I move—

It is self-evident that when a country is at war the compilation of a Budget grows more and more difficult every successive year. Not only are these new problems always coming up for consideration, but the task also becomes more and more complicated and the diversity of the points of view which have to be taken into account in a Budget speech grows continually greater.

So far as the complexity of my task today is concerned, I want to do all I can not to overload the House with figures, or unduly to try hon. members’ patience. Consequently, as I did last year, I have again collected a considerable number of the essential figures in a White Paper, which is now at hon. members’ disposal. I therefore propose dealing only in broad lines with the questions with which these figures are connected.

So far as the essential nature of the Budget problem at a time like the present is concerned, however, I want to make a few introductory remarks. It is well that hon. members should understand the foundation on which this Budget has been framed and is submitted to them. South Africa, in consequence of the decision of its Parliament, is at war today. This is a war touching the root not only of our political principles but also our way of life. This is a world war, a war of vital importance to humanity as a whole, but our freedom, our vital interests, are also at stake. Out of this war there will arise a new world just as a new world arose out of the Religious Wars of the 16th century, and out of the Napoleonic Wars. We don’t know what will be the shape of this new world. What we do know, however, is that we would prefer to see it shaped in accordance with our own way of life rather than the “Weltanschauung” of our enemies.

We have apparently come to a turning point in the war lately. We rejoice at the favourable turn of events. We believe that we are commencing to feel the refreshing breath of victory. The task still before us is a tremendous one. It will require all our energy, all our efforts, to achieve that victory. And that being so, knowing what is at stake, realising the great work still before us, we remain determined to carry on until the end, not to tire until the danger threatening our freedom has been removed and South Africa has made a worthy contribution to that victory. That, in truth, is the spirit in which I am submitting this Budget.

Why not?

My hon. friend did not provide anything at all. It should also be pointed out that in other countries where schemes of this kind are in existence the pension scheme for war veterans, in the same way as here, is linked up with the old age pension scheme, also as regards the provision of a means test. It would therefore not be possible to depart from that principle and as, for the reasons I have mentioned, changes cannot be made at this stage in the War Pensions Scheme, we cannot do much in this connection. As a concession, however, and as evidence of our goodwill to a section of the population who have served their country on the battlefield, we are prepared, pending the consideration of the wider aspect of the matter, to increase the pensions payable on the present basis by one-third as from the 1st April. 1943. That will cost us £80,000 per year.

There is another class of persons on whose behalf representations have been made to us. I am referring to our civil pensioners who are in receipt of fixed amounts from the State and on whom the increased cost of living in certain cases at any rate falls very heavily. It has, therefore, been urged that we should pay them a cost of living allowance, just as we do in the case of civil servants. The Government’s attitude on this matter has been explained repeatedly. The pensions that are paid are laid down by law, and in most cases on the basis of contributions made during the years of service of the official concerned. Although we can reduce the salaries of our public servants, we have not got similar powers in regard to pensioners. In the event, therefore, of an increase in the purchasing power of our money, the Government would not be able to pay these people less than is laid down by law. Consequently they cannot demand, as a right, that because of the drop in the purchasing power of our money we must now pay them more. We should also bear in mind the fact that many pensioners have other sources of revenue, and that many of them today are again occupying lucrative positions. In regard to those who are not in that position they are to all intents and purposes in the same position as others with a fixed or even with a smaller income—people who are not drawing any pensions.

We are, however, bearing in mind the fact that these people have served the State and that many of them today are financially embarrassed. I feel that the State, as the former employer of these people, should be prepared to assist in hard cases, which, as a matter of fact, is already being done by the Railway Administration. This, however, can only be done ex gratia and it cannot be looked upon as something to which these people are legally entitled. With this object in view, we are prepared to appoint a special committee to go into hard cases and to make recommendations to us for ex gratia grants. I expect that for this purpose we shall have to find an amount of £50,000.

There is one point left under this head. The Minister of the Interior recently issued a statement on behalf of the Government in regard to our Civilian Protection Services, and he mentioned the fact that I would make a further statement about the financial side. Our attitude generally in regard to this matter has always been that services of this kind are of a nature for which local communities, whose interests are primarily served, should bear the responsibility. The responsibility of the State is primarily for the general defence system. The State, particularly of late, has been spending large amounts of money on defence works, especially in the coastal areas, in order, as far as possible, to guard against the danger of an enemy attack on our towns and villages. In comparison with the amount spent for those purposes, the amounts which the local authorities have had to find are comparatively small. The Government realises, however, that those amounts have lately increased considerably and that from the point of view of the local authorities themselves they are not insignificant. The Government appreciates the work that is being done, and considers it is important that it should be continued. For that reason it has been decided to place £100,000 on the Estimates for 1943—’44 for these services. The major portion of this money will be spent in respect of expenses already incurred by local authorities, and a committee will be appointed to go into the details of such expenditure, to consider to what extent such expenditure’ has been necessary, and then to submit recommendations for the making of grants. In future, subsidies will be paid on a £ for £ basis on expenditure incurred by local authorities for Civilian Protection Services, which have had the prior approval of the Department of the Interior.

I have mentioned several points which will involve an increase in our expenditure on Revenue Account. The total amount is £300,000. As a result, our estimates of expenditure will increase to £100,540,500. To cover that expenditure we have, as I have already indicated, available an amount of £90,796,000. There is therefore left an amount of £9,744,500, which we shall have to find.

What about profits?

There will be no additional profits. As we are producing increased Excise duties on beer, tobacco and cigarettes, it will be necessary also to increase the Customs duties. The increase in revenue resulting from this will, however, be insignificant under pervailing conditions.

The increased Excise and Customs duties which I have mentioned are therefore expected in a full year to yield jointly an amount of £3,355,000.

The necessary notice of motion in this connection will be laid on the Table of the House today, and in accordance with the law the new taxation scales will come into force immediately.

We may expect in the course of the current financial year to collect an amount of £125,000. That will further increase by that amount the favourable balance which we expect on the 31st March. We propose to transfer that portion of the balance to the Revenue Account for 1943—’44.

Our proposals in connection with Customs and Excise duties will therefore yield us a total amount of £3,480,000 in reduction of our deficit.

I second the motion.

I lay upon the Table:

1. (1) Estimates of the Revenue to be received during the year ending 31st March, 1944, excluding revenue of the Provincial and Railways and Harbours Administrations.
2. (2) Summary of facts and figures in connection with the Budget Statement for inclusion in Hansard, as follows—

REVENUE 1942—’43.

REVENUE 1942—’43.

REVENUE 1943—’44.

REVENUE 1943—’44.

I move—

This motion signifies a little acceleration of the normal time-table of the House. We appropriate two Fridays before the time fixed according to the standing rules and orders. But I think it is reasonable to take it at this stage. In the first place there is one Friday now open. No private work has been set down for it. It is therefore open and can be appropriated by the Government. In the second place it is the intention of the Government, and I think also of the House, not to stretch the Session unnecessarily, and to terminate our activities as speedily as possible. In all these circumstances I think it will meet with the approval of the House that we should now appropriate two Fridays for Government work earlier than usual.

I second.

The Prime Minister has said at the introduction of this motion that he is appropriating Fridays earlier than has been the case during other Sessions. I can only reply that his argument has surprised me in view of the fact that in the Session so far, with the alteration of the time of the sittings of the House, a portion of private members’ days is given to the Government which the Government would not otherwise have had. On every private members’ day, every Tuesday and Friday, the Government gets the rest of the day after a quarter past four, and a considerable part of the Government’s work is being done this Session on private members’ day, something that has not happened at other Sessions. To come to ask further concessions from private members by the acceleration of the time by two Fridays in these circumstances is, I think, a surprise to us, and it is unfair. In making a request of this kind, that Fridays be taken up by the Government at an earlier date, it is customary for the Prime Minister to inform the House about further business. About this we got absolutely nothing from the Prime Minister. He tells us nothing about the further course of the Session. What we usually want to know on an occasion such as this is how long he thinks the Session is going to last, and what in his opinion the arrangement of the work is going to be. We got nothing about that. He does not tell us what further legislation he intends to submit to the House. There is not much on the Order Paper, but we do not know what will still come. I think considerable work for Fridays will still appear from private members. There is a whole bunch of motions on the agenda that are of great interest and that will still be discussed on Tuesdays. If these motions do not come to a division, if the House does not decide on them, then the only chance is to adjourn the discussion to the Friday. There is no other chance to bring those motions under discussion again except on Fridays. But now members are being deprived of Fridays. No, I do not think the House should adopt this motion, so that private members shall have at least another two Fridays.

The Prime Minister comes with this motion earlier than we usually get it. Fridays are taken away from us where according to the rules of the House these have always been allotted to private members. The Fridays to which private members are entitled, are laid down by the rules of the House, and this was not done on a loose footing, but because there was a definite need that Fridays should be given to private members, and that need is that members who want to bring serious and urgent matters under discussion have no other means at their disposal other than to come to the House with their motions on private member’s day. If it is now the position that there are no important questions brought under discussion by private members then we can understand that the Prime Minister will be quite justified to propose this motion. But notwithstanding the fact that a large number of private members’ motions have been withdrawn during the last few days, because those members thought that they would not get a chance on private members’ days, and thus wanted the opportunity to discuss those matters in connection with the Budget, there are still motions of the greatest importance of which notice has been given on the Agenda. Just look at the notices of motion on the Agenda, and then one finds such an important motion for instance as that of the hon. member for Griqualand (Mr. Gilson). His motion is a very important one, a motion in which members on all sides of the House have participated, a motion that requires much more time than is available for it. When the time expired on Tuesday various members were still rising. I can quite understand that the Government, and particularly the Minister of Agriculture, is desirous that more time should be given to this motion. They do not want to give more time to it. There is a smouldering rebellion in the Government’s own party about agricultural matters, and if this question is discussed further in connection with this motion it will no longer be a secret rebellion but a public rebellion. Must we now assume that this is an attempt to throw up a smoke-screen behind which the Minister of Agriculture—I see the Minister of Lands looking at me, and I shall include him also—can retire? But I do not want to go into the merits of that extremely important question further.

When business was suspended, I was busy pointing out the important motions that have come from private members and that will apparently not be brought under consideration if this motion of the hon. Prime Minister is adopted. I pointed to the important motion in connection with agriculture that was only partly dealt with. If I say that it was only partly dealt with then I think that I almost exaggerate the matter. Then I want to point out that there are various other motions. Here we have about 10 on the Order Paper. Another very important motion is that standing in the name of the hon. member for Swellendam (Mr. S. E. Warren) which deals with the question of great importance to the liquor trade and to the wine industry, and that is the question of the so-called “tied house”. It is a matter of extremely great importance, and it becomes of greater importance particularly in view of the motion that came today from the hon. Minister of Finance to impose still further taxation on the liquor trade, and this is a great handicap to the natural development of the liquor trade on the right lines, and it is desirable that this matter shall be thoroughly discussed in the House. It has been touched upon from time to time in the past, but there has never been a proper discussion and the request has never been made that the necessary measures be taken to see in how far this handicaps the wine farmer and the wine trade in their activities. It is a matter of the utmost importance that can apparently not now be dealt with during this Session. I might mention just one matter on which hon. members on this side of the House feel very strongly, and that is the motion of the hon. member for Winburg (Mr. C. R. Swart)—

We know that serious allegations are being made in connection with the treatment of those people. I do not want to go into the matter now, but there is definitely a prima facie case for the institution of a serious investigation. It is quite impossible for us to deal with that matter in the ordinary budget, because it is a matter that must be thoroughly thrashed out between hon. members and the Minister responsible for it. There is another motion regarding the question of the internment of Union citizens. While the matter has been dealt with in the past, it is nevertheless a matter that affects the rights of freedom of movement of so many citizens in this country that it can be generally said that it is in the interests of the country and of our political moral conceptions in this country that that matter shall be thoroughly discussed. Nobody will deny that the question of Communism is a very threatening danger, not only in this country, but in the whole world. A very important debate has commenced on this, and that debate is far from concluded. There are many members who have not had a chance of airing their views. That is also something that can now apparently not be taken into consideration. I have mentioned only a few of the things, but I think I can mention a lot of very serious matters to which this House and the country are giving attention. I feel that if our time is curtailed many of these extremely important questions will not get the necessary publicity and that the necessary attempts will not be made in this House to rectify those things which we view as wrong. For these reasons I feel that it is impossible for me to support this motion.

In connection with this matter and the ultimate adjournment of this House, I want to bring this point to the attention to the hon. the Prime Minister, and also to the attention of the hon. Minister of Finance, who usually has the arrangement of affairs in this House under his control. That is, namely, that we have to do with the position every year that certain Budget votes of Ministers come right at the end, during the last two or three days when members are generally tired and when everything is hurried; and I want to ask if the Government would not be willing to arrange matters so that sufficient opportunity shall be given to complete the estimates before we get to the last few days of the Session.

We shall discuss it with your Whip. Of course we have to think of the Senate.

The hon. Leader of the Opposition has put certain questions to me. In the first place, he asked what the intention of the Government is regarding the length of the Session, and I may say to that that we are aiming at Easter, that is, about 23rd April, as the time at which we can terminate our deliberations.

Before the Easter holidays?

Yes. But if we must do that, then we shall have to arrange our business fairly well, and we trust that hon. members on the other side will also do their best to help us to arrange matters so that business may be completed before the Easter holidays.

If we know that there will be an election, yes.

The hon. member is under a misapprehension when he thinks that we are acting in conflict with the usual practice. I have said that according to the standing rules we now appropriate a few Fridays for a time that is stipulated in the standing orders, but we are not acting in conflict with the ordinary custom. It is the ordinary custom of this House to anticipate the date of the Order and to appropriate time beforehand. It is the ordinary custom that is now being followed. The hon. member for Humansdorp (Mr. Sauer) referred to certain important motions that still have to be dealt with wholly or partly. Some of them can easily be dealt with on the Budget, as, for instance, the motion of the hon. member for Griqualand (Mr. Gilson). Tuesdays are still open for other motions, such as the motion relating to internments. We do not appropriate all the time. We allow a fair margin over for the discussion of such important things on Tuesdays. As regards the remarks of the hon. member for Winburg (Mr. C. R. Swart) regarding the arrangement of business under the Budget, we can go into that, and I hope a proper arrangement will be arrived at for a timely discussion of the various votes under the Budget before the end of the Session, with a view, of course, to the fact that these things still have to come before the Senate. I do not think that what I propose here is excessive or in conflict with our ordinary custom, and with a view to the urgency of expediting our business, I hope that hon. members will not oppose this motion. The hon. Leader of the Opposition has also asked what Bills we propose to proceed with. It is the list standing here on the Order Paper today. We intend to complete this, and then there is still a small number of Bills, mostly of a non-contentious nature, either administrative or consolidating laws.

