I wish to move the amendment standing in my name—

The reason for this amendment is that in Natal under the Act of 1904 certain people were admitted as conveyancers only and not as attorneys and notaries. They have practised the profession of conveyancers ever since. There are only about 20 of these conveyancers. In 1926 an Act was passed in this House which stopped any further conveyancers as such being admitted. So they are a dwindling class. I have been in negotiation with those representing these conveyancers and I have agreed to exclude them from the provision of the second chapter of the Bill, and that is the reason why I move this amendment. They will not be asked to contribute anything towards the Fidelity Fund and they will not come under the purview of chapter 2.

Amendment put and agreed to.

Clause, as amended, put and agreed to.

On Clause 3,

I move—

in line 55, to omit “its own” and to substitute “his or its business”, and in the same line to omit “its”; in line 56, to omit “on its”; in line 57, after “or in” to insert “his or”; and on page 4, line 2, after “that” to insert “his or”.

I move the following new amendment which does not appear on the Order Paper—

1. (d) any attorney, notary or conveyancer or any such commercial banking institution or any such board of executors or trust company indicates in any public notice required by law in connection with the liquidation or administration of any estate, that he or it does such work;
2. (e) any attorney, notary or conveyancer indicates on such form as may be approved by the law society of the Province in which he practises on any nameplate or signboard exhibited in or on the premises in which he practises or on any of his stationery or professional documents that he does such work.
3. (f) any person, not being a board of executors or trust company mentioned in sub-paragraph (a) or a company registered under the Companies Act, 1926 (Act No. 46 of 1926), or any amendment thereof or a commercial banking institution, who on the 21st day of February, 1941, held a valid broker’s or agent’s licence issued under the Licences Consolidation Act, 1925 (Act No. 32 of 1925) on a signboard, nameplate, or notice, exhibited on the premises in which he carries on business, or his stationery or in any advertisement in the public press makes known by a simple statement to that effect that his business includes any such work.

I just want to inform the House that I have negotiated with those who represent the general agents, and the hon. member for Fordsburg (Mr. B. J. Schoeman) who has an amendment on the Order Paper has agreed with me to accept this amendment in the place of his amendment. I hope therefore that those who represent the interests of agents will accept this amendment. I should like to say that I have submitted this amendment to the four councils of the Law Societies of South Africa, that is of the Cape, Transvaal, Free State and Natal— who are at present in Cape Town, and they have agreed to accept this amendment, so there is a complete consensus of agreement between these various interests, and I hope therefore that we shall not have any discussion on this point as I believe the amendment is sufficiently comprehensive to meet any objections by the general agents. My hon. friend, the hon. member for Berea (Mr. Hooper) who has another amendment on the same lines will, I hope, also accept this amendment.

I am rather surprised that this amendment has been put. I just want to be sure that it meets my amendment, that any person or any firm who has in the course of his business notified the public that he conducts the business of Administrator of Estates, will be allowed to carry on. Is that a correct interpretation of the amendment? My amendment reads that any person or any firm is entitled to notify the public, and so on. Is such a person or firm entitled to carry on this practice. A number of firms have a goodwill and a name and they are entitled to be protected in the business which they have conducted.

In connection with the amendment by the hon. member for Newcastle (Mr. Nel) I have some difficulty in connection with paragraph (f). If I read that correctly it means that an attorney, notary or conveyancer, is entitled to indicate on his correspondence paper that he undertakes the liquidation or distribution of deceased or insolvent estates. According to the law as it stands now any person is entitled to do that work. There is no particular qualification required.

Hear, hear!

That is correct, any private individual can claim that he can do that work.

And so he can.

I am referring to the administration of estates.

So am I.

Now this clause says that the only person who is entitled to make that statement, that he does that type of work, —on his business paper—is the attorney, and that seems to me to be rather unfair.

Very unfair.

It goes very near to advertising that he is the person who is particularly entitled to claim to do that type of work. I therefore suggest to the hon. member that he should agree to delete clause (f) which will place the attorney in the same position as everyone else.

In reply to the hon. member for Durban (Berea) (Mr. Hooper) I want to say that the amendment which I have moved applies to persons who have a licence issued to them to do that work. I cannot perpetuate that. When that class of person dies out then nobody will have the rights which they have to-day. But there is nothing to stop anyone from becoming an executor of an estate and drawing the executor’s commission. It is free for any person to appoint another person as the executor, and for the executor to draw the fees. But it is not free for any person to advertise and say that he does that work except as I have moved in my amendment just now.

