I move as an amendment—

The effect of the amendment will be to add to the Act a definition of “police matter”. The amendment refers to section 5 of the Police Act of 1958, and Section 5 of that Act deals with the functions of the S.A. Police, and they are listed as follows: (a) The preservation of the internal security of the Republic; (b) maintenance of law and order; (c) investigation of any offence or alleged offence; and (d) the prevention of crime. So it is intended to restrict “police matter” to those matters falling under (a), that is the preservation of the internal security of the Republic. The Bill will then reflect exactly what the hon. Minister said he wanted to cover by this Bill. If he accepts the amendment, then it will reflect what the hon. Minister told the House the Bill was intended to deal with, and also what he told the N.P.U. and also what the public has been given to understand by this hon. Minister. I want to say that this amendment was framed and handed in to the Secretary of the House before the hon. Minister replied to the second reading debate yesterday. I hope the hon. Minister’s attitude is a little different from what it was yesterday, and I hope he will not treat this Committee with the same contempt with which he treated the House yesterday.

Order. The hon. member must confine himself to Clause 1.

Mr. Chairman, I want to say that the amendment reflects the attitude of this side of the House in relation to this Bill, that we have no objection whatever to the Bill provided it deals with security matters as is provided for in this amendment.

You are changing your tune.

No. we are not changing our tune. This has been the attitude of this side of the House. The hon. member for Germiston (District) stated this in his speech and every single member who spoke on this side of the House said so in his speech.

Order! Those are matters the hon. member can raise at the third reading. He must confine himself now to the amendment.

Yes, Sir, I want to say that the amendment is intended to confine “police matter” to matters relating to the internal security of the State. I hope the hon. Minister’s attitude to this amendment is not going to be what it was yesterday when he said that we were not interested in the safety of the State, that we were careless in respect of the safety of the State. Sir, it ill becomes any member on that side to say a thing like that, especially the hon. the Minister. From him it is an impertinence.

Order! If the hon. member cannot confine himself to this clause, I shall ask him to resume his seat.

With respect, Mr. Chairman, I am confining myself to the amendment and I am discussing what internal security means and why we want this restriction.

Do you not find it necessary to define “military matter”?

That speaks for itself. We only want to define “a police matter”. The hon. Minister when introducing the Bill at the second reading said that the Act dealt generaly with military matters and that this is a new provision dealing with “police matters”. That is why we want it confined, because “police matter” in terms of the Police Act includes many more things. I do hope that we are not going to have this accusation levelled at us that we are careless of the safety of the State. I want to say to that hon. Minister that he was not careless but reckless in regard to the safety of the State on the occasion when a Nazi totalitarian regime was trying to undermine the State. …

Order!

You want to kill the Bill.

No, I want the hon. member for Brits to understand that the United Party has always been interested in securing the safety of the State, so much so that when the hon. Minister of Justice was as reckless as he was, we had no hesitation in putting him inside during the war. Let the hon. member for Brits tell me whether there is any difference between a threat to the State by a Nazi totalitarian regime and what it is to-day, namely a left-wing totalitarian threat against the State? Is there any difference?

No.

Then perhaps the hon. member can explain the attitude of members on the other side of the House when the State was being undermined from within and without during the last war.

Order! This is not the occasion to discuss those matters.

In relation to this amendment I want to say that if the hon. Minister does not accept it, then all the misgivings we have about this Bill will be correct.

That will not save you.

It is not a question of saving us. We are trying to save South Africa from becoming the sort of state ….

Order! The hon. member must now confine himself to the clause.

Yes, Sir. If the hon. Minister does not accept this amendment, then he will say in effect that he does not want to confine this Bill only to matters relating to the internal security of the State. He will say in other words; Although I told the N.P.U. and the public and this House that this Bill only has to do with police matters involving the security of the State, in fact that is not true. That is what he will be saying if he does not accept the amendment, and he will have led us all up the garden path in that regard.

The hon. Minister says that he wants to deal only with matters that can affect the safety of the State. If that is so, then I hope the hon. Minister will accept this amendment, and I hope that the petulance which he displayed yesterday has disapepared and that to-day, as opposed to yesterday, he will be the Minister of Justice first and the party political strong man second.

The hon. member for Durban (North) (Mr. M. L. Mitchell) reminds me of a chicken whose head has been chopped off. Like that chicken the United Party is struggling to get out of the difficulties it has created for itself. I just want to say to the hon. member for Durban (North) that as they have made their bed they must lie on it. I am definitely not going to assist the hon. member and his party out of the dilemma in which they have placed themselves. The hon. member is as well versed in parliamentary procedure as any other member of this House. The hon. member has not only been a member of this House for many years but he was also a member of the Other Place for many years. In addition the hon. member is also a lawyer. He should know better than anybody else, therefore, what the attitude of the official Opposition was when they moved the amendment that this Bill be read to-day six months.

Order! The hon. Minister cannot discuss that now.

I am sorry, Sir, but I hope you will allow me just to reply to the accusation made against me by the hon. member for Durban (North) that I was treating the House with contempt. The hon. member cannot accuse me of having treated the House with contempt now or at any time. What I will indeed treat with contempt, something which I have done in the past and will continue to do in future, is the attitude the Opposition have adopted in this connection. I want the hon. member to understand that clearly. The hon. member tries to get out of the dilemma by moving an amendment like this, a meaningless amendment. We can accept this amendment without changing the position in the least. It does not meet one of the objections raised by hon. members of the Opposition yesterday when they said they objected to it because “police matter” was too wide. Surely this amendment does not define “police matter”. The only thing this amendment does is to refer to one of the functions of the South African Police as contained in the 1958 Act. What sort of definition is that? It does not change a thing.

You said that was your intention.

But that is contained in the legislation. Does not the hon. member realize that yet? This legislation deals with official secrets in the first place. On a previous occasion the hon. member gave us a stupid example. Yesterday, for instance, we had the stupid example of the Bultfontein case. It was said that if somebody used that for propaganda purposes he would be guilty of an offence in terms of this Act. What nonsense! That is not a secret. Nobody can make himself guilty of an offence under this Act unless he discloses a secret. Something which is already public is no longer a secret.

Where does the word “secret” appear in Clause 2?

The basis of any Act dealing with official secrets is the disclosure of something which is not yet known. Has the hon. member taken the elementary trouble of reading the record of any court case in this connection? Had he done so he would have seen that that was the golden thread that ran through all decided cases. Let me give the hon. member an example: If a country erects an atomic energy installation that is regarded as a secret which, if disclosed, is a punishable offence. Does the hon. member agree with me? I want to argue logically with him. Suppose, for instance, we erected an atomic power installation and somebody disclosed that secret he would be guilty of an offence.

Yes.

But if the Minister in charge of that atomic energy installation got up in this House and, in reply to a question, explained the whole project and gave every member and the Press a copy of the plans nobody would be committing an offence if he published them; it would not be an offence to write a book about it because that project would no longer be a secret because it had been made public officially.

I shall give you other examples when we get to Clause 2.

Therefore, as I have said, the amendment of the hon. member takes the matter no further. The amendment does not mean a thing. This amendment only means that the official Opposition now want to show the world that they were not the people who moved the original amendment. I am not going to assist the hon. member out of that dilemma.

Mr. Chairman, it is noticeable that the hon. the Minister of Justice comes at this stage of the debate in regard to this Bill with a closed mind. He has indicated, I think unfortunately, that he has no intention to improve this Bill in any way. The hon. the Minister and his Department obviously have all the information at their disposal and where there should be any particularization as to what is meant by the term “police matter”, it obviously would come better from the official side who know all the facts. But, as I say, the hon. the Minister has simply taken the stand that he will not consider any amendment or any improvement in the Bill. Now, Sir, the amendment moved by my hon. colleague is a serious attempt to improve the position as set out in the Bill. It provides that there will be that security which the hon. the Minister and members on his side of the House have said is intended in this Bill. Sir, the interests of the State are important. We have never denied that. There is no gainsaying the fact, however, that there is need not only to safeguard the interest of the State when you are dealing with the penal code, but also that regard must be had to the interests of justice when you are dealing with a matter like this. And here is a serious attempt to so deal with the matter in just that way; to meet what the Government and the Minister claim is needed and at the same time to particularize in such a way that the interests of justice can be served as well. As I indicated at the second reading, we are concerned here with a penal code, and the fact is that the implementation, the onus for carrying out and giving effect to the intentions of Parliament, will be the burden of the courts. Surely, then, at this stage we in Parliament must have regard to that aspect of the matter as well, and we must make the position, as far as the courts are concerned, as tenable as we possibly can, because without any form of particularization the courts themselves are going to be left in even greater difficulty than the Opposition. I hope therefore that the hon. the Minister’s approach to the problem will now be a different one and that he will cease to close his mind and that he will give consideration to the proposed amendment. If this amendment has practical difficulties about it, it rests with the Minister to improve the position and set the matter right. He has the information and he knows what he wants. Surely it is not beyond his ingenuity to bring about that clarity of definition which is so essential if the courts are to be relieved of the impossible onus which is now going to be placed on them if the matter is to be left as it is.

The hon. the Minister has quite correctly said the United Party finds itself in the dilemma that it created the impression yesterday …

Order! The hon. member must confine himself to this clause.

Mr. Chairman, I should very much like to draw your attention to the fact that what the hon. member is proposing in his amendment is already provided for in this legislation. It also appeared in this legislation yesterday. We have the same document before us to-day that we had before us yesterday …

Yesterday is not to-day.

I agree that yesterday is not to-day, but the fact of the matter is that what is before the Committee to-day is the same as what was before the House yesterday. What was before the House was the Official Secrets Amendment Bill. It had precisely the same wording yesterday as it has to-day. The hon. member is moving an amendment which is already contained in the Bill which is before us to-day.

Where?

The second clause provides that a police matter …

Order! The hon. member cannot discuss the second clause now.

Mr. Chairman, I want to point out that the hon. member’s amendment is already covered by the proposal contained herein. Unfortunately it is not covered by the terms of Clause 1, but it is covered in a subsequent clause, and I want to draw his attention to the fact that that was the case yesterday and still is the case to-day. When he defines “police matter” in terms of the Police Act, it reads as follows: “The functions of the South African Police are, inter alia, (a) the preservation of the internal security of the Republic.” That is Section 5 (a) of the Police Act, No. 7 of 1958. But that is already embodied in this clause—not in Clause 1, but in Clause 2. I am not allowed to discuss the clause now, but when we come to Clause 2 I should like to show how nonsensical the hon. member’s amendment is at the present moment. I just want to point out that what is being proposed here by the hon. member is embodied in a later portion of this Bill, and the hon. Member is only trying to escape from the trap into which his party fell yesterday. That is the reason for the amendment. It is absurd to go along and define what a “police matter” is, because in a later portion of the Bill it is provided that it is a police matter when any person publishes something which will be prejudicial to the safety or interests of the Republic. It is therefore a nonsensical amendment, because it is already embodied in a later portion of the Bill.

Both the hon. Minister and the hon. member for Standerton have said that the object of this amendment is to try to get ourselves out of the difficulty we landed ourselves in yesterday.

Order!

Mr. Chairman, you ruled the hon. member for Standerton out of order, but he nevertheless made the same allegation shortly before he sat down.

Order!

Mr. Chairman, will you not allow me just to answer these allegations?

The CHAIRMAN: No, I have given my ruling. The hon. member must confine himself to the amendment. There will be another occasion for doing that.

Mr. Chairman, the hon. Minister has said that there is no purpose to this amendment because it is in fact covered by the subsequent clause in this Bill, Clause 2. He has pointed out that the original Act which is now being amended, is the Official Secrets Act and has to do only with secrets. He makes the point that once a matter has been ventilated in the open—he mentioned the example of the Bultfontein case—it is no longer a secret, and therefore it no longer falls within the purview of the Act and can therefore be reported by the Press as much as they like. If the hon. the Minister was correct in his statement that this Act is limited to secrets, then of course his conclusions would be quite correct. But unfortunately, the basis upon which he developed that argument is wrong, because this legislation is not limited only to secrets, although in fact the title is “Official Secrets Bill”.

Order! The hon. member must confine himself to the amendment.

I am dealing with the argument advanced by the hon. Minister to substantiate his conclusion that there is no purpose to this amendment because it is covered by the terms of the Bill.

On a point of order, the hon. Minister gave as his reason for rejecting the amendment the fact that police matters have only to do with official secrets in this context. May the hon. member for Durban (Musgrave) not indicate that that argument is in fact fallacious? If he can it may well happen that the hon. Minister will withdraw his objections.

The hon. member may proceed.

I cannot refer in any detail to Clause 2, and I do not propose to do so, but in order to prove to the Committee that the hon. the Minister’s contention is fallacious …

You need only to read the long title.

What an absurd statement for an hon. Minister of Justice to make! Surely the Minister knows that a long title of a Bill is very often misleading, because the Act itself very often contains far more than the long title suggests.

Like the “Extension of University Education Act”. Did that reflect what the Bill said?

I am sure that on reflection the hon. Minister will concede that that allegation of his is fallacious. However, I do not wish to refer at length to Clause 2 of the Bill, but I must at least make this contention that if the hon. Minister looks at the terms of that clause, he will see that it is not confined to secrets only, to official secrets; it relates to any information which a person may have; it relates to sketches, plans, articles, etc., that he has in his possession. But the point I make is that it relates to any information, not information which is of a secret nature only, not information which has to do with official secrets. So the hon. the Minister is quite wrong in saying that the only type of police matter which is affected by this Bill is a police matter which relates to an official secret. And the other point that I make in regard to this is: The hon. Minister mentioned the Bultfontein case, and he mentioned the case where in this House he or some other Minister may make a statement in regard to a certain police matter, and he said that in a case like that the newspapers would be perfectly free to publish the information because the information was made public and therefore could be printed by the newspapers. Mr. Chairman, those are not the only situations which can arise. There are numerous situations which relate to the Police, which are termed “police matters” where no official statement has been made, where no court proceedings have yet arisen which would bring this to the public’s attention; it may be that a journalist or an editor may have certain information regarding the Police, which has not yet been made public. Well, Mr. Chairman, under those circumstances the newspaper is in a position where it does not know whether this information would be regarded by the police or by the Minister of Justice as a matter which comes within the purview of this Act, or not.

You are not taking it any further. It must be prejudicial to the safety of the State.