Is an amendment of the Act of Union still coming along?

I am sorry, but on that I can give no information. It is considered necessary to make a few amendments, for example as regards railway control and customs control, then an amendment in connection with Estates Legislation, one in connection with building societies, and an amendment of the Pensions Act. These are minor Bills, or somewhat bigger measures that are not of a contentious nature.

That in connection with the soldiers’ votes is surely contentious?

It is contentious, but not of any great scope. It is a Bill within brief scope, that we can easily dispose of. Then there is a Bill in connection with the employment and training of soldiers. This is now being dealt with under the war measure, but a lot can be said for it that we should transcribe this war measure into a Bill, and this will still appear. Then we are still of intention to abolish the bi-ennial registration of voters this year. We have not a staff big enough to do the work, and we propose to suspend it for at least one year.

The supplementary registration?

That goes on. The three-monthly supplementary registration will continue, but the bi-ennial registration demands a big staff and we are told that it will be very difficult to complete it with the staff available. So far as we can see at the moment, these are all the Bills that will come forward, apart of course from the financial measures.

The Magistrate’s Court Legislation?

Yes, there is also a small amendment.

Motion put and the House divided:

Ayes—57:

Abbott, C. B. M.

Abrahamson, H.

Acutt, F. H.

Alexander, M.

Ballinger, V. M. L.

Bawden, W.

Bell, R. E.

Botha, H. N. W.

Christopher, R. M.

Clark, C. W.

Conradis, J. M.

Davis, A.

Deane, W. A.

De Wet, H. C.

Dollfey, G.

Du Toit, R. J.

Egeland, L.

Friedlander. A.

Goldberg, A.

Higgerty, J. W.

Hofmeyr, J. H.

Hooper, E. C.

Howarth, F. T.

Jackson, D.

Johnson, H. A.

Kentridge, M.

Lawrence, H. G.

Long, B. K.

Marwick, J. S.

Miles-Cadman, C. F.

Molteno, D. B.

Mushet, J. W.

Neate, C.

Payn, A. O. B.

Pocock, P. V.

Raubenheimer, L. J.

Reitz, L. A. B.

Robertson, R. B.

Shearer, V. L.

Smuts, J. C.

Solomon, B.

Solomon, V. G. F.

Sonnenberg, M.

Sturrock, F. C.

Sutter, G. J.

Tothill, H. A.

Trollip, A. E.

Van Coller, C. M.

Van den Berg, M. J.

Van der Byl, P. V. G.

Van der Merwe, H.

Wallach, I.

Wares, A. P. J.

Warren, C. M.

Waterson, S. F.

Tellers: G. A. Friend and W. B. Humphreys.

Noes—36:

Badenhorst, C. C. E.

Bekker, S.

Bezuidenhout, J. T.

Bosman, P. J.

Brits, G. P.

Conradie, J. H.

De Wet, J. C.

Dönges, T. E.

Du Plessis, P. J.

Erasmus, F. C.

Geldenhuys, C. H.

Haywood, J. J.

Hugo, P. J.

Le Roux, S. P.

Loubser, S. M.

Louw, E. H.

Malan, D. F.

Olivier, P. J.

Oost, H.

Schoeman, B. J.

Serfontein, J. J.

Steyn, G. P.

Swart, C. R.

Van den Berg, C. J.

Van der Merwe, R. A. T.

Van Nierop, P. J.

Van Zyl, J. J. M.

Venter, J. A. P.

Viljoen, J. H.

Vosloo, L. J.

Warren, S. E

Wentzel, J. J

Werth, A. J.

Wolfaard, G. v. Z.

Tellers: J. F. T. Naudé and P. O. Sauer

Motion accordingly agreed to.

I move—

I move—

In proposing the second reading of this Bill I intend just giving a very brief survey. This is a Bill to amend and consolidate the laws in the various provinces relating to prescription. Its primary object is to secure uniformity throughout the Union. It will for the first time codify the whole of the law on the subject and make it available in both official languages, and will serve to remove certain anomalies dealt with more particularly hereinafter. Without going into too much detail, it is sufficient to point out that at the present moment the hypothecary action is prescribed in thirty years in the Transvaal, but in forty years in the rest of the Union. Fees for professional services are prescribed in two years in Natal, three years in the Cape Province and Transvaal, and four years in the O.F.S. A claim for damages arising out of a motor accident would be prescribed in the Transvaal in three years, in four years in the Orange Free State, but only after thirty years in the Cape Province and Natal. An action to recover money by a condictio indebiti is prescribed in the Transvaal, O.F.S., Natal and the Cape Province in three, four, six and eight years respectively. The most recent of the existing Acts, viz.: the Transvaal Act No. 26 of 1908, has been taken as a basis but has not been slavishly followed. Omissions have been supplied and the scope extended. I should like to point out, too, that the use of certain technical expressions in Latin have been retained as they have been so fully discussed in the authorities and in the courts and are so commonly used that it would be unwise to attempt to substitute translations. Now, if I may be allowed to refer to certain sections of the Bill, I shall proceed to do so. First of all, these is Section 1 dealing with “definition.” The definition of “person under disability” settles the controversy about prescription as between spouses and brings our law into line with French, German, and it is submitted Roman Dutch Law, as well as with the general policy of our law in respect of husband and wife. Section 2 deals with the position with regard to acquisitive prescription, which is now completely codified, and the controversy about the period settled. Section 3, the barring of a claim based on the prohibition against large donations, has been inserted at the suggestion of one of our judges, and removes an admitted weakness in our law as interpreted by the Appellate Division in recent decisions. Sections 4 and 5 speak for themselves. Section 6 contains a new provision dealing with the situation created by the Farmers’ Assistance Act and omits reference to the Common Law, as the whole position is covered by the provisions of the section. Sections 8, 9 and 10 call for no comment. Section 11 provides for the change-over from the old laws and guards against any injustices to either debtors or creditors. The new procedure will at once apply, but old periods will continue in respect of existing claims, except that none will be longer than thirty years. Sections 12 and 13 are self-explanatory. Section 14 settles another controversial point of procedure. Provision is made that a defendant must give proper notice of his intention to rely on prescription by raising the matter specifically in his pleadings, but the court has a discretion to permit the defence to be raised at any stage. Section 15—it is not considered advisable to deprive the Crown and Public Bodies of the protection afforded them by the various short periods of limitation of actions fixed by particular laws. I think that the list of these laws is too long to be given in full but I should be quite prepared to give them to hon. members. The periods have apparently been fixed quite arbitrarily, and it is unfortunate that uniformity cannot be introduced but that would be a task of too great magnitude to attempt in the present Bill. It would complicate matters very much. I hope that at some future date we may be able to get uniformity. I think that this is a very necessary Bill and I hope the House will have no objection to passing its second reading.

I think it would have been more interesting if the hon. Minister had delivered a speech instead of reading a prepared memorandum. In any case I do not think we can do other than to welcome this attempt at obtaining uniformity. Uniformity in our laws in connection with prescription is very desirable. I want to say at the start that I am glad to see that in this Bill an attempt, and a successful attempt, is made to draft an orderly Bill, in this sense that one can understand it and see what it contains. Most Bills of late have long sentences of 20 and 30 lines to reflect one conception, altogether unintelligible. This Bill has been clearly drafted. I mention this because during this Session we have Bills before the House that even lawyers find difficult to understand. When one is busy reading it, and one comes to the verb at last, one has forgotten the subject. I would recommend that we should get more Bills in such a form that we can see what it means at a glance. After this word of appreciation to the legal draughtsman, I want to welcome this codification, for that is what it boils down to, of legislation. It is desirable that the various laws and proclamations in connection with prescription be consolidated and that uniformity be created for all the provinces. The matter has created considerable confusion in the various provinces. In one province the period of prescription in the case of ordinary debts, was three years, in another four years. There were different provisions everywhere. Now I want to ask the Minister, however, if it is not possible to refer the Bill to a Select Committee after the second reading. I understand that a number of amendments will be proposed at the committee stage, and secondly there are quite a few matters that members would like to thrash out thoroughly. It is a Bill of a highly technical nature, that cannot be analysed across the floor of the House. When an amendment comes it takes a considerable time before one can see the practical implications.

I shall agree.

I am very glad, for this will help a lot. We have had proof in the past that a Bill of this nature can be analysed in two or three days in a Select Committee, and then a good Bill appears before the House, whereas if it must be dealt with here then it will take hours and hours of discussion.

Has the Bill been sent to the Law Societies and the lawyers?

I must say, so far as I am concerned, that the Minister sent me the Bill a considerable time ago to go through. I am thankful for it. I cannot reply to the question of the hon. member. I do not want to take up the time of the House longer in view of the fact that the measure will be dealt with by a Select Committee.

The public generally will welcome this Bill, and the legal profession in particular welcomes it. We have found in the past that with the different laws in the four Provinces it has been very difficult for any person to find out what the position is under the different prescription laws. I say, therefore, that the legal profession particularly will welcome this Bill. I might say that the Bill has been sent to the Law Societies of the Union, it has been considered by the Association of Law Societies, and it has also been sent to the Bar Council in Johannesburg who have had an opportunity of examining it. Apparently they are quite satisfied with the Bill as it stands. There are one or two points, however, to which I should like to draw the Minister’s attention in connection with the details of the Bill. In regard to Section 2 (ii) there is the provision which reads as follows—

Now, we would like to know from the Minister, in his reply, how the person who is entitled to this property by acquisitive prescription is to set about getting registration in his name? I think some provision-should be made in the Bill. The point is whether the application to the Registrar of Deeds should be by affidavit, or whether the person who claims the title, should have to make application to court. I think the Bill should specify how that is to be done. Then, with regard to the period of three years, in respect of the price of movables sold, and delivered, there seems to be some doubt whether shares are movables, and I think the Minister should specify particularly whether shares are to be included in this period of three years. I refer to a decision of the Appellate Court of 1928, in the case of Union Share Agency vs. Spain, where it was decided that shares were not movables in the meaning of the existing Act. I think we should specify in this section that the price of shares is included in the term “movables” sold and delivered. Then I want to refer to Section 13. Section 13 reads as follows—

I should like to ask the Minister why the Crown should not be bound in all respects, the same as any other person. It seems to me that it is fair and reasonable to suggest that the Crown should be bound in all respects in this Prescription Bill. For instance, there is this provision in the Bill which deals with the acquisitive prescription of land. Why should the Crown be exempted from that provision? Why should not a person who holds Government land be entitled to acquire that land in the same way as if he held it from any private individual? There is no reason why the Crown with all its servants and departments at its disposal should not be able to guard its own interests—that is, to guard against the acquisition by any person of any Crown land. Then I want to raise more specifically this question of Crown liability. We know that certain Government Departments are protected in regard to actions taken against those Departments, They are protected by certain prescriptive periods.

Public bodies too.

Yes, and municipalities. For instance you cannot bring an action against a municipality after a lapse of six months. You cannot bring an action against the Minister of Justice under the Police Act of 1920 unless you have given thirty days notice. Now I suggest for the consideration of the Minister, that all these prescriptive periods which we find scattered throughout all the statutes and ordinances of the Union, should be brought into this Bill. This presents a good opportunity of doing so. These periods should all be collected and be brought within the ambit of this Bill, so that any person who is concerned with prescription, who has an action perhaps against the Government, will simply refer to this Prescription Act which we are now passing and there he will see within what time he should bring his action against the Government. I think the Minister should consider this, because it would certainly tend to assist litigants and persons who have claims against the Crown. I should like the Minister to give us an opportunity of considering amendments before the Committee stage is taken, but if the Minister has agreed to refer the Bill to Select Committee, I will leave it at that.

I would also like to congratulate the Minister of Justice on this attempt to tackle a matter that has taken us 30 years to tackle. The only objection I feel is that I have always looked upon prescription as something immoral. A man becomes the owner of another man’s property because he has used it for 30 years. If I owe money, and I wait long enough without paying, then it is not necessary for me to pay the debt. It seems to me that we are making it easier in this Bill to evade debt. If something is going to be done to destroy the credit system in our country, then that will be a good thing, but the way in which to do that is not the way indicated in legislation of this nature. Where prescription took eight years in certain parts of the country, I see no reason why it should be made six years. On the other hand, we realise that in a case of libel a case cannot be instituted after a year. In this respect the period might have been even shorter. But where an attempt is made to give people a right to other people’s possessions in a shorter period, there I feel that we are going in the wrong direction. Then I would like the Minister in his reply to explain one thing to me. In Clause 3 (b) provision is made for a period of three years in which a man must pay his debts. Why does the Minister include in that clause debt for hire moneys on a written contract? If I lend a man money against a receipt, then it takes six years for that debt to be prescribed. What difference does it make whether I lend a man money on the receipt or whether he owes me money for hire on a written contract? I cannot understand this provision, and I would like the Minister to explain to me why in the case of hire moneys on the written contract the debt is prescribed within three years, and in the case of money lent on a receipt the debt is prescdibed only after six years. Then it appears to me that any debt based on a written agreement takes at least eight years for prescription. It will now be said that the creditor can cover himself by summonsing, and then he gets 30 years. But this is going to cause additional costs that will have to be paid by the debtors. In the Transvaal the period was six years. Here with us it was eight years, and I cannot see why the period should be so short. Then there is another matter to which the Minister must also reply. I cannot understand why interest on a bond becomes prescribed after three years, and the bond itself after 30 years. Where they fix six years for written contracts, and three years for hire contracts, I cannot see why the difference is made. Then I also want to say that I am glad that the Minister has agreed to refer this Bill to a Select Committee. We are grateful that the Bill has been introduced, because it will consolidate the legislation and bring about uniformity in the question of periods for all Provinces. It will be easier to lock up the things; but I feel that the various provisions in connection with prescription as it applies to the Government and public bodies should also be incorporated in the Bill. It seems to me that the Minister has realised the seriousness of the matter, but he did not have enough time to consolidate all the laws in connection with this. Possibly it was too much work for him to incorporate everything, but I do feel that if everything is consolidated it will be easier for the lawyers as well as for laymen to find out within what period certain rights are prescribed. I cannot understand the objection of the last speaker in regard to servitudes. I think the clause is, clear enough—

It is quite clear that if a man wants to avail himself of prescription and the other party refuses to agree with the registration, then he must go to Court, and the Court shall decide. We cannot place it in the hands of the Registrar of Deeds. Differences may arise in connection with prescription. It is possible that the owner of the ground may say that there was interruption, and that the period be calculated from after the interruption. Other things will come, such as, for instance, guardianship, and we cannot place such things in the hands of the Registrar of Deeds. It must be left to the Court. That is all I want to say on this. I am grateful that the Bill has been introduced, and I want the Minister of Justice to give us the opportunity of submitting matters. The Select Committee can discuss the matter, otherwise we shall sit here for days and take up the time of the House to thrash out these matters. There are also other things that must be taken up, in connection with which there have been Court decisions, and in connection with which legal principles have been laid down. There are different Court decisions in the different Provinces, and one would like to have uniformity by having those matters clearly set out in the law. It will perhaps take a little time in the Select Committee, but it will be worth the trouble to take up those matters in the Bill. We are thankful for the goodwill of the Minister of Justice in referring the Bill to the Select Committee.