I hope the hon. member for Newcastle (Mr. Nel) will agree in lines 32 and 33 to omit “whether for or without remuneration.” I move—

As the clause now reads the position is that if a person advises his neighbour without receiving any remuneration he is guilty of an offence. This clause refers to people who advertise for work, with or without remuneration. I agree that we should have such a provision for people in the profession, but we may also have a case like this—a farmer’s neighbour dies, or his wife dies, and if he goes there and tells the widow or the widower that he or she should have the estate settled, and he says that he or she should go to attorney so-and-so, another attorney may be dissatisfied and he may make enquiries as to who has advised the person concerned to go to the other man. The widow may say “Mr. so-and-so has advised me to go there” and then the person who has given the advice is guilty of an offence under this clause. It is extremely dangerous, especially so far as people on the platteland are concerned. The attorneys are not always friendly with the people; they also have their enemies and in those cases we have to prevent the law giving an opening to attorneys to abuse the position and to prosecute people who are not aware of the provisions of this clause.

I move the amendment standing in my name on page 275—

1. (ii) on signboards, nameplates, or notices exhibited on the premises in which it carries on business, on its stationery, or on its usual annual almanacs or in any advertisement in the public Press, or in its annual reports or any report of the proceedings at an annual general meeting, makes known by a simple statement to that effect that its objects or functions include any such work;

and to omit paragraph (c) of the new proviso added by paragraph (b) of the clause and to substitute the following new paragraph:

1. (c) any shareholder or employee of a board of executors or trust company described in sub-paragraph (a) above canvasses another shareholder or employee of the same board of executors or trust company on behalf of such board or company.

The first amendment which I refer to takes the place of sub-paragraph (ii) of paragraph (b) of Section 3, on page 2 of the Bill. The object of the amendment is to circumscribe the right to advertise in the public Press which we give to boards of executors and trust companies. The limitation which we put on that right is to say that they can advertise in the Press, but it must be by a simple statement to the effect that they administer estates. That is the effect, in short, of the amendment which I move on that clause. The second amendment is to make it quite clear what the intention of the Select Committee was as regards giving the right to shareholders or employees of a board to canvass for work for that particular board. As the clause is drafted, there is some doubt as to whether a shareholder or employee of boards of executors or trust companies may canvass for work for the board or for himself. My submission is, as the clause stands, the shareholder or employee of the board may canvass for work for himself. That is why I move the amendment standing in my name. I want to make it quite clear, beyond the shadow of a doubt, that the shareholder or employee can only canvass for work for that particular board or trust company of which he is a shareholder or employee. I may say that the amendments which I have moved carry the blessing and confirmation of the Association of Trust Companies. We have been in communication with them, and have their full support.

Now that I understand I am in order in dealing with this, I want to make the position clear, because I am not quite sure I did that in my earlier remarks. This law is intended to prohibit persons from advertising their willingness to undertake the administration of estates. To this an exception is now introduced, and that exception is that attorneys may advertise on their business premises and paper, subject to the approval of the Law Society. They can put up a board and state the fact of their willingness to undertake this work, and also on their business letter heads. As every citizen is legally entitled to be the executor or administrator of estates, why should he not be entitled to say so in the same manner as an attorney? Now the hon. member for Newcastle (Mr. Nel) has recognised that if that right were confined to attorneys only it would be an injustice, and he now moves an additional amendment allowing agents and brokers who were registered as at February 24th, 1941, to continue to advertise in the same manner as attorneys. I would agree if everybody was prohibited from advertising, but I think that it detracts from the dignity of the profession, notwithstanding the fact that the Law Society has agreed to it, for the attorney to arrogate to himself the right to be able to announce his willingness to do that sort of work and to try to prohibit anybody else from doing so when the law permits others to do the work. Banks who do that sort of work are also prohibited from stating that they do it. I am not here to represent the banks, nor have I spoken to a banker in connection with this matter. I am informed that the banks are quite indifferent to this, because it represents only a small proportion of their work. But I don’t see why an agent or public accountant or business man who has exactly the same right to administer estates as an attorney should be prohibited from stating on his premises or business letters that he is prepared to undertake that type of work. The only fair alternative is to say that nobody, whether he is an attorney or not, may advertise his willingness to do this work. Therefore, I say that this exception in favour of attorneys is an unfair exception. The amendment moved by the hon. member for Newcastle does not dispose of the matter, because if he admits that brokers and agents who are carrying on business as at February 24th, 1941, should be entitled to state that fact, why should not brokers and agents who are qualified to do this type of business be entitled to say so notwithstanding the fact that they commence to do so after the 24th February, 1941? I move—

I was wondering rather whether the drafter of this Bill has really succeeded in saying what he intended to express in lines 34, 35 and 36 of Article 3. The statement is in connection with the estate of any deceased or insolvent person, lunatic or person under other disability. That disability does not seem to me to be very clear, whether it is bodily, social, spiritual, or whatever it may be. It appears to me to call for further definition, unless, as is possible, the word has some peculiar and comprehensive meaning in the courts. I dislike the connection between the words “deceased” and “disability.” I am fairly well prepared to believe that many members of Parliament, and especially those who are also members of the legal profession, will be under very grave disability after they are deceased, but I do not know whether that supposition includes the rest of us.