That is precisely what the Bill does not say.

Then you have not read the Bill yet.

Perhaps if the hon. member for Ceres would stop interrupting and let me develop my answer to him, he might understand me. But if he is continually interrupting me, of course he will not understand it. I went to great pains during the second reading debate, yesterday, to show the House that this Bill is not confined to police matters which are prejudicial to the safety of the State. This Bill goes further and affects police matters which are prejudicial to the interests of the State.

Order! The hon. member is again discussing the Bill. He has replied to the question raised by the hon. the Minister, and he must now confine himself to the amendment.

I was answering the allegation made by the hon. member for Ceres.

The hon. Minister has suggested that this amendment which we on this side of the House have moved, does not take the matter any further, and the reason for his saying this was simply that he contends that the only matters hit by this Bill, in other words, the only matters which this Bill deals with are official secrets. [Time limit.]

This definition goes to the root of the matter. It defines a police matter. The Minister has asked us why we do not try to define a military matter. We have made it clear that a military matter does not need defining. The military deal with the safety of the State. What we want to do here is to make sure that this word “matter” refers to the safety of the State. We define a police matter as something dealing with the security of the State.

No, you talk about internal security.

It is the function of the police to deal with internal security and not with external security.

But they may have information in regard to the external security also.

The police are only interested in the internal security. The Minister gave two examples of what he intends to cover. One was the giving of information about arms and ammunition of which the police may be in possession. That is right, because it would come under internal security, because the police need those arms to maintain internal security. Then the Minister mentioned an article which appeared in the Press dealing with certain activities of the police on the border of Basutoland. He said that in fact the article was incorrect, but had it been true it might have spoilt the whole police action by warning the parties who were expected to cross the border. If that is what he intends to cover, our amendment will cover that case, and until we hear from the Minister that there is something else he wishes to cover, I submit that he can accept this amendment. We cannot discuss the amendment merely in Clause 1; you have to refer to Clause 2. Just reading the definition in Clause 1 means nothing unless you can explain what it is intended to cover in the Bill. That is why the Minister, in refusing to accept the amendment, dealt with Clause 2, because if Clause 2 does not appear in the Bill, Clause 1, the definition clause, is meaningless. That is why the Minister, quite correctly, dealt with the question of secrets. I want to point out to him that when he mentioned that the matter had to be secret, the Basutoland case he mentioned was not necessarily secret. In Section 3 of the Act which this Bill amends, “secret” is mentioned in subsec. (1) and in sub-sec. (3), but not in (2). If everything was secret, then I submit that the word “secret” would have been used in sub-sec. (2). Sub-sec. (1) refers to any person who has in his possession or under his control any secret, official code or password, and sub-sec. (3) talks about any person who receives any secret, code or password, etc. But sub-sec. (2) does not mention the word “secret” at all. If the Minister had inserted the word “secret”, we would have had more certainty, but as the Bill reads now we do not know where we stand and that is why we move this amendment. I appeal to the Minister to accept the amendment because the two examples he mentioned are covered by this amendment.

I agree with the hon. member for Transkeian Territories (Mr. Hughes) that the definition they want to have in Clause 1 cannot be discussed unless you have regard to the effect the definition will have on the rest of the Bill, and you will allow me to discuss the effect of the definition. I must say that if the definition were accepted in this form, it would mean that we would say the same thing in two different places in the same Bill, because at a subsequent stage of the debate it will become clear that this definition they are proposing relates to the disclosure of any secret relating to a police matter and which is prejudicial to the safety and interests of the Union; and that is also what is stated in the Police Act—“the preservation of the internal security of the Republic”. [Interjections.] If we do not accept that definition, this Bill will not provide something different from what they are proposing now. This amendment is a tautology and that is why I said that the only reason why it is being moved is that they are trying to escape from the trap into which they fell yesterday.

Order! That has already been said.

I repeat that I agree with the hon. member that one should view the definition in the context of what follows.

Order! The hon. member is repeating himself now.

I feel that the amendment should not even have been allowed.

The hon. member for Standerton (Dr. Coertze) seems to be confused about the Bill and the principal Act. He says that if the amendment is accepted, we will be saying the same thing in two parts of the Bill and the Act, but that is not so. This amendment defines one phrase, “any police matter”, and “any police matter” is being introduced in the next clause of the Bill for the first time. It does not appear in the Act. What this section which is being amended dealt with before was munitions of war, and that was defined in the Act. Now “police matter” is being introduced, and there is no definition at all. But the Minister says he will not accept this amendment, and he gave reasons for it. Yesterday he said he was not prepared to accept the amendment even before he had seen it. He says now that he will not accept it because it deals with official secrets and it is unnecessary. But surely the Minister knows what the Act says. This is an amendment of Sec. 3 (2). Sub-sec. (1) actually talks about official secrets, any person who has in his possession any code, password, etc. That is an official secret, as is generally understood. Sub-sec. (3) also deals with that official secret, but this clause noticeable does not mention official secrets, and it does not mention official secrets deliberately because the two other sub-sections mention it, and this is not intended to deal with official secrets, it is intended to deal with something else. So the argument of the Minister that it deals with official secrets because in the long title of the Act there is mention of official secrets is nonsense. We had a Bill here once before called the Extension of University Education Bill, and if that were to be the criterion for judging that particular Bill, then words would be meaningless. Here is an amendment. For the first time “police matter” is being introduced. The Minister has said right throughout that all we are dealing with here is the safety of the State, and we have told him persistently that if this has to do with the safety of the State we are with him and we want to confine it to that. But the amendment refers particularly to Section 5 (a).

Which amendment axe you referring to, the first one or the second?

Let us get this straight.

Order! The hon. member should confine himself to this amendment.

The reason the Minister gives for not accepting the amendment is that the attitude of the United Party is such that he is not even prepared to consider it and to-day he comes with the same argument. I want to say this to the Minister. This amendment was framed and handed in before he gave his reply yesterday.

Order! The hon. member has already made that point.

I want to ask the Minister what difference it would have made if we had adopted his suggestion and moved an amendment that the Bill refuses to pass the second reading, because it is not properly defined. …

Order! That is not under discussion. The hon. member must confine himself to the amendment.

The amendment seeks, as I have said, to limit this Act.

Order! The hon. member is repeating again. He must advance new arguments or resume his seat.

One of the arguments used by the Minister is that we are trying to extricate ourselves from a situation. …

Order! That is repetition, and it is irrelevant.

With respect, that is an argument the Minister used as to why …

Order! The hon. member may reply to that on another occasion.

The Minister says this Bill has to do with the safety of the State, and therefore the military and the police are introduced. The military are introduced obviously because they deal with the external security of the State. The police, inter alia, deal with the internal security of the State. So far as the giving of information about the internal as well as the external security is concerned we have no objection, but the Minister has given himself away. The hon. member for Standerton says we should have read a little further in the Police Act and we would have seen that the first function of the police is the preservation of the internal security of the Republic, and then they have certain other functions. The difficulty one has with the Minister is that having said all he has said, he now says he will not accept the amendment. And when we come to Clause 2 we will give the Minister some other examples. I suggest that the examples the Minister gave in the second reading could be dealt with in terms of Sec. 3 (1) of the Official Secrets Act. The Minister has given us one reason wihich I am allowed to deal with—1 cannot deal with the other—namely that it has to do with official secrets.

Order! That is repetition.

My appeal to the Minister now is to tell us why he will not accept this amendment, for a reason other than the one we have now disposed of.

For reasons already mentioned the hon. the member has seen fit to move this amendment. Let us analyse it in the light of Section 5 of the Police Act. The functions of the South African Police are set out here. The hon. member chooses to take the first function only, namely, protecting the internal security of the Republic. The hon. member knows as well as I do that when it comes to the construction of a statute and you refer specifically to a section which deals with four functions and you prefer to take over only one of those functions—supposing that could pass as a definition, which I do not admit for a moment, but for the sake of argument I accept that you can—then you specifically exclude the other three. The maintenance of law and order can in certain respects have everything to do with the safety of the State but in other respects it may only involve criminal riots. Why do you exclude that? If you want to be consistent you must go further and say the maintenance of law and order as far as it affects the safety of the State but now you are excluding that completely.

But that is included in the first one.

No, how can it be included in the first one if the four are mentioned here one after the other. The third is the investigation of any offence or alleged offence. An offence can be an ordinary criminal contravention or it can be an offence involving the overthrow of the State. Surely that speaks volumes; it is only logical. Take the prevention of crime. It is the duty and function of the police to combat ordinary crime but surely it is also a crime to undermine the State or to overthrow it. Surely the hon. member realizes that, purely from a construction point of view, his amendment is wrong. It says absolutely nothing and does nothing to save the situation except to assist the friends opposite out of the dilemma in which they find themselves.

I am really surprised at the argument the Minister has just advanced. After all, when the Minister introduced the Bill he told us that we were in a state of cold war. That is true, and therefore this measure is meant to deal with the security of the State. The functions of the police are to deal with the security of the State. The Minister says they have other functions and that maintaining law and order is just as important, and the detection of crime, but those functions have always been there. The police have always been required to maintain law and order and to combat crime. Those other functions have nothing to do with the cold war; they are the normal duties of the police. The only function they have in order to combat the cold war is to protect the security of the State. If law and order is threatened in order to bring about the downfall of the State, then the police would be covered, and after all, we have many Acts dealing with the safety of the State and giving the police the power to protect the safety of the State. If law and order have to be maintained and crime has to be detected in terms of any of those statutes, that would be covered by the security of the State. I submit that the case made out by the Minister now carries it further. It is a fallacy. I say that everything he has said now is covered by the “security of the State” as explained in the introductory speech.

It is clear to me that the Opposition reads this paragraph by itself and out of context. I just want to quote from the third edition of “Interpretation of Act” by L. C. Steyn under the heading “The Long Title”. It deals with the interpretation of the title at the top of an Act. This paragraph forms part of another Act. It is on page 139.

Order! I think the hon. member is going too far.

I just want to explain how this paragraph should be read. Sir, I shall be very brief.

That has nothing to do with the amendment and if the hon. member were to do so there would only be an argument about his argument and that gets us nowhere. The hon. member must confine himself to the amendment.

But surely I must give an indication as to how this paragraph should be read, Sir.

Order! I cannot allow the hon. member to argue with me. He must accept my ruling.

With respect, Sir, the hon. member is referring to the paragraph. Should you not ask him to which paragraph he is referring so that he can give his explanation in that connection?

Will the hon. member tell me whether it deals with this clause?

Yes, it deals with this clause, Sir, and I want to indicate how it should be interpreted.

The hon. member may continue in the meantime.

This paragraph in the book reads as follows—

The hon. member has now read the paragraph but I do not think it has anything to do with this clause. I am sorry but I cannot allow him to read any further.

On a point of order, Sir, the amendment provides for a definition of “police matter” and we on this side of the House maintain that a definition is unnecessary, partly because the long title of this Act provides for it in that it says it is a Bill to amend the Official Secrets Act. The Opposition alleges that an offence can be committed even if it is not a secret, but we on this side of the House maintain that the long title provides for secrets and that it must be a secret; all the hon. member is trying to do is to show that it can be concluded from the long title that it must be a secret, and that is why it does deal with the amendment.

I want to meet hon. members but I do not know how. This only concerns the clause and the point raised by the hon. member and the hon. member for Omaruru has already been made.

May I address you on the same point of order, Sir? The amendment of the Opposition proposes the insertion in Section 1 of a definition of “police matter”. We say it is unnecessary to define it because that is already done in the Act. The hon. member for Omaruru only argued that you could only decide what a police matter was if you read the Act as a whole, including the long title, even if that is not the point the Committee is discussing at the moment. In any case the Committee is discussing Section 1 but by implication I submit to you, Sir, that the long title comes into the picture no matter which clause is under discussion. I, therefore, think the hon. member for Omaruru is quite entitled to bring the long title into the discussion on Section 1.

The point raised by the hon. member for Omaruru was how the court would interpret it, and how the court will interpret the long title is not under discussion. I am sorry.

Amendment put and the Committee divided:

Tellers: H. J. Bronkhorst and A. Hopewell.

Tellers W. H. Faurie and H. J. van Wyk.

Amendment accordingly negatived.

Clause, as printed, put and agreed to (official Opposition dissenting).

On Clause 2,

The clause that we are now dealing with is in fact the Bill as we dealt with it during the second reading and I do not propose in the circumstances to say very much, except to say that at this stage, after the rejection of our amendment in the last clause, we are now quite sure that the Bill means exactly what we thought it meant at the second reading. The hon. the Minister’s rejection of our amendment is perhaps the best evidence we have that we did the right thing at the second reading in moving that the Bill be read this day six months.

What does this clause mean now after the rejection of our amendment? It means simply that no person will have any certainty in the future as to what is a police matter that he may refer to. Sir, for all the conversation there has been, for all the assurances there have been, for all the words that have flowed from hon. members on the other side as to what this refers to, it means simply that if you have any information whatever about any matter at all which concerns the police—and every matter in South Africa concerns the police, as distinct from the military—then if you communicate it or publish it not for the purpose of undermining the State, but if you publish it in a manner prejudicial to the interests of the State—never mind about the safety of the State—you commit an offence. No one is going to know how he stands in this regard because a “police matter” in view of the Minister’s rejection of our amendment means any matter at all. Sir, we had the statement from the Commissioner of Police to the effect that where the Press had taken up the question of police pay, they had undermined the morale of the police, and he said the same thing about certain individuals in Cape Town. The only individuals in Cape Town, as far as I know, who raised this matter are two hon. members of this House.

Was it detrimental to the safety of this country?

That question proves our point.

The hon. the Minister’s attitude towards this thing that I quoted before was the same as the attitude of that hon. member. Sir, this is the attitude of the police and therefore I presume it is also the Minister’s attitude that in this irresponsible manner members of this House and the Press have taken up the question of police pay.

There was no reference to members of this House at all.