Mr. Speaker, if the hon. Minister is going to refer this Bill to a Select Committee, there is little purpose in going into any of the details, certain of which have already been mentioned. I want to join with the hon. member for Brakpan (Mr. Trollip) in saying that anything in the nature of consolidation and bringing all these different provisions under one Act, will be welcomed by both branches of the legal profession. Of that there can be no doubt, and I think the Minister is to be congratulated on introducing this measure, which is going to be tremendously helpful to both branches of the legal profession. I also join with him in saying that I think this Act should embody everything under which any form of action would be prescribed. There are, for example, actions under the Railway Administration Acts where notice has to be given within a certain period prior to action. That, however, is a matter of detail, but the question I wish to draw attention to is contained in Section 2, paragraph 2, where I see an important principle involved. As I read this section—I am dealing only with immovable property—any person who claims the right of ownership on another person’s property, or even a qualified ownership in the form of a servitude, should be made to establish it either by consent of the owner concerned or by an order of the court. I do not think we should allow anything in the form of laxity in depriving a man of ownership of property, which ostensibly and prima facie is his, and before, therefore, we do deprive him of that right of ownership, or any qualified right over the land, he should be given notice, before the right or servitude should be registered in the Deeds Office. Or, there should be an order of court giving him the right which he claims. Under this section, as I read it, a person could come forward with an affidavit, or a series of affidavits, and go to the Registrar of Deeds, who would then be acting in a semi-judicial capacity, and get him to adjudicate upon those affidavits. Where a matter goes back over a very long period, in some cases it might be more than 30 years, you might very easily find that the original right had been given to someone who had no notice of this step. A man should only be deprived of ownership by his consent, or under an order of the court. There is quite an inexpensive method adopted under the Derelict Lands Act which might be adopted here. Under certain conditions one might apply in Chambers, setting out the circumstances, and the court would then give directions as to the person to be served with notice, or notice might be given in the public Press as a means of notifying the world that the application is being made for an order giving a right of ownership or a qualified right. That, I think, is a course which might very easily be adopted here, and it would prove an inexpensive way of getting the court to act. In that case the court would not be deprived of the right to adjudicate upon any question of ownership, and at the same time this method would remove the necessity of appointing the Registrar of Deeds a semijudicial officer.

He would not be a semi-judicial officer, but a judicial officer.

I hope that when the matter comes before the Select Committee the Minister will bear that in mind, and perhaps accept the suggestion I have put before him as a means which might be adopted, and in that way save expense as far as possible.

I hope that when this Bill finally emerges from the Select Committee, it will not create the same difficulties as the old Transvaal Act of 1908 created. When that Bill was first put on the Statute Book, it contained a number of very serious mistakes, and a great deal of harm was done before those mistakes were recitified. Now this Bill purports to follow the 1908 Act, but it creates what is new in South Africa in connection with prescription legislation, that is to say, it emphasises and defines the distinction between acquisitive and extinctive prescription. I agree with what the hon. member for Brakpan (Mr. Trollip) and the hon. member for Wynberg (Mr. Friedlander) have said as to the effect of Section 2 in dealing with acquisitive prescription, but I am not quite satisfied that the Bill follows out the effect of that distinction. For example, if you look at Section 9, there it is stated that when the creditor is a person under disability, “extinctive” prescription shall not begin to run until the date on which disability ceased. Why should there be emphasis on extinctive prescription, and why should acquisitive prescription run against a man who is under disability? The same criticism applies to Section 10 when the debtor is absent from the Union—extinctive prescription shall not begin to run until the date of his return. It seems to me that no distinction should be drawn in a case of that kind between extinctive and acquisitive prescription. Secondly, the old Transvaal Act provided for the manner in which prescription can be renounced. It was there expressly stated that when once prescription had taken place, it could only be renounced in writing. It seems to me that a provision of that nature might clarify the position, because otherwise verbal evidence might be given as to whether prescription had or had not been renounced and this might cause difficulty. It is not suggested in this Bill that prescription cannot be renounced. There was a provision in the Transvaal Act of 1908 which provided that prescription could not be excluded, or extended by the parties, and it seems to me that that would be a good provision in this Act. There was also a special provision in the 1908 Act which provided for the date from which prescription would run as against lawyers in respect of their fees, and I think that it would be a good thing if that provision were repeated in this Act. However, I am sure the Minister is anxious to introduce what will be a very good Act in so far as the Union is concerned, and I agree that the whole country will be pleased that this Bill, which is long overdue, has at last been introduced. It is to be hoped that when the Select Committee has finished its deliberations, a Bill will be produced which will be fair, which will be perfectly clear, and which will follow to logical conclusion the distinction between acquisitive and extinctive prescription.

Mr. Speaker, I would like to support what the hon. member for Wynberg (Mr. Friedlander) has said. There is just one difficulty that I see, and that is this, if this Bill is referred to a Select Committee after the principle has been adopted by the second reading, we do not want to be met by the answer that acquisitive prescription as laid down in Clause 2, has already been agreed to and accepted. We would like an assurance from the Minister that when the Bill appears before the Select Committee, it will still be open to amendment. The Bill has laid down that acquisitive prescriptive title can be obtained after 30 years, but I maintain that it should still be necessary to obtain the sanction of the court.

That must follow.

Not necessarily, Mr. Speaker, if you read Clause 2, Sub-Section (2), which says—

He has still got to prove.

That may be so, but there may be no counter-allegations where there is no notice to the man who is the owner. Usually one has to depend upon people who are old and who have been in the neighbourhood for years. The affidavits may establish some right, but when one comes to examine them in detail, and when they are subjected to the scrutiny of cross-examination in open court, one may find flaws in them. I think that before this Bill goes to Select Committee, we would like to be assured by the Minister, that the functions of the court will not be swept away, and that something more than a simple affidavit, which is easy enough to make, should be required before a man is deprived of his right. That, to my mind, would be a very dangerous thing to allow.

Mr. Speaker, I want to draw the attention of the Minister to certain aspects of this Bill. Prior to Union Legislation of the Cape government was not effective in the Transkei unless it was specifically applied, since Union all Acts of Parliament not specifically excluded from the Transkei are in operation there. The effect therefore of this Bill will be that it will apply to certain actions brought under Native law unless they are specifically excluded from its operation. The definition of an “action” is wide enough to embrace all actions under Native law which are brought in the courts of Native Commissioners, and the clause dealing with extinctive prescriptions in its reference to particular causes of action, would undoubtedly embrace many actions brought under native custom. I am therefore suggesting that the Minister should investigate this aspect of the matter during the inquiry by the Select Committee so that precautions may if necessary be taken.

I just want to say this, generally speaking, in connection with what the hon. member for Swellendam (Mr. S. E. Warren) said, viz. that prescription is immoral. It may seem immoral to enable a man to get rid of his debt. But on the other hand we must give security to the person who has paid his debt and who, after a long time, may not be able to prove that he did so. We must prevent the individual who has paid his debt from being placed in a difficult position.

Yes, but the other man can get something for nothing.

Yes, that is true, but the position will be even more difficult if we have not got this, from the point of view of the man who paid his debt. The other points which the hon. member raised can be dealt with by the Select Committee. I do not want to go into details in so far as those points are concerned, because I do not want to anticipate the deliberations of the Select Committee.

†There seems to be some misconception, this law does not alter the existing position on the matters raised by the hon. members for Brakpan (Mr. Trollip) and Ermelo (Mr. Jackson). Application has to be made to the courts in any case of dispute, the law is not altered at all, the law remains the same. I may also point out that by acquisitive prescription you get title without registration. That is the existing law. We are merely in this law consolidating the position. As regards those questions of shares and other points, that can be arranged in Select Committee. The difference between acquisitive and extinctive prescription is well recognised in our law, and Section 8 does not alter the existing position as it is. The point mentioned by the hon. member for Wynberg (Mr. Friedlander) about procedure under the Derelict Lands Act, is not affected, and the existing procedure will be followed. As regards the other point about prescription as far as the Crown is concerned, I am quite willing that we should go into that when the Select Committee meets, but that point is going to raise a considerable amount of difficulties. However, anything that I have got to say I will say there after having heard the views of those who come before the Committee. I do not want to anticipate our deliberations there, and I therefore ask that the second reading be taken now.

I move—

I move—

The Native Administration Act, passed in 1927, was one link in a chain of Native legislation passed by this House with the object of creating, as far as possible, a uniform system of Native administration and one Native policy for the four Provinces of the Union, to replace the divergent systems and policies of pre-Union days. For the purposes of the Native Administration Act a selection was made of the best provisions in operation in the different Provinces, and these were made of general application. The Act, therefore, deals with a number of subjects, and applies, among others, the Natal system of having a Supreme Chief, the Transvaal system of Native Commissioners, the Transkeian system of Native Appeal Courts and legislation by Proclamation. It provides also for the recognition or appointment of chiefs and headmen, for certain matters relating to tribal control and organisation, for the constitution of Courts of Native Commissioner and Native Appeal Courts, which have power to recognise and apply Native law, for the granting of jurisdiction of chiefs and headmen to try cases under Native law and custom, for the regulation of matters relating to marriage and succession, and for the framing of regulations on a number of subjects, including regulations for the control of Native villages and townships. The Bill now before the House is designed to remedy a number of difficulties which have occurred in the administration of this Act, and to remove certain hardships to the Natives flowing from inadequate provisions contained therein. It follows that the Bill, like the principal Act, should deal with a variety of aspects of Native administration. A draft of the Bill was submitted to the Natives’ Representative Council, which has agreed to the various provisions, with one exception, in regard to which I shall say more later on. The Council also asked that certain alterations and additions should be made, and these have all been incorporated in the draft now before the House. The Bill has also been considered by the Native Affairs Commission, who have recommended that it should be proceeded with. Clause 2 substitutes for the existing Section 2 of the principal Act a new section incorporating all previous amendments and making a number of improvements. The two main alterations are contained in sub-section (1), which now provides for the appointment of Assistant Chief Native Commissioners, and in sub-section (9), which has been amplified so as to provide protection for officials, chiefs and headmen from insults which they have at times to endure from agitators and other unruly elements. In addition to what the present sub-section contains, the new one makes it an offence for any person to disobey the lawful orders of any Chief Native Commissioner, Native Commissioner, chief or headman, to wilfully insult such official, chief or headman, to interrupt the proceedings at a meeting held by any of them, or to misbehave himself in a place where such meeting is held.

Who are these agitators?

