ask for an interpretation. If the deed is not clear, it is an error, an omission, which has been committed by the settlor and which now has to be rectified. What has been asked for here by the hon. member is in absolute conflict with the basic law, the common law, and the substantive law relating to trusts. He can go along at any time and consult any English work dealing with trust,— it does not matter which work—and he will see that the trustee’s first duty is to acquaint himself with the terms of the deed of trust. The two most important provisions are, firstly, who the cestuis que trust are and, secondly, how the property is to be administered. What is contemplated in this measure is the formulation of provisions in accordance with the rules relating to trusts. We are dealing here with a legal concept, namely the trust, the Cinderella of our law, the most recent import of all legal concepts—even though it is 150 years old already—which was brought to South Africa by our Anglo-Saxon friends. Hon. members opposite apparently do not have the appreciation for this contribution to our law which they ought to have. The hon. member is playing traitor today to this Anglo-Saxon contribution to our law, namely the trust. The trustee is obliged to display the highest measure of good faith and of circumspection when dealing with trust property. He must constantly act in such a way as to cover both himself and the cestuis que trust. For these reasons I ask the hon. the Minister not to accept this amendment.

I should like to ask the hon. the Minister to consider this proposed amendment in the spirit of the Roman-Dutch law—in which event, I am sure, he will accept it—and not in the spirit of the English law of trusts—in which event he will reject it. I am sure that the hon. the Minister, who has a feeling for Roman-Dutch law, will admit that this is a reasonable amendment.

It is a long time since the hon. member for Standerton has last practised …

I wrote a book on the law of trusts.

Well, people who write books should not throw words around during the Committee stage of a practical measure! I ask the Minister to accept this amendment. I hope he will realize that this is not supposed to deal with the case cited by the hon. member for Standerton, the case of someone whose duty it is to deal with things according to a certain procedure. We know what that procedure is. One of the things he has to do is to distribute in accordance with the provisions of the relevant will or written instrument operating inter vivos.

Let us face it: one out of every ten wills can be interpreted in two different ways and if an administrator cannot exercise his bona fide by obtaining the opinion of a senior counsel and to act on it, but instead has to go to court everytime, then it would seem that one of the objects of this legislation is not going to be achieved. Surely, the personal liability under our law only attaches …

What is your answer to the hon. member’s argument that instead of having taken senior counsel’s opinion, he should have gone to court?

My answer is that if he knows that despite the fact that he is acting in the very best of faith and that he has the opinion of five silks’ … there is of course always the possibility that they may be wrong. But then there is also the possibility that the decision of the judge may be proved wrong if taken on appeal. But counsel’s opinion is not subject to appeal. If he goes to court and gets a judge’s opinion—that is what it amounts to—he may distribute in accordance with that. But that may of course be taken on appeal and the judgment may be upset.

But in that case he will not be held liable.

That is so but the principle is not different except that it entails far greater expense and that many more cases will be taken to court for a judgment in a matter about which there is some doubt. I admit that where counsel’s opinion is obtained there is the possibility of a conflicting opinion being expressed by another counsel but in his view this is the way in which distribution should be made. If it becomes clear from the opinion of say three senior counsels that there is a divergence of views, however slight, the administrator would have to go to court. This I submit will be done by any prudent administrator, i.e. he will go to court whenever there is the slightest doubt in his mind.

Paragraph (b) makes provision for a remedy in the case of an administrator who has made a bona fide mistake.

Yes, it is so that he can recover, but on the other hand he may not be able to recover because the person to whom it was wrongly distributed may have disposed of the property. Distribution might have taken place outside the country—one does not know But the point, Sir, is this: The hon. member for Germiston (District) pointed to a very well-known principle under our law, namely that you never mulct anyone with costs de bonis propriis—especially if he is a trustee—unless he has been responsible for some irregularity arising from an attitude of mind on the part of that person, no matter who he is, whether he be a trustee or an ordinary defendant. You never mulct him in costs de bonis propriis unless he has himself done something reprehensible. Now, in the case referred to by me the administrator has acted bona fide. Can he be asked to do more than that, Sir? Can he do more than to take the utmost care? In the example quoted by me the utmost care was taken.

He should have gone to court.