The hon. the Minister is quite right; there is no reference to members of this House, but the statement refers to certain individuals in Cape Town. Who were the individuals in Cape Town who took up this matter? They were the hon. Members for Florida (Mr. Miller) and Wynberg (Mrs. Taylor). The Press reports stem from the fact that the matter was taken up by those hon. members. Sir, what does the Commissioner of Police say? He says—

I want to ask the hon. the Minister: Does he not consider it not in the interests of the State? Surely it is not in the interests of the State that anyone should undermine the morale of the S.A. Police Force. Obviously it is not in the interests of the State to do so. The result is that quite unwittingly, with a completely different motive, an offence could have been committed in terms of this Bill, and the hon. the Minister knows that; he knows that he deliberately intended the Bill to have that effect. That is proved by his refusal to accept the amendment which we moved on the last clause. Sir, this remains not just as bad as it was at the second reading, but it is worse because we now have confirmation from the hon. the Minister that we are absolutely right in our interpretation not only of what the Bill says but of what he (the Minister) intends to do.

Before I sit down I would like to point out this to the hon. the Minister once again: He told the N.P.U. and the public in his second-reading speech that they need not worry, that there would be no prosecution because the Attorneys-General have to put their seal on it. Sir, he is the Attorney-General; he may reverse the decision of any Attorney-General and he may give the Attorneys-General directions. If this is any indication as to what his directions are going to be, then we will oppose this clause and divide on it.

I rise merely to reply to a few of the arguments advanced by the hon. member for Durban (North) (Mr. M. L. Mitchell). The hon. member commenced his argument by saying that no Pressman would ever know now what he may write and what he may not write. Who will know better, the hon. member for Durban (North), or the editor of the Argus or the Cape Times or the Burger? They know this Official Secrets Act as well as the hon. member does; they have been concerned with it ever since 1956, and they were concerned with it before that date as well; yet they have no difficulty in regard to what they may write and what they may not write. With all due respect to the hon. member for Durban (North), it does not behove him to tell the newspaper editors that they do not know their business.

What about the leading articles?

As far as I know it was only the Argus that had a leading article in this connection.

The editors are not members of the N.P.U. They do not belong to it.

The argument advanced by hon. members is that journalists will not know what they may write and what they may not write, but the people who can best decide that are the editors of the various newspapers. The hon. member for Durban (North) now wants to suggest that they do not know their business. He says that no newspaperman will know what he may write and what he may not write. That argument was not advanced by the gentlemen who came to see me. They accepted the Bill as it stands; the interview was a very brief one, because they know the position; they had read the Bill and—I repeat—unlike hon. members opposite they were more concerned about the interests and the safety of the State than hon. members apparently are, judging by the attitude they are adopting here. The hon. member insinuated—and for the purpose of the record I cannot leave it at that—that the Commissioner of Police had criticized members of the House of Assembly. That is not true. I want to say very clearly to the hon. member that I endorse every word that the Commissioner of Police said in that statement of his. I think his statement was perfectly correct and I think it was time he said what he did, but I want to emphasize that the Commissioner of Police did not mention the names of any members of the House of Assembly; nor did he refer to them by implication. After all, the hon. members referred to by the hon. member said nothing as far as I know; they only did what they are entitled to do and that was to put formal questions on the Order Paper. What is wrong with that? Neither the Commissioner nor I took any exception to that, but it seems to me the hon. member for Durban (North) has a guilty conscience about this matter; that is why he is raising it.

What are you insinuating?

Why does the hon. member for Durban (North) drag the statement by the Commissioner of Police into this debate?

What are you insinuating?

I am only insinuating this: If the hon. member charges an official with these things, as he has in fact done, then it seems to me that he has a guilty conscience about this matter. That is all I am insinuating in this regard and I shall do so at all times. The Commissioner of Police referred to the actions of certain persons in Cape Town, inter alia, a journalist attached to the Cape Argus. He referred to another newspaper which is published here in Cape Town, namely the Landstem. What is more, he was perfectly correct in referring to it. The hon, member knows that when I say that it is not in the interests of South Africa to act in such and such a way, then I do not mean the interests of South Africa in the juridical sense in which the term is used in this Bill. The hon. member knows that, juridically speaking, the term “interests of the State” means something quite different from what we mean when we say in the normal course of events that something is not in the interests of the country. I repeat that the hon. member will find the answer to this if he will only read the judgments, from the earliest years, dealing with this aspect of the matter. I do not care what motives the hon. member attributes to me; hon. members on that side have attributed motives to me before, and I did not care then either. But now the hon. member comes back to the allegation that I am virtually the Attorneys-General of the various divisions. The hon. member knows that in practice that is not so; he knows that that is the position only in theory, but let me concede to him, for the purposes of the argument, that that is the position in practice. If that is so, then it weakens his case. The Act provides very clearly that there can be no prosecution unless I—assuming that I am the Attorney-General— order in writing that a prosecution be instituted, and surely it would be extremely foolish of me to say here in public that the Bill means one thing and then to go and order a prosecution in respect of something which I had said was not indictable. I would not only be placing myself in a ridiculous position by doing so, but I would also make myself extremely vulnerable as far as hon. members on the other side are concerned because they have the opportunity at all times to call me to account in that regard or to call any successor of mine to account.

Has no Minister of Justice ever set aside the decision of an attorney-general ?

That is not the point. It happened very frequently under the United Party Government. I know personally that it happened very frequently under the previous Government. But my predecessor said in this House that in these matters he would not interfere with the discretion of the attorneys-general, and I myself have never yet issued an order to an attorney-general. The attorneys-general use their own discretion; that has been my attitude all along. When I differ with an attorney-general, I tell him that I differ with him in this or that respect …

What is the attitude of your successor going to be? You cannot speak for him.

I have adopted an attitude here on behalf of my party, and the attitude I have adopted on behalf of my party will be also adopted by my successor.

But you have not followed the policy of your predecessor.

The hon. member for Florida (Mr. Miller) says that policies change; I know that. I did not listen to the news this morning, and I take it that the policy of the United Party is still the same as it was yesterday, but I know that policies do change. Sir, surely we have stated our attitude very clearly in public here; what are we still arguing about? When people talk about conduct which is prejudicial to the interests of the State, hon. members on the other side make the mistake of relating it to this Bill. The court is not concerned with my opinion or the opinion of any other individual in regard to what constitutes prejudice to the interests of the country. The attitude adopted by the courts is that each case must be considered on its merits. It is because this is such a difficult matter in the nature of things that the courts have adopted the attitude from time to time that each particular case must be judged on its merits. That is the attitude adopted by the courts when deciding whether the safety of the State has been threatened, or whether the security interests of the State have been prejudiced in any respect.

Sir, I am just putting the record straight; I want to repeat that this clause has nothing to do with ordinary crime investigation; it has nothing to do with ordinary police routine and police action and police measures; it is only concerned with the safety of the State and the interests of South Africa from the point of view of the security of the State.

Then you should have accepted our amendment.

And that is why you rejected our amendment!

No, we need not argue that again. Hon. members should rather go make some investigations of their own in this regard, then they will get much further. For record purposes, and to eliminate any possible misunderstanding that may arise as a result of the remark by the hon. member for Durban (North), I just want to make it perfectly clear that that is all that is contemplated here. That is how the Act will be administered, and not as suggested here by the hon. member for Durban (North).

Clause 2 put, and the Committee divided:

Tellers: W. H. Faurie and H. J. van Wyk.

Tellers: H. J. Bronkhorst and A. Hopewell.

Clause accordingly agreed to.

Remaining clauses put and agreed to.

Title of the Bill put and agreed to (Official Opposition dissenting).

House Resumed:

Bill reported without amendment.

During the past few days, particularly yesterday and this morning, we have had a strange attitude on the part of the Official Opposition. As regards the legislation now under discussion they are also adopting a rather strange attitude. As the hon. the Minister said in his introductory speech, it is really not necessary to discuss the merits of this legislation, because it is not new legislation that we are bringing before the House. Although this legislation is a consolidation of various laws, no substantial changes are being effected by it. As it is principles which are being consolidated, principles which already form part of our legislation, I do not consider it appropriate to discuss the merits of this Bill.

Besides, the various attitudes that exist in regard to the matter being dealt with in this Bill have on several occasions, both in this House and in the Other Place, been brought to our notice by way of motions. I think that most of us in this House do not want to turn South Africa into a Las Vegas or a Monaco, and therefore we feel that the position for the future must remain the same as it has been in the past, which is that gambling and the detrimental effects thereof must be restricted in South Africa. The Official Opposition have supported the principle of this Bill in the speeches they have made. All that they have asked by way of an amendment is that this Bill be referred to a Select Committee for consideration. The hon. member for Transkeian Territories (Mr. Hughes), who moved the amendment, was the main speaker on that side of the House, and he advanced certain reasons, very limited reasons, why in his opinion the Bill should be referred to a Select Committee. If it were the position that new principles were being introduced in this legislation, one might have considered the possibility of referring it to a Select Committee, but those hon. members know as well as we do that no new principles are being introduced in this legislation. In actual fact it is only a matter of consolidating and tidying up existing legislation. The hon. member for Transkeian Territories said that what they objected to in this Bill were the definitions of the terms “game of chance” and “lottery”. The hon. member said that he did not want the Minister to be empowered to say when something was a game of chance or a lottery. The hon. member said that he would prefer that to be determined by the courts. The hon. member and I are both attorneys, and it could really be expected that I should agree with him there, because if we provided that the courts should decide whether or not something was a game of chance or a lottery we would create a paradise for the lawyers. From that point of view it might therefore be a good thing, because if the Minister did not have to decide whether or not something was a game of chance or a lottery, it would mean that in all cases in which there was uncertainty people would have to go to court. We also realize that we are living in an age in which machines play a major part. In the case of lotteries and games of chance one often finds that a new machine or some new invention is used in playing a game of chance or in connection with a lottery. If it were conceded to the hon. member that the courts should decide, one can therefore foresee that it would mean that every time that a new machine which was being used for the purpose came onto the market there would be uncertainty as to whether or not the use of that machine amounted to a lottery or a game of chance. Instead of it then being possible to get an administrative decision in regard to the machine, the persons concerned would have to go to court, which would entail heavy costs and cause much more inconvenience to the persons affected. As a matter of fact, this matter, unlike many other matters, is not really one that can cause the man in the street a great deal of hardship. We find many of these machines in cafés and other public places or places of entertainment. Surely the question as to whether or not such a machine should be banned is not such an important one. Consequently this is not a very important consideration after all. It will not really cause any person or group of persons any hardship. I contend that if we left it to the courts, as the hon. member for Transkeian Territories would like us to do, it would cause the public much more hardship and much more uncertainty for the simple reason that, in that case, it would only be the courts which could decide. Every time a new machine appeared on the market, the question as to whether or not the use of that machine constituted a game of chance or a lottery would have to be tested in court. I have not yet been able to see the advantage in that, and I definitely think that it is very undesirable. The hon. member is not really asking that it should be changed in that way at this stage, but he asks us to refer the Bill to a Select Committee. He based his entire argument on the fact that he does not like the definition of “game of chance” and of “lottery”. That is his reason why it should be referred to a Select Committee.

The hon. member should tell us whether he means that we should introduce something new into this legislation. As far as this legislation is concerned, the Government is content to have a consolidation of what we already have.

Not in South West Africa.

A consolidation of what we already have.

Where?

In our legislation. The hon. member raised a further objection and said: “You are now making certain ordinances and laws which have only been applicable in one province applicable to the other provinces as well.” But he has no objection to that; his objection is to the definition of “game of chance” and of “lottery”. The hon. member did not tell us that he had any other objections. If he had any other objections, Sir, I take it that he would have told us.

I asked the hon. the Minister why he had not included the original South West Africa ordinances which provided for gambling and lotteries in certain cases.

I am not dealing with what the hon. member asked the Minister, but with the basis of his objection, and that is simply and solely the definition of “games of chance” and “lottery”. I want to prove to him now that there is no substance in his contention that we are making a law which is only applicable in Natal at the moment, applicable to the whole of the Republic of South Africa, for the reason that the hon. member does not object to the other provision that is made in this Bill. His objection to the definitions of “game of chance” and “lottery” is already applicable to what we are proposing now. As proposed by us now, this law is applicable not only to the Transvaal or Natal, but to the whole of South Africa.

I want to refer to Act No. 5 of 1939 and to show that what we are proposing here now, in fact amounts to a concession. This definition is in any case a much clearer definition than what we had previously. I want hon. members to take note of the fact that Act No. 5 of 1939 was not passed by a National Party Government. The hon. member strongly objects to the Minister having this power to decide when something is a lottery and when not. But what we are asking here is no more than already exists in terms of Act No. 5 of 1939.

It is not the same.

I know the definition is not the same, but two things need not be word for word the same to have the same meaning. I want to refer to the definition of “game of chance” in the proposed law. It reads—

The hon. member objects to the fact that the Minister is to declare whether or not something is a game of chance. If you look at the Act of 1939, which we are repealing now, you will see that it reads as follows—

1. (a) that any person who within the Union allows any person to use or operate, or exposes for use or operation by any person, any particular pin-table, machine or contrivance, named or described in the notice, or any pin-table, machine or contrivance of a make or type, so named or described, shall be deemed to conduct a lottery; …

I must admit that in this legislation no distinction is drawn between a game of chance and a lottery. What I have just read relates to a lottery. It continues—

1. (b) that any particular game or scheme, named or described in the notice, or any game or scheme of a type so named or described, … shall be deemed to be a lottery.

In other words, in terms of the old legislation any Minister may determine what type of machine or appliance must be used before something can be deemed to be a lottery. It goes so far as to say that when such a machine or appliance is used or is exposed by any person, the scheme concerned is deemed to be a lottery. It goes further and says that any game, which must also be determined by the Minister, will be deemed to be a lottery.

What more are we doing than was done in 1939? Can the hon. member tell me that? Is he dissatisfied with the 1939 Act? If not, why is he dissatisfied with the proposed definition in this Bill? If the hon. member had told me that he was dissatisfied with the existing legislation, then I would have understood his wanting new legislation and then it would be for the Government to decide whether or not it would grant him new legislation. But it is not the attitude of the Minister that there should be new legislation. The Minister wants to have the same definition of “game of chance” and “lottery” as existed previously and to which the hon. member had no objection.

There is a substantial difference between the old legislation and this Bill in the sense that games of chance and lotteries are not being coupled in the Bill. The two are dealt with separately. We are saying that a game of chance “includes any game which the Minister may from time to time by notice in the Gazette declare to be a game of chance”. That is the definition of “game of chance”. We say that “ ‘lottery’ means any lottery in the generally accepted meaning of the word, and more particularly …”. Then all the machines and appliances that may be used and the circumstances in which something will constitute a lottery are mentioned. Then it continues—

Sir, it is exactly the same. What we are saying in this Bill is that something is a game of chance or a lottery only when money or some prize or other is being competed for. That is something which, in fact, we did not have in the previous legislation. I think that is a concession as far as his objection is concerned.