It might be hon. members opposite themselves. Perhaps it applies to them. Clause 3 contains a number of amendments of vital importance to the Native people in regard to the jurisdiction of Native Commissioners’ Courts. Firstly, matters affecting the validity or interpretation of wills will no longer be excluded from the jurisdiction of these courts and reserved for the Supreme Court, in which Natives can seldom sue owing to lack of means. As the result of the existing law, it is possible for an interested party to produce what purports to be a will and so to reap the benefit of an estate with little fear of being challenged, because an action in the Supreme Court is beyond the reach of other interested parties. Secondly, more specific provision is made in regard to the places of sitting of Native Commissioners’ Courts and, thirdly, there follows what is regarded as the most important provision in the whole Bill, namely the provision extending the jurisdiction of Native Commissioners’ Courts. To understand the importance of this amendment I must deal in some detail with the hardships which have resulted from the existing law, under which a Native Commissioner’s Court has jurisdiction over all causes and matters arising between Natives, but only if the defendant resides within the area of jurisdiction of the court in which the action is being brought. If a contract has been entered into or a tort committed within the area of a particular court, that court has no jurisdiction in the case unless, in addition, the defendant resides there. Now we all know that many thousands of Natives migrate annually to centres where they can find work, and equal numbers return to their homes. They enter into obligations at their homes and then move off to labour centres, or vice versa, and a plaintiff can only enforce his claim in such a case against an absent defendant if he,—with all his witnesses,—follows him to his new place of residence and sues him in that Court. The income of the average Native does not permit of this, and a defendant may thus evade his obligations for years. Adultery and seduction are frequent causes of action and it is a recognised thing for an adulterer or seducer to run away to the mines to escape paying damages to the injured party. Further, while jurisdiction is founded on residence, it is impossible to sue a defendant whose place of residence is unknown, as it cannot be determined which court has jurisdiction over him; and the method of service of process by edictal citation (i.e. published in Press, etc.), cannot be applied. This creates a particular hardship for women in Natal. In that Province a customary union can only be dissolved by the judgment of a Native Commissioner’s Court. A man may thus desert his wife for years, and if she can’t find out where he is resident, she simply cannot sue for the dissolution of the union. In terms of the new Sub-Section a Native Commissioner’s Court has jurisdiction not only when the defendant resides within its area but also if he carries on business or is employed or the cause of action arose within that area, or if the parties agree in writing to a court’s jurisdiction. In this respect Native Commissioners’ Courts will thus be placed on a similar footing to Magistrates’ Courts. The ne wsub-section (6) added to Section 10 by Sub-Clause (3) is necessary to provide for garnishee proceedings between Europeans and Natives, but arising from proceedings in Native Commissioners’ Courts, which do not have jurisdiction over Europeans. Clause 4 inserts a very necessary new section into the Act conferering on Native Commissioners and Native Commissioners’ Courts the same jurisdiction in respect of Natives as Magistrates and Magistrates’ Courts at present exercise under the “Deserted Wives and Children’s Protection Acts” in force in the four provinces. It also confers on women, who have entered into customary unions, the same rights under these Acts, as if they had been married. Clause 5. The new Sub-Section substituted for Sub-Section 2 of Section 11 provides that the Native law which is in operation at the place of residence of a defendant in a case is the Native law which should be applied in that case, if the Native Commissioner decides to apply Native law. If, however, two or more Native laws are in operation at that place as does happen at centres where many tribes live together, then the law of the defendant’s tribe must be applied. The new Sub-Section (3) of Section 11 has become necessary in view of certain decisions given by the Native Appeal Court (Transvaal and Natal) to the effect that the status of Natives must always be determined according to Native law, even when they may be suing under the common law. As Native women are perpetual minors under Native law, these decisions are creating much hardship, particularly for women of the educated class, as well as many others in towns, who desire to acquire property in their own names. An endeavour has been made to overcome these hardships without, at the same time, going too far and offending the uneducated Natives who are already complaining that they have no more control over their children and womenfolk. Clause 6 makes several improvements to Section 12 of the principal Act and Clause 7 will enable the Minister to have decisions of a Native Appeal Court reviewed by the Appellate Division, even when they do not conflict with previous decisions of that court. Honourable members will, of course, appreciate that as the decisions of a Native Appeal Court are binding on all Native Commissioner’s Courts in its area, one incorrect decision by it may give rise to a series of incorrect decisions by Native Commissioner’s Courts. Experience has shown that the present section under which a decision can only be brought before the Appellate Division for review when it conflicts with a previous decision in inadequate. The new section follows closely the provisions of Section 388 of the Criminal Procedure Evidence Act, 1917, and is, therefore, not entirely an innovation. Clause 8 remedies certain minor defects in the existing law. A chief on whom criminal jurisdiction is conferred will be allowed to exercise such jurisdiction over all Natives residing within his area, whether they be members of his tribe or not. This brings his jurisdiction in criminal cases into line with that in civil cases, and it strengthens the hands of chiefs against outsiders who enter a tribal area and then defy the chief. Clause 9, Section 30, has been found in practice to have certain limitations which detract greatly from its utility. The Committee appointed in 1938 by the honourable the Minister of Public Health to report on the Administration of Urbanised Areas not under Local Government Control (U.G. 8 of 1940) called attention to some of these defects and recommended that they should be remedied, while the Native Affairs Commission in its report on “Kaffir Beer” also suggested an improvement. The new section is more extended in its scope in that the Governor-General is now empowered to make regulations, not only in respect of townships and villages, but also in respect of rural settlements where congested conditions occur. He may also make regulations to prevent overcrowding in such townships or settlements and the rates which may be imposed are not longer limited to 1¼ per cent. of the value of the land. Lastly, regulations may be framed permitting the brewing, possession or consumption of kaffir beer in such townships, villages or settlements, notwithstanding any provision to the contrary in the Liquor Act, 1928. It will be observed that it is specifically stipulated in paragraph (a) that any regulations which provide for the control and managements of any township, village or settlement shall provide for such control to be exercised by a local authority, the majority of whose members shall be elected by Native householders residing in the area. This provision has been incorporated at the express request of the Natives Representative Council. At the outset I referred to a provision to which the Natives Representative Council objected. That provision is the one contained in paragraph (b) of this Sub-Section, providing for the framing of regulations to prevent over-crowding in Native villages and settlements and the keeping of excessive numbers of animals by its inhabitants. That paragraph was included on the recommendation of the Urbanised Areas Committee to meet a very definite evil, and it cannot be dropped. The reason advanced by the Council why it should be omitted, is that it should be left to the local authority to ask for the restriction mentioned. The Council did not apparently appreciate that even if the restrictions were asked for by the local authority, an empowering section would still be necessary to frame the regulations. But the matter goes further than that; a Native local authority representing Natives, cannot be relied upon to ask for remedies to prevent congestion and overcrowding, for the simple reason that the majority of Natives do not regard overcrowding as an evil which should be remedied. On reconsidering this clause during the last few days I came to the conclusion that the clause as now drafted is open to certain objections, and I would like to notify or to warn hon. members that in the Committee stage I intend to propose its replacement by an entirely new draft which will appear on the Order Paper, and that draft will give local authorities definite powers to frame by-laws and so on. But on the other hand it will be laid down that such local authorities may only be established if no European minority is living in that village, township or settlement. If such a European minority lives there then the powers which the Governor General has under the Principal Act will be retained for making regulations as at present, and that I think, will overcome the difficulties which certain hon. members have to the clause as now framed. Clauses 10 and 11 are consequential and self-explanatory. In Clause 12 we pass on from the Native Administration Act to amend an old Natal Law, namely Law No. 46 of 1887, relating to the marriage of Natives by Christian Rites, several provisions of which differ from the law of the rest of the Union and cause hardship to Natives. In one section of this law it is laid down that if a Native minor—and hon. members must bear in mind that in Natal, women are always minors—wishes to marry and his or her parent or guardian is dead, absent from Natal or of unsound mind, or if he unreasonably withholds his consent to the marriage, that minor may petition His Excellency the Governor General to grant consent to the marriage. This provision is quite out of date and it is unnecessary for such matters to be referred to the head of the State. The amendment empowers the Chief Native Commissioner of Natal to dispose of such petitions. The Clause further provides for the repeal of Sections 14 and 15 of this Law. The first of these sections provides that if a Native has at any time entered into a Christian marriage, he may never again, should that marriage be dissolved, enter into a Native customary union. Section 15 contains a similar provision in regard to the children born of a Christian marriage. Any Native contravening either of these sections is liable to prosecution and the union entered into by him is declared to be null and void. In other words the woman has no rights against the man and the children are illegitimate. Now I think I am right if I say that it is not in accordance with the true principles of the Christian religion to compel persons to adhere to its requirements, particularly if the compulsion takes the form of creating illegitimacy. The repeal of the two sections is, in my opinion, long overdue.

This is the first occasion on which the hon. the Minister of Native Affairs has functioned in this House in the capacity of Minister of Native Affairs. I am sorry that at the very first opportunity he levelled a charge against hon. members on this side of the House.

It was only a joke.

The Minister realises now that he has committed a blunder.

It was not a blunder; it was only a joke.

If the Minister withdraws it, then I shall leave it at that. With the exception of Clause 9 of the Bill, this side of the House would have offered no objection to the Bill. We seriously object, however, to Clause 9 as it reads at present. The Minister has now given us the assurance, however, that he will amend this clause on a later occasion. I am only sorry that ho did not take the House into his confidence. He told us that he had come to the conclusion that this clause, in its present form, was extremely dangerous. He knows that this side of the House would have objected strongly to the manner in which this clause was drafted, since he wants Europeans and non-Europeans to function on the same management. The Minister knows that that is the reason why he abandoned this clause in its present form, and I am sorry that he did not admit it openly. If Clause 9 had remained in its present form, we on this side would have opposed it tooth and nail. We would have felt that this was an extension of what we already have in the Cape, namely, that Europeans and non-Europeans serve together on a number of Boards. If he had left this clause as it now stands, he would have applied this principle to the other Provinces. We on this side feel that it is an extremely unsound policy to have Europeans and non-Europeans serving together on the same Boards. We have had experience of this in the Cape. We find it even in a body such as the Cape Divisional Council. It is remarkable how the feelings of some people with regard to the line of demarcation between European and nonEuropean is dulled, when Europeans and nonEuropeans sit together on the same Board. In the Cape Divisional Council, on which fourteen members serve, only one of whom is a non-European, we find that that nonEuropean is the Chairman of the Financial Committee.

Disgraceful.

It is disgraceful. The worst of all is that these Europeans who serve on that Committee must now address the non-European as “Mr. Chairman”. Recently a European deputation made representations to the Cape Divisional Council, and the matter which the deputation submitted to the Council was referred to a Special Committee of the Divisional Council. This deputation objected to the fact that the Divisional Council tried to compel its personnel to enlist for military purposes. Objection was then made to the Divisional Council, and the Divisional Council referred the representations to a Special Committee for consideration, and the only non-European person on that Committee was elected as Chairman. It is for that reason that we feel so strongly that Europeans and nonEuropeans should not serve together on the same managing body. We are glad that the Minister of Native Affairs has now abandoned Clause 9. But we want to go further. We take it that he has come to the conclusion that it is not right to have Europeans and non-Europeans on the same Boards, and we want to make an appeal to him to make his influence felt as Minister in the future in these matters where Europeans and nonEuropeans act on the same Boards. With the exception of this clause, we have no objection to the Bill, especially if the alteration which the hon. Minister is going to bring about meets with our approval; in that case there will be no strong opposition from this side.

As the last speaker who has just sat down said, this is the first time the hon. Minister has addressed the House in his new capacity as Minister of Native Affairs. I want to congratulate him on the manner in which he has elucidated this Bill. Now, sir, the hon. Minister has referred in general terms to the Act which this Bill amends, but I want to refer to it in perhaps a little bit more detail in a moment, because I feel that the time has arrived that the Government should review the general scope of the Native Administration Act. But before I do that, Mr. Speaker, I want to refer to the actual provisions of the amending Bill. There are very few clauses which I want to refer to before going on to deal with the general principles involved. The first is Section 2, Sub-Section (9). The old section simply laid down that it was an offence to obstruct an officer or a chief in the execution of his duty. Now, this clause goes very much further. It starts off the same way as the old clause did—

That is as far as the old section went, but the new section goes on—

Well, now, what I feel is that it should be made clear in all these cases that it is only when the officer, chief or headman is acting in the course of his duty that these words should apply. As it is, they are very vague, indeed. For instance, this “disobeying” any lawful order; the man might be ordered to hold the chief’s horse. Then, again, “wilfully insulting”. That might be when the officer or chief is acting in a capacity which has nothing to do with his duty. I hope that will be amended at a later stage. Then this reference to “otherwise misbehaving himself”. That is also very wide, those words are very wide, indeed; practically anything can be construed in that way if the will to do it be present. Misbehaviour needs some explanation, where such wide criminal offences are referred to in the later words of the clause. In Clause 7, which is to be the new Section 14 in the principal Act, the Minister has extended the scope of the original provision. The new clause says—

The Appellate Division’s opinion on the correctness of a point of Native law is to be sought without waiting for a conflict in the Courts. That, I believe, is a sound principle, but I just want to draw attention to the fact that the new clause ends up with the words—

Under the original section where the opinion of the Appellate Division was sought in the case of conflict between the Courts, the words were that the decision of the Appellate Division should be deemed thereafter to be a correct decision. Now, I do not understand why that wording has been changed. I feel that the old words should be restored. Well, now, Mr. Speaker, another point arises in Section 8, Sub-Section 2. That is a section dealing with appeals from the Native Commissioners’ Courts to the Native Commissioner. These appeals are not what we understand by appeals, where there is a record which goes before the Native Commissioner. Apparently these are complete re-trials. I hope the time will come when these courts are made courts of record, but that is not the position at the present time. In that clause as it stands at the present time, in re-trying a case, it is laid down that the court shall hear and record such available evidence as may be relevant, and as the court may deem necessary to hear. I do not know why these words have been inserted. The words which I am questioning in Section 8, Sub-Section (2) are these, in line 53—

Now, as those words stand, the court will have a discretion to exclude otherwise admissible evidence, and that it is an unsound principle. If the evidence is relevant and otherwise legally admissible, this court, like any other court, should have to admit it. I shall make a suggestion in the Committee stage that these words be taken out. The only other clause in this Bill upon which I want to comment, is Section 9, introducing a new Section 30 in the principal Act. There provision is made for local authorities, for Native communities in peri-urban areas. The clause as it stands, gives practically no powers at all to the local authorities and therefore I welcome the Minister’s statement that he is prepared to reconsider that clause in order to include wider powers for prevention of congestion, permission to brew beer, the imposition of rates and so forth to be conferred on these local authorities. I hope the Minister will accept an amendment, or himself move one, to give those powers to the local authority. There is another matter which I feel should be inserted there, and that is some limitation upon the rating power. If rates are imposed by the local authority, there should be some limitation of that power. It may be necessary to raise the maximum limit, but there should be a maximum, such as is imposed on village management boards and municipalities.

What do you suggest?

I do not think the maximum should be higher than 2½ per cent. I want to emphasise this, that communities such as these are, nomally speaking, too poor to provide on any decent basis, the amenities which are required. The necessity will have to be faced in relation to these semi-rural, peri-urban communities that subsidisation of their local services will have to be provided either by the Central Government or by the provincial or local authorities.

If you will move that at the Committee stage I will accept it.

I am obliged to the Minister, I feel there should be a limitation, more particularly as it will be necessary to subsidisie the local services. These are the remarks I have to make about the actual provisions of the Bill itself, but as I have said, I feel that the time has come when the Government should be prepared to review the whole scope of the Native Administration Act. I personally wonder how large a number of the public of this country know exactly what the powers in this Act are. Before dealing with that I want to refer to certain principles. This country is involved in a war in defence of the principle of democracy, and that being so, I do not think it is harmful sometimes to consider what exactly is involved in the word “democracy”. Something is involved in that word which goes very far beyond the mere right to vote. All communities limit the right to vote to some extent amongst their citizens, though very few are as drastic in their limitation as we here in South Africa, although that limitation here is capable of some sort of superficial justification, on the ground of the gap between the civilisation of one section and another. I personally don’t accept that the discrimination is based on civilisation, but at all events a logical defence can be made for the limitation of the right to vote in this country. But I want to say that the right to vote is merely a safeguard of other rights which are of far more value. The best description of these rights is contained in two phrases, firstly, the sovereignty of Parliament; and, secondly, the rule of law. The sovereignty of Parliament simply means that Parliament, however composed, makes the laws, and the Executive administers and carries out those laws. The advantage of having Parliament make the laws is that those laws are publicly discussed and publicly criticised. The second principle, the rule of law, is that no man shall be deprived of his personal liberty, or his property, except after a clear charge in the ordinary Courts of law proved by evidence to the satisfaction of an independent Judge. I am going to show that the present Native Administration Act sets aside both those principles in their entirety for the majority of the population of this country. Perhaps the best non-technical definition of the rule of law has been given by the late Lord Chief Justice of England, Lord Hewart, in his book entitled “The New Despotism”. As I am quoting from this work, I should like to say that in my view anybody who is a candidate for admission to the Civil Service of this country, should be required to write an examination on this book. Lord Hewart says—

Now, sir, the proper sphere of this Parliament is to make the laws and of the Executive, not to legislate, but to carry out the law, and yet in recent years there has been the tendency for this House and Another Place, to abdicate their functions, holus bolus, not in respect of matters of detail only, but in larger fields of public relations to abdicate their rights in favour of the Executive, and also to define the powers of the Executive in such wide terms that the Courts can exercise no check upon the Executive as they exercise the powers conceded by Parliament. I shall illustrate how this works in reference to the Native Administration Act, and I say that such a system is not democracy, it is tyranny. Now, sir, I am not concerned in referring to this matter, to blame the Civil Service or to criticise in any particular respect the use they have made of their power. It is the principle of conceding these powers that I am attacking. If it be thought that I am making some sort of attack on the administering officials, let me reply to that in the words of Lord Chief Justice Hewart.