I am told he should have gone to court. Well, if that is going to be the answer of the hon. the Minister and if that is what will have to be done in terms of this provision, I am afraid we are going to have an awful lot of applications to court involving an awful lot of expense. Senior counsel’s opinion can probably be obtained for 25 guineas although in Johannesburg it may cost 50 guineas. But to go to the supreme court will be quite a different matter. Everyone concerned must be advised, as the hon. the Minister well knows. The position is that if you want to obtain a court’s ruling as to what a particular will means, many people must be given notice of the intended application to court. Notice must be given to all the heirs. You must have people representing them, you must have people representing the unborn heirs, you must have people representing the minors, and if their interests might conflict you must have people representing them. People must also be appointed to represent creditors. Mr. Chairman, in one day you run up in counsel’s fees alone five times the cost of one silk’s opinion. In addition there are the costs of preparing the papers and affidavits, the notices that have to be served, etc. In one day, Sir, you will run up in counsel’s fees five times the costs of the best silk’s opinion. What is going to happen to estates if administrators are going to be forced—which they will be if my amendment, or something like it, is not accepted—in their own interests to take every single matter about which there is any doubt to court? I submit in the end it is in the interests of the estate concerned that there should be a reasonable attitude towards a person who makes a wrong distribution. I ask the hon. the Minister to consider my amendment in the light of the arguments which I have put forward.

I have a bit of a problem in connection with this matter. The principle is as explained by the hon. member for Standerton, but there is also a sound basis for the argument advanced by the hon. member for Durban (North). I have several problems in this connection. In the first place there is a similar provision in Clause 50, although that clause does not deal with an administrator, but with an executor. That clause is not word for word the same as the clause under discussion, but the principle is nevertheless the same. The question that arises is why the administrator should receive preferential treatment over the executor. The provision in regard to the executor is not a new one, but the provision in regard to the administrator is in fact a new one, as we have not yet had legislation in this connection as far as trusts are concerned. But the provision in regard to the executor is an old one, one which has been associated with the Administration of Estates Act for many years, and one which, as far as I know, has not given rise to any material problems. I do not know whether hon. members who have dealt with this provision a great deal in practice have experienced any difficulties. If the hon. member’s proposal in regard to the clause under discussion is accepted, we shall also have to review the provision dealing with executors. In my opinion it will establish an unnecessary principle if the administrator receives preferential treatment as compared with the executor, all the more so since the executor carries much more responsibility as a result of the fact that a trust is usually a much larger asset than an ordinary estate. It is for this very reason that an estate is converted into a trust. The interested parties in the case of a trust do not always have such an immediate interest in the trust as compared with the interest which the heirs usually have in an estate. The principles mentioned by the hon. member for Standerton are also involved. Apart from these considerations such a person’s remedy—as I told the hon. member by way of an interjection—is to be found in Clause 68 (b), which provides that he is entitled to recover the amount or property if he has made a mistake.

Under all these circumstances, Mr. Chairman, I think that if I have to decide now whether or not to accept this amendment, I must decide against it. I feel that this is also a case which I should reconsider and which I shall discuss with the hon. member, and if he can satisfy me in this connection the clause can be amended in the Other Place. If I have to decide now, however, I am afraid that under the circumstances and in the light of the advice of my Departmental officials and my law advisers I must decide against it.

Amendment proposed by Mr. M. L. Mitchell withdrawn with the leave of the Committee.

Mr. Chairman, I should like to point out to the hon. the Minister that there is a distinct difference between the two cases. The first case is referred to in Clause 50. namely where an executor distributes wrongly. In such a case there is complete protection inasmuch as an Account has to be drawn up and has to be advertised. But those circumstances do not apply in respect of the problems encountered in the clause under discussion.

But the principle remains the same, although the circumstances may differ.

That may be so. Sir, but in the one case the law itself provides complete protection, and, under the circumstances, I do hope the hon, the Minister will favourably consider the amendment.

Clause put and agreed to.

On Clause 93.

I wish to move the following amendment—

1. (3) After the expiration of three months from the date of publication of the said statements, such person shall forthwith transmit a statement and affidavit in the prescribed form—
   1. (a) to the Master and deposit in the guardian’s fund to the credit of the rightful owners all such amounts still remaining unclaimed by the rightful owners who are not Bantu as defined in section one of the Population Registration Act, 1950 (Act No. 30 of 1950); or
   2. (b) to the Secretary for Bantu Administration and Development and deposit in the South African Bantu Trust Fund established under section eight of the Bantu Trust and Land Act, 1936 (Act No. 18 of 1936), to the credit of the rightful owners all such amounts still remaining unclaimed by the rightful owners who are Bantu as so defined.

The essence of this amendment is that amounts remaining unclaimed by Bantu will be paid into the Bantu Trust Account for the benefit of the Bantu instead of being paid into the Consolidated Revenue Fund.

Amendment put and agreed to.

Clause as amended put and agreed to.

On Clause 105,

I move—

This was a misprint in the Bill.

Amendment put and agreed to.

Clause as amended, put and agreed to.

I should like to move an amendment to Clause 103.

The hon. member must obtain the leave of the Committee at a later stage to do so.

Remaining Clauses put and agreed to.