Why?

Previously there was no specific provision that a prize had to be competed for. Now the definition provides that a prize has to be competed for before something constitutes a lottery. If the hon. member looks at Clause 6 he will see that a game of chance is a contravention only when it involves some prize or money. Only then is it a contravention. If a game is not played for gain, it is not a contravention, even though the Minister has declared it a game of chance.

When hon. members ask now that a Bill such as this be referred to a select committee …

Why are you opposed to that?

I shall tell you why I am opposed to that, Sir. I am opposed to that because of the fact that the hon. member advanced no cogent argument at all as to why a select committee was desirable. It would simply be a waste of time. When the Government introduces consolidating legislation we cannot allow the Opposition to make use of the opportunity to amend the laws as they would like to amend them, because apparently that is all that the hon. member is contemplating.

Is that not democratic government?

Hon. members on the opposite side can have their say, but they must not expect us simply to do as they say. Surely it is for the Government to decide what legislation it should introduce? This legislation is obviously a consolidation of existing legislation.

That is not so.

The objection raised by the hon. member for Transkeian Territories was a limited one. If he objects to this legislation he should have objected to the old legislation as well. The hon. member stated explicitly that his objection was to the definition of “game of chance” and of “lottery”. He wants the courts to decide. I have tried to show that if the courts had to decide it would cause much more hardship than it would cause as proposed here. Apart from that the position is indeed no different to what it was before. If hon. members on the opposite side are of the opinion that this measure should occupy the time of a Select Committee they must put forward much better arguments.

I think the hon. member for Ceres (Mr. S. L. Muller) made out a good case himself why this matter should be referred to a select committee. He indicated that this Bill, as far as the law of gambling was concerned, introduced no new principle. Sir, the Bill sets out to prohibit gambling and such a prohibition is an attitude or a state of outlook; it is not a principle. Views differ as to the degree of prohibition in various matters and views differ as to whether prohibition is the most appropriate way to deal with the subject of gambling or whether regulation is not better. Those are matters that can best be considered and thrashed out in a select committee. The hon. member is also rather confused when he says this is consolidation; it is a form of consolidation but it is not a consolidation of previous laws of which only certain aspects have been taken from various laws. I think that is another good reason why the matter should be referred to a select committee. A select committee could deal with the matter objectively in so far as it can be dealt with objectively.

As regards the legislation to which he has referred is concerned, I shall deal with that later. A wise Judge in the Transvaal once said “there is an element of chance in every game of skill and an element of skill in every game of chance”. That statement might be, what the lawyers call obiter dictum, but it is certain a good dictum. It is a wise appreciation of the hopes, the strengths and the frailties of human endeavour. At any rate, Sir, I too, speaking for myself, take that view in regard to the matter. I too see the skill in the games in which I may indulge in. I hasten to add, of course, that I accept that it has been my lack of skill which has accounted for chance not having come my way thus far. However, I adhere to the principle of the law of averages and I accept that skill may triumph in the long run.

I also accept that gambling is a form of human endeavour that should be directed and regulated. I believe that governments are placed in the best position to exercise that authority and to see to it that gambling is properly directed or properly regulated. That is why—again speaking for myself—I believe that a State lottery has been the best approach in modern times to the State’s intervention or participation—call it what you will—to ensure that there is suitable direction and regulation in all forms of games of chance. In all countries that I have visited where there has been this form of State supervision over lotteries I think the maxim “moderation in all things and toleration towards all men” has been exhibited very well. Many people will tell you that life itself is a lottery and a gamble; perhaps the biggest gamble of all. That may account for the fact why, over the centuries, nobody has yet been able to put a stop to the gambling spirit in men and women.

We are concerned here with a Bill which deals with prohibition of gambling and prohibition in this context, not only puts an end to toleration and moderation but it is also a weapon of despair. What the Bill is unfortunately doing is that it puts an end to toleration and I think it lets the kill-joys rule. I believe that in matters of this kind there should be toleration and moderation in respect of the subject under consideration. That is a very essential reason why a Bill of this nature should go to a select committee. Witnesses and views can be heard there, things thrashed out and a proposal produced which will deal with this social problem, in so far as it is a social problem, far better than it is dealt with here.

My main purpose, however, in coming into the debate is also to express my opposition to the proposed vesting in a single Minister of what really amounts to despotic powers instead of Parliament dealing with the matter itself. That is in fact what is contained in Clause 1. Just for the sake of the record I want to read the definitions again. The first definition reads as follows—

We have a similar situation in regard to lotteries. It gives details as to some lotteries and then ends—

That principle is embodied in all the other Acts.

Sir, I think we should be moving forward. There is too much looking over the shoulders sometimes. I think we might look forward in regard to some of these matters. Powers are here being vested in executive government to define from time to time what should be a game of chance and what should be a lottery. As the powers are vested in executive government they can, of course, be exercised quite arbitrarily or even capriciously if so desired by whoever is the Minister in charge at different times. We are not concerned with this Minister, Sir, or with his outlook when we deal with legislation of this kind. We are concerned with changes which may eventually take place.

In this instance you will also observe, Sir, that it is not merely a case of giving executive government power to legislate which is objectionable. In this case executive government is not going to legislate by way of proclamation or by way of rule; it is simply going to legislate in the form of a notice in the Gazette which is the lowest form of directive which can come from a Government on a legislative basis. That, I think, is also a serious aspect which, had the matter been referred to a select committee, could have been thrashed out and endeavours made to see if a better method could not have been adopted.

If the hon. the Minister and his advisers and draftsmen will be able, at some later stage, to define in a Government Gazette notice what constituted a game of chance why cannot they do so now and put it in the Bill itself. In these circumstances why not allow Parliament, i.e. both sides of the House, to examine what the Minister and his advisers intend prohibiting, to discuss it and either to accept or reject it in some positive legislative form. I ask this, because Parliament is here expected to legislate quite blindly again. The hon. Minister himself and also the hon. member for Ceres have referred to the Gambling Amendment Act No. 5 of 1939 and have used that as an example to justify what is now being done in this Bill. But I think that is a poor example and I will deal with that just now. My real question to the hon. Minister is why has he not adopted a later example? Why has he not adopted as the example Act 38 of 1949 which is also going to be repealed? Because in that Act “sporting event” and “sports pool” are specifically defined. The public know specifically what the Legislature is prohibiting, the courts are given complete guidance and can revolve the problem when it comes before them. That was a later example. Why not follow that example? I hope the hon. Minister will be able to indicate why not.

I come then to Act No. 5 of 1939, which is an “Act to amend the law relating to gambling”. I have said that it was a poor example, and it is a poor example because as a bit of legislation you cannot deal with it apart from earlier legislation. It is meaningless really as specific legislative direction about gambling; it must always be read in conjunction with some other law. It cannot stand alone, but must be read in conjunction with some other law and that is why, as far as I have been able to find out, charges which have involved this Act have always been charges under one of the other Gambling Acts read with this one.

There is also this aspect which must not be overlooked. When Act No. 5 of 1939, became law it was dealing with a new situation which obviously had not been dealt with in previous laws. Previously you did not have that sort of device, namely a pin-table and other machines and contrivances of that nature, and the government of the day found it necessary to include devices of that kind within the scope of a lottery.

That is sub-paragraph (a).

Yes. We now come to sub-paragraph (b). The hon. the Minister has not quoted a single instance where a notice issued under (b) has been used, other than to expand what is in (a). The only notices that have come to my notice are those which add to what is already in (a). They add some other sort of device, not a pin-table, but for instance a fruit-machine. It is quite clear to me what the Legislature had in mind at that time, namely, that when it said that executive government could prescribe particular games or schemes, it had in mind that it would be in amplification of what is provided in (a). What is contained under (a) was a new sort of social evil, if you want to put it that way, which was being legislated against, and the Legislature of the day left the law sufficiently wide—I think too wide—so that new machines, new contrivances of that nature could be brought within the scope of the prohibition merely by an executive regulation. I think that is how this legislation must be looked at. It is a poor example for doing what the hon. Minister now proposes to do generally in so far as this new legislation is concerned. It deprives Parliament of the opportunity of legislating as it has legislated in the past in regard to what the Government may claim are social evils, notwithstanding that in many such cases members on both sides of the House might also regard them as being social evils. And thus the Bill now leaves doubt where certainty could have been provided. If the second example, namely the definition of what a lottery is, had been used by setting out what constitutes a game of chance and then providing a sort of expansion route, I do not think the same objection would have been raised because quite obviously no executive authority would go outside the scope of the ambit which Parliament itself had set out. Just as I say happened in the case of Act 5 of 1939. I hope therefore that the hon. the Minister, even at this stage of the debate, will reconsider the matter and will realize that if legislation of this nature is to be workable and is to be acceptable, it should in the normal course of events go to a body such as a Select Committee to examine it and to improve upon it or get clarity at any rate on those matters in regard to which clarity is needed. Therefore I say that the Opposition has adopted the only correct course, by asking that the Bill should go to a Select Committee for consideration.

The hon. member for Ceres (Mr. S. L. Muller) posed the question why we on this side of the House are opposed to this legislation and the hon. member for Port Elizabeth (South) (Mr. Plewman) has given him a very reasoned legal exposition why we feel that this measure should go to a Select Committee. But generally speaking I would say to the hon. the Minister that one reason why we feel that this legislation should go to a Select Committee, is because of the uncertainty in the minds of the public as to what is law and what is not law in regard to gambling. The whole position as a result of the introduction of this Bill remains very indefinite and nobody will know from day to day what the law is and what a lottery as such constitutes or what the game of chance constitutes. If I may prove that, I would just like to quote a recent decision in the Hertzog Memorial Fund case in Pretoria, where the accused was found not guilty of running a lottery and was discharged. There the whole thing came down to what was a game of skill and whether it was a chance that the organizer of this particular function took, and that was to run a competition to ascertain the number of miles a light delivery van would run on 2½ gallons of petrol. Up to now it was contended, and that was why he was charged, that this was a game of chance, but the magistrate found that it was a game of skill. This is the uncertainty which is now prevalent in the public mind, especially as a result of this Bill. The question is asked: Why did the Minister find it necessary at this stage to introduce this Bill? My reaction is that he was wanting to stifle popular public opinion in favour of a lottery which is gathering momentum day by day, and the Minister felt that by bringing in this Bill he was going to intimidate the public against the purchase of lottery tickets and similar activities. Otherwise I cannot understand why there was a necessity at this stage of the country’s development, with all our problems and difficulties, to introduce a Bill of this kind. It has been described, and I think quite correctly, as a “you are warned” Bill, and that is what I think the Minister really meant to do by bringing in the Bill at this particular stage.

The public are particularly worried as a result of the power given to the Postmaster-General to intercept all mail addressed to a person who is found on inquiry to be conducting or acting as an agent for a lottery or sports pool. Before the position was that the authorities could only act in this case where people dealing in a lottery had been identified through advertisements and through circulars and other documentary evidence. Now the requirement that they have to be identified falls away and it is purely a question of an inquiry, and then they can be convicted and suffer all the indignities of a court case. The question is: Who is going to make these inquiries. How are they going to be made? This leaves a fear in the minds of the public. They ask whether all correspondence is not now under surveillance and under investigation. It is an unhappy thought when the public have to have this fear that merely because of the suspicion that letters addressed to a certain source may contain lottery money or sports pool money, that all letters as such can be opened. I think it is necessary that the Minister in his reply will set the public’s mind at rest once and for all as to what is going on in the Post Office in regard to the investigation of suspicious letters.

I would like to say that the Bill in its present form is a new “suspicion branch” with a chief suspector in the person of the Minister of Posts and Telegraphs and we must disillusion the public’s mind in that regard.

In referring to the Minister’s reply in the Other House to the debate on this Bill, one gets the impression that the hon. the Minister himself was not altogether happy and satisfied that he should introduce a Bill of this nature, because this is what he said—

He also said in this reply to one of the honourable Senators—

That was his reply to the request that the Bill should be sent to a select committee. Now if the Minister had these doubts, and if the Minister had to apologize for the form of the Bill and to say that it was not the type of Bill that he would have proposed, then I ask him why has he introduced the Bill at this particular stage? Why did he not leave it to the hon. Minister of Posts and Telegraphs to introduce an amendment to the Post Office Act which would have achieved the same object?

That reminds me of the story that the hon. Minister of Justice told us at our parliamentary golf match, last Saturday, at Paarl, when he spoke about his one caddy being sent to gaol, and when he made inquiries as to the reason why this caddy was sent to gaol, he found that it was a perfectly good reason, and he decided that the caddy should spend his sentence in gaol. When the caddy came out and the Minister played golf again on the next occasion, this caddy came up to him and said to him: “Master, I always thought you were a big shot, but after what happened to me, you are no longer a big shot.” And that was because this caddy had made the boast that he would not have to go to goal because he was the caddy for a big shot and he would not spend any time in gaol. I am wondering whether the hon. Minister is really such a big shot in introducing this Bill and whether he is not listening to the tune of some other master and being obliged to go ahead with this measure, which, I can assure him, is unpopular at this particular stage. This Bill will serve no useful purpose. It will merely force lotteries as such to go underground, and the Minister knows that with lotteries being forced to go underground, a considerable amount of money is going to leave our country.

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

Afternoon Sitting

When business was suspended, I was dealing with the aspect that so far as I could judge—and I hope I was able to convince the hon. the Minister to a certain extent—it was a pettifogging Bill and one that did not warrant to occupy the time of this House at this stage, and that certainly bigger issues are at stake to-day than the introduction of a Bill of this nature, whose avowed object, I am satisfied, is to kill organized lottery bodies where they were gathering round them public support and public opinion. Sir, the hon. Minister need only look at the time that is being taken up at the Post Office in scrutinizing suspected letters containing lottery material or sports pool money; we are aware as a result of a reply given in this House that up to late 1963, some 42,080 letters had been opened by the Post Office, involving an amount of 2,424 man-hours in attending to this particular sphere of work. Sir, with the shortage of manpower we are experiencing today, I maintain …

Order! That is not relevant now.