He says in referring to this particular principle—

Well, sir, he was referring to the British Civil Service. I am not necessarily going to put my praise of our civil service as high as that, but for the purposes of argument I am prepared to assume that it is the same. Well, now, sir, that is my answer to any suggestion that I am criticising individuals, or that I am criticising any personnel of the administrative service of this country. It is the principle which is dangerous and the reply to any charge such as I have just referred to, could not be put in more dignified or clear language than in the words I have just read out. Now I want to come to the application of this principle to Native policy, and I want to submit this. There may or may not be a reason why the Native population of this country should have limitations placed upon their right to vote. But there are no reasons justifiable on any democratic ground why those laws which are made for them should not be made by Parliament in the ordinary way, and there is no reason why power should be given to officials which take away the ordinary protection of the courts. Now I want to refer to some of the powers that are given in this Act, because I doubt whether the public of this country realise how far they go. Section 3 of the principal Act, which this Bill seeks to amend, in SubSection (1) enables a tribe to agree to a contractual obligation incurred after having-been adopted by a majority of the adult male members of the tribe present at a public meeting convened for the purpose. In SubSection (2) the written certificate of the Native Commissioner that the contract or liability referred to has been adopted in terms of Sub-Section (1) is conclusive evidence of the fact. If ever there was a section excluding the courts from adjudicating upon a contract, this is it. The official who is responsible is also the official who is the judiciary in cases of that nature, to decide whether a legal obligation has been undertaken. Section 5 of this principal Act, in the first paragraph, gives the Governor-General power to define the areas of a tribe. In other words, any tribe of this country, whatever its historic rights may be, can have those boundaries defined for them. I am not suggesting that these are often defined in a way detrimental to the tribal rights, but the point is there is no judicial safeguard against it. The second paragraph of that clause says that the Governor General may, whenever he deems it expedient in the general public interest, order the removal of any tribe or portion of a tribe or any Native from any place to any other place within the Union, upon such conditions as he may determine, provided that in the case of a tribe objecting to such removal, no such order shall be given unless a resolution approving of the removal has been adopted by both Houses of Parliament. Here in the individual case there is a complete suspension of the right of habeas corpus, the most fundamental of all democratic rights, the right to personal liberty, that can possibly be imagined. In a later section, Section 25, it says—

I wonder whether this House realises that the powers of the House have been entirely abrogated in active reserves. Powers like that should never be conceded to anybody in any democratic country, the principle is entirely unsound. Section 2 reads—

In other words, the ordinary responsibility for the promulgation of the law has been lifted, so that we may have the administration under this section entirely setting aside any law of this House. I wonder how many people know the extent to which the powers of Parliament have been abrogated. In Section 27 the Governor General has power to make regulations affecting the rights which Lord Hewart says are protected by the rule of law. These regulations apply to the prohibition and control of gatherings or assemblies of Natives and generally for such other purposes as he may consider necessary for the protection, control, improvement and welfare of the natives, and in furtherance of peace, order and good government. My point is here, the Governor General, in this clause is constituted the sovereign authority. Section 29 constitutes the vague offence of promoting hostility between natives and Europeans. In interpreting this section, a wellnigh impossible task is imposed upon the judiciary. The interpretation they have given to that clause has been a restricted one, but nevertheless the fact remains that the offence is utterly vague. When the accused is convicted under that sub-section, that is not the end of the matter, because then there is power given to the administration to do something which, as far as my experience goes, is unprecedented under any democratic system—i.e. to supplement the Court’s sentence. For instance, the power is given if the accused is a native, to send him to any scheduled native area, and if he is not a native he may be removed from such area. These are some of the main provisions of the law which this Bill is amending, and, as I say, make no allegation against anyone, and I know the present Minister is not responsible for this law. But what I am suggesting is that it is high time that these powers given under this law are changed. They make a mockery of democracy for the Native population. Democracy does not just mean the right to vote—the right to vote is the least of all democratic rights. The right to vote is only there as a safeguard, and the right to vote is common to democracy and to dictatorships—even in Germany, under the Hitler regime, people have the right to vote. The community has a right that any law before being passed shall be discussed in a Sovereign Parliament, with the full light of publicity on it, and the power of making regulations should only be conferred on the Executive for the purpose of carrying out the provisions of the law. This Native Administration Act suspends for the Native people what protection Parliament or the Courts can give them. And for that reason I wish to take this opportunity of entering a protest against these powers under which the people I represent are governed. And to express the serious hope that this whole subject will be reviewed by Government at no distant date.

My hon. friend who has just sat down has drawn attention to certain matters of which we have been fully aware for many years. I, too, share the hope he has expressed today, that in the not too far distant future those powers to which he has referred will be reviewed, and that the administration of the Native people will be placed on a footing of greater parity with the other sections of the community. Unfortunately we are faced with the position today that public opinion has not yet been sufficiently enlightened on these matters with which we are dealing. Parliament now proposes to make these very necessary changes, so on this occasion I do not propose to deal with the general principles which my hon. friend has gone into; I only wish to say that anyone who has studied this question must realise that there is nothing very much wrong with the criticism he has made. Facing up as I must to the realities of the situation I wish to touch on some of the provisions of the Bill before this House, and I wish to say that in some respects I find in it signs of a very definite improvement. In relation to this question of protecting officers, i.e., Magistrates, chiefs, headmen and others in the execution of their duty, I have no hesitation in saying that that protection is proper and reasonable. Every public officer is entitled to protection whilst in the performance of his lawful duties. What I am afraid of is that an official who is unfit for his job may bolster himself up by means of the arbitrary and wide powers contained in this section as it stands, and that is why I should like the provisions of Sub-Section (9) of Section 2 to refer clearly and only to “wilful obstruction of an officer in the execution of his lawful duties”. I do not like the phrase “wilfully interrupting”. It seems to me that a provision of this nature in the wrong hands could be used for the purpose of preventing proper discussion. We in this House in the course of discussion interrupt and presumably we interrupt wilfully. Now, if that is done at a Native meeting under this section it would be an offence. The whole question should be governed by “the intention” to obstruct. If the intention is to obstruct a person in the execution of his duties, then the offender should be punished, but the phrase as it reads now is undesirable and in the wrong hands may be abused. I do not suggest that the senior members of the civil service or of the Native Affairs Department or the majority of Native Affairs officials would appeal to this particular section, but I think it is my duty now and here to say that in my opinion the standard of some of the men who are entering the Native Affairs Department today does not bear comparison with the men you had fifteen or twenty years ago. And for that reason I urge that you must not bolster up a weak official by giving him arbitrary powers. That is not the way to administer Native affairs—that is the road which leads to maladministration. I hope that in the Committee stage the Minister will so amend this particular clause as to make it quite clear that the purpose is solely to deal with a person who wilfully obstructs the proceedings, or wilfully insults an officer in the execution of his duties. The next clause I desire to touch on is No. 5. I am not very happy about the wording of 5 (2). I, of course, realise that you have a situation on the Witwatersrand where Natives of different tribes are living outside tribal areas and it may be difficult to come to a conclusion as to what Native law you should apply. My fear is that in legislating for such cases that you will cut across established practices in tribal areas, and I am very anxious that it should not be possible for an alien tribal minority living in a recognised tribal area to impose their laws on the majority. That danger could be avoided by a little reconstruction of this clause and I hope that in Committee the Minister will consider amending the clause. In regard to Clause 7, as I read it, it does not seem to carry out the intention of the legislation. It might be interpreted in its present form as being there merely for the future guidance of Native Commissioners in relation to the particular case which has been stated. What I would like to see is a clause making it clear that the decision of the Appellate Division shall be binding as the correct interpretation of the law, and in Committee I propose to move an amendment to that effect making it clear that the intention is to regard the Appellate Court’s decision as the correct interpretation of the law for the future guidance of lower courts. On Clause 8, to which my hon. friend referred, I don’t think I need say anything except that I am in agreement with him in his remarks. The evidence is either relevant or irrelevant. I am sure the Minister will realise the justice of the criticism. And now, finally, I would refer to the only clause in relation to which the Natives’ Representative Council passed any criticism at all and that is Clause 30. I regard this clause as a step in the right direction. We are continually telling the Native people that they lack responsibility. I, on one occasion, addressing a meeting of Native teachers, told them that, and I was met with this response: “How can you expect us to exercise responsibility if you never give us any responsibility to exercise?” I regard this Clause 30 as a step in the right direction, except that in its present form it does not seem to me a full step at all. You are proposing to give the Governor General the power to make regulations, and thereby to create local authorities which will have no power at all. We for our part could not accept a clause in that form, and we are very glad to hear that the Minister intends to put a new clause before us in Committee. The hon. member for Malmesbury (Mr. Loubser) dealt with the situation which might arise if you had an African majority on a Council dealing with the affairs of both Africans and Europeans. Well, that is a political matter which I do not propose to touch on. Our proposal amounts to this, that we are going to suggest to the Minister that when an area is exclusively occupied by Natives he should give the Natives a Local Board on the same basis as a Village Management Board with responsibility to the Governor General instead of to the Administrator. In that way you will develop civic sense and you will develop their sense of citizenship. I cannot see that my hon. friend need have any fears in such a case. The words “exclusively occupied by Natives” have certain dangers in them. You may have an area where three-quarters of the population are Natives and the rest mixed—not Europeans. There you could not appoint a local authority under this clause. We suggest that the Minister in drafting his new clause should take into consideration this aspect—and provide that if there is a majority of Natives living in a particular area and the remainder are non-Europeans, for the purposes of this Bill that area should be regarded as “exclusively” occupied by Natives. I do not think there is much more to be said. The fact is that the Natives’ Representative Council has approved of this Bill in the main, and therefore it may be asked why we should interest ourselves in it. We felt notwithstanding the fact that the Natives’ Representative Council has agreed to the Bill in general, it is our duty to go into it in more detail, and see that situations are not created which the Natives’ Representative Council may not have visualised. If these safeguarding amendments which we have suggested are agreed to I do not see why this Bill should not come from the Committee as an agreed measure.

I do not doubt that many of us listened to the remarks of the hon. member for Cape Western (Mr. Molteno) with considerable interest when he spoke about democracy but I would remind him that the Natives in this country have always been accustomed to dictatorships. The old chiefs, who governed them for hundreds of years, were dictators and the tribes obeyed the rule of the chief and the sudden impact of civilisation has not yet been assimilated by the great masses of the Natives, nor do they understand thoroughly the meaning of the word “democracy.” In fact I doubt if many of us realise the real meaning of the word. But the fact remains that the Government of the old Cape realising this, established the system of government by proclamation, and today the Union Parliament has to a large extent followed out these principles and it seems to me that the state of civilisation in which the masses of the Natives are, makes that unquestionably for the period of transition the only possible way of ruling the Natives. This House wisely, I think, in 1935, passed the Native Acts in this House, in which we created the Natives Representative Council, giving the Natives some say in the government of the country. We had a similar system in the Transkei as long as 40 years ago when we constituted the Bungha and that body is becoming a body of more enlightened men, and they understand to a certain extent what democracy means, and the responsibilities thereof, and here I support the hon. member for Transkei (Mr. Hemming) where he says that the time has arrived when these bodies should be given some responsibility. In the past they have been purely advisory—they have never had the right to tax themselves or to participate in their government. And after 40 years we feel these bodies should face up to the responsibility of citizenship and learn to govern themselves. We have created Native advisory boards in urban areas—we have tried to help the Natives to help themselves, but so far these advisory boards have not been a great success, they have never been able to realise their responsibilities to their brother men. That also applies to the Joint Councils. I was a member of the Joint Council in the Transkei. We met together to discuss problems facing the country as a whole, but we found that at these meetings the Natives did nothing but grouse, make complaints against the Europeans and the Administration, and never brought forward anything constructive. And that is where the Native fails as a whole. I would like to support to a certain extent what my hon. friend said about the officials in the Native Territories. Owing to the war we have imported into our Native Territories certain young officials who have been rather hasty in giving decisions and so on, and I would urge on the authorities the necessity of only putting in the best men, men who have a good knowledge of the Natives and understand the Natives. Because it is there that the Native gets to learn and gets to understand the European and the power of the law, and if these powers are not properly understood and exercised it will create great bitterness which will never be overcome. That applies more particularly to the police. They get into touch with the Natives every day and the authorities should realise that that is one of the important factors in our Native administration. As a member of the Native Affairs Commission I should like to say this, that I think the Administration carried on by the Native Affairs Department today is more sympathetic and more efficient in every way, and in closer touch with the Natives than ever in the past. I am sure that we all trust the new Minister will, when he has had more experience, realise the difficulties he has to contend with. I understand he is going through the Native Territories which will bring him into closer touch with the Natives, and I hope his period of office will be a period of great use and service to the Natives, and that he himself will in that period gain the respect of the House and of the Natives—which I am sure he will do—because he has always taken a keen interest in Native affairs. But I would again urge the necessity of the Department being careful in choosing their officials for the Native Territories. In conclusion I would say to hon. members representing Native interests also that while working for the Natives they should make them realise their responsibilities. It is all very well to make laws but laws will never bring about benefits to anyone—it is the appreciation of these laws which will bring about improvements, and I am afraid that the Natives of this country have not yet learnt to realise that they have responsibilities to us in the same way as we have responsibilities to them.

I appreciate the way in which this Bill has been received by the House and the constructive criticism which has resulted.

†*I do not think it is necessary to say anything in regard to the remarks which were made by the hon. member for Malmesbury (Mr. Loubser). I think he will be satisfied that I personally am going to put an amendment on the Order Paper, and if he is satisfied with that, we can overcome the difficulty in that way. He was a little annoyed because I made no reference to his side of the House when I announced that I would move an amendment, because they, too, proposed that this clause should be amended. I know that they offered certain objections to Clause 9, and for that reason I decided to bring about the amendment.