With the leave of the House I want to revert to Clause 35.

No. the Committee must first revert to Clause 6.

The Committee reverted to Clause 6, standing over.

On Clause 6,

This is the clause in connection with the appointment of an appraiser. We have had discussions on the clause and we have considered it further. I just want to state the position as I see it now, and then ask the Minister whether he agrees with my view.

Under the old set-up. provision was made for the appointment of appraisers, but the old Act did not contain any provision to the effect that the appointment was only made for the purposes of that Act, and the only amendment being made here now is that when an appraiser is appointed he is appointed for the purposes of this Act, and those are the words to which we objected. We have always called an appraiser a sworn appraiser because he was appointed by the Master, and subsequently by the Minister, and particularly because of the fact that he had to take an oath that he would make a true valuation. It was for that reason that he was given the designation of “sworn appraiser”, and not because he was so designated in the Act. It seems to me that the position in future will be that an appraiser will be appointed for a particular area and that he will be allowed to make valuations in that limited area for the purposes of this Act, the Administration of Estates Act, but that there will be nothing to prohibit him from making valuations for other purposes as well. When making valuations for other purposes he will not be limited to the area for which he has been appointed; and when he makes such a valuation, irrespective of whether it is within or outside the area for which he has been appointed, he will still be allowed to say that he is an appraiser appointed in terms of the Administration of Estates Act, if he wishes to do so, will still be allowed to write the words “sworn appraiser” at the bottom of his valuation, because that is in fact what he is. His appointment in terms of this Act limits him to make valuations within the boundaries of the area for which he has been appointed only in so far as the Master is concerned, but it does not prohibit him from making valuations outside that area as well. If my interpretation of this clause is correct I will be satisfied if the position is left as it is.

The hon. member’s interpretation is perfectly correct and therefore there is no need for me to add anything.

Clause put and agreed to.

I move—

Agreed to.

I On Clause 35, as amended,

Sir. I will not take long. I want to thank you and the Minister for allowing us to revert back to this clause. We received representations from the Society of the Joint Council of Chartered Accountants in connection with Clause 35, which reads as follows—

The whole clause deals with the submission of accounts and the receipt of objections. Subsection (12) says when the accounts have laid for inspection and no objection has been lodged …” I think that is peremptory and it is an injunction the executor to write to the Master to ask whether he has received any objection, and only after receipt of that advice can he distribute. If the onus is put on the Master to advise the executor immediately after the date has expired, the whole procedure will be considerably streamlined and the executor will be able to distribute more quickly. I therefore move the amendment standing in my name—

Strange as it may seem, under the old Act the Master has never been called upon to confirm an account, and that of course must be taken into consideration. I have referred the hon. member’s amendment to the Masters and they point out that first of all it cannot be accepted because the whereabouts of some or all of the heirs might be unknown, and the hon. member’s amendment says that the executor shall forward by registered post to every heir a certified copy of the account. That might not be known and a delay is bound to occur if the account has to lie for inspection only after the Master has first determined whether sufficient time has elapsed after the submission of copies of the account to the heirs. In especially the intestate estates all the heirs might not be known. Copies of the account are in any event readily obtainable from the Master, and there would appear to be no reason why the heirs should be placed in a better position in relation to the account than creditors and legatees.

On a point of order, that is not the hon. member’s amendment.

But this is Clause 35 to which we have reverted.

It is Clause 35 as appearing on page 329. It refers to an amendment which has been withdrawn. The Minister is talking on the wrong amendment.

That is the only one I have in front of me.

On page 329 of the Order Paper the hon. member for Benoni moved a certain amendment.

The only argument I can advance on that point is that it has never been either the practice or the law that the Master must confirm the account.

That is why it was introduced, so that we could have some clarity.

I am afraid I cannot accept that.

Amendment put and negatived.

Clause, as amended, put and agreed to.

I move—

That the Committee revert to Clause 103.

Agreed to.

On Clause 103,

Clause 103 makes provision for the making of regulations. I want to refer to Clause 103 (c) and then I want to move—

The clause would then read: “providing for the good conduct of Masters’ offices or prescribing the practice and procedure to be observed therein and the qualifications of persons entrusted with the preparation and submission of documents.”

I support that.

I take cognizance of the hon. member’s amendment, but I cannot accept it at this stage, because I do not know what its consequences will be. I shall have to consider it in relation to the whole import of the Bill. As I have not been given notice thereof I cannot accept it now.

Amendment proposed by Mr. S. L. Muller withdrawn with leave of the Committee.

Clause, as printed, put and agreed to.

Schedule and Title of the Bill put and agreed to.

House Resumed:

Bill reported with amendments.

Seeing that the House has made such excellent progress I move—

Agreed to.