Sir, I am dealing with the lottery aspect of this Bill.

That has got nothing to do with this Bill.

Sir, the prohibition that the hon. Minister hopes to introduce here does not extend to race horses, and here I think the hon. Minister could take a much firmer stand once he has seen it advisable and necessary to restrict gambling. I think he should not have allowed the exemption in this Bill whereby bets on horse races are not affected. This Bill includes a clause specifying that it shall not interfere with the existing rights of the provinces in their control of horse-racing. What is more, this Bill specially goes out of its way to exempt sports pools or competitions, that is jack-pots, which are conducted by newspapers in connection with horse racing and other sporting events. These are exempted provided that no subscription is paid. Surely, Sir, this was the time for the Minister, if he is really the big shot that his two caddies, Soldier and Nugget, imagine him to be, surely this was the time to put his foot down and restrict gambling on horse-racing. What is more, I think he should have gone out of his way to see to it that this Bill provides that no future off-course betting is taking place, because where could you have a more farcical set-up than the introduction of this Bill here in an attempt to prevent gambling and on the other hand in the Transvaal Province the governing body giving consideration to the introduction of off-course totalizator betting, with all its ramifications and all its harmful effects. Sir, if the position is as serious as the hon. Minister has indicated to us, then I think this should have been a suitable opportunity to limit and restrict any further gambling on horse-racing. It should not be made easier for people to fritter away their money, their hard-earned money on slow horses.

Do tell me, do you want that?

As far as I am concerned, yes.

Is that United Party policy?

The hon. Minister knows as well as anyone of us that when it comes to a question of gambling, it is a matter of a free vote, and we express our free opinion, according to our own conscience in this matter, and we were not tied down as members on the other side are …

Order! The hon. member must not go further in that direction. He must return to the Bill.

The one aspect apparently goes as far that if it brings in taxes then it is permissible, but if it does not, then in the expression of the blue-stocking moralists, it is merely a question of morals of convenience.

Sir, in England, immediately after the war, football pools were introduced and to-day we find roughly 11,000,000 Britons each week participating in these football pools and having their harmless flutters, and nobody can say that England has become demoralized as a result of that, as contended by the hon. member for Ceres when he said that gambling in any form has a demoralizing effect. If that is so, how is it that that fine country of Holland that has had a lottery ever since the days of Napoleon, can certainly not be accused of being decadent, immoral or demoralized in any way? But in the same way that football pools took away some of the drabness in England after the war years, I am wondering if the hon. Minister with his good sense of humour would not consider football pools in South Africa to take our minds off politics?

What about election pools?

That is the gamble that you are also in for, and it may work against you. Sir, there is one provision in this Bill that provides for the possible conviction of anybody owning property in which a game of chance takes place, and it specifically provides that the owner and/or occupier of those premises would be liable under those circumstances if they are found conducting a game of chance. My question to the hon. Minister is: What is the liability of an absent landlord in premises where such games of chance may be taking place? Say a landlord is away from the property and totally unaware of what is taking place on his property, and is then confronted with a summons that a game of chance has taken place on his premises?

If he is absent, he cannot be found guilty.

According to Clause 2, the onus of proof is on the sellers or the buyers of tickets, and also on the occupants of premises where lotteries are held. I think it is necessary in the interest of clarity to ask the hon. Minister to define and explain what the position of an absent landlord in such cases would be.

He cannot be found guilty.

I think it will be very useful to know that.

This side of the House is opposing the Bill in its present form, mainly on the grounds that it goes too far and is too all-embracing and that it gives too much power to the hon. the Minister to define what is a game of chance and what is a lottery, enabling him merely by proclamation in the Gazette to decide arbitrarily what constitutes a game of chance or a lottery. But we do agree that it has become necessary for him to take powers to limit the harmful practice which has developed in cafés and restaurants where pin-tables are established, and where I think he will receive the support of probably all parents whose children are unnecessarily frittering away their pocket money on these useless pintables.

Sir, if it is sinful, if it is immoral, to break the every-day drabness by purchasing a R1 lottery ticket, then I think the hon. Minister is going to achieve his objective and he is going to be consistent with the general attitude on the other side of the House where we are told what we have to read, when we have to swim and with whom we have to associate. The time must come when there should be a little more latitude in these matters.

Order! The hon. member is right off the Bill now.

I just want to give one more reason for the hypocrisy shown in this Bill.

Order! The hon. member cannot use the word “hypocrisy”. Whom is he accusing of hypocrisy?

I withdraw it. I want to show the inconsistency which is so laughable in this Bill and I want the Minister to know that we need a spark of reality, and that is what we demand of the Government now a spark of reality to come between the conflict of morality and reality which is most apparent in this Bill.

The hon. member for Ceres (Mr. S. L. Muller), who is not in his seat now, is becoming well known as a soothing prophet. Invariably when he speaks on a Bill he over-simplifies the whole nature of the Bill. No doubt he assists the Minister very much. When the hon. member said that gambling affects the whole character of the nation, if one looks around the world, would he say that the character of the people of England, Italy, Australia and the U.S.A. has been affected by gambling, seeing that there are no restrictions there? I want to make the position clear. What this side of the House wants is some clarity on the definition of gambling. That is why we have asked for the Bill to be sent to a Select Committee. It is not a question of whether this side or that side supports the Bill. It is a question of personal choice as to what you want to do. You will probably find as many people on the Government side who support gambling as on this side of the House. The whole position of gambling has to be clarified. The Minister, in preparing this Bill, was not so happy himself, so he left it completely wide open so that he could publish his reaction in the Gazette from time to time to control the various schemes which people may get up to gamble. A definition of “gambling” is wanted, and we feel that if it is sent to a Select Committee we may get that definition. The Government are well known in this country as being killjoys. It has been said in this House, and I repeat it, that you cannot read a book to-day without its having been referred to a Publications Board and you cannot do much in the way of entertainment without having a permit, and now we have this Gambling Bill. One has the feeling that when the Minister introduced this Bill that there had been an outbreak of illicit gambling in this country and he found it necessary to take action, but the only matter we can think of which caused the Minister to introduce this Bill was the case last year when the Minister of Posts and Telegraphs grabbed all the money in the post which was apparently being used for the purchase of sweepstake tickets. Judging by the Minister’s words in his introductory speech, they apparently did not have the power to do what they did and I hope we can look forward to the Minister of Posts and Telegraphs returning the money without the people having to make application for it.

Where do you get that from?

In Clause 13, where you seek to tighten up the Posts and Telegraphs regulations.

You evidently have not read the Bill.

It states clearly here what the Minister of Posts can do. They never had those powers before.

They have always had those powers. Only one word is being inserted there.

But one word can change the whole context of any Act. This Bill may not contain any new principle, and that is possibly so, but there is no doubt that the Minister has put the screws on some of the mildest forms of gambling. You have the universities raising funds by various competitions, and charities also do so. These competitions, notwithstanding that they may be beyond the law, are run completely bone fide and the results are published and there is no suggestion of anything underhand.

What competitions are you referring to?

Well, take Bingo and the University rag competitions. The coupon is published, showing what you should do in order to win a prize, and the results are published.

What sort of competitions are you referring to?

I am referring to the university competitions, where they have a guessing competition. In terms of this Bill, that will be illegal. The Minister interjects. It is quite evident that he is not so happy himself as to what gambling is. It is quite apparent that we should have this investigation by a Select Committee. As was said by other hon. members, the Minister, in introducing this Bill, must have done it with his tongue in his cheek.

Order! The hon. member must take his tongue out of his cheek.

I will not suggest that he take his tongue out of his cheek, but I withdraw it. There is horse-racing, to which there is reference in the Bill. We have jackpots and sweepstakes, and what you cannot get outside the track you can get inside the track, so really it defeats the whole object of this Bill. As the hon. member for Springs said, horse-racing is encouraged by the Provincial Administrations and a substantial amount of money is collected in taxes from it. It is probably one of the most prolific sources of taxation they have. I think it was right for the State to close down dog-racing, but you have horse-racing to-day and the Minister must consider of what he is doing. On the one hand he is closing the gate and on the other hand he is leaving it open, with the result that you will find more members of the public, instead of having an innocent flutter, will go to the race-track where they can take a ticket on a jackpot, which is just a lottery.

In the saving clause, Clause 10, it says it is not gambling if a subscription is not paid. Have you ever heard of a gambling game where no subscription is paid? What do we play for? Matches or beans? It is ridiculous to put such a clause in. Then there is another item which should be cleared up. It says here that competitions run by newspapers will be exempt. No subscription is paid, but what about the 3c you pay to buy a newspaper? Is that not a subscription? Then you have Springbok Radio where substantial sums of money are allocated to people who guess certain things correctly. Admittedly they come there by invitation, but they cannot listen to the programme unless they pay a radio licence fee, so they pay a subscription. The Minister shakes his head; he is worried. We say these things should be clarified.

The question of a national lottery comes up from time to time, and there is no doubt about it that if there was a question of changing the Government by a referendum in regard to a national lottery. …

Order! That point has been dealt with before.

I just wanted to say that there would then be a change of Government. Then there is the question of having a lottery ticket in your possession. The Minister knows that organizations overseas get hold of a South African directory and post books of tickets to the addresses therein. They arrive through the post, you do not know what is arriving and you accept them. But the interim postal authorities can seize them and you would be liable for having these tickets sent to you. That is what it looks like to me. It is a matter which the Minister should consider.

Another item is the publication of lotteries by newspapers. That also goes very far. There are hundreds of foreign newspapers coming into this country. They are read by the public, they give the results of racing and football pools and sweepstakes in England and other countries. These things are published here, and that is an offence. I do not know whether I am right or wrong, but it seems like it.

There is another innocent form of gambling. I do not know whether the Minister has ever played it, but he is a man of the world. One occassionally goes into a bar and one plays dice. I suppose that will be prohibited. These things want definition and clarity, and that is what we ask for. It is not a question of whether we are in favour of gambling or not. I think it has been proved by the hon. member for Ceres that when we were in power we passed Acts to control gambling. It is up to the Government to clarify what gambling is. Let us send the Bill to a Select Committee and get clarity. At the moment it is vague.

All of us have our off-days. On some days we do not feel so well and we cannot give off our best, but really when one does rise in all earnestness to participate in a debate in this House and one speaks as did the hon. member for Salt River (Mr. Timoney), one does not do oneself a favour nor does one do the House a favour. What must people think of those of us sitting in this House when they read a speech of that nature, childish nonsense from start to finish, a speech taking no consideration of the provisions of the law and one made without the hon. member making it using his sound common sense for one moment?

There is thus very little for me to reply to in this debate. I think that I must confine myself in the first place to a question which was put to me by the hon. member for Transkeian Territories (Mr. Hughes) when he adopted the attitude—and the hon. member for Port Elizabeth (South) (Mr. Plewman) returned to this matter at a later stage—that we should leave this matter to the courts: that we should formulate a definition in this regard and then come to Parliament from time to time to extend the definition if necessary. That is a fair question. My reply to it is that we do have a definition but we go further, we say that the Minister will also have the power to add to that definition. We do not exclude the courts nor do we try to give a definition because the definition is contained in the Bill. This has always been the case. The hon. member will remember that he asked me by way of interjection what the courts had to decide upon in the past. They will continue to have to decide in terms of this Bill as well whether a specific thing which a man does falls within the scope of this definition or not. I want to repeat that there is nothing which is done under this law or which may not be done which did not also apply under the various old laws.

I want to go further, particularly in pursuance of what the hon. member for Port Elizabeth (South) said in regard to the 1939 Act. I do not know whether the hon. member went so far as to read the motivation for the introduction of that Act as it appeared in Hansard. From this I obtained the principle that the Minister can make additions from time to time. The 1939 Act was introduced by no less a person than the late General Smuts himself, and this is what I find in Col. 399 of Hansard of 16 February 1939. General Smuts, as Minister of Justice, had this to say (translation)—

The United Party was in power at the time. I notice here, inter alia, an interjection by the hon. member for Green Point who was strongly opposed to a state lottery. The principle that the Minister can declare certain games to be gambling is therefore not a discovery of mine or of this Government. It has been inserted in the Bill for very good reasons and if hon. members will read the speech of the late General Smuts they will see the good reasons which he advanced as to why the Minister should receive those powers. I want to repeat that not one single new principle is being introduced in this Bill. I have told hon. members to look at the schedule and to see how many various laws there are dealing with this matter. Have hon. members ever placed themselves in the position of a young constable to whom a complaint is made? Have they ever considered the difficulty which he will have of having to consult all these laws in order to find out what constitutes an offence and what does not constitute an offence? There are 21 of these laws. That is why I cannot appreciate the attitude adopted by the hon. member for Springs (Mr. Taurog) who said that people do not know what the law is. It is precisely in order to enable these people to know what the law is that we are introducing this Bill because it is merely a consolidation of existing laws. For the first time now since 1860 when the first law was introduced we are consolidating all these laws so that everyone will be able to know what the precise provisions of the law in this regard are.

But they are not the same.

From the nature of the case they cannot be the same because the laws of the various provinces were not the same. We are now taking a cross-section of all of them and we are making one law in this regard.

We want a Select Committee to decide what the law should be.

No, that was not the argument which was advanced by hon. members opposite. The argument of hon. members opposite was that the position should be flexible and that certain types of gambling should be permitted. Each argument by hon. members opposite contained two elements. The one was that we should permit gambling and that if we did not want to permit it. we should abolish horse racing. This has consistently been the general argument advanced by hon. members opposite, including the hon. member for Springs. I want to make it quite clear that the 1945 Act left the question of horse racing to the provinces and it is not my intention to meddle with that principle at all. It falls beyond the scope of my functions and that is why there is a provision to that effect in this Bill. But hon. members continue to harp on this argument and I want once again to make this offer to them. They still control one provincial council, and that is in Natal. If they are in earnest as far as their argument in connection with horse racing is concerned, I want to make them this offer: If they abolish the “July”, I shall make it my business to abolish horse racing in the rest of the Republic.

We would prefer to extend it.

They have control in Natal and so they can do it at any time. As soon as they report to me that they have done this in Natal, I shall do it in the rest of the Republic. But until hon. members are prepared to do it, they must not expect me to interfere with the powers of the provinces in this regard because these powers were given to the provinces specifically in 1945.

You are the Government, not we.