†Now, with regard to the point which the hon. member for Cape Western (Mr. Molteno) raised. He gave us a most learned dissertation on democracy. Well, I am not qualified to reply to him in the language which he used, but I would just like to say this: he had a complaint against the Executive, and he spoke of the almost unbridled power which the Executive has, but let me say this: unless you have an Executive it is impossible to carry out your laws. Is Parliament to do it itself? And we see true democracy in this House. The Natives have three representatives here who can get up in this House, and if any Civil Servant does anything which is wrong, or does anything which they do not agree with, they can cry to high heavens and expose an injustice, tyranny or irregularity. That is my understanding of democracy—my view of democracy is the right to ventilate grievances, and expose anybody without fear or favour—and I think hon. members over there have that right. But the hon. member has made certain suggestions here, together with the hon. member for Transkei (Mr. Hemming). I shall be glad if the amendments suggested by those hon. members are put on the Order Paper, so that I can study them before they are moved in the House, because I am prepared to agree to certain alterations in regard to Clauses 2, 7 and 8. The hon. member’s main complaint was against Clause 5 of the original Act on the subject of deportation. I think it is only right that I should say that no man is deported until a full enquiry is held, and he is asked to be present, and he has the right to call witnesses. In the case of a tribe being moved, there you have a different proposition, because if there is any objection they can only be moved with the agreement of both Houses of Parliament, and therefore I do not think that any Government could arbitrarily abuse these powers. A man can only be deported if an order has been made against him, and if he refuses to obey the order he is convicted. Such a conviction went to the Supreme Court last year and it was quashed, which shows that the Governor General has not got altogether arbitrary powers of deportation. I can give a number of cases to show that the right of deportation is a very necessary right. Let me quote one instance. I have in mind a case where a chief and another man murdered a European named Collier. The chief confessed to the crime, he was convicted and sentenced to death. On appeal, however, the conviction was quashed on technical grounds and the result was that the man was released, and went back to the area where he came from and where the offence had been committed. Grave repercussions would have arisen in a case of that kind. These men after having been convicted got off on technical grounds, and it was found necessary in the circumstances not to allow them to return to the area they came from. It is desirable that there should be powers of deportation in such cases. I don’t want to go into that point any further, except to say that I doubt if the hon. member can refer to one case where these powers have been arbitrarily or unfairly employed. Now, in regard to Section 25 which deals with the power to legislate by proclamation in Native areas—I think that has worked very satisfactorily, and I want to remind hon. members that the regulations are always laid before Parliament and Parliament can veto such regulations. Hon. members have every chance of exposing anything that is wrong, and the idea of dealing with administrative matters by means of proclamation is to avoid taking up the time of this House and to keep such matters as far as possible outside the political arena. And while on this point I must compliment hon. members representing Native interests in that they have done their best to keep politics outside these matters. Then the hon. member spoke on Section 29. I feel that this is a very necessary section, intended to deal with mischief makers stirring up trouble between black and white. The hon. member for Transkei raised the point that officials might be inefficient and therefore use the provisions of Section 29 to bolster up their powers. I think it would soon be known to the Department and the Minister if an official tried to do that, and he would soon be dealt with. He might get away with it once but not a second time, but knowing the officials as I do I don’t think there is any likelihood of anything of that kind occurring. I doubt if anywhere in the world you will find a finer, more conscientious set of public offcials than in the Native Affairs Department. In regard to Clauses 5, 7 and 8, the same remarks apply there as what I said in reply to the hon. member for Cape Western. The hon. member for Tembuland (Mr. Payn) raised the question of Clause 9. I definitely agree that Natives must be given responsibility to deal with local matters in their own areas. How can they ever learn to take an interest, how can they ever be expected to carry any responsibility unless they have responsibility placed on their shoulders, and have definite powers in their own local areas for parochial matters. They should have control over their own institutions. That is the only way in which they could ever learn to govern themselves. I do not think there is any other point I have to deal with and any other matters can be dealt with in Committee.

I move—

The object of this Bill is to write off a sum of £252,000 on the Oliphants River Irrigation Scheme. To give the House a perspective of the reason why we asked for this writing off, I think the best I can do is to give the House the historical background of that scheme from the beginning. In 1909 this scheme came to the fore, and the object was to provide water from the Oliphants River by means of a weir and to irrigate 7,000 morgen. It was calculated that the costs would be £155,000. In 1911 a Board was established, the Oliphants Irrigation Board, and they made application for a loan of £155,000, and special legislation, viz., Act No. 5 of 1912, was passed to make provision for the construction of that weir, with the understanding that the Government would maintain the dam for not less than 15 years. The loan was repayable within a period of 60 years. In 1913-T4 the work was commenced, but they did not proceed very far when they found, after further investigation, that there was not sufficient water to irrigate the 7,000 morgen. It was then decided to build the dam somewhat higher, and to convert it into a storage dam. At the same time, they decided that there would then be more water for the 7,000 morgen, and they then bought more land. A large piece of land was bought at the lower end of the scheme. Let me say immediately in connection with that land, that the object was to make it a settlement. The land at the lower end of the settlement is nearly at sea level. The water is not more than four or five feet above sea level, and consequently the difficulties owing to brack are very great.

It is a very broad valley, is it not?

It is a very broad valley, and when the river is full, it rises to within a few feet of the banks. I think it was a mistake in those circumstances to establish the settlement there. Let me say this, that the costs of that conversion work was to have cost £505,000 instead of £155,000, and then it was decided to repeal the original Act of 1909, and Act No. 28 of 1917 was then passed to construct the combined scheme. The dam was then built at the top end, and the agreement was that the Irrigation Board would pay one-half of the sum of £505,000, the estimated cost of the conversion scheme, viz., £252,000. When that scheme was completed, 180 miles of canals were made, and instead of costing £505,000, it cost £601,566.

Together with the canals?

Yes, together with the canals, it cost £601,566. The Irrigation Board accepted liability for one-half of the debt, and the rest was by way of subsidy. Thereafter a sum of £22,655 was spent on the scheme in respect of maintenance, improvements and drainage, which was very expensive, and also to line a certain portion of the canals with concrete. The sum of £22,655 does not include the ordinary current costs of administration. The administration costs amount to approximately £7,000 per annum. After the scheme had been in operation for some years, it was discovered that there was not sufficient water in the dam to irrigate the land, and they then had to see whether they could not increase the water so as to irrigate the original land, that is to say, the 7,000 morgen, and also the 3,000 morgen which were later purchased, a total of 10,000 morgen. And that is the area which is still under irrigation today. They then investigated the various tributaries of the Orange River and the Doorn River in an effort to find another place for a storage dam, but it was found that the best place was just below Clanwilliam, and that is above the old dam to which I have referred. The construction of these two dams was started in 1932. It is a concrete dam, and in 1935 the dam was completed at a cost of £253,780. The result was that they could also irrigate the additional 3,000 morgen. At the same time, immediately after the completion of the dam, the uppermost dam, 14 miles of canals were constructed in order to irrigate certain lands on the right bank of the river. Today they have their own Board there, the Clanwilliam Irrigation Board, and those 6,000 morgen are now being irrigated. As I have said, the Oliphants River Irrigation Board had to repay £252,000 within a period of 60 years, and the Act provided that they should pay a tax, namely, in respect of redemption, interest and maintenance, of £1 12s. 6d. per morgen. Immediately thereafter and for a number of years, the position which obtained there was such that it was impossible for the settlers to pay this sum of £1 12s. 6d. per morgen. The then Minister was compelled to make use of the powers which were granted to him under Section 6 of Act No. 38 of 1922, under which he could give relief to those settlers, with the result that he reduced that sum from £1 12s. 6d. to 7s. per morgen. The settlers paid it and gradually, year after year, the sum was increased until today it is £1 per morgen. It will be understood that that sum is altogether insufficient to pay for redemption, and for the maintenance of those morgen. The accumulated interest on this £252,000 already stands at approximately £20,000, i.e., arrear interest. The Act to which I have referred, under which the Minister has the power to afford relief, is operative for a period of 15 years only. The period in question expired as far back as 1939. The Government has no right to grant further relief, namely, to reduce it from 32s. 6d. per morgen to 7s., which has now risen to 20s. The Irrigation Commission which was appointed some years ago was asked to go into the matter and to submit a report in connection with the position at Oliphants River, and the result of their report is the recommendation which is now contained in this Bill, namely, the writing off of the sum of £252,000 together with the accumulated interest. I now come to the different clauses. I do not think it is necessary to deal with every one of them. I think they are self-explanatory, except perhaps Section 6. Section 6 gives the Government the right to bring the levy on the irrigable area up to a maximum of 25s. per morgen.

What do you mean by which is irrigable or benefits directly or indirectly by water from the works and has been included in the schedule or irrigable land?

Well, there are private owners too. They now fall under this Act. The levy will not exceed 20s., and on those 6,000 morgen it will go up to 25s. The reason for the difference between the two areas is this: The Department will be responsible for the maintenance of the Government scheme and for the canals, whilst in the Clanwilliam area they are responsible for that themselves, and consequently they pay only 20s. instead of 25s. Then I think I should also explain Section 12 to the House. When the original piece of land was bought, a certain piece of land fell under it which belonged to the Hottentot reserve in the vicinity, and in exchange for this land it was agreed that they would get water for 300 morgen on their reserve, in respect of which they would have had to pay £1 12s. 6d. Now they get it for 25s. They are also entitled to get more than 300 morgen. They can now go up to 500 morgen. I think I have outlined the full history of the scheme, and the reason why we are asking the House for the writing off of this amount.

I do not want to oppose this Bill in any way. The Minister proposes to give certain concessions to irrigators, and this is welcomed by all. I want to express my regret, however, that the Minister, in coming forward with a Bill such as this, did not follow the usual procedure, namely, to bring the Bill to the notice of the Select Committee on Irrigation. In such a Bill there are frequently involved proposals, and it would have been much better if, in the circumstances, the Minister had first referred the Bill to the Select Committee, so that we could become acquainted with the provisions of the Bill. The hon. Minister did not do that, and the result is that it is impossible for hon. members in the course of a cursory examination of the Bill to become conversant with the provisions of the Bill. I am also sorry that the hon. member for Namaqualand (Lt.-Col. Booysen) could not be here this afternoon. This is a matter which particularly concerns him, and I am certain that he would have liked to be present at this discussion, and for that reason I am sorry that this Bill must be discussed this afternoon. The Minister told us that the provisions of this Bill aimed at the writing-off of a loan which was given to the Irrigation Board, and the interest on which had accumulated until it had reached a large figure. There we agree with him, and it seems to me that he is taking further steps, and that he has not explained those steps to us, namely, that he is going to abolish the Oliphants River Irrigation Board. We are surprised, if that is the case, that the Minister did not tell us anything about it.

The Board is restored in Section 5.

But the Government is taking the whole scheme over.

Yes, but the Board is restored under Section 5.

I am glad to hear that. I just wanted to be clear on this point. If that is the case then I am satisfied. It would have been a pity if we had abolished this local government. I hope, in so far as the provision with reference to the Kamanassie Irrigation Board is concerned, that the Minister got into touch with them.

We are retaining their rights.

Were they consulted?

No, it was not necessary. We did not interfere with their rights. On the contrary, they are being favoured.

That is precisely the fault which I find with the Minister in connection with this matter. Even though you favour people, you must surely tell them that you are doing so. The Minister did not submit this matter to these people. There is a provision in Section 13 of the Bill in connection with the Kamanassie Irrigation Board, and those people know nothing about the proposed steps. The Minister says that this is to their advantage, but it is nevertheless advisable to keep these people informed. I hope the Minister will not do this sort of thing again in the future. I intended moving that this Bill should first be referred to the Irrigation Committee, but after the explanation of the hon. Minister that there is no question of taking away the rights of these people, I shall no do so, but I hope that in future the Minister will keep his Committee informed when introducing Bills of this nature.

In normal circumstances, under the ordinary laws an irrigation district is proclaimed and the irrigators under that scheme elect their own Board. Those people who are responsible for the maintenance, who have to pay for the maintenance of the scheme, elect their members who then account to them. I have discussed this matter with the hon. member for Namaqualand (Lt.-Col. Booysen). Unfortunately he is ill and could not be present this afternoon, but what the irrigators felt was that they had no say in the election of this Board. Under Section 5 the Minister may appoint a Committee consisting of the director or his representative, who may act as chairman, and at least four other persons to advise him. There is no limitation with regard to the period of the appointment. The Minister may appoint these members for a period of 40 or 50 years. There is no limitation. I would like the Minister to look at Section 5. Under that section he may appoint four members to assist him in connection with the distribution of water and things of that nature. It is not the Minister’s fault that this scheme had such a long and unfortunate life. That part of the country is dry and they have converted a desert into a pleasure garden. These parts can produce food. We are grateful that this scheme was accepted. It is true that more was spent there than might have been spent in other parts of the country, but I have no objection to the writing off of this debt. I am glad that the Minister is moving it. I may be wrong, but I have never lost confidence in local government. I have discovered that local governments can render very good services, and that it can maintain its own works. This Board is now being abolished, and the Minister is appointing an advisory board in its place. The members of that Board are appointed by him, and it was felt—I am repeating now what was said to me by the hon. member for Namaqualand—that people were frequently appointed, not on the ground of efficiency, but because of political reasons and it was felt that these people should have the right to elect their own Board. There may be certain irrigation boards who do not carry out their duties as they should, but my experience is that these Boards render very good services to the country. They are doing unselfish work without receiving any payment for it. It is their furrow. They see to it that no damage is done to it, and they maintain it as cheaply as possible. According to the Lands Settlements Act, No. 8 of 1912, a settler is regarded as an owner. When the settler enters into his lease, he is looked upon as the owner. He gets the right to vote, and he has to pay taxes. If the settler gets into arrear with his instalments, inspectors are sent to press him for payment. I feel that if the Government were to leave the administration and matters connected with this Board, in the hands of Irrigation Boards, he will be redering a service to the country. The director, the chairman of this Advisory Committee, may be stationed at Pretoria, and then there are four other members who advise the Minister. They can do as they please, and the result is that you will not have this cheap administration which you would get if the local people themselves were to govern matters. I do not want to say anything against the Department, but these people who are now being appointed are subject to definite rules, and I think it is unreasonable that the people who have to pay the taxes should have no say in the matter. The ordinary irrigation board is elected for a period of three years, and I do not believe that it is right to leave the discretion with regard to the period of the appointment exclusively in the hands of the Minister. The period should be confined to three years, just as in the case of an ordinary irrigation board. There may be all sorts of difficulties if the period is not fixed, and I think that the Minister will be wise to appoint these members for a period of three years. The distribution of water is left to the discretion of the department. Act No. 8 of 1912 makes us liable for taxes, but it also gives us a privilege. It gives us this privilege that we are entitled to a reasonable or a fair share of the water. A fair share is determined according to the size of your land. If therefore you think that you are being unfairly treated, you have the right of recourse, which you would not have if the distribution of water were left in the hands of the director or of the Minister. There was and there still is an idea that the irrigation department and the State should control all the water. I cannot but protest against this. I think it is wrong. The riparian owner is entitled to the water, together with the land he bought, and he has the right to demand his portion of the water, and that it shall not be left to the discretion of the State to do as the State pleases. The State may be as good or better than an Irrigation Board—I do not think so—but I do not think that it is right that the Department should dispose of the water and the rights to which the owners have a claim. I cannot agree that owners of irrigable land should cede their rights within the catchment area to someone else. There are quite a number of other points in connection with this Bill which can be improved, but that is my main objection. I believe in local government. I believe that these people should be responsible to the irrigators. I believe that these people should elect their own members, so that they will have local responsibility. It is only in this manner that you will get cheap administration. I feel therefore that this Bill goes too far. The Minister may say that there is a similar provision in Act 28 of 1927, but the fact that that Act is wrong, does not make this one right. I feel that this is a wrong step which will eventually lead to the dispossession of the rights of riparians. It is my duty to warn the Minister that he is doing a dangerous thing, and I feel that all of us will still regret what took place. I am acquainted with this scheme; I was there. In the first instance, mistakes were naturally made. The dam began to leak, and then the furrows had to be lined with concrete. There were other costs, too, and as a result of that the ultimate costs amounted to approximately £1,000,000. This is a loss which the State suffers, but I feel that the State will still get more than £1,000,000 out of it. I feel very strongly, however, that the control should be left in the hands of local people who are acquainted with the local conditions, and who are experienced. If that is done, things will not go wrong in this way.