I move—

I don’t think the banks require protection from us, they are primarily financial institutions, and in that respect I think they have established for themselves a monopoly in this country. Work in connection with estates is something comparatively new to them, at any rate so far as South Africa is concerned, and it is certainly only within recent years that they have embarked upon that field of activity. Moreover, they have a very great advantage and an unfair advantage over those who are doing similar work. I think we should, as soon as possible, seek to eliminate that by the deletion of this clause.

Amendment moved by Mr. Jackson put and agreed to.

Question put: That the words “whether for or without remuneration” in lines 32 and 33, proposed to be omitted, stand part of the Clause.

Upon which the Committee divided.

Ayes—65:

Abrahamson, H.

Alexander, M.

Baines, A. C. V.

Ballinger, V. M. L.

Bawden, W.

Bekker, S.

Bell, R. E.

Boltman, F. H.

Booysen, W. A.

Bowen, R. W.

Bowie, J. A.

Bowker, T. B.

Christopher, R. M.

Clark, C. W.

Collins, W. R.

Conradie, J. H.

Conradie, J. M.

Davis, A.

Deane, W. A.

Derbyshire, J. G.

Du Plessis, P. J.

Egeland, L.

Friedlander, A.

Gluckman, H.

Hare, W. D.

Hayward, G. N.

Heyns, G. C. S.

Hirsch, J. G.

Hooper, E. C.

Johnson, H. A.

Kentridge, M.

Klopper, L. B.

Lawrence, H. G.

Miles-Cadman, C. F.

Molteno, D. B.

Mushet, J. W.

Neate, C.

Nel, O. R.

Reitz, D.

Reitz, L. A. B.

Sauer, P. O.

Schoeman, B. J.

Schoeman, N. J.

Shearer, V. L.

Smuts, J. C.

Solomon, B.

Solomon, V. G. F.

Steyn, C. F.

Steytler, L. J.

Strauss, J. G. N.

Strydom, G. H. F.

Sutter, G. J.

Swart, A. P.

Trollip, A. E.

Van Coller, C. M.

Van den Berg, C. J.

Van der Merwe, H.

Van Zyl, J. J. M.

Viljoen, D. T. du P.

Wallach, I.

Wares, A. P. J.

Werth, A. J.

Wolfaard, G. v. Z.

Tellers: G. A. Friend and J. W. Higgerty.

Noes—10:

Badenhorst, C. C. E.

Bezuidenhout, J. T.

Conroy, E. A.

Fullard, G. J.

Howarth, F. T.

Oost, H.

Verster, J. D. H.

Wentzel, J. J.

Tellers: J. H. Grobler and P. J. van Nierop.

Question accordingly affirmed and the amendment proposed by Mr. Bezuidenhout negatived.

With leave of the Committee, the amendments proposed by Mr. Hooper were withdrawn.

The amendments proposed by Mr. Trollip were put and agreed to.

Amendment proposed by Mr. Davis put and negatived and the amendment proposed by Mr. Nel put an agreed to.

Clause, as amended, put and agreed to.

On Clause 4,

I move—

As the clause now reads it only refers to administrators, curators etc., if they are appointed under a will, but there are instances where the court appoints a curator or an administrator, and I hope that the hon. member in charge of this Bill will agree to this amendment so as to give the same exemption to this kind of appointment as is already given to those people appointed under a will.

I agree to that.

I move—

I move—

The reason for this amendment is that it does not give the ordinary agent the opportunity when selling a plot of land to draw up a deed of sale and to receive the fees for doing so.

I should like to know from the hon. member for Newcastle (Mr. Nel) whether he has made sure what will be the effect of the amendment of the hon. member for Zululand (Mr. Egeland), and whether it will not mean that the words which he has proposed in regard to the appointments mentioned will not also relate to executors and all the other people who may be appointed by the court?

Read a little further.

I am asking the hon. member whether it does not refer only to the last appointment.

I am satisfied what the effect will be.

Amendments put and agreed to.

Clause, as amended, put and agreed to.

On clause 10,

I move the amendment standing in my name as follows—

The object of this amendment is to make it clear that that body can act in the capacity of a plaintiff as well as of a defendant.

Agreed to.

Clause, as amended, put and agreed to.

On clause 18,

I move—

Agreed to.

Clause, as amended, put and agreed to.

On clause 19,

I move—

Agreed to.

Clause, as amended, put and agreed to.

On clause 22,

I move—

I move—

These amendments were put and agreed to.

Clause, as amended, put and agreed to.

On clause 23,

I move—

Agreed to.

Clause, as amended, put and agreed to.

On clause 26,

I move—

Agreed to.

Clause, as amended, put and agreed to.

On clause 27,

I move—

Agreed to.

Clause, as amended, put and agreed to.

On clause 32,

I move—

Agreed to.

Clause, as amended, put and agreed to.

On clause 38,

I move—

Agreed to.

Clause, as amended, put and agreed to.

On clause 41,

I move—

Agreed to.

Clause, as amended, put and agreed to.

The Title having been agreed to.

House Resumed:

The CHAIRMAN reported the Bill with amendments.

Amendments to be considered on 28th February.