Hon. members must show me how I must do my duty. The best way to show me how I must do my duty is to do something which will make me ashamed and which will embarrass me. If they abolish horse racing in Natal, they will certainly embarrass me and then I shall be compelled to take matters further.

The hon. member for Springs advanced the argument that the reason why we were introducing this Bill was because a group of people came together, a group of people in favour of a lottery, and advocated the introduction of a lottery. But it has not simply been since to-day that people have come together in this way. People have been coming together in this way from the beginning. When the United Party were in power there was a very strong organization which wanted a state lottery but hon. members opposite were consistently opposed to it, for very good reasons, and even up to to-day—I think the hon. member for Yeoville (Mr. S. J. M. Steyn) will correct me if I am wrong—it is not United Party policy to have lotteries.

What is your attitude in regard to premium bonds?

The attitude of this side of the House has been set out by the hon. the Minister of Finance. He advanced the argument that it was not valid. I am not trying to score off anyone. I simply say that the attitude of this side is that we are opposed to it and, as far as I know, hon. members opposite did not accept the principle at their Union Congress either, and that is the policy-making body.

The John Vorster branch of the Nationalist Party was not opposed to it.

That may be so. Even though there were 12 Etienne Malan branches in favour of it, it would make no difference as far as the attitude which I would adopt is concerned. We are not concerned with new provisions which make it necessary to refer the Bill to the Select Committee. All that I am doing is to consolidate all the provisions dealing with this matter into one Bill so that they can be easily understood by hon. members, by the entire country and specifically, by the officials who are concerned in this regard.

The hon. member for Port Elizabeth (South) and others are fond of using the argument that this is a “kill-joy” Bill. On the contrary, I have provided in the Bill that what a person does in the privacy of his own home is no concern of mine, nor is it affected by this Bill. Hon. members must, after all, realize—and we must all show a sense of responsibility—that one cannot allow what is prohibited by the law to go on in public without doing immeasurable moral harm to the public.

What is the position as far as clubs are concerned?

That point is dealt with in the Bill. Gambling on any premises to which the public are admitted, or which are used consistently for this purpose, constitutes an offence. If we do not insert a provision of this nature, a hundred of these so-called clubs will come into being over night. Hon. members have referred to these motor-car competitions and reference was made to the case in Johannesburg. This was under the old law. These people were charged under the old law and the court found—and I am satisfied in this regard—that it was not a lottery, and the people were found not guilty. I do not even know why the hon. member saw fit to raise this matter during this debate. I repeat, in conclusion, that I and my Department have made it our task to consolidate the existing legislation into one law and make it as easy to follow as possible so that we will all know precisely what we may and may not do, because the excuse in the past has always been that these provisions were bound up in a multitude of laws some of which were no longer even available and people did not know what they could or could not do. Hon. members say that the Bill should be referred to a Select Committee and that we can then decide in regard to lotteries, but we have had various motions in this House. We have had one this year. The attitude of the House was consistently that we were opposed to it.

But we did not vote.

We voted in this regard last year and, if I remember correctly, we voted the year previously as well. Hon. members know what their party’s official policy is and what our policy is. Why must we argue about this matter when the official policy of both parties is opposed to this question?

We are prepared to exclude the Whips.

Every man can vote according to his own conscience.

But this is a strange thing. What does the official policy of a party as adopted at its Congress mean if its members are free to vote on the matter here? Who is one bluffing in this regard? Hon. members opposite say that their official policy is that they are not in favour of gambling but they allow all their members to advocate gambling. If that is the case, they are not honest in their attitude. Our attitude is that we are opposed to it. [Interjection.] May I ask hon. members opposite whether their members are opposed to gambling?

Our Party leaves it to the individual.

Order! I think that the hon. the Minister must come back to the Bill.

I agree. I think that the Bill is more interesting than the policy of the United Party.

I feel that it will be a waste of time, as the hon. member for Ceres (Mr. S. L. Muller) so rightly said, to refer this Bill to a Select Committee. One only refers a Bill to a Select Committee when it contains a new principle. There is no new principle contained in this Bill and so I am sorry but I cannot accept the amendment of the hon. member.

Question put: That all the words after “That” stand part of the motion,

Upon which the House divided:

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

Tellers: A. Hopewell and T. G. Hughes.

Question affirmed and amendment dropped.

Motion accordingly agreed to and Bill read a Second Time

I want to move the following amendment—

There are five references to accountants in the Act. In Section 58 they are referred to as registered accountants and in Section 65 they are simply referred to as accountants, and the purpose of this amendment is to clarify the position so that it will be quite clearly understood that “accountant” is a registered accountant.

I have pleasure in accepting the amendment of the hon. member for Parktown (Mr. Emdin). Indeed, I instructed my Department to frame a similar amendment, and the wording of that amendment differs only slightly from that of the hon. member for Parktown. I shall appreciate it if the hon. member will not insist on his amendment. I move accordingly.

I have pleasure in withdrawing my amendment.

Amendment moved by Mr. Emdin, with leave of the Committee, withdrawn.

I move—

1. (ii) “accountant” means a person registered as an accountant and auditor under the Public Accountants’ and Auditors’ Act, 1951 (Act No. 51 of 1951).

Agreed to.

Clause, as amended, put and agreed to.

On Clause 6,

The words “for the purposes of this Act” appear in line 25 of this clause which deals with the appointment of appraisers to evaluate property. Sir, these words do not appear in the original Act, and it seems to me that by adding these words in this particular clause the Minister is actually limiting the scope of the services of sworn appraisers appointed under this Act. In the past sworn appraisers, as we know them, and as they have practised throughout South Africa, have only been appointed under the present Act. They have been appointed by the Minister and there has been no limitation placed on the scope of their activities. Sir, over the years sworn appraisers have enjoyed a certain standing and prestige in South Africa. Their services have been used not only for the purpose of evaluating property in deceased estates but also in many other capacities. They play a very important part in arbitration proceedings when property is expropriated by the Government or by provincial or local authorities; they play an important part in connection with the sale of farm land where valuations are called for, and in addition to that, where local authorities have to compile a list of rateable property in the particular municipality. A sworn appraiser from outside is called in to assist the city or town valuer in arriving at what is regarded as a reasonable valuation, and the assessment rates of the city are then eventually based on those valuations. We have over the years accepted the term “sworn appraiser” as having a specific meaning. Sworn appraisers have been used not only for the purposes of evaluating property, whether movable or immovable,

under the Estates Act, but also for other purposes. I am sure that representations must have been made to the Minister with regard to the effect of the addition of these words. It is feared that the addition of these words will be construed as meaning that “sworn appraiser” refers only to a person appointed by the Minister for the purposes of this Act. Sir, a few years ago the Administration of Estates Act was amended in one of the General Law Amendment Bills, I think, and in that amendment the word “minister” was substituted for “master” and the effect of that amendment is that whereas the Master used to make these appointments, the appointment of sworn appraisers is now entirely the prerogative of the Minister. That amendment contained in the General Law Amendment Act has since been repealed, and the only measure under which sworn appraisers can be appontied will be this Bill when it becomes law. I think there must be one or two members in this House who know a little more about the subject because they are either sworn appraisers or partners in firms in which sworn appraisers are employed. Members who are practising attorneys in the country know the importance and the significance of the term “sworn appraiser”. My only fear is that the insertion of these words will lower the standing or the status of sworn appraisers. Of course, any individual may evaluate property, and in giving evidence in arbitration proceedings, for example, he would state his experience in evaluating property, and the arbitrator will then be able to decide what value to attach to the appraisement of that particular person. We know that valuations made by sworn appraisers have in the past carried a tremendous amount of weight. We know that the Master has been extremely careful in appointing sworn appraisers to ensure that only the right persons are appointed and the Minister has done the same filing since the amendment to which I referred. Only auctioneers or estate agents or other persons who have the requisite qualifications have been appointed as sworn appraisers. In recent years estate agents and others who have done this work have formed an Institute of Valuers, to which persons may apply for membership if they have the necessary qualifications for evaluating property. This Institute, however, is not recognized by law. In other words it is not like the Law Society or the Medical Council which has legal status because of the fact that they are bodies incorporated by Statute. I would like to hear what the hon. the Minister’s views are on this particular issue. I should like him to enlighten us as to why it was found necessary to place a limitation on the activities of sworn appraisers as we now find in this Bill.

Why do you say that there is a limitation?

Let me refer the Minister to Section 10 of the present Act, which provides that every master (now the Minister) may from time to time appoint persons to act as appraisers for the valuation of property and revoke any appointment so made. Then it goes on to say that every such appraiser shall be entitled to demand and receive reasonable compensation which is assessed according to a tariff and taxed by the Master. But there is no question of the sworn appraiser being appointed under the Act as it now stands “for the purposes of this Act”. Those words have now been added in this Bill. Not only may this create the impression, but I am sure that these words are going to be interpreted as meaning, that the appointment is only for the purposes of the Act.

No, he can do all sorts of valuations.

Let me give the Minister a concrete example. Take the case where property is expropriated by local authorities. The local authority then asks for a valuation. There are dozens of people who could give an opinion as to the value of property, but when you produce a document which is signed by a sworn appraiser, that valuation carries a great deal of weight. The sworn appraiser can also give evidence himself and explain how he arrived at his valuation. He has a certain standing in the eyes of the local authorities. The valuation of a sworn appraiser also carries a great deal of weight in arbitration proceedings where property is expropriated. As the hon. the Minister knows from his experience as a former practising attorney sworn appraisers are used for many purposes. If this limitation …

But there is no limitation.

Why then are the words “for the purposes of this Act” being inserted? If the Minister explains that point satisfactorily then we can take the matter further.

There is only one Act in terms of which sworn appraisers are appointed and that is the Administration of Estates Act. In the first instance the man is appointed as a valuator of estates, but because of this fact he has a certain status, as the hon. member said. People are inclined to take more notice of the valuation of a sworn appraiser than of the valuation of a person who is not a sworn appraiser. The simple fact that we are now setting him apart in the Administration of Estates Bill and appointing him specially in terms of the Administration of Estates Bill gives him a status but it does not prevent his doing a valuation for a municipality or for a private individual or under the Group Areas Act. It does not prevent his doing this at all. On the contrary, it gives him improved status because of the fact that he is specifically mentioned in this Bill, just as he was mentioned in the previous Act.

Will the same care and prudence be exercised in the future as far as the appointment of sworn valuators is concerned?

Yes.

In other words, it will be regarded as a specific appointment with the same status attached to it as in the past?

Yes.

I feel concerned about the insertion of these words. These words did not appear in the old Act. If we look at the Afrikaans text we see that it is provided (translation)—

It is not quite clear to me what the position will be in the future if these words are inserted as it is now proposed to do. Such a person will now “for the purposes of this Act” be appointed as a “sworn appraiser” and not as an ordinary appraiser because any man on the street can act as an appraiser. But if such person is appointed as a sworn appraiser to value property for the purposes of this Act, I must draw the conclusion that he can only value property as a sworn appraiser for the purposes of this Act and not for any other purposes.

No, that is not the idea.

If that is not the idea, I am pleased to hear it and I think that we should try to clarify the position a little more in some or other way. But I just want to bring a few points in this connection to the attention of the Committee. I myself am a sworn appraiser and I think that probably half of the work I do as sworn appraiser has nothing to do with the State. I am very often asked to make a sworn valuation of a farm for loan purposes. I am asked to make a sworn valuation because I am a sworn appraiser. The hon. the Minister now says that my appointment as a sworn appraiser will continue to authorize me to make a valuation in that capacity even though that valuation is not made for estate purposes. But then I do not know what these few words mean. I want to come now to this further point: During the past years the Masters were always very insistent upon the fact that there should not be a spirit of competition amongst sworn appraisers, and when a sworn appraiser drew up an account, he had to do so according to the tariff laid down by the Master. If he submitted his account and the Master found that his fee was lower than the tariff laid down, the Master simply altered the amount to what it should have been according to the tariff. When I make a valuation of this nature for the purposes of a loan, I draw up my account according to the tariff and then I have my account taxed. My next question is this: If a sworn appraiser is only appointed for the purposes of this Bill, will the Master always be prepared to have my account taxed when I make a valuation for purposes other than estate purposes? If the Master is not prepared to do so as a result of the insertion of these words, it is then going to affect the position of the sworn appraiser detrimentally because then we will find that every Tom, Dick and Harry will compete with one another in regard to prices and also in regard to the valuation which has to be made, and this will in my opinion have a detrimental affect upon the status of sworn appraisers. That is why I feel that we should rather leave the position unchanged, unless it is really necessary to insert these words, in order to protect the status of the sworn appraiser. If it is necessary then I am prepared to move an amendment to such effect but I just want to state generally that I am rather concerned about the fact that we are now expected to dispose of this matter at this stage. Two pages of amendments have been moved to this Bill. It is a Bill which affects every person in the country; it is an extremely important measure and I shall really be very pleased if we can report progress so that hon. members will have time to study all these proposed amendments during the recess and so be better equipped to deal with this important measure at a later stage.

I would like to support what the hon. member for Ceres (Mr. S. L. Muller) has said. The danger of this Clause as it stands is that there is a possibility that we may now have two classes of sworn appraisers, a sworn appraiser under this Act and an appraiser for all other purposes. A sworn appraiser under this Act and a sworn appraiser for other purposes could be the same person. There is a possibility as I read this Clause that you could have a sworn appraiser making sworn appraisements not under this Act and you could then have two classes of sworn appraisers.

There is no authority to appoint a man as a sworn appraiser under any other Act, except specific Acts such as the Group Areas Act, and others.

Sir, a doubt has been raised in regard to this matter. Not only has some doubt been expressed in this House by members of this Committee, but representations have been made by various interested parties who are concerned about the wording of this Clause as it now stands. I think the matter should be cleared up beyond all doubt.

I agree that if there is any doubt the position should be clarified.