If there is one section of the community which really deserves every penny it makes out of the soil, it is that of the agriculturists and irrigators. For that reason I am glad that the Minister saw his way clear to introduce this Bill, and I hope that what he did here in regard to the Oliphants River, will be extended to other schemes where it may be necessary.

Deserving cases.

Of course, deserving cases. I should like to be put at ease about one point, and that is Clause 12 which mentions the decrease from 32s. 6d. to 25s. for water rates in the case of coloureds. If I understood the position rightly, a distinction has been made between the original owners and the settlers in regard to the water charges, and I want to appeal to the Minister to treat the coloureds as leniently as possible, for they are the poorest of the poor.

They get the same as the other people.

Then I have no further objection to the Bill.

I fully realise the necessity of the Bill. Exceptional circumstances prevail in regard to this irrigation scheme, but I am only afraid that this is the first Bill of a whole series which the Minister will introduce afterwards in regard to other irrigation schemes, but I am worried that this Bill is going to be a kind of specimen Bill for other irrigation schemes where the Government has also been writing off. The Government will then come along and say that it has written off so and so much and now wants to have a say in the control, complete say in the control of the irrigation schemes. I believe we are going a little bit too far. I cannot agree with Clauses 4 and 5 of the Bill. If the Minister wants to have a say in the matter he should have a few of his nominees appointed to the Board, but since the Board will now be appointed in accordance with Clause 5, it means that it will be appointed by the Minister and the Minister only. He appoints his nominees and not the irrigators—they have no voice in it. The four or five persons he appoints can do as they like and the irrigators have no say in it. As a member representing one of the largest irrigation districts, I want to warn the Minister against the dangerous principle he is laying down here. I do not mind if he takes over part of the responsibility, but he should not take the whole responsibility. The Minister may answer that the State is doing the writing-off, but we should also take into account what the people have contributed towards the development of those areas; that cannot be calculated in money only, but also in endurance and energy, which has enabled them to do their share for the development of those parts. We have a good class of settler along the big rivers, people who under the most unfavourable conditions transformed those parts into productive areas and we ought to acknowledge their share also in the control of the water. The Prime Minister told me, that this is the first one of a series of Bills he is going to introduce. I warn him that if the irrigators know that the Minister is going to have complete control when he does the writing-off, they will not be satisfied with it and I reckon that he will not be acting in the interest of the welfare of the irrigators in general when doing that. I hope that the Minister will allow himself to be persuaded to amend in particular Section 5 when we come to the Committee stage.

I would fail in my duty if I did not say a few words at this stage, particularly in connection with the Minister’s remark that he is still going to introduce a series of Bills of a similar nature.

I did not say so.

The hon. member for Gordonia (Mr. J. H. Conradie) intimated that.

But I did not say it.

I am glad the Minister says that he has no intention to do so. I represent one of the largest irrigation schemes in the country, if not the largest, and I also feel that it is unfair that the Minister should usurp all this power. I agree with the writing-off, but as far as Clause 5 is concerned I share the feelings of the hon. member for Gordonia that it would be better if the Minister gave the Board which he intends appointing, a more local character and if rather he gave the settlers the right to elect a few representatives on the Board. That would give more satisfaction, and I hope that he will accept an amendment to that effect during the Committee stage. The Minister himself is now going to appoint all the persons.

Apart from the Director of Irrigation, all the people on the Board will be irrigators.

Yes, but who appoints them. I think it is desirable that they should themselves elect two or three members on the Board. That would create a much more satisfactory position. The Minister may appoint whatever persons he likes, there will always be dissatisfaction. That he should reserve for himself a certain measure of authority and control is quite right, but I believe that provision should be made for the irrigators themselves also having a certain measure of say in the composition of the Board. I furthermore notice that the Minister is going to exercise a certain power which may work out detrimentally in regard to the administration of the Act, and that is that he reserves the right to himself of cutting off the water when an irrigator is in arrear with his instalments. In other words, the settler concerned may suffer considerable damage as a result of such action. He may at a certain moment not have the money available to pay and in the meantime his products wither and his crop is ruined. That is most undesirable. Seeing that the Minister after all reserves the right to prohibit such a settler to transfer his land in such a case before the water dues have been paid, I am of opinion that there is sufficient provision in the Act to protect the financial interests of the State. We have the same provision in regard to the transfer of immovable property and it works very well indeed. That could also be applied here so as to ensure that the Government will not lose any money. As the Government has that power, it is not desirable that these further far-reaching powers should be granted to the Government, for in that case a person when he is one year in arrear with his taxes, may all of a sudden lose his water because it is cut off. I think that will be a great hardship and should not be done. That power may be abused, if not by the present Minister, then by someone else. For that reason I believe that the Minister should not introduce this power into the Bill. There is ample cover to gather the taxes under Clause 7 of the Bill, for the man will not have the right to transfer his land unless the arrear taxes have first been paid. That should be sufficient.

I also want to express my appreciation to the Minister for meeting these people by the introduction of this Bill which will mean that a large part of the capital debt will be written off. I cannot entirely agree with the Opposition’s attitude as regards the rights of the State. When the State spends so much money on irrigation, money of the taxpayer, it is but just that the State should keep the control in its hands and should control the water. I can well understand hon. members on the other side saying that people falling under this scheme should have the right to elect the Board. I agree with them that they should have the right to elect some of the members on the Board, but as the money of the taxpayers is spent for the public, the State should keep the power in its hands. I therefore hope that at the Committee stage the Minister will agree to the irrigators being given the right of electing a certain percentage of the members. Let the State have the majority, but allow the irrigators also to elect a few members.

I should like to make an appeal to the hon. Minister in regard to Clause 5. Hon. members on the other side say that the State has been writing off so much money, and should consequently have all the control. They now expect that the State should apply this principle right through the country, for where do we find an irrigation scheme on which the Government has not spent much money, and has given a large subsidy or written off hundreds of thousands of pounds? We are afraid that this will be the thin end of the wedge. Once it has been entrenched in legislation that the State through its Director of Irrigation and a Committee under him will control these matters in regard to Irrigation Boards, we are proceeding in a wrong direction. The Minister himself hails from a rural area, and he knows how, in regard to Government farms, the Government will settle its nominees there, but never all of them. In the past we had the position in the Cape that a Divisional Council always had the Magistrate as its Chairman, who, at the same time, represented the Government. That was changed because it was found that there might be better and more able local persons to act as Chairmen. But once it has been laid down in the written law that the Director of Irrigation shall be the Chairman of the Board, I am afraid that we shall have adopted a principle which will be copied in one Act after the other. The local people are, after all, the people who have the best knowledge of all the circumstances. I have every respect for the Director of Irrigation’s knowledge as an engineer, but very often the practical farmers will be able to propose the best solution for local problems. Assuming, for instance, that something goes wrong with a furrow, that erosion takes place, or that the furrow collapses, then they first have to get in touch with the Director of Irrigation.

No, that is not the case.

But why, then, should the Director of Irrigation be made Chairman of the Board? Will he only be a rubber stamp? I want to ask the Minister politely to alter this clause, and to allow those people to appoint their own Boards. They know the position, and up till now have proved a success. I agree with the hon. member for Swellendam (Mr. S. E. Warren) that there should be a limit fixed for the period for which members are appointed. It should be limited to three years, so that after three years other people can be elected, I am afraid of the principle mentioned which may prove to be the thin end of the wedge. I earnestly appeal to the Minister to give the irrigators the right to elect their Boards, as otherwise we may be doing great harm to the work of the Irrigation Boards.

I think hon. members are labouring under a misapprehension. First of all, I should like to explain that they have to distinguish between this scheme as a purely and exclusively Government scheme; and, on the other hand, private schemes. There is a very great difference between the two. I just want to say that in this case the people themselves have never yet elected a Board. It was never administered by themselves. As long ago as 1927 the Government took it over, and from that time onwards we controlled the scheme with the Board as it will now again be appointed in terms of this Bill. From 1927 the scheme has been controlled in this way, and this Board will be appointed for three years.

Where is that? It is not in the Bill.

That has been the custom all those years. Every three years a new Board is appointed. It is, of course, possible to re-elect some of the old members. I am afraid that under the circumstances we cannot depart from the composition of the Board as it was in the past. The greatest danger we can run is that if we venture to leave it in the hands of those people, there will be wrangling from January till December, because they will try to get people in their particular political clique in order to control the Board. Up till now the Board has been functioning well, and the irrigators are very satisfied with the position and accept Clause 5.

It is not my information that they are satisfied.

The hon. member for Namaqualand (Lt.-Col. Booysen) is not present owing to illness, and he does not say so.

The hon. member for Namaqualand is not an irrigator. He used to possess large tracts of land there. He used to be more a speculator than anything else. He sold most of the land.

He still has half of it. He only sold half.

As regards the distribution of water, the hon. member for Swellendam is afraid that the rights of riparian owners will be affected, and that they will not receive their due share. No riparian owners’ right is being touched. As far as the distribution of water per morgen is concerned, I may tell you that the amount of water allotted at the Oliphants River is more than in any other part of the Union of South Africa, at any other settlement or irrigation work we have in the Union. Up to 48 inches per annum is allowed to those people, and that in a dry area. I think this reply also removes the objection in regard to Clause 5. The hon. member for Prieska (Mr. Geldenhuys) spoke of the right to cut off the water when irrigators are in arrear with their payments. That right we have, and it is being used today, but it is being used very sparingly, and only in cases where irrigators wantonly refuse to pay their taxes. Only in that case do we go to the extreme limit, and we always give them one or two years’ time, and in some cases we gave irrigators even five years in which to pay their arrears. But when an irrigator does not admit and fulfil his obligations, we ultimately proceed to cutting off his water. That right is applied with the utmost care. The hon. member over there now says that we can wait until the man wants to transfer his bond. You cannot do it. First of all, it may happen that an irrigator does not get his deed of transfer for ten years. And once he has his deed of transfer and we would have to wait until such time as he sells again or transfers it to someone else, we may in some cases have to wait for years and years to get our taxes in. They receive terms up to 65 years. It therefore cannot be done. I hope that the Second Reading will now be agreed to.

I move—

I object.

I move—

It is a principle of any Constitution that it is the duty of a representative of the people to exercise an independent judgment, uninfluenced by any financial benefit in the bestowal of the Government of the day; that priniciple, which I venture to say has stood the test of time, is entrenched in our Constitution. In terms of Section 53 of the Act of Union it is provided—

And then Section 55 reads that—

That was the position as laid down and defined in the Act of Union. Recently it was proposed to appoint a member of Parliament to the newly constituted National Nutrition Council and some doubt was expressed as to whether or not such an appointment might, in terms of the relative sections of the Act of Union, disqualify the member of Parliament in question, under the provision of Section 52 (d). The matter was therefore gone into—the question of membership of boards and councils, and other bodies, by members of Parliament, was gone into,—and it became clear from the advice which the Government received that membership of the National Nutrition Council would constitute an office of profit under the Crown. That enquiry, sir, led to enquiries in other directions, and it was discovered that, quite inadvertently, and in quite a bona fide fashion, certain members of Parliament and members of previous Parliaments, had become members of Boards or bodies which in terms of a true construction of the legal position, constituted offices of profit under the Crown. There are members of this present House, sir, who belong to various bodies and who are rendering there valuable services, and receiving very little for it, but who are technically contravening the law, and are liable, not merely to the loss of their seats, but also to a claim by the Government for large sums of arrear emoluments. As I say, this position has arisen bona fide. Possibly certain successive governments have led members of Parliament into a false sense of security through not pointing out to them the potential danger of accepting positions in regard to which their appointment would have to be regularised, and the actions of the members condoned and provision made for the future. A difficulty arose in regard to the basis upon which the Government should act. Should the Government exclude from the definition “office of profit under the Crown” all Councils, Boards and other similar bodies where the members receive no more than a stated sum by way of out-of-pocket expenses, and the number of sittings of the Board is limited? These and other questions were very carefully gone into, and eventually in the light of all the circumstances, it was proposed to adopt the method set forth in this Bill.