Sir, I agree with the hon. the Minister. I do not think there should be any doubt at all as to the standing of sworn appraisers or as to the value of appraisements made by them. After all, a sworn appraisement is at best a matter of opinion and there must be a certain standard of values. There have been many cases where sworn appraisers have made different valuations and those differences have come before the courts. The courts, in cross-examining the sworn appraisements concerned, have always asked to substantiate their valuations; to explain how they arrive at their valuations. As a general rule sworn appraisers are men who have had experience in their particular districts, and that is why the law rightly limits the sworn appraiser to a certain district. A man is not appointed as a sworn appraiser for the whole country. He is appointed as sworn appraiser for a particular district because he is presumed to have a peculiar knowledge of the circumstances and the conditions in that district. He knows the market and the trade position in that district. Generally his knowledge of affairs is such that he can say with assurance, before the court, what he regards as a reasonable and fair value at the time. That is what he is required to swear to, namely, that that is a reasonable value at that particular time because, as you know, Sir, values change from time to time. As a doubt has been raised by both sides of the House as to the interpretation of this wording I hope the hon. the Minister will give the matter consideration so that the status of the sworn appraiser is not altered and so that the parties concerned will in no way feel prejudiced by this amendment.

I would like to associate myself with the remarks made by the hon. member for Ceres in telling the Minister that there is definitely a great deal of confusion and doubt as to what this Clause really means as far as the work of a sworn appraiser is concerned. Representations in this regard have been made by the Institute of Valuers, which is a voluntary body, as the hon. member for Florida (Mr. Miller) has pointed out with no legal standing to enforce any particular point of view. If the hon. the Minister has any doubt at all that there may be some confusion in our thinking in this regard I want to refer him to Clause 6 (5), which, read in conjunction with 6 (1) where the words “for the purpose of this Act” are inserted, will mean—

If we leave in the words “for the purposes of this Act” I am inclined to think that no appraiser will be able to submit an account to the Master for taxation other than for the purposes of the Administration of Estates Act. If that is so then difficulties raised by the hon. members for Ceres and Pinetown (Mr. Hopewell) become very real indeed. It would be a great pity if, in regard to this clause, we were to find that sworn appraisers were excluded from having their accounts taxed for work other than work connected with the administration of estates. In the case of new companies being floated, for instance, the directors call upon a sworn appraiser to make an assessment of the property which is a very important feature in the public’s assessment of the value of that company. If this appraisement is allowed to be hawked round from one valuer to another then I see a great deal of malpractices taking place. Similarly in rent board cases an appraiser, up to now, has had a certain locus standi and status. In this case too you can have the same situation arising where fees can be slashed; competition in regard to fees will come into play and the public will not be sure that the valuation is fair and reasonable.

As I see it to judge from discussions I have had with a number of people and bodies interested in this matter they are definitely of the opinion that two separate classes of appraisers will be established: one, the sworn appraiser who will be able to have his account taxed and, two, the ordinary valuer who will compete with the sworn appraiser …

That has always been the case.

No, Sir, with due respect that has not been the case because to-day you get your account taxed by the Master for any appraisement done outside the administration of estates.

But there is no authority or law which provides for that.

I think the hon. the Minister has touched on the very point that is worrying us. We are worrying that, by the introduction of the words “for the purposes of this Act,” we will not continue to enjoy the privilege of having accounts taxed by the Master as we have done in the past. Once you remove that security from the public’s point of view I think we are opening the doors very wide to malpractices and bad features in valuations. As we see it, I do not think that was really the effect the Minister wanted to introduce into the work of a sworn appraiser. If the Minister will hold this over I will not move the amendment I was going to move but give him an opportunity of clearing up the whole position thereby removing confusion from the minds of the public. It was my intention—and if the Minister feels it will serve a useful purpose I shall still do so—to move in lines 25 and 26 to omit, after the word “property” the words “for the purposes of this Act”. That would bring the position back to what it was in the old Act. The hon. the Minister may find a more satisfactory way of overcoming this problem and I shall accept his decision.

The position as I see it—hon. members who have more practical experience of this matter than I have can tell me whether I am wrong—is that persons were appointed as sworn appraisers under the old Administration of Estates Act. As a result of the fact that they were sworn appraisers for the purposes of the Administration of Estates Act they also made other valuations which had nothing to do with estates as such. It is self-evident that people preferred to instruct these persons to make valuations, because they had the status of sworn appraisers. The valuations made by a sworn appraiser in terms of the Administration of Estates Act naturally have to be taxed by the Master, but such an appraiser also makes other valuations, which he also has taxed by the Master, although it is not necessary for him to do so. Nor is he obliged to adhere to any fixed fee for such valuations. He may charge three times the fees he would have charged in the case of an estate. There is nothing to prevent him from doing so and nobody can stop him. The practice is that all accounts submitted by appraisers are sent to the Master to be taxed, but there is no legal obligation upon an appraiser to observe this practice. At the same time there is no legal sanction if an appraiser fails to do so. That position remains unchanged. As I understand the position, no change whatsoever is being made here. I should like to come to the assistance of hon. members, but at the moment I cannot see what their objections are. I shall be very glad if they will explain their objections further.

The question has been asked whether any other person may make a valuation if he has not been appointed as a sworn appraiser. The position has always been that any person may make a valuation. There is no law which provides that people may not make valuations unless they are sworn appraisers. Many people have agitated in the past for the introduction of an Act dealing specifically with appraisers, but that is quite another matter. The fact of the matter is that in the past the only source of appointment has been the Administration of Estates Act, and appointments have been made for the purposes of the Administration of Estates Act alone. It is from this that the other valuations have developed.

I also feel worried about this clause. These words either mean something or they do not. If they do mean anything they must mean that the existing position is being altered. Where the Master appointed me as an appraiser in the past, he appointed me as a sworn appraiser. I made sworn valuations and signed them in my capacity as sworn appraiser. In other words, in so doing I indicated to the public that I had been appointed by the Master to do that type of work, and not only for the purposes of estates, because under the existing Act he could appoint me not only for the purposes of estates but for the purpose of making any sworn valuation.

He did not have the power to appoint you for anything else.

Then I say that by usage the position developed in the legal world that I was allowed to use the words “sworn appraiser” because I had been appointed by the Master. If in future I make a sworn valuation, and describe myself as “sworn appraiser” in signing the valuation, I will be pretending to be something which I am not in fact because I can only make a valuation for the purposes of this Act. That places the sworn appraiser in a very difficult position. Any person can make a valuation, but he does not have the right to append the words “sworn appraiser” to his valuation because he is not acting in terms of this Act. It is not only the Master who acts in terms of this Act, but also the sworn appraiser. That is really the point, Sir. The practice has developed in the legal world that the Master has shut his eyes to the fact that persons who have been appointed as sworn appraisers in terms of this Act have been making other valuations as well. The Master has put his seal upon it, as it were, by taxing the accounts of such persons and by recognizing that they also make valuations which do not fall under the Administration of Estates Act. If this interpretation is correct, then both the Master and the sworn appraisers have gone beyond the provisions of the Act in the past. Surely this interpretation cannot be right, because why are the words being inserted now? Surely one cannot insert words in a Bill without bringing about a change in the existing legal practice? If the existing legal practice was in order without these words, why do these words have to be inserted now? Surely the Minister must have some object in mind in inserting these words, and that is to impose certain restrictions in this regard, otherwise words simply have no meaning. That is how I see the position, Mr. Chairman, with due deference. I have serious misgivings as far as this clause is concerned and I want to ask that the matter be considered carefully, because it is going to create a very difficult situation for sworn appraisers in the future. They will certainly not be able to use the designation ‘‘sworn appraiser”. They will not be able to use it in connection with valuations which they make in terms of the Water Act, under which Act a great deal of use is made of the services of sworn appraisers, whose accounts are also taxed by the Master.

I want to associate myself with what has been said by the hon. member for Heilbron (Mr. Froneman) and the hon. member for Ceres (Mr. S. L. Muller) in regard to the words “for the purposes of this Act”. The hon. member for Florida (Mr. Muller) also spoke about this, and I agree with him as well. In practice, when a property is not being valued for the purposes of the Administration of Estates Act, the appraiser signs it with the words “sworn appraiser for the Master of the Supreme Court”. That is done in the case of building societies which call for sworn valuations of properties; it is done in the case of insurance companies, town councils, and so forth. What will the position be in future? In terms of Clause 6 (5) the Master can refuse to tax the account if the valuation has not been made for the purposes of this Act. He can simply say: “I have nothing to do with it; it was not done for the purposes of this Act.” In the past the practices has been for the Master to charge a taxing fee in respect of every account taxed by him. Now he will simply say, “No, I am no longer going to do it”. In terms of the Land Bank Act, the Land Bank has special appraisers who value properties for the purpose of the Land Bank, and they cannot value properties for the purposes of estates, nor for the purposes of loans from insurance companies. I feel that these words are definitely unnecessary and that the clause should be amended, particularly in view of the fact that the old Act has functioned well since 1913 up to the present time, as has also been stated by the hon. member for Heilbron. I want to associate myself with what has been said by the hon. member for Ceres (Mr. S. L. Muller) in regard to the importance of this legislation. At this late stage we are now being expected—not under this clause, but I hope you will allow me just to say a few words in this regard, Mr. Chairman—as regards this important Act, which for 50 years. …

Order! The hon. member must confine himself to the clause.

I just want to ask whether we cannot let it stand over. …

No, the hon. member cannot do so.

May I not raise it as a point of order, Sir?

No, it is not a point of order. The hon. member must confine himself to the clause.

I have had long experience of valuation business. My firm was a big firm and we were allowed only one sworn appraiser by the Master. I agree entirely with the hon. member for Ceres (Mr. S. L. Muller). Half the work done by my firm was not in connection with estates. Frankly it is news to me that the Master is not obliged to tax bills if they are not connected with appraisement concerning estates. But they are invariably submitted to him and he invariably taxes them. It has quite definitely become a practice. Every three years the Valuation Court in Johannesburg values every stand in Johannesburg and we pay our rates on that value. When it comes to big properties there is a tremendous lot of argument and without fail the owner of the land claims, as the only evidence he can bring, the valuation of a sworn appraiser. The words “sworn appraiser” quite definitely carry a meaning which is far beyond the work connected with estates only. That practice has arisen since 1913 and it has spread right throughout the country. I should be very sorry to see people making a differentiation between a sworn appraiser appointed under this Act and an existing sworn appraiser. That is a possibility that may arise and I think it could lead to a certain amount of unfairness. It must be realized that the term “sworn appraiser” has become a complete part of business life. The public goes to a sworn appraiser in the case of an arbitration; the legal fraternity, without fail, if there is argument about the value of a property, go to sworn appraisers. The sworn appraisement is given, the account is taxed and submitted for payment and that is the end of the matter. When big properties are valued, Sir, there can be tremendous differences in the valuations. This is really one of the most important aspects of business life relating to property to-day and I do hope the Minister will agree to revert to the previous wording if there is the slightest doubt as to the effect of the proposed new clause.

May I suggest to the hon. the Minister that in view of the discussion we have had this clause stand over. That will give him an opportunity of going into the matter.

I myself was on the point of moving that this clause stand over. Hon. members must understand very clearly what we are dealing with here. We are discussing sworn appraisers. It may sound strange to the hon. member for Benoni (Mr. Ross) and other hon. members, but there is no such thing as a sworn appraiser. A person is appointed as an appraiser and in terms of the Act he has to take an oath that he will appraise estate property …

He uses the words “sworn appraiser” on his window.

Yes. That is a practice that has developed, but in terms of the Act there is no such thing as a sworn appraiser. There is no other Act under which persons have been appointed for that purpose. It has become the practice for these people to make other valuations and then to have their accounts in respect of these valuations taxed by the Master. But the Master is under no obligation to tax those accounts. Such an appraiser is likewise under no obligation to submit his account to the Master, nor is there any sanction if he fails to do so. I am quite prepared to let the clause stand over, but this clause makes no difference to the position as it has existed in the past. We cannot provide powers under the Administration of Estates Act to appoint people for purposes other than those relating to estates. We are not dealing with other purposes here. Any person can make a valuation, but a person derives status from the fact that he has been appointed specifically in terms of the Administration of Estates Act. Naturally one would give the man who has been appointed under the Administration of Estates Act preference over the man who has not been so appointed. That is the present position and I honestly cannot see that we are changing it in any way. However, if hon. members feel concerned about the matter, I am quite prepared to move that this clause stand over. I accordingly move—

Agreed to.

On Clause 8,

I move the amendment standing in my name—

The position, in terms of this Bill, is that the will of a person shall be lodged with the Master of the Supreme Court. There is no objection to that. But it is felt by many people and many organizations that in addition to the will being lodged with the Master of the Supreme Court a certified copy should also be lodged with the magistrate of the area in which the deceased was normally resident. I think it is common cause that in may cases, perhaps in most cases, the heirs of the person concerned will be living in the area in which the deceased was normally resident. It is going to create an enormous amount of additional work and additional costs if an attorney in a country district, for example, who wanted a copy of a will or an extract there from, were unable to go to the magistrate’s office in his area but would have to go to the Master of the particular province for the information he required.

I move the amendment standing in my name—

This clause states that if it appears to the Master that a will, or any document purporting to be a will, is invalid for any reason he may, notwithstanding registration, refuse to accept it for the purposes of the Act until the validity thereof has been determined by the Court. From the legal point of view many of us believe that if the Master is of the opinion that the document is invalid for any reason he should reject it. Normally when one sends a will to the Master, usually a notarially certified will or a sealed will, for registration he registers it. He does not go into the question of the validity of the will. He does not even read the will. It is sent for registration and he registers it. But when a will in a deceased estate is submitted he obviously has to pay some attention to it. If he has any reason to think it is invalid and he does not exercise the prerogative that he has here to refuse to accept it the obligation will be on anyone who regards such will as invalid to go to court. Why should it be necessary for anyone to attack the validity of a will if the Master himself, for any reason, believes that that will is invalid? Surely the procedure should then be for him to reject the will and the onus should not rest on the person who forwards the will or who benefits under the will to go to court. If the will is invalid for any reason then it is the Master’s duty to refuse to register the will under this Act. I do not know whether I can add much more, Sir, I just want to ask the Minister whether he would comment on the present wording.

I hope the hon. the Minister will not accept the amendment moved by the hon. member for Florida (Mr. Miller). Why must we place the Master in the position of having to adjudicate? The hon. member for Florida wants to place the onus on the Master to decide whether or not to accept a will. Surely it is the duty of the court to decide whether or not a will is valid? We have had many cases where a will seemed valid on the face of it. The testator, for example, must sign in the presence of the two witnesses, and on the face of it he has done so, but evidence can be led that one witness was not present at all when the testator signed. Why should we place the Master in a position in which he must accept that will? He merely has to register it. On the face of things it is valid, and should any other evidence be adduced, the court can decide whether or not it is valid.