It might be of interest to hon. members of this House to know that as far back as 1910 the question of Parliamentary Commissions was enquired into. The point arose in those early days whether it would be competent for a member of Parliament to sit on a Commission and draw emoluments, and I think it has been very fairly clearly established, and has been accepted as a principle, that membership of a Commission does not constitute an office of profit under the Crown. The only South African case dealing with the question was that of Hedley versus Cilliers, decided by the Cape Supreme Court. That case, Mr. Speaker, does not attempt a definition of the term, but it is authority for two propositions which may be interesting. The first proposition is that an office may be an office of profit without any salary being attached to it, provided only the holder is entitled by virtue of such office, to some fee or other emolument, and the second proposition is that the temporary nature of the appointment of the holder of the office does not affect the fact that he is the holder of an office of profit. The conclusion arrived at was that it was perhaps impossible to give an exact definition of the term “office of profit”. But the gist of it is that it should be a situation or employment not merely “transient, occasional or accidental”. Now an ordinary Parliamentary Commission is not something permanent, it is occasional and transient, though I hope, sir, not merely accidental. A Divisional Council is a permanent body, Parliament is a permanent body, though not quite as permanent as some hon. members would wish. But as an institution it is a permanent body. A Commission is a temporary body, and as such, membership of a Commission does not constitute an office of profit under the Crown. Well, sir, in this Bill it has been sought to avoid any amendment of the Constitution which might lead to a circumvention of the existing salutary provisions against the holding of an office of profit, and the method adopted has been to set forth in Clause 1 certain specific bodies named therein, and to provide that membership of those bodies in the past or in the future shall not constitute an office of profit. These bodies are the Council of Public Health established by the Public Health Act of 1919; the South African Medical Council; the South African Pharmacy Board, established by Section 2 of the Medical, Dental and Pharmacy Act; the National Nutritional Council, established by the Public Health Amendment Act of 1940; and the Council known as the Social and Economic Planning Council. Section 1 provides that any person appointed before or after the commencement of this Act, who is a member of one of these bodies, and who receives any payment in respect of his services on such Council, Board or Committee, in excess of an allowance at the rate of £3 3s. for each day, together with reimbursement of any travelling expenses incurred by him, shall not be deemed to hold an office of profit. That deals with the position so far as the past is concerned, as well as the future. Clause 2 has been inserted in order to safeguard present or past members of Parliament who may at the present time, be members of a body other than those mentioned, and who may inadvertently have been contravening the law. It is worded in these terms. It provides that—

Therefore so far as the past is concerned, before any person can be affected, it must be shown that he held an office under the Crown, and that his emoluments were more than those stated in the section. That section then will regularise the position in regard to the past. It will condone any breach of the Act which may have been incurred unwittingly by members of Parliament in the past, but so far as the future is concerned, members of Parliament should now be on their guard. They must now be presumed in future to realise the inherent danger of accepting an office that might be possibly construed as an office of profit under the Crown, and they will know that unless they are members of the four specific bodies mentioned, they will have to examine the position very carefully before accepting membership of any such body. It may mean that certain members of this House may have to resign from certain bodies of which they are members at the present time. There is, for instance, an Advisory Council of Labour. I understand that an allowance of £1 1s. a day is paid to the members who attend, and membership of that Council in terms of the legal interpretation constitutes an office of profit, and renders the person in question open to being unseated and having to contribute to the Crown and the Treasury all the emoluments he may have received by way of Parliamentary salary since the acceptance of that office.

What about members of School Boards and Divisional Councils?

Hon. members will have to deal with each particular case in the light of the circumstances; they will have to satisfy themselves whether they are holding an office of profit. There must be an air of permancy about it, to be an office of profit under the Crown. There are certain bodies, such as the Food Supply Board, the Dried Fruit Council, the Wheat Control Board, the Wool Council, the Tobacco Council—I mention a few which are not bodies which receive their funds from State funds. I do not give an opinion this afternoon whether membership of those bodies constitutes an office of profit. Those bodies are certainly not excluded from the definition in Section 1, but it may well be that the fact that the moneys, the salaries or emoluments which are paid, come from levies and not from State funds, may place membership of such bodies outside the category of offices of profit. But hon. members will have to be on their guard and will have to apply the test in the light of all the circumstances.

Does that mean that members of Parliament will have to resign from Divisional Councils?

No, I hardly think so. I did not know that there were any emoluments or salaries attaching to membership.

Ten shillings a day and travelling allowance.

Well, the very question raised by the hon. member shows how difficult it is. I doubt whether it is an office of profit under the Crown. I, unfortunately, am not able to deal with this matter from the point of view of giving a legal opinion; I can only point out the dangers and difficulties, but I would say that the question of membership of a Divisional Council, so far as I know, has never arisen in this connection.

Why not make provision in the Act for it?

That is a matter which I am prepared to consider, and on which I shall consult the law advisers; my prima facie view is that it is not necessary to do so, but I am not able to give a decisive answer. I hardly think that membership of a town council is an office of profit under the Crown; it may be an office of profit, but certainly not under the Crown. They are on the same footing as Divisional Councils. There is a very great distinction between membership of such bodies and holding an office of profit under the Crown. The whole idea underlying this is to prevent an abuse of patronage by the Government of the day, by favouring an individual member of Parliament and so securing his allegiance. That is the principle at stake. The Divisional Council does not fall within the scope or jurisdiction of a Ministry of the Crown sufficiently to make membership an office of profit. A town council is in a similar position. Membership is dependent on popular election.

So is a Divisional Council.

Membership does not depend upon the will or fancy of an individual Minister or the Government, and once that element of patronage is removed, I should say that these offices do not fall within the definition. I think I have said sufficient, and the interjections which have developed during this almost fireside chat, in regard to the existing legal position, show the difficulties against which the members of Parliament must be on their guard. I would welcome any suggestions which hon. members may wish to make, because quite obviously from the remarks that have been made, this matter raises a very difficult and complicated question. I move, sir.

Nobody will object to a Bill being introduced in this House to prevent certain members who have been sitting in this House for many years, being fined for losing their seats because they are members of one or other of the bodies mentioned. Some doubt existed, and the law adviser of the Government did not think it would be necessary to grant exemptions, but that it would be better to introduce a Bill of this nature. But after the speech of the Minister I have the impression that the whole matter is still hanging in mid-air. We still do not know where we are. The Minister was not prepared for this subject. He had only prepared himself for these few things here, and when he was interrupted, it very soon became apparent that the entire matter is still quite uncertain. All that is being laid down in this Bill is that in the case of the four Boards mentioned, members of the House of Assembly cannot be unseated or fined when they are members of those Boards. By way of interjections, however, quite a number of other cases were mentioned and all those cases are still as undecided as in the past. That is a very disappointing state of affairs. There are many other cases which should have been covered by the Bill. I am now, for instance, thinking of the position of matters of the Executive Committees of Provincial Councils. We had that case when in 1915 Mr. Havenga was elected as a member of Parliament. He was a member of the Provincial Executive Committee, and he was unseated because the Court decided that he was holding an office of profit under the Crown. Although a member of the Provincial Council could stand for Parliament, a member of the Executive Committee could not do so. The Minister mentioned the case of a few Agricultural Boards. A few years ago we had the difficulty in connection with Justices of the Peace, and special legislation had to be introduced in order to relieve Justices of the Peace from being considered holdingoffices of profit under the Crown. We had, so to say, to pass legislation for the exemption of members of Parliament. And today we heard here that there are still strings of cases the Minister cannot give an opinion on. Of course, this House does not expect him to give a legal opinion in this House. But the Minister’s speech has shown that, even if this Bill were to go through, the danger would still exist of a whole series of Court cases having to be fought, because this Bill does not clearly cover those cases. When a member of Parliament happens to be appointed to a Divisional Council or a School Board or to many other bodies, for which he receives a small allowance, the danger always threatens that a petition may be filed with the Court in order to deprive him of his seat, and then we shall again have to pass an exemption measure here. That is an entirely unsatisfactory position. Members of Parliament will be in the position that they have not the faintest idea on which kind of organisations and bodies they, can accept appointments. I therefore think that it would be in the interest of hon. members of this House if the whole subject were referred to a Select Committee before the second reading, or if the Minister would refer it to the law advisers. It is quite obvious that this matter has not been thoroughly thrashed out. The Bill is incomplete, for it only makes provision for four cases, whilst there are scores of cases, about which there is no certainty whatever. I think the Minister should withdraw the Bill and refer it back to the law advisers, or if that cannot be done, have it referred to a Select Committee. My personal opinion is that that would be the best course.

They have worked on it for a year.

And the Minister now enumerates a whole series of cases which may be considered as offices of profit under the Crown, and he is not able to say what the position of members is going to be if they occupy such positions.

The Bill lays down that in these four cases the positions will not be considered as offices of profit; the other cases fall under the existing legislation.

This is our clearest proof of the obscurity of the whole position. If any doubt should exist in regard to Divisional Councils. School Boards, or the Advisory Labour Council or other bodies concerned with agriculture, then we ought to bring those appointments within the scope of this Bill in order to clearly establish whether they are offices of profit or not. If it is the Government’s intention that such positions should be considered offices of profit under the Crown, it should distinctly say yes or no. My personal opinion is that the Minister ought to withdraw the Bill. We are willing to be helpful, but there is little use in placing a legislative measure such as this on the State Book and leaving scores of difficulties unsolved. Will the Minister consider it. Perhaps we can agree to the Second Reading provided the Minister thereafter again consults his law advisers so that all those cases may be dealt with as fully as possible.

I am prepared to have the Bill referred to a Select Committee after the Second Reading.

But will we be allowed to include the other bodies?

Why not?

If that is the case I have no objection. But once we have accepted the principle—I do not want to anticipate Mr. Speaker’s ruling—it may perhaps be held that since four cases are mentioned here which are specifically excluded from being regarded as offices of profit, we shall not be allowed to add the names of other bodies, because that will be held to be a violation of the principle already accepted. That danger exists. If that danger does not exist, the best solution will be to agree to the Second Reading and thereafter refer the Bill to a Select Committee. We may, however, find ourselves in the position that such amendments will be ruled as being outside the scope of the Bill as read a second time and then we would be stuck. If the Minister would undertake in that case to agree to an instruction or to withdraw the whole Bill, it would be all right. But we cannot let the Bill go through as it is whilst all the other cases are still hanging in midair. That is the reason why I want to appeal to the Minister to make sure that this problem will now be solved once and for all, so that the members may know definitely which positions they may accept and which not. That will put a stop to the Exemption Bills which have continually to be introduced in this House.

There is much to be said for us obtaining clarity in this matter at last. But there is also something to be said for the cases the Minister has enumerated in this Bill, because that concerns persons already occupying those positions in regard to which the Minister is doubtful and which he does not think are offices of profit, and about which the law advisers have been in doubt for years; there is something to be said for obtaining an immediate decision in regard to those cases. There are many other cases which have not been included. That is quite true but those are not cases where persons have been appointed by the Government of the day.

But what about the Advisory Labour Council?

We are principally concerned with cases where persons have been appointed by the present Government or previous Governments and where we are not sure whether they occupy offices of profit or not. There must have been reasons why the Government asked those particular persons to accept those appointments. I do not say that there are no other persons which might have filled those positions as efficiently. But seeing that the Minister made the choice, we must admit that provision should be made for the persons concerned who are also members of this House, both in regard to the past and in regard to the future. I can visualise that when we are going to open the door for all kinds of possible appointments which have nothing to do with the Government of the day, it will grow into a very comprehensive problem. It may be possible to deal with the matter by means of a Select Committee or even in Committee of the Whole House. I hope, however, that this Bill will in no case be withdrawn.

No, we shall not withdraw it.

I should like to have clarity on all aspects of the matter, especially in regard to Divisional Councils, School Boards and membership of the Executive Committees of the Provinces. There are also some other Boards. I was surprised about the Minister’s statement in regard to the Advisory Labour Council. I also cannot see why persons serving on other Boards which do not sit for months, but perhaps for a few days in the year only, cannot be included in this Bill. If this Bill goes through as it stands, I shall apparently have to resign as a member of the Leprosy Board. That is a Board which sits for one or two days a year only.

Why should such a Board not be mentioned too?

In order to expedite matters it will perhaps be possible to refer the Bill to a Select Committee after the Second Reading. The people who would want to give evidence are mostly present here. But I do hope that the Minister will not withdraw the Bill altogether.

I should also like to add a few words to the debate. When I became a member of this House, I had to resign from not less than seven bodies in my town. One instance I want to mention is the Licensing Board, on which I served for years and years, and on which I think I maintained the high ideals of Afrikanerdom. But sometimes we held special meetings for special purposes, once or twice a year, and then I received £1. I had to resign then, for this was an office of profit under the Crown. This is an anomaly. The hon. member for Graaff-Reinet (Dr. Bremer) referred to the Boards he is serving on, and on which he does work in the interest of the public health. But as soon as he receives a small remuneration, he is not allowed to do that work. There is always the possibility of creating difficulties in connection with the complicated legislation we have in regard to this matter. A man may get a few pounds a year if he does work in the interest of the people, and that is not allowed. But, on the other hand, we have the fact that some of our members here are drawing up to £2,000 per year in connection with the war, and that is allowed. That is allowed, but when some of our members render honourable services, they may not do so. We welcome this Bill, but there are still other anomalies of a similar nature which should be removed. For that reason I support the idea of the hon. member for Winburg (Mr. C. R. Swart) that the Minister ought to consider reviewing the whole position, so that when one of us wants to do something in the interest of the people, it will be possible for him to do so. The Social and Economic Planning Council is mentioned here, but why not the Licensing Boards. That is also a social and economic matter, and there are other similar services. I served, for instance, for 18 years on the Hospital Board, of which I was the Chairman. But as on certain occasions small allowances were paid for paying one’s expenses, I could not remain a member. Surely it is only fair, when a person sacrifices his time and the income he might have earned in that time, that he should receive some compensation for the outlay which he had to pay out of his own pocket. But we are not allowed to do so. Even if one receives only 10s. compensation, it is already an office of profit under the Crown. I therefore hope that the Minister will go into the matter also in connection with other services where there may be payment of small allowances and fees he will make it possible for members of this Board to give of their services.

I should like to ask the Minister to agree to the adjournment of the debate. This matter is of great importance, not only to members of Parliament, but also to the general public. We should like to give the Minister an opportunity to go into the whole matter and to make himself better acquainted with all aspects of it. I therefore want to move the adjournment of the debate.

I want to move it, and then the debate may be adjourned.

Why cannot I move it? I should like to continue with the debate on this Bill. I therefore move—

I second.