I cannot see the necessity for the amendment moved by the hon. member for Parktown (Mr. Emdin) either. The object is now to do away with double filing, that is, filing with the magistrate and with the Master’s Office. At the moment, once a certified copy or a copy of a will has been executed by the Master, a copy thereof can be readily obtained in a very short time. A magistrate is in any case not in a position to furnish a certified copy of a will. Similarly, if an heir is resident in the place which was the usual place of residence of the deceased and there is no Master’s office there, he can simply go to the office of the Master of the Supreme Court. There are such fast means of transport to-day and it is so easy for one to get to the Master’s Office that one has no difficulty in getting a copy and finding out from that Office what the terms of a will are. The whole object of amending the law in this way is to eliminate double filing. It is unnecessary to have everything both at the Master’s Office and at the magistrate’s office in the rural area concerned. It also causes a great deal of work. We are faced with a shortage of staff—although this ought not to be a first-rate excuse— and that procedure would cause unnecessary work, particularly where all the original documents are with the Master and are so readily obtainable. I hope the hon. the Minister will not accept the amendments moved by the hon. members for Florida and Parktown.

In regard to the amendment moved by the hon. member for Parktown (Mr. Emdin) I just want to say that the whole object of this clause was not to overburden local offices with documents which take up a tremendous amount of space and cause a great deal of extra work. The hon. member just wants to upset matters now with his amendment, and he wants thousands of wills to be filed there again. In this connection practice has shown us very clearly how much difficulty is caused by that procedure, and we have the evidence of thousands and thousands of magistrates that there is no need for it whatsoever. In the cases which the hon. member for Parktown had in mind the executor who or the attorney’s office which dealt with the case is close at hand, and they can provide access to all the necessary documents, so that there is no need at all to impose this burden on the magistrate’s office, which, after all, was only an intermediary between the executor on the one hand and the Master’s Office on the other hand in the past. This procedure served no purpose and in the normal course of events nobody made use of it, but it cost the State a very great deal in time wasted and in space, without any benefit being derived there from. As far as the amendment moved by the hon. member for Florida (Mr. Miller) is concerned I should perhaps say no more at this stage, because it seems to me he wants to say something more about it.

I appreciate that opportunity. Unless we can get an explanation here, I think we are ourselves possibly slightly confused. Section 19 of the Act deals with the registration of wills, etc. at testator’s death, but it also contains a further sub-section which says—

That is where he receives it prior to the death of a person. I cannot find such a reference here, but it has been the practice in the past that you could send a will prior to death to a Master for registration. Now here the Master is not concerned with validity, and the question of registration has never presumed validity. Now this particular section, Clause 8 in the Bill makes no reference at all to a will which is sent to the Master prior to the death of the testator. Sub-section (1) of Clause 8 deals with the sending of a will in the possession of any person to the Master subsequent to the death of an individual. Now if the Master receives a will subsequent to the death of the individual, that estate becomes of very great moment to the Master. If he for any reason thinks that that will is invalid, obviously, the onus of proving its validity should rest on those who wish to benefit by the will. I do not think that the Master should then decide that despite the fact that it appears that for some reason cr other the will is invalid, he nevertheless would be prepared to accept it, because in doing so, it is not a question merely of a form of registration, but by accepting it, it then becomes part and parcel of the estate and the administration of the estate must take place on the basis of that will. It cannot take place on any other basis. And if in the Master’s opinion that will is invalid, how can the Master permit the estate to be administered in terms of the will which, in his opinion, is an invalid one? So I think there is a difference in this particular matter from the practice we had in the past, because in this clause specifically reference to a will sent to the Master prior to the death of a testator is excluded. I would like the hon. Minister to explain to us the merits of that point of view, and how he sees it from that angle.

Perhaps the hon. Minister in his reply could tell us why he has given a permissive right to the Master not to register the will. The Master opens a will and in his opinion it is invalid. He can do nothing about it. or he can reject it, for he is given a permissive right here which is difficult to understand. The document in the Master’s eye is illegal, invalid. He is not told that he must register, he is not told that he must reject. He can do what he likes. He is told that in some cases he can reject it and in some cases he can accept it. It does not seem to make sense, Mr. Chairman. Perhaps the hon. Minister would tell us why this permissive right is given?

After listening to these representations I think the position is as follows: If a will is obviously invalid on the face of it, then it is very easy for the Master not to recognize it. A will submitted to the Master may designate as an heir a person called A.B. For that matter, it may designate as an executor a person called A.B., and in addition, a person called A.B. may have signed it as a witness. Hon. members know that an heir cannot inherit if he has also signed as a witness. Then someone comes to the Master and says that the A.B. who signed the will is the same A.B. who is designated in the will as the heir. Then, of course, it is quite another matter. It is now being said that that is the reason why one should adopt this attitude, and that as far as this principle is concerned, an equivalent position exists in Section 32 of the old Act, where a similar discretion was conferred upon the Master in regard to matters of principle.

I do not agree with the amendment moved by the hon. member for Florida (Mr. Miller), nor can I quite agree with the example that has been given in connection with the signatory called A.B. When A.B. has signed and he is the executor, it still does not make the will invalid. It only makes the appointment of A.B. as an executor or his designation as an heir invalid, but it does not make the will invalid. However, in regard to the word “shall” proposed by the hon. member for Florida, I want to say that in this case he wants to exclude all discretion as far as the Master is concerned. The question I ask myself is this: If the amendment moved by the hon. member for Florida is accepted and we substitute “shall” for “may”, the Master will get the document, and if he sees that it is invalid on the face of it, he has to wait until the court gives a decision, but who is going to set the court-case in motion? Must the Master be the one to do so? Suppose the heirs do nothing about it? Who is going to set the court-case in motion? That is my problem. The Master will now have to initiate litigation, because he must first obtain a decision on the will before he can proceed any further. But if he had a discretion in terms of the word “may”, he can accept or reject the will. If he rejects it, it is for the parties who are dissatisfied and who claim to be the heirs to go to court and obtain a decision, and then the Master’s finding can be set aside. And when the opposite is the case the parties can also go to court if the Master says that he does not accept the will. Therefore, if we accept this amendment moved by the hon. member, it can only lead to unnecessary court-cases.

In reply to what the hon. member for Heilbron has said: Let us assume that we leave the permissive word “may” and we say that he may accept it for the purposes of the Act—leaving out the rest. In other words, he may accept it, but the fact that he has a discretion still leaves it within his prerogative not to accept it. Then it would sound silly. Here it says he may refuse to accept it if it appears to be invalid. That means that he objects. He must have the right to refuse. But the point I am making is that he shall refuse it if it appears to him to be invalid. I am not going to suggest that we necessarily should divide on this point, but I believe it is an important point that should be very carefully considered by the hon. Minister, because we know from practice that the Master may not always be fortunate enough to get a proper explanation as to what appears on the face of it to be invalid, which when explained he then allows to go through. If he refuses to accept it, I am satisfied, because in refusing to accept it, some beneficiary obviously will take the matter to court. Of course obviously if no one has an axe to grind; if nobody is sufficiently interested then the estate will be administered as an intestate estate. Our laws in regard to intestate succession are pretty fair. In fact, very often in the purely family sense, even if there is no will at all, and the parent dies intestate, we have to-day provided what I think is probably the highest level of fairness and equity in the administration of that estate so that the descendant or survivor does not suffer unduly by the fact that the deceased has died intestate. So therefore if there is anyone really interested and the Master refuses because for some reason he regards it as invalid, then they will take it to court. But the point is, Sir, that he also has the discretion to admit the will. He admits the will because of an explanation given to him, but the explanation given is not entirely true; there is always that possible danger that a will which is invalid will be acted upon, because once the will is accepted then the administration is proceeded with. It is that one particular case that one must be careful about. May I just say, Sir, that were it not for the absence of one or two other legal members on this side of the House because of the adjournment which is to take place today, this amendment might well have been moved by another member of our fraternity who is a member of this House, a member who feels very strongly on this point. I myself share to a great extent the views of some of the other legal people who have spoken here. As the hon. the Minister well knows, legal people do differ in their interpretations. But there is also the possibility that the Master, instead of refusing, will accept a will—because he has a discretion—and then, unless someone has funds to take the matter to court, or unless the possible invalidity is drawn to the attention of someone, the Master may well be administering an estate in terms of a will which is actually invalid, although it is a will in respect of which he has received, prima facie, a reasonable explanation. Such a oase would be in line with the Minister’s example. That is all I have to say on this clause. I leave the matter to the hon. the Minister. I am not going to ask for a division.

I will go into the matter.

I should be very grateful if the Minister did that, and in view of his undertaking I withdraw my amendment.

With leave, amendment proposed by Mr. Miller withdrawn.

Amendment proposed by Mr. Emdin put and negatived.

Clause, as printed, put and agreed to.

On Clause 9,

Mr. Chairman, I move the amendment standing in my name, namely—

substitute “sign”.

The Afrikaans text of the Bill leaves no doubt at all that the inventory is intended to be signed by the person concerned, but the use of the word “subscribe” in my mind leaves some doubt as far as the English text is concerned. I am of the opinion that the word “sign” would be preferable, and for that reason I ask the hon. the Minister to accept the amendment.

Mr. Chairman, the note I have in this connection reads that, according to the Concise Oxford Dictionary “subscribe” means, inter alia, “to write one’s name at the foot of a document, or to sign a document.” The word is also used in sections 23 and 21 of the Administration of Estates Act of 1930 in relation to inventories required under that Act. The interpretation of this word has caused no difficulties whatsoever so far. That is what I am told by the law advisers in this connection.

Mr. Chairman, I should like to draw the attention of the Minister to another aspect of this clause. No amendment has been moved regarding this aspect, but nevertheless I feel duty bound to draw his attention to it. In Clause 9 (1) (a) (iii) the question of a massed estate and the submitting of an inventory is dealt with. Sub-section 2 (a) (iii) of the same clause also deals therewith. My attention has been drawn to the fact—and my reading of the law corroborates that—that where there is massing of an estate in a will, then, until adiation takes place, until an election to adiate, that estate is in fact not really a massed estate, in so far as its administration under the Act is concerned. The question therefore arises whether it is necessary for the inventory to disclose all the assets at this stage. Let us for instance take the case where a female dies and the surviving husband was a party to a will in terms of which their estates are massed. He has a discretion whether to adiate or not, and until such time as he elects—and there is some authority which says that he can even wait until the account is submitted—or until he refuses to adiate—because he may not wish to take advantage of the right to adiate, for some reason or another—he must in the meanwhile, because the will discloses a massing, disclose all his own assets as well. Such a situation of course applies to a marriage out of community of property. In the case of a marriage in community of property, the survivor must in any event, whether male or female, submit a full inventory of the whole estate because the estate is only divided when the account is drawn. Now, because of that, will not the Minister’s advisers, for instance, feel that that privacy should continue to be retained where the parties are married out of community of property, until adiation takes place? I do not mind if this aspect is dealt with in the Other Place, but I do feel, Sir, that the purpose of the Act and the standard which we wish to retain …

Do you think there is any hardship involved?

No, except that it is a disclosure of privacy. Strictly speaking, until adiation takes place the assets of the survivor of a marriage out of community of property are nobody’s concern, be it the Master or anyone else. The position at present is that people can inspect the inventories at the Master’s office, and the fact that copies are not kept at magistrates’ courts is because of the desire—as the hon. the Minister so rightly said—to avoid over-burdening some of the departments with excess documents, etc. But one can go along to the Master’s office and have a look at the inventories.

Do you think it is a practical issue?

This matter was pointed out to me by certain legal people, and I accordingly felt it was my duty to place it before the House. I wish to emphasize that I am not pressing the issue, but at the same time I was wondering whether the Minister would not in the meanwhile go into the matter and let his own legal advisers deal with it.

I should like to say to the hon. member that we have had no representations on this score at all. Nevertheless I will go into the matter, and if there is any substance in the hon. member’s argument then I will again discuss it with the hon. member and, if necessary, I will do something about it in the Other Place. But up to this stage we have had no representations about this aspect at all.

These points were brought to my attention by certain members of our fraternity, members of good standing, and I thank the Minister for his courtesy.

Mr. Chairman, I am afraid I did not have a chance to write down the hon. the Minister’s definition of the word “subscribe”, but in terms of that definition, if it is not to be “signed” should it not then be “subscribed to” instead of “subscribed”?

I am told that good English usage requires the expression “subscribe” and not “subscribe to”. It would appear that one “subscribes to” a newspaper.

Amendment proposed by Mr. Hopewell put and negatived.

Clause, as printed, put and agreed to.

On Clause 16,

Mr. Chairman, on page 17 in line 5 and again in line 9 of the Afrikaans text the word “regspersoon” is used. In line 5 and line 9 of the English text the word “corporation” is used. I am not quite satisfied that these two words have the same meaning, but that is not my problem now. My real problem is the fact that in my opinion we should state more clearly that this word includes a partnership too. It is a generally recognized fact that in the profession to which I belong most firms are partnerships. It very often happens that a partnership is appointed as the executive in an estate, and as the partnership as such cannot perform that function, the partnership should therefore have the right to designate someone to be appointed as the administrator of the estate concerned. For that reason, Mr. Chairman, I feel that we should make it clear that provision is being made here for a partnership as well. I feel that this particular clause can be drafted in a much simpler form, and I have a draft clause here which has been submitted to me by the Law Society and which in my opinion would have been a much more effective clause. I am of the opinion that this proposed substitute for Clause 16 is much clearer and simpler. The English text reads as follows—

Mr. Chairman, I contend that provision should be made for a partnership, and that my draft conveys the whole meaning of Clause 16 much more simply and concisely. I should like to inquire of the hon. the Minister whether my proposal cannot be accepted.

I support the hon. member for Ceres in his proposal. I appreciate that the Minister has only now heard his proposed amendment, and I therefore suggest to the Minister to allow this clause to stand over until he has had time to consider the new proposal, a proposal which I think is an important one.

Mr. Chairman. the amendment of which the hon. member for Ceres (Mr. S. L. Muller) has now given notice is a very important one. Obviously I cannot just decide within a few minutes whether or not I shall accept this amendment, and as I want to consider it, I move—

Agreed to.

House Resumed:

Progress